DECISION AND ORDER The following named papers numbered 1 to 3 were considered by the Court on this motion by the Defendant seeking relief pursuant to Criminal Procedure Law Sections 245.20, 245.50. 170.30(1)(e), and 30.30(1)(b): 1 Notice of Motion / OSC and Affidavit / Affirmation in Support 2 Affidavit / Affirmation and Memorandum of Law in Opposition 3 Affidavit / Affirmation in Reply The Defendant moves this Court by Notice of Motion and Affirmation in Support of ELIZABETH GRUN, ESQ., each dated April 28, 2023. for an Order deeming the certifications filed by the prosecution to be improper and dismissing the within matter in its entirety pursuant to the applicable sections of the Criminal Procedure Law (“C.P.L.”) as detailed hereinbelow. Such relief is sought based upon the allegations that the Certificate of Compliance with Initial Discovery and the Certificate of Readiness for Trial filed by the People on December 28, 2022 together with the Supplemental Certificate of Compliance [with Discovery] and Certificate of Readiness for Trial filed by the People on January 30, 2023 are each illusory and invalid due to the failure to timely disclose mandatory discovery pursuant to C.P.L. Section 245.20, and that as a result, the Defendant has been denied his constitutional right to a speedy trial. By Affirmation and Memorandum of Law in Opposition of DANIELLE EBBIGHAUSEN, ESQ., each dated May 24, 2023, the People oppose such relief. An Affirmation in Reply of ELIZABETH GRUN, ESQ., dated June 7, 2023, was submitted in response thereto. The Defendant is currently charged with violating the following counts of the Vehicle and Traffic Law (“V.T.L.”), to wit: Section 1192-2 (Unclassified Misdemeanor); Section 1192-2(a)a (Unclassified Misdemeanor); Section 1192-3 (Unclassified Misdemeanor); and Section 1192-1 (Traffic Infraction). The applicable time period within which the People must be ready for trial is ninety (90) days following the commencement of the action pursuant to C.P.L. Section 30.30(1)(b) based upon the classification of the most serious charges and the potential sentences of imprisonment associated therewith. The Defendant bears the burden of proving by a preponderance of the evidence that there exist various delays that have resulted in the expiration of such ninety (90) day period prior to the declaration of readiness for trial by the People (see e.g. People v. O’Neal, 99 A.D.2d 844, 845 (2nd Dept. 1984)). Once a Defendant has demonstrated a delay greater than the ninety (90) day statutory speedy trial period, the burden of proving that certain time periods should be excluded from this calculation falls upon the People. Id. Finally, prior to any announcement of readiness for trial, the People must meet all obligations imposed by both C.P.L. Article 245 and C.P.L. Section 30.30 as amended. Procedural History On October 20, 2022 at or about 6:49 p.m., it is alleged that the Defendant was operating a 2018 Chevrolet motor vehicle eastbound on a public roadway located in Levittown, County of Nassau, when he collided with the rear of a 2019 Honda motor vehicle that was stopped at a traffic light. In response thereto, members of the Nassau County Police Department 8th Precinct were dispatched to the scene by radio assignment. During the ensuing roadside investigation, law enforcement observed the Defendant demonstrating clues of impairment. Following the administration of Standardized Field Sobriety Tests, the Defendant was placed under arrest at approximately 7:30 p.m. and transported to the Nassau County Police Department (“N.C.P.D.”) Central Testing Section for processing where a chemical test of his breath established a 0.20 percent blood alcohol concentration. The Defendant was arraigned on the charges on October 21, 2022. The speedy trial time commenced the following day on October 22, 2022 (see People v. Stiles, 70 N.Y.2d 765, 767 (1987); see also General Construction Law Section 20), and thus the People were required to state their readiness for trial within ninety (90) days thereof, to wit: January 19, 2023. On December 28, 2022, the People filed a Certificate of Compliance with Initial Discovery and a Certificate of Readiness for Trial (“Initial C.O.C./C.O.R.”) off-calendar pursuant to C.P.L. Section 245.50 ostensibly tolling the speedy trial clock. After diligently conferring with counsel for the Defendant to address discovery issues pursuant to C.P.L. Section 245.35(1), the People produced additional data and documents and filed a Supplemental Certificate of Compliance [with Discovery] and Certificate of Readiness for Trial (“Supplemental C.O.C./C.O.R.”) on January 30, 2023. See C.P.L. Section 245.50(1); C.P.L. Section 245.50(l-a); see also C.P.L. Section 245.60. On April 3, 2023 counsel for the Defendant requested a motion schedule to prepare and submit the instant application for relief. See C.P.L. Section 245.50(4). The Court established the following motion schedule: motion of the Defendant to be submitted by April 28, 2023; opposition of the People to be submitted by May 24, 2023; and reply of the Defendant to be submitted by June 12, 2023, at which time the Court would also entertain oral argument prior to submission and deliberation. The parties adhered to the foregoing schedule, and the motion was submitted on June 12, 2023. Counsel for the Defendant contends that the People are non-compliant with mandated discovery obligations pursuant to C.P.L. Section 245.20(1) in that they failed to timely provide adequate expert witness information (C.P.L. Section 245.20(1)(f)) and impeachment evidence for an identified prosecution witness (C.P.L. Section 245.20(1)(k)). Based upon the foregoing, defense counsel seeks to have both the Initial and Supplemental C.O.C./C.O.R. deemed illusory and invalid, and to retroactively revive the statutory speedy trial clock in this matter. Discussion and Analysis All aspects of remedial relief sought by counsel for the Defendant are addressed in sequence below. Discovery Compliance There is established precedent that the requirement of actual readiness will be met unless there is proof that the readiness statement did not accurately reflect the position of the People at the time of filing (see People v. Carter, et al., 91 N.Y.2d 795, 799 (1998); see also People v. Brown, 126 A.D.3d 516 (1st Dept. 2015)). Moreover, there is a presumption that a statement of readiness is truthful and accurate until proven otherwise by a Defendant challenging same (see People v. Brown, 28 N.Y.3d 392, 405 (2016)). In the instant proceeding, counsel for the Defendant asserts that discovery provided prior to the declarations of readiness is substantively incomplete, and therefore any statements of readiness are illusory and do not halt time chargeable to the People. The People counter that they have performed their due diligence and provided that which exists and/or is under their control and relevant for purposes of this prosecution. The People further contend that to the extent that any discovery was belatedly disclosed, there is no demonstrable prejudice based upon the present case posture as counsel for the Defendant was still afforded a sufficient opportunity to access and review any additional materials once identified and served. Finally, the People acknowledge that should the Court find a dereliction of the statutory duty of disclosure, the imposition of appropriate remedies and/or sanctions may be sought (see e.g. C.P.L. Section 245.80). While there is a chorus of competing trial court opinions regarding the literal interpretation and practical application of the language of the revised C.P.L. Section 245.20, “[t]he clearest indicator of legislative intent is the statutory text[,] and unambiguous language should be construed pursuant to its plain meaning (citations omitted). Whenever possible, statutory language should be harmonized, giving effect to each component and avoiding a construction that treats a word or phrase as superfluous (citations omitted).” Lemma v. Nassau County Police Officer Indemnification Board, 31 N.Y.3d 523, 528 (2018). Therefore, until such time as legislative clarification and/or uniform appellate guidance is delivered, this Court is tasked to review each issue with “a presumption in favor of disclosure” (see C.P.L. Section 245.20(7)) while simultaneously applying the basic principles of textualism. Disciplinary Records C.P.L. Section 245.20(1)(k) unequivocally states that “[a]ll 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:…(iv) impeach the credibility of a testifying prosecution witness[]” must be disclosed expeditiously by the prosecution. With regard to law enforcement disciplinary proceedings, this Court has previously held that narrative abridgments are not an adequate substitute for underlying records as they are neither contemplated nor countenanced by the plain language of C.P.L. Section 245.20(1)(k). Consequently, defense counsel is entitled to comprehensive materials as envisioned by C.P.L. Section 245.20(1)(k)(iv) but may utilize same only to the extent that such information is both relevant and necessary to formulate a good faith basis for impeachment through permissible cross-examination. Recent appellate authority provisionally settles competing the interpretations of C.P.L. Section 245.20(1)(k)(iv) by declaring that “…impeachment evidence and information is not limited to that which is related to the subject matter of the underlying case (citations omitted)”. People v. Hamizane, Sup. Ct. App. Term, 9th and 10th Judicial Dists., July 13, 2023; cf. C.P.L. 245.20(1). “Clearly, the disciplinary records of a potential police witness which were created in relation to a different case goes to the weight of the credibility of the witness and can be used for impeachment purposes[.]” People v. Hamizane, supra. Such disclosure obligation includes “ copies of any existing records” (id.) and logically encompasses “underlying impeachment materials” (see People v. Rodriguez, 77 Misc.3d 23, 25 (Sup. Ct. App. Term 1st Dept. (2022)). As a consequence thereof, any standards by which the People previously determined the relevance and value of impeachment material have been radically curtailed if not utterly eliminated. With regard to Nassau County Police Department Lieutenant Marc A. Timpano, the People furnished summary narratives of the following citizen complaints: N.C.P.D. Internal Affairs Unit case number 702-2004 [without definitive category] and deemed “Founded”; N.C.P.D. Internal Affairs Unit case number 442-2006 alleging “Unprofessional Conduct” and deemed “Undetermined”; and N.C.P.D. Internal Affairs Unit case number 499-2010 alleging “Unprofessional Conduct” and deemed “Undetermined”.1 In addition, the prosecution provided a summary narrative regarding Nassau County District Attorney (“N.C.D.A.”) Public Corruption Bureau case number PC 18-85 which concluded that such matter did not warrant criminal prosecution but instead was referred to the N.C.P.D. Internal Affairs Unit for any administrative action deemed appropriate. No ancillary documentation was provided in connection with any of the foregoing complaints (see Affirmation in Support, Paragraphs “28″-”30″; see also Affirmation in Support Exhibit “B”). Moreover, some of the grievances disclosed herein by the People contain allegations which outwardly suggest diminished honesty and reliability. Hence, the underlying records, reports, memoranda, statements, investigative findings, and related determinations regarding these disciplinary items are likely contain material that “bear[s] logically and reasonably on the witness’s credibility” (see People v. Randolph, 69 Misc.3d 770, 772 (Sup. Ct. Suffolk Co. 2020)) and thereby may provide suitable impeachment material to discredit this witness. As the People have not satisfactorily demonstrated the exercise of good faith and due diligence to ascertain and disclose comprehensive impeachment evidence for this prosecution witness, the invalidation of both the Initial C.O.C./C.O.R. and the Supplemental C.O.C./C.O.R. is warranted pursuant to C.P.L. Section 245.50 and Section 245.50(l-a). In light of the above analysis, the Court need not address the balance of discovery challenges raised by counsel for the Defendant at this time. Based upon the foregoing, includable time chargeable to the People in this matter is calculated below. Chargeable Time Pursuant to Criminal Procedure Law Section 30.30(1)(b) Period between October 21, 2022 and October 25, 2022 As stated hereinabove, the within matter was arraigned on October 21, 2022 and the action was commenced. At arraignment, the proceeding was adjourned until October 25, 2022 at the request of the Defendant for a hearing to determine whether a hardship privilege should be granted pursuant to V.T.L. Section 1193(2)(e)(7)(e). As this Court deems a “hardship hearing” to be “…a reasonable period of delay resulting from other proceedings concerning the defendant[]” (see C.P.L. Section 30.30(4)(b)), this period of adjournment is excludable for purposes of calculating speedy trial time (see e.g. People v. Lopez, 56 Misc.3d 1206(A) (City Ct. Mt. Vernon (2017)).2 Therefore, the time of-0-days is chargeable to the People. Period between October 25, 2022 and December 5, 2022 It is undisputed that the matter was further adjourned from October 25, 2022 to December 5, 2022 for discovery compliance and no consent was obtained from the Defendant. Therefore, the time of 41 days is chargeable to the People. Period between December 5, 2022 and December 28, 2022 It is undisputed that the matter was further adjourned from December 5, 2022 to January 4, 2023 for discovery compliance and no consent was obtained from the Defendant; however, the People filed an Initial C.O.C./C.O.R. off-calendar on December 28, 2022 in an attempt to pause the speedy trial clock. As the Initial C.O.C./C.O.R. have each been deemed illusory and invalid, this period of adjournment without the consent of the Defendant is now includable for purposes of calculating speedy trial time pursuant to C.P.L. Section 30.30(1)(b). Therefore, the time of 23 days is chargeable to the People. Period between December 28, 2022 and January 4, 2023 As the Initial C.O.C./C.O.R. have each been deemed illusory and invalid, this period of adjournment without the consent of the Defendant is now includable for purposes of calculating speedy trial time pursuant to C.P.L. Section 30.30(1)(b). Therefore, the time of 7 days is chargeable to the People. Period between January 4, 2023 and January 30, 2023 It is undisputed that the matter was further adjourned from January 4, 2023 to January 30, 2023 and no consent was obtained from the Defendant; however, the People filed a Supplemental C.O.C./C.O.R. off-calendar on January 30, 2023 and maintained their readiness for trial. As the Supplemental C.O.C./C.O.R. filed by the People on January 30, 2023 have each been deemed illusory and invalid, this period of adjournment without the consent of the Defendant is now includable for purposes of calculating speedy trial time pursuant to C.P.L. Section 30.30(1)(b). Therefore, the time of 26 days is chargeable to the People. Period between January 30, 2023 and February 21, 2023 As both the Initial C.O.C./C.O.R. and the Supplemental C.O.C./C.O.R. filed by the People have been deemed illusory and invalid, this period of adjournment3 without the consent of the Defendant is now includable for purposes of calculating speedy trial time pursuant to C.P.L. Section 30.30(1)(b). Therefore, the time of 22 days is chargeable to the People. Period between February 21, 2023 and March 13, 2023 Notwithstanding the fact that both the Initial C.O.C./C.O.R. and the Supplemental C.O.C./C.O.R. filed by the People have been deemed illusory and invalid, this period of adjournment following final discovery review is excludable for purposes of calculating speedy trial time pursuant to C.P.L. Section 30.30(4)(b) as defense counsel sought time to gather mitigation evidence in order to obtain a favorable judicial sentencing commitment. Therefore, the time of-0-days is chargeable to the People. Period between March 13, 2023 and April 3, 2023 Notwithstanding the fact that both the Initial C.O.C./C.O.R. and the Supplemental C.O.C./C.O.R. filed by the People have been deemed illusory and invalid, this period of adjournment is excludable for purposes of calculating speedy trial time pursuant to C.P.L. Section 30.30(4)(b) as defense counsel sought additional time to gather mitigation evidence in order to obtain a favorable judicial sentencing commitment. Therefore, the time of-0-days is chargeable to the People. Period between April 3, 2023 and June 12, 2023 Following the pre-trial motion schedule established by the Court on April 3, 2023, this matter was adjourned from April 3, 2023 to June 12, 2023 (submission of motion), and thus this cumulative period of time is excludable for purposes of calculating speedy trial time in accordance with C.P.L. Section 30.30(4)(a). Therefore, the time of-0-days is chargeable to the People. In the case at bar, the total time chargeable to the People based upon the invalidation of the certifications filed herein is 119 days (41 + 23 + 7 + 26 + 22). Accordingly, the People have exceeded their statutory speedy trial time of ninety (90) days pursuant to C.P.L. Section 30.30(1)(b). The recent appellate decision of People v. Loonam, 79 Misc.3d 128(A) (Sup. Ct. App. Term, 9th and 10th Judicial Dists. 2023) states in applicable part that “…[s]tatutory speedy trial limitations apply to traffic infractions, but only when charged in the same accusatory instrument with at least one non-traffic infraction count (citations omitted).” This Court is admittedly perplexed by an interpretation of C.P.L. Section 30.30 that distinguishes readiness times based upon procedural format, as the statute stands mute on any necessary configuration of charging documents as a condition of applicability. Furthermore, it is widely recognized that the current iterations of both C.P.L. Section 245.50 and C.P.L. Section 30.30 were enacted to discourage prosecutorial inertia and prevent fractured dockets in various states of trial readiness. To enable lower level offenses to be surgically excised from a jointly charged docket and render them impervious to speedy trial constraints is counterintuitive and patently defeats both the purpose and efficacy of these statutes as amended. “[T]he newly worded CPL 30.30(1) puts to rest any question of the legislature’s intent that the time limits specified in that provision apply to criminal actions in which a traffic infraction is jointly charged with a higher-grade offense. […] [I]t was unnecessary for the legislature to have specified a distinct time limit for trial readiness for traffic infractions […] since it is obvious that by expressly including traffic infractions within the definition of “offenses[",] the legislature intended that the prosecution’s maximum time to declare trial readiness in a criminal action that includes a traffic offense would be determined by the most serious offense charged.” People v. Galindo, 38 N.Y.3d 199, 204 (2022). In the instant matter, the Defendant is jointly charged by multiple local criminal court accusatory instruments under a single docket. Pursuant to the sound reasoning set forth by the New York State Court of Appeals in People v. Galindo, supra., the speedy trial time associated with the misdemeanor offenses charged in this proceeding must also be applied to the traffic infraction simultaneously charged herein. Based upon the foregoing, and upon all of the proceedings conducted herein, and after due deliberation, it is ORDERED, that the certifications filed by the People on December 28, 2022 and January 30, 2023, respectively, are each deemed illusory and invalid and are hereby vacated; and it is further ORDERED, that the portion of the motion of the Defendant to dismiss this matter based upon the expiration of speedy trial time pursuant to C.P.L. Section 170.30(l)(e) is hereby granted in its entirety; and it is further ORDERED, that any other matters not specifically addressed herein are hereby denied as moot as this matter is now concluded. The foregoing constitutes the Decision and Order of the Court. Dated: July 28, 2023
