DECISION AND ORDER Defendant Hector Sarcone, charged with one count of Driving While Intoxicated [VTL 1192(3)], one count of Driving While Impaired [VTL 1192(1)], two counts of Leaving the Scene of an Accident without Reporting with Personal Injury [VTL 600(2)(a) and 600(2)(c)], and one count of Leaving the Scene of an Accident without Reporting with Personal Injury [VTL 600(1)(a)], moves by motion dated May 3, 2023, for an order: 1) dismissing the accusatory instrument pursuant to CPL 30.30 and CPL 170.30(1)(e); 2) dismissing the accusatory instrument pursuant to CPL 30.30(5-a) and CPL 170.30(1); 3) finding the People’s COC dated March 30, 2023 invalid under CPL 245.50(1); and 4) granting any other relief the Court deems proper. For the reasons that follow, Defendant’s motion to find the People’s COC, dated April 3, 2023, invalid and dismiss pursuant to CPL 30.30 and CPL 170.30(1)(e) is GRANTED. Background and Procedural History Mr. Sarcone was arrested on December 30, 2022, relating to a vehicular incident that occurred on the same day. Mr. Sarcone is alleged to have been driving in an intoxicated condition when he struck another vehicle, causing the occupant of that vehicle to suffer back and neck pain as a result of the collision.1 The Defendant is further alleged to have stated in sum and substance “I was drinking” and “I had 5-6 ecstasy.”2 On January 1, 2023, the Defendant was arraigned, and the matter was adjourned to January 30, 2023, for supporting deposition. On January 30, 2023, the People filed and served a supporting deposition for Claire Cannon, one of two necessary supporting depositions for this case. The case was then adjourned again for conversion to March 13, 2023. On March 13, 2023, the case was adjourned again for final conversion to April 3, 2023. On March 30, 2023, off-calendar, the People filed with the Court a discovery disclosure list, a certificate of compliance (COC) and a certificate of readiness (COR) through the Electronic Document Delivery System (EDDS). The People also served these items upon the Defense via eDiscovery. No supporting deposition from Police Officer Patrick Magee (PO Magee) was filed with the Court at this time leaving the charge of Operating a Vehicle While Ability Impaired by Alcohol [VTL 1192(4)] unconverted. On April 3, 2023, the People stated ready for trial. The Court noted that it did not have a copy of the supporting deposition for PO Magee. The Court acknowledged receipt of a COC and COR that had previously been filed through EDDS on March 30, 2023. The standing ADA was unable to provide any additional information as to whether the supporting deposition for PO Magee had been filed with the court with the COC and COR. The Defense argued against conversion indicating the People failed to provide the supporting deposition to the court before the 90th chargeable day. The Court deemed the People ready, from the bench, and suggested that any conversion issues could be resolved through motion practice. The case was then adjourned to May 3, 2023, for trial. On April 3, 2023, off calendar, the People filed with the Court a second discovery disclosure list, PO Magee’s supporting deposition, a supplemental certificate of compliance (SCOC) and COR via the EDDS. On May 3, 2023, the People moved to dismiss count three on the accusatory instrument, Operating a Motor Vehicle While Ability Impaired by Drugs [VTL 1192(4)]. On the same day, Defense filed the instant motion to dismiss. The court then set a motion schedule and adjourned the case to June 20, 2023, for decision. On May 18, 2023, the People filed their response off-calendar. On June 26, 2023, the case was adjourned for decision again to July 7, 2023. Discussion Conversion and Readiness Mr. Sarcone is accused of multiple charges, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony. The People are required to be ready for trial within 90 days from the commencement of the criminal action, less any excludable time. CPL 30.30(1)(b). Although commencement of a criminal action begins at the arraignment, computation for speedy trial purposes begins on the next day. People v. Stiles, 70 N.Y. 2d 765 (1987). Once a defendant alleges that an excess of the allowable time has elapsed, the burden shifts to the People to demonstrate whether any periods are to be excluded from the calculation, such that the allowable time has not elapsed. People v. Santos, 68 N.Y.2d 859 (1986); People v. Berkowitz, 50 N.Y.2d 333 (1980). Mr. Sarcone contends that the People’s March 30, 2023, COC, and COR, filed off calendar and via EDDS, is invalid by not simultaneously filing PO Magee’s supporting deposition, thus failing to convert the complaint to an information. Therefore, he argues that the People never tolled the speedy trail clock but rather accrued 123 days of includable time from the commencement of the action. The People contend that only 88 chargeable days have elapsed. The People concede that they filed a COC, COR, ADF, and Discovery List off-calendar on March 30, 2023, via EDDS, but inadvertently failed to include PO Magee’s supporting deposition.3 They argue, however, that on April 3, 2023, the case was properly converted and deemed an information by the Court, the “first business day after the 90 days allotted under CPL 30.30.”4 They rely on General Construction Law §25-a(1) which provides that, when the 90th day of statutory time pursuant to CPL30.30 falls on a Saturday, Sunday, or holiday, the People have until the next business day to state ready. People v. Powell, 179 Misc.2d 1047, 1048 (2nd Dept. 1999). Only when the complaint is deemed an information, and the People certify compliance with their discovery obligations, can the People answer ready. The People are deemed “ready for trial” when they either 1) communicate their actual readiness in open court or 2) file a certificate of readiness with the court and serve a copy on defense counsel. People v. Kendzia, 64 N.Y.2d 331 (1985). “Effective readiness” requires that a jurisdictionally sufficient accusatory instrument has been filed. See, People v. Morris, 63 Misc.3d 626 (Crim. Ct. Bx. Co 2018) (citing, People v. Matthew P., 26 N.Y.3d 332, 335 [2015]; People v. Dreyden, 15 N.Y.3d 100, 103 (2010) (“a valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution.”)) Hence, here, when on Monday, April 3, 2023, the People filed, via EDDS, the missing supporting deposition for PO Magee, ADF, COC, and COR, their statement of readiness was valid, as said date was the first business day following the 90th day of statutory speedy trial time. Certificate of Compliance Mr. Sarcone challenges the validity of the People’s COC and COR dated April 3, 2023, contending that the People have failed to disclose certain discoverable materials pursuant to Criminal Procedure Law (CPL) §245.20(1). Explicitly, Defendant argues that the People, prior to filing their COC and COR on April 3, 2023, failed to turn over: 1) underlying logs for all substantiated and unsubstantiated police misconduct allegations for Police Officer Rafael Cruz (PO Cruz) under CPL §245.20(1)(k); 2) underlying Civilian Complaint Review Board (CCRB) documentation for allegations against PO Cruz; 3) medical records for the complaining witness; 4) adequate contact information via Witcom for the complaining witness; 5) Giglio materials for Police Officer Jamarie Alba (PO Alba) and Sergeant Shannon O’Brien (Sgt. O’Brien); and 6) photos of the alleged property damaged in the instant matter, taken by the complaining witness. The People declared that they have acted reasonably and complied in good faith in making the obligated discovery disclosures. The People acknowledge that after filing the April 3, 2023, COC, and COR, they turned over missing items (previously listed as items 5-6). The People further argue that 1) CPL §245.20(1)(k) does not require the People to disclose all underlying police misconduct records; 2) they turned over all impeachment materials in their actual possession; 3) all underlying disciplinary records are not in the actual possession of the prosecution; 4) they reasonably relied on trial court case law holding that the disclosures the People made in the instant matter were sufficient to comply materials in their actual possession; 3) all underlying disciplinary records are not in the actual possession of the prosecution; 4) they reasonably relied on trial court case law holding that the disclosures the People made in the instant matter were sufficient to comply with CPL245; and 5) CPL §245.20(1)(k) only requires the People to disclose “information that relates to the ‘subject matter of the case.’”5 Pursuant to CPL §245.20(1), the “prosecution shall disclose to the defendant…all items and information that relate to the subject matter of the case and are in the possession, custody or control of the prosecution or persons under the prosecution’s direction or control….” It also requires the prosecutor to “make a diligent, good faith effort to ascertain the existence of…[discovery and turn over all materials]…where they exist but is not within the prosecutor’s possession, custody or control;” CPL 245.20(2).6 Specifically, CPL §245.20(1)(k) requires, among other things, that the prosecution disclose: “All evidence and information, including that which is known to police or other law enforcement agencies acting on the government’s behalf in the case, that tends to “impeach the credibility of a testifying prosecution witness…[i]nformation under this subdivision shall be disclosed whether or not such information is recorded in tangible form and irrespective of whether the prosecutor credits the information.” CPL §245.20(1)(k) (emphasis added). Once the prosecution has met this burden and before answering ready, they must file with the Court a COC attesting to their due diligence and good faith effort to ascertain CPL §245 also addresses situations where a party claims that certain materials are not discoverable. Pursuant to CPL §245.10(1)(a), the People must also attest that they are not withholding any evidence pending a ruling on a protective order.7 Here, the People failed to comply with CPL §245.20(1)(k) discovery disclosures relating to evidence and information regarding potential impeachment material when they only shared a Disclosure Advisory Form, or “DAF,” for PO Cruz, an officer listed as a potential testifying witness at the time they filed their ADF, initial COC, and COR on March 30, 2023, and their supplemental ADF, COC, and COR on April 3, 2023. The People disclosed to the Defense a DAF containing summarized information for PO Cruz’s four substantiated and one unsubstantiated Internal Affairs Bureau (IAB) misconduct allegations.8 No underlying IAB records accompanied the People’s disclosures for PO Cruz. The Court notes that on May 3, 2023, the People attempted to cure any deficiencies in conversion by dismissing count three on the accusatory instrument, VTL 1192(4), thus absolving the requirement of a supporting of deposition from PO Magee. However, the issue of PO Magee’s involvement in the case did not and does not absolve the People of their responsibility to turn over underlying police misconduct materials for PO Cruz. Thus, in order to comply with CPL 245.20(1)(k), the People were still required at this time to disclose potential impeachment material for PO Cruz prior to filing a valid COC. This Court has previously held9 and holds that the DAF does not satisfy the statutory requirement. The DAF is a District Attorney-generated document containing the Assistant District Attorney’s summary of its own review of misconduct materials relating to its testifying police officer witnesses. Prior to the filing of the People’s initial COC, the People had not provided any underlying records or materials that relate to allegations of misconduct for a testifying police officer, PO Cruz, in this case. This Court is of the opinion that such a skeletal disclosure is not what the legislature intended when it enacted CPL §245.20(1)(k).10 The People failed to completely comply with CPL §245.20(1)(k) by failing to disclose underlying logs for PO Cruz. Although decisional law on this issue is still unsettled, and the Court acknowledges very little appellate authority on this issue,11 this Court stands by its prior findings that all underlying documents relating to substantiated police misconduct allegations, and accompanying disciplinary records must be disclosed, see, People v. Luis Lemache Moina, CR-023199-22NY, Decision and Order, June 7, 2023; People v. Ian Eleazer, 78 Misc.3d 1222(A) (Crim. Ct. N.Y. Co. April 11, 2023); People v. Guzman, 77 Misc.3d 1223(A) (Crim. Ct N.Y. Co., January 6, 2023); People v. Sanders, 2023 NY Slip Op 50190 [U] (Crim. Ct. N.Y. Co. 2023), as well as unsubstantiated misconduct allegations, see, People v. Kelly, 71 Misc.3d 1202(A) (Crim. Ct. N.Y. Co. Mar. 19, 2021, Gaffey, J.); People v. Perez, 71 Misc.3d 1214(A) (Crim. Ct. Bx. Co., April 8, 2021); People v. Castellanos, 72 Misc.3d 371 (Sup. Ct. Bx. Co., April 30, 2021); People v. Edwards, 74 Misc.3d 433 (Crim. Ct. N.Y. Co., October 8, 2021, Weiner, J.); People v. Darren, 75 Misc.3d 1208(A) (Crim. Ct. N.Y. Co. May 19, 2022, Rosenthal, J.) and not just a summary of misconduct allegations. This school of thought is based on the premise that whether police misconduct allegations are substantiated, or unsubstantiated due to a lack of evidence, such information would tend to impeach the credibility of a testifying police witness. Since the credibility of a testifying witness always relates to the subject matter of a case, this Court is of the opinion that the information is discoverable. Accordingly, this Court rejects the People’s contention that the People were not required to disclose underlying materials for PO Cruz’s substantiated allegations of “fail to safeguard — not vouchered prisoner property-USC,” “i) failure to properly search — vehicle — department vehicle and ii) found property — in department vehicle — marijuana,” “i) failure to properly search — vehicle — department vehicle and ii) found property — in department vehicle — controlled substance,” and “i) invoice discrepancy — bank drop — shortage (not counterfeit), and ii) report incomplete/inaccurate — property clerk invoice” and unsubstantiated allegation of “other dept rules/procedures violation (unsubstantiated) — PD is not listening to or respecting CV” because these allegations do not relate to the subject matter of the instant case.12 Since the actual underlying records for PO Cruz were not and still have not been disclosed, the limited information provided in the DAF is essentially being filtered through the prosecutor’s lens. As this Court13 and other recent courts have held, this disclosure is insufficient and does not comply with the statute. See also, People v. Goggins, 76 Misc.3d 898 (Crim. Ct. Bx. Co., September 6, 2022); People v. Best, 76 Misc.3d 1210(A) (Crim. Ct. Queens Co., September 13, 2022). Moreover, the People do not list what efforts, if any, were made to obtain this underlying documentation for PO Cruz. The People are not the final arbiters of what is discoverable.14 Rather, the People are required to automatically disclose evidence and information and where there is uncertainty, there is a presumption in favor of disclosure.15 In the alternative, the People may move for a protective order or otherwise seek a court ruling following a court’s in camera review of any materials for which they believe there exists good cause to redact or withhold. However, the People, yet again, did not avail themselves of the tools provided by statute. Although the People are free to take a position as to what they believe they are required to disclose, a decision on their part to withhold or redact potentially discoverable materials is made at their peril, and is not without potential consequences, including dismissal. See, Best, supra at *7. Moreover, the Court notes that although the legislature has provided a framework for the issuing of sanctions for discovery violations, such sanctions are intended for belated disclosures and not for a complete failure to disclose information.16 Accordingly, there is no need to analyze whether Defendant was prejudiced, and no sanctions are warranted in this case where the People did not merely belatedly disclose impeachment materials, but failed to disclose these materials at all for PO Cruz. Thus, the People were not truly ready at the time they filed their COR, causing their COR filed on April 3, 2023, to be invalid. As the People’s COC was prematurely filed, the issue as to whether the People’s COC dated April 3, 2023, was invalid due to the belated disclosure of the complaining witness’s contact information, Giglio materials for PO Alba and Sgt. O’Brien, and photos of the alleged property are purely academic and will not be part of the Court’s analysis. Therefore, this Court finds the People’s COC dated April 3, 2023, invalid. Since a COC is a pre-requisite, any COR filing, or subsequent certificates of readiness on those same dates are hereby invalid. The Court makes the following speedy trial calculations with respect to each adjournment: January 1, 2023 — January 30, 2023 The case was arraigned and adjourned for the People to provide a supporting deposition. This period is chargeable to the People. 29 days are charged. January 31, 2023 — March 13, 2023 The People did not have a supporting deposition and the case was adjourned again for conversion. This period is chargeable to the People. 42 days are charged. March 14, 2023 — April 3, 2023 On March 30, 2023, off-calendar, the People filed with the Court and served on the defense a COC and COR but had not yet filed a supporting deposition or SSI with the Court. Accordingly, as explained herein, the COR did not toll the speedy trial clock and this time is chargeable. The case was then adjourned for trial. On April 3, 2023, off calendar, the People filed with the Court via EDDS and served on the defense the second supporting deposition, SCOC, and COR. As such, the supporting deposition did not become effectively filed until the 92nd day. 21 days are charged. April 4, 2023 — May 3, 2023 On April 25, 2023, off-calendar, the People filed with the Court via EDDS, and served on Defense, another SCOC and COR and a letter indicating the People’s intention to dismiss count three on the accusatory instrument, VTL 1192(4). On May 3, 2023, the People dismissed count three on the accusatory instrument, VTL 1192(4). The Defendant then filed the instant motion with the Court, and the Court provided a motion schedule. The case was adjourned to June 20, 2023, for decision. 30 days are charged. May 3, 2023 — June 20, 2023 The case was adjourned for the People’s response to Defense motions, Defense’s reply, and for the Court’s decision. On May 10, 2023, off-calendar, the Defendant filed an Omnibus motion. On May 18, 2023, the People filed their response to the Defendant’s motion. This period is excludable. CPL 30.30(4)(a). 0 days are charged. June 26, 2023 — July 7, 2023 On June 26, 2023, the case was adjourned for decision again to July 7, 2023. This period is excludable. CPL 30.30(4)(a). 0 days are charged. By the Court’s calculation, the total includable speedy trial time amounts to 122 days, exceeding the 90-days permitted for a class A misdemeanor. Conclusion For the aforementioned reasons, the Court finds that 122 chargeable days have elapsed since the commencement of the case, and therefore, the People have exceeded their allowable speedy trial time. Accordingly, Mr. Sarcone’s motion to dismiss pursuant to CPL 30.30 and CPL 170.30(e) is GRANTED. The Defendant’s remaining motions are rendered moot. This opinion constitutes the decision and Order of the Court. Dated: July 6, 2023
