DECISION AND ORDER Defendant is charged by simplified informations with one count of Driving While Ability Impaired by Drugs (VTL §1192(4)), one count of Possession of an Open Container of Alcohol in a Motor Vehicle (VTL §1227(1)) and one count of Operating Without a License (VTL §509(1)). Defendant was arraigned on the charges on November 26, 2021. Defendant now moves to dismiss the charges on speedy trial grounds and failure to comply with CPL Article 245 automatic discovery obligations. The People oppose the motion. By Decision and Order dated July 5, 2022, this Court denied defendant’s motion to invalidate the People’s Certificate of Compliance (“COC”) and Statement of Readiness (“SOR”) filed on January 7, 2022 and held that the COC and SOR were valid, notwithstanding the late disclosure of the breath test records. On this new motion to dismiss, the defendant argues after the Court rendered its Decision on July 5, 2022, the People have continued to file additional discovery and supplemental COCs. Defendant argues that on September 12, 2022, the People filed additional Brady material related to police officers. October 13, 2022, shortly prior to the start of the scheduled suppression hearing, the People filed additional discovery regarding the Mount Vernon PD Motor Vehicle/Voucher Tow Report and a supplemental COC. The defendant argues that the People represented to the Court that all Brady material had been filed. However, on November 23, 2022, the People filed additional discovery consisting of 500 pages of Brady material relevant to police officers, some of which concerned Officer Odar, who had already testified at the suppression hearing. Defendant argues that due to this late disclosure, the defense could not confront Officer Odar with this material when he testified on October 13, 2022. On November 29, 2022, the hearing was scheduled to continue and the People filed a third COC. Defendant’s oral motion to dismiss was denied and he was advised by the Court to submit a written motion. On January 13, 2023, the People filed additional discovery consisting of sobriety testing. On April 4, 2023, the hearing continued and two more witnesses testified. Defense’s oral motion to dismiss was denied. On April 14, 2023, defendant filed the instant motion. Defense argues that well over 400 days have elapsed since the defendant’s arraignment and that the People’s Statement of Readiness was illusory in light of their continuing belated disclosure of material and relevant discovery. Defense maintains the People have failed to establish any good cause to excuse the delay. Defense argues that it has been prejudiced as discovery relevant to the vehicle at issue, sobriety of the defendant and Brady of testifying witnesses was disclosed after the start of the suppression hearing. In opposition to the motion to dismiss on speedy trial grounds, the People argue that only 43 days are chargeable to the People, the period from November 26, 2021 through January 7, 2022. The People argue that all time after defendant requested a motion schedule should be tolled. The People maintain that on August 30, 2022, their office received notice from the Mount Vernon Police Department that there were additional 1k materials relating this case. The People reviewed the material and uploaded six additional 1K materials for police officers to the portal on September 12, 2022. The People also filed a supplemental COC and SOR. On October 13, 2022, the People filed additional discovery, including an impound report of the vehicle. The People argue that as soon as they discovered the report they turned it over to the defendant. The People also filed a supplemental COC. On November 23, 2022 the People filed 13 files relevant to the case. On November 29, 2022 the People filed a supplemental COC. On January 13, 2023, the People served on defendant two photographs of the card that contains written instructions for administering the standardized field sobriety tests. On April 20, 2023, the People filed a supplemental COC for the two photographs uploaded to the discovery portal on January 13, 2023. The People argue that the CPL statute provides for a continuing duty of disclosure after the initial COC and SOR and as such they are not in violation of their automatic discovery obligations. The People further argue that they did not file any discovery in bad faith. The People argue that belated disclosure relating to the officers that already testified can be rectified by recalling the officers at the hearing. The People argue that the drastic remedy of dismissal and striking the COC and SOR is not warranted as the statue provides for other remedies and sanctions for belated disclosure and prejudice to the defendant. Lastly, the People assert that if the Court should find any of the aforementioned items discoverable pursuant to CPL §245, the People’s COC should not be invalidated because the People acted in good faith and with due diligence in turning over the discovery of this case. Motion to Strike Certificate of Compliance and Statement of Readiness An order deeming a COC invalid amounts to a determination that the People’s statement of readiness is illusory. The sanction of invalidating the People’s COC and SOR is an exceptional and drastic remedy to be used sparingly (People v. Sellie, 77 Misc 3d 1234[A] [County Ct. Schenectady Co. 2023] (citations omitted). Pursuant to CPL §245.50(1) “[n]o adverse consequence” shall adhere to the People based on the filing of a certificate that is filed “in good faith and reasonable under the circumstances.” In this regard, numerous courts have found that belated disclosures should not invalidate a certificate of compliance that was made in good faith after the exercise of due diligence where the delay resulted from minor oversights in the production of material, delayed discovery of the existence of certain materials, or a good faith position that the material in question was not discoverable (See People v. Rodriguez, 3 Misc3d 411 [Sup Ct Queens County 2021]; People v. Lustig, 68 Misc3d 234 [Sup Ct Queens County 2020]; People v. Randolph, 69 Misc3d 770 [Sup Ct Suffolk County 2020]; People v. Davis, 70 Misc3d 467 [Crim Ct Bronx County 2020]).” As such, “the mere filing of supplemental certificates of compliance, without proof of lack of good faith and/or a lack of due diligence, does not warrant an order invalidating the People’s COC or SOR” (People v. Sellie, 77 Misc 3d 1234[A] (filing nine supplemental certificates of compliance did not render first Certificate of Compliance and Statement of Readiness illusory); CPL §245.50[1]). Additionally, “[a]ny supplemental certificate of compliance shall detail the basis for the delayed disclosure so that the court may determine whether the delayed disclosure impacts the propriety of the certificate of compliance” (CPL §245.50[1-a]). CPL §245.80(1)(a) provides that when material is discoverable under this article but is disclosed belatedly, the court shall impose a remedy or sanction that is appropriate and proportionate to the prejudice suffered by the party entitled to the disclosure. By Decision and Order dated July 5, 2022, the Court held that the initial COC filed by the People on January 6, 2022 was valid. However, after the Court rendered its Decision, the People have continued to file discovery and three supplemental COCs. The defendant maintains that these additional filings support his claim that the initial COC was invalid. In People v. Sellie, 77 Misc 3d 1234 [A], the defendant moved to strike the COC and SOR as illusory after the People filed nine supplemental certificates of compliance and eighteen emails with CPL §245 discovery items not previously provided to the defendants. In denying the motion, the court found that much of the alleged delayed discovery in the case did not exist when the People filed their COC, and could not have been disclosed (e.g. updated medical records, FBI 3-D virtual scan of jail facility) or were not in the actual or imputed possession, custody, or control of the District Attorney or any law enforcement officer or agency (e.g victim’s medical records, jail audit log, defendant’s cell phone records, fire department ambulance records). The court further noted that in a demonstration of good faith, the Assistant District Attorney spent hours working with defense counsel and sought assistance from the county’s computer help desk to assist counsel to access the People’s link to the com puterized discovery files. By contrast, in People v. Darocha, 2023 NYLJ LEXIS 1511 [Dist Ct. Nassau Cty 2023] the trial court granted the defendant’s motion to dismiss and vacated the COC and SOR. After the People filed the initial COC, the People filed or failed to file additional discovery, including 1) identities and contact information for two witnesses on body worn camera video, 2) identity and contact information for tow truck driver, 3) memorialization of notes written on P.O. DuPrey’s hand, 4) Nassau County Police Department Central Testing Video, 5) 100 additional pages of disciplinary records for 911 Operator, 6) Disciplinary records of police officers, 7) Expert witness disclosure, 8) picture of an intoxilyzer and 9) inaccessible toxicology link. The court found that “when their COC is challenged, the People cannot think that merely uttering the magic words ‘due diligence’ will satisfy their obligations. A bare bones assertion of due diligence simply is not good enough (citations omitted). The People must specify the due diligence they exercised (citations omitted)”. The court went on to compare two cases for illustrative purposes, People v. Kheir, 74 Misc 3d 712 [Justice Ct. Town of Greenburgh] with People v. Pierna, 74 Misc 3d 1072 [Crim Ct. Bronx Co.]. In Kheir, the court denied the defendant’s motion to strike the People’s COC as illusory upon a finding that the People clearly articulated their efforts to comply with their automatic discovery obligations and recounted the steps they took to obtain certain material or ascertain the existence thereof, including an amended statement of the complainant, booking photo, booking report and rap sheet. The communications between the ADA and lead detective were confirmed in emails attached as exhibits to the motion papers. However, in Pierna, the court invalidated the COC and SOR after the People failed to articulate any efforts they made in obtaining the vouchering paperwork or determining its existence before they filed their COC (See also People v. Cummins, 2023 NY Slip Op 30780 (U) [City Ct. Albany Cty 2023] (COC and SOR invalidated where People fail to explain belated disclosure of new trial witnesses). In this case, the additional discovery items consisted of items in possession of the Mount Vernon Police Department at the time the COC was filed: 1) six additional 1k materials for police officers (filed on September 1, 2022). The People provided no basis for late disclosure; 2) Motor Vehicle Voucher/ Impound Report for the Vehicle, dated November 25, 2021, (filed on October 13, 2022). The People maintain they just learned of its existence; 3) “13 files relevant to this case” including 1k material for police officer that already testified at the suppression hearing (filed on November 23, 2022). The People argue they just received from police on August 30, 2022; 4) Two photos of the standardized field sobriety test card officers read from while conducting the investigation (filed on January 13, 2023). The People provided no basis for the late disclosure. The Court finds that these document belatedly disclosed by the People are, in fact, within the scope of disclosure that is mandated to be disclosed pursuant to CPL §245.20 (1)(k). CPL §245.20 (1)(k) codif ied the People’s obligation to disclose information favorable to the defendant under Brady. The statute provides that “all items or information related to the prosecution of a charge in the possession of any New York state or local police, or law enforcement agency shall be deemed to be in the possession of the prosecution” (CPL §245.20 [2]). CPL 245.50 [1] is equally clear that a prosecutor files a valid COC if she discloses and makes available “all known material and information subject to discovery” (emphasis added) (see People v. Kheir, 74 Misc 3d 712) and that the COC is filed after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery. The People maintain that they “did not sit idly by, but continued make inquiry to law enforcement about any outstanding discovery, monitored the case for any new materials and sent them to the defendant as soon as practicable.” Notably, however, they have not provided any supporting documentation in their motion papers or outline specific dates and conversations they had with law enforcement regarding this matter. The record is devoid of any evidence of conversation or inquiries the People had with the Mount Vernon Police Department or officers involved in the case before the COC was filed to ascertain the existence of all the material and information subject to discovery (People v. LaClair, 188 NYS 3d 850 [Appellate Term 2d Dept 2003]). This case is distinguishable from People v. Sellie,77 Misc 3d 1234 [A], in that the evidence in Sellie demonstrated that the prosecutors made diligent and assiduous attempts to ascertain the existence of discoverable material, and through no fault of their own were unable to comply with the discovery obligations. In this case, the People have not shown any evidence of such efforts to comply. As such, the Court finds the People failed to exercise due diligence and make reasonable inquiries to ascertain the additional discovery items that were in the possession of the Mount Vernon Police Department. Consequently, the defendant’s motion to strike the COC and SOR as invalid is granted since no special circumstances were presented. Furthermore, for the same reasons stated herein, the Court finds that the October 13, 2022 and November 29, 2022 supplemental COCs are also invalid. On April 14, 2023, after the defendant filed his motion and while the Court’s decision was pending, the People filed a third COC and SOR for the two photographs of the field sobriety test cards uploaded to the portal on January 13, 2023. The law provides that the filing of subsequent supplemental COCs does not automatically negate prior filings, so long as the People demonstrate that they acted in good faith and used due diligence to fulfill their discovery obligations (People v. Amissah, 187 NYS 3d 559 [Crim Ct. New York Co. 2023]). “Any supplemental certificate of compliance shall detail the basis for the delayed disclosure so that the court may determine whether the delayed disclosure impacts the propriety of the certificate of compliance.” (Id.; CPL §245.50 [1-a]). Here, the discovery disclosed in the first and second supplemental COCs was available to the People at the time they filed the original COC in January 2022. The People have not provided an adequate explanation for their delay in providing these outstanding discoverable items and have not met their burden of showing how their actions were diligent under the circumstances. Concomitantly, the People’s SOR filed with those COCs is also deemed invalid (CPL §30.30[5]). The Court deems the COC and SOR filed on April 20, 2023 as valid. SPEEDY TRIAL With respect to the defendant’s motion to dismiss pursuant to CPL §30.30 on speedy trial grounds, the Court finds that the People are within their statutory speedy trial time. The striking of the January 6, 2022 COC renders the SOR from the same date invalid, as a SOR “must be accompanied or preceded by” a COC (CPL 30.30 [5]; see also CPL 245.50 [3]). However, CPL 30.30 (4) exclusions are still available in the pre-readiness context (People v. LaClair, 188 NYS 3d 850 (citing People v. Barden, 27 NY3d 550, 553 [2016]; People v. Cortes, 80 NY2d 201[1992]; Matter of People ex rel. LaBrew v. Vance, 192 AD3d 645, 645, [2021]; People v. Cox, 161 AD3d 1100, 1101 [2018]). When a defendant or defense counsel requests or consents to an adjournment, that adjournment is excludable for speedy trial purposes (see CPL 30.30 [4] [b]). Pursuant to CPL §30.30(1)(b), the People in this case are required to be ready for trial within ninety (90) days of the commencement of the criminal action. The point of commencement of an action for speedy trial purposes is the filing of the first accusatory instrument, in this case a simplified traffic information (CPL §100.50; People v. Lomax, 50 NY2d 351[1980]; see also People v. Stirrup, 91 NY2d 434 [1998]. The actual date of filing is not includable in the calculation (People v. Stiles, 70 NY2d 765 [1987]. The burden is on the People to prove their entitlement to statutory speedy trial exclusions for pre-readiness delays (People v. Luperon, 85 NY2d 765 [1995]. CPL §30.30(4)(c)(ii) provides that in computing the time within which the People must be ready for trial, the period of delay resulting from the failure of the defendant to appear when required after having been previously released on bail or his own recognizance, and provided that the defendant is not in custody on another matter, is excluded. Moreover, where adjournments are allowed at the defendant’s request or with the defendant’s consent, those periods of delay are expressly waived in calculating the People’s trial readiness (People v. Kopciowski, 68 NY2d 615 [1986]). Adjournments for suppression hearings are excludable as the period during which defendant’s pretrial motions were “under consideration by the court (People v. Aquino, 74 Misc. 3d 1147, 1154-1155 [Sup Ct. New York Co. 2022]; CPL §30.30 [4] [a]; see People v. Sinisgalli, 24 Misc 3d 135[A], 897 N.Y.S.2d 671, 2009 NY Slip Op 51489[U] [App Term, 1st Dept 2009]; People v. Taylor, 16 Misc 3d 339, 836 N.Y.S.2d 399 [Crim Ct, NY County 2007] [initial adjournment for suppression hearings is generally excludable for purposes of statutory speedy trial]). In the case at bar, the People filed the original accusatory instrument, that being the simplified traffic information, with the Court on November 26, 2021, and as such, that is the date of the commencement of the action (CPL §100.05; See People v. Smietana, 98 N.Y.2d 336 (2002); People v. Hauben, 12 Misc3d 1172A [Dist. Ct. Nassau 2006]; People v. Griffen, 141 Misc. 2d 627 [Crim Ct Queens Cty 1988]. The Court has reviewed the court file for adjournments in this matter: November 26, 2021 — January 6, 2022 — 41 days The defendant was arraigned on November 26, 2021. The People affirm in their opposition papers that this period of time from November 26, 2021 to January 7, 2022 is chargeable to People. January 7, 2022 The People filed the Certificate of Compliance and Statement of Readiness. As decided herein, the Court finds the People’s COC and SOR filed on January 7, 2022, to be illusory and therefore invalid to stop the speedy trial clock. January 6, 2022 — January 27, 2022 (7 days chargeable to the People) Adjourned to January 27, 2022. The People are charged with time through January 13, 2022. January 27, 2022 — February 17, 2022 — 0 days Adjourned for defense motions. February 17, 2022 — March 8, 2022 — 0 days Adjourned for defense motions/TASC March 8, 2022 — March 31, 2022 — 0 days Adjourned for all purposes at the defendant’s request. March 31, 2022 — April 26, 2022 — 0 days, Adjourned for all purposes at the defendant’s request/TASC April 26, 2022 — May 26, 2022 — 0 days Adjourned for defense motions. May 26, 2022 — July 12, 2022 — 0 days Defendant filed an omnibus motion thereby tolling the speedy trial clock until a decision was rendered. The Court filed a Decision and Order, dated July 5, 2022 on July 12, 2022. July 12, 2022 — September 14, 2022 — 0 days Adjourned for suppression hearings. September 14, 2022 — October 13, 2022 — 0 days Adjourned to for suppression hearings October 13, 2022 The People filed a Supplemental COC and SOR. However, as stated above, the Court deemed this supplemental COC and SOR invalid to toll the speedy trial clock. The suppression hearing commenced and was continued to October 27, 2022. October 13, 2022 — October 27, 2022 — 0 days Adjourned for continuation of suppression hearings October 27, 2022 to November 29, 2022 — 0 days Defendant did not appear. Adjourned for continuation of hearing at defendant’s request. November 29, 2022 The People filed a Supplemental COC and SOR. However, as stated above, the Court deemed this supplemental COC and SOR invalid to toll the speedy trial clock. November 29, 2022 to January 19, 2023 — 0 days Adjourned on consent for continuation of hearings. January 19, 2023 — February 9, 2023 — 0 days Judge Williams unavailable to preside over suppression hearing. Adjourned for continuation of suppression hearing. February 9, 2023 — March 2, 2023 — 0 days Adjourned for continuation of suppression hearing on consent of defendant. March 2, 2023 — March 29, 2023 — 0 days Defendant did not appear. Adjourned for continuation of hearing. March 29, 2023 — April 4, 2023 — 0 days Defendant did not appear. Adjourned for a continuation of the hearings. April 4, 2023 — present — 0 days Hearing continued and adjourned to April 20, 2023. Def endant filed the instant motion off calender on April 14, 2023 thereby tolling the speedy trial clock until a decision has been rendered. Supplemental COC and SOR filed on April 20, 2023 deemed valid. Defendant’s non appearance on several dates as well as defense counsel’s actions in either requesting or consenting to the adjournment and filing pre-trial motions, triggered one of the statutory exclusions, that being CPL 30.30(4)(b), which applies when the People are otherwise unable to go to trial. A pre-readiness delay is excludable under CPL §30.30(4)(b) if it is a continuance granted by the court at the request of, or with the consent of, the defendant or his or her counsel, or under CPL §30.30(4)(c)(i) if it results from the absence or unavailability of the defendant (People v. Kopciowski, 68 NY2d 615 [1986]; see People v. Acosta, 76 Misc3d 868 [Crim Ct Bronx Cty 2022] citing People v. Cortes, 80 NY2d 201 [1992]). Moreover, exclusion of time for defense adjournments “is free standing” and applies prior to and irrespective of the People’s readiness, as such, those adjournments are express waivers by defendant, for their own benefit, of the ensuing delay in prosecution (See People v. Kopciowski, supra; People ex rel LaBrew v. Vance, 192 AD3d 645 [1st Dept 2021]; People v. Ortiz, 295 AD2d 134 [1st Dept 2002]; People v. Acosta, 76 Misc 3d 868). Accordingly, forty-eight (48) days are charged to the People. Given that the People have ninety (90) days to be ready for trial in the instant matter, they are still within their speedy trial time pursuant CPL §30.30. Based upon the foregoing, the defendant’s motion to dismiss the instant action pursuant to CPL §30.30 is denied. This constitutes the Decision and Order of this Court. Dated: August 3, 2023
