DECISION & ORDER By motion dated May 9, 2023, defendant moves, inter alia, for an order granting dismissal of the accusatory instrument pursuant to Criminal Procedure Law (“CPL”) §§245.50 (3), 30.30 (1) (b) and 170.30 (1) (e) or, in the alternative, for an order suppressing identification pursuant to §710.30 (1) (b) and precluding evidence at trial of defendant’s prior bad acts or convictions, or alternatively, for Wade/Dunaway/Sandoval/Ventimiglia hearings. Specifically, defendant asserts that the People’s Certificate of Compliance (“CoC”) is illusory because the prosecution failed to disclose their complainant’s medical records. On June 12, 2023, the People opposed the motion in its entirety. Upon review and consideration of the submissions, court file and relevant legal authority, defendant’s motion is GRANTED in part and DENIED in part, as follows: 1. The People’s CoC filed April 4, 2023, is deemed VALID; 2. Dismissal pursuant to CPL §30.30 is DENIED; 3. Suppression of identification evidence pursuant to CPL §710.30 (1) (b) is DENIED; 4. Pre-trial hearings are ORDERED as provided herein; and 5. Defendant’s request for an Order precluding Sandoval/Ventimiglia evidence is REFERRED to the trial court. PROCEDURAL BACKGROUND AND ARGUMENTS On January 6, 2023, defendant Daniela Hernandez was arrested and charged with one count of Penal Law (“PL”) §120.00 (1) (assault with intent to cause physical injury) and one count of PL §240.26 (1) (harassment in the second degree), a Class A misdemeanor and violation, respectively. On January 8, 2023, defendant was arraigned and released on her own recognizance. The People filed their CoC and Statement of Readiness (“SoR”) on April 4, 2023, and a second SoR and supplemental CoC (“SCoC”) on April 21, 2023. Defendant specifically asserts that the People’s CoC should be deemed invalid because they failed to produce records pertaining to the complainant’s medical treatment following the alleged assault (affirmation of defendant’s counsel at 11). Defendant further avers that insofar as medical records are discoverable pursuant to §CPL 245.20 (1) (j), the prosecution should have procured them prior to initial certification (affirmation of defendant’s counsel at 10-11). Counsel also maintains that even if medical records are not considered to be in the prosecution’s possession, defendant cannot resort to subpoena pursuant to §CPL 245.20 because she cannot obtain a HIPAA waiver from the person she allegedly assaulted (affirmation of defendant’s counsel at 11). Defendant next argues that the prosecution failed to comply with §CPL 245.50 (1) because the People did not provide an explanation in their SCoC for why the medical records were belatedly disclosed (Id.). Defendant also asserts that the People must be charged against their speedy trial time for the period of their non-compliance, which would exceed their statutorily prescribed time to declare readiness for trial (Id.). Defendant further argues that identification evidence should be suppressed because it was obtained through a suggestive procedure and because it resulted from an unlawful arrest (affirmation of defendant’s counsel at 12). Lastly, defendant states that any evidence of her prior convictions should be precluded from trial because of their prejudicial effect (affirmation of defendant’s counsel at 13). Defendant reserves her right to file supplemental motions. Initially, the People maintain that the complainant’s medical records were not in their possession when they filed their CoC (People’s affirmation at 3). The prosecution asserts that while medical records are generally discoverable, they are not among the enumerated items for mandated automatic disclosure pursuant to §CPL 245.20 (1) (Id.). The People aver that they filed their SCoC upon receipt of the complainant’s medical records (People’s affirmation at 4). The prosecution also argues that they acted with good faith and due diligence to obtain records that were not in their possession and, thus, their CoC and SoR were properly filed on April 4, 2023 (People’s affirmation at 6). The People maintain that they declared readiness for trial within their prescribed time (People’s affirmation at 9). Lastly, the prosecution opposes defendant’s request for an order to suppress and preclude evidence, denies that defendant has proffered any evidence that her identification was suggestive and requests that the issue of prior bad acts or convictions be deferred to the trial court (People’s affirmation at 9-10). The People oppose defendant’s reservation of her right to file additional motions. DISCUSSION I. Applicable Standard for COC Challenge Criminal Procedure Law §245.20 (1) provides, in pertinent part, that the prosecution shall disclose to defendant and permit defendant to “discover, inspect, copy, photograph and test, all items and information that relate to the subject matter of the case and in the possession, custody, or control of the prosecution or persons under the prosecution’s direction or control.” Including in the enumerated items is “[a]ll evidence and information, including that which is known to police or other law enforcement agencies acting on the government’s behalf” (People v. Perez, 75 Misc 3d 1205 [A], 2022 NY Slip Op 50387 [U], *2 [Crim Ct, Bronx County 2022]). Pursuant to CPL §245.50 (1), where the prosecution has complied with their disclosure obligations, the People are required to serve a CoC on defendant and file it with the court as a condition precedent to announcing their readiness for trial. However, if the prosecution should subsequently provide additional discovery prior to trial pursuant to CPL §245.60, which mandates a continuing duty to disclose, then “a supplemental certificate shall be served upon the defendant and filed with the court identifying the additional material and information provided” (CPL §245.50 [1]). Where defendant alleges that the CoC is invalid because they have failed to discharge their discovery obligations, the People must establish that they have met their burden (see e.g., People v. Figueroa, 76 Misc 3d 888, 892 [Crim Ct, Bronx County 2022] citing People v. Payne, 75 Misc 3d 1224 [A], 2022 NY Slip Op 50656 [U], *2 [Crim Ct, Bronx County 2022]; see also People v. Spaulding, 75 Misc3d 1219 [A], 2022 NY Slip Op 50544 [U], *2 [Crim Ct, Bronx County 2022] ["They must certify that they have complied- that "the prosecutor has disclosed and made available all known material and information subject to discovery"] citing CPL §245.50 [1-a]). Courts have examined the CoC for an explanation of the People’s efforts to ensure that they have turned over all known discoverable materials. (see Perez at *3). Additionally, following a challenge to the validity of the CoC, courts inquire whether the prosecution has done all that is required of them to bring a case to the point that it could be tried. (see e.g., People v. Rodriguez, 77 Misc 3d 23, 25 [1st Dept 2022] but see People v. Diaz, 77 Misc 3d 727, 733 [Crim Ct, Bronx County 2022]. The People are not statutorily required to produce every single piece of discoverable material before certifying their compliance (People v. Erby, 68 Misc 3d 625, 633 [Sup Ct, Bronx County 2020]). II. The Court’s Analysis It is well-settled that the disclosure of a complaining witness’ medical records after the initial CoC is filed does not serve as a basis to invalid it where “the records were not in the People’s possession or control when the initial CoC was filed (see People v. Hall, 76 Misc 3d 804, 810 [Crim Ct, Bronx County 2022]; see also People v. Garcia, 2023 NY Slip Op 23259 [Crim Ct, Kings County 2023]; People v. Askin, 68 Misc 3d 372, 380-381 [County Ct, Nassau County]). In the instant matter, the People represented in their SCoC that the material did not exist when the CoC was filed and, arguably, it may have been a more precise statement to advise that the material had not yet been requested. However, this Court credits the People’s representation that they “timely sought a subpoena for said medical records, but did not have control of the amount of time it took for said records to be received” (People’s affirmation at 6). The complainant’s St. Barnabas Hospital medical records indicate that the People’s request was processed and certified on April 3, 2023. Defense counsel extrapolates from a partially redacted footer on two of the documents which states that the documents were requested by an unidentified “Area Lead III Specialist” on “April 3, 2023″ at “15:56″ to argue that the prosecution did not submit its record request until the day prior to filing their CoC on April 4, 2023. Thus, defense counsel asserts that the People’s purported laxity in obtaining these records lacks the due diligence required of them and warrants a finding from this Court that the CoC was illusory. Instead, we find no credible evidence that the People’s records request was processed the same date it was submitted- a litigator’s chimera. However, this Court disagrees with the People’s contention that medical records are not included in the enumerated items which fall within the ambit of automatic discovery. CPL §245.20 (1) (j) unambiguously provides, in pertinent part, that: All reports, documents, records, data, calculations or writings, including but not limited to preliminary tests and screening results and bench notes and analyses performed or stored electronically, concerning physical or mental examinations, or scientific tests or experiments or comparisons, relating to the criminal action or proceeding which were made by or at the request or direction of a public servant engaged in law enforcement activity, or which were made by a person whom the prosecutor intends to call as a witness at trial or a pre-trial hearing, or which the prosecution intends to introduce at trial or a pre-trial hearing. (CPL §245.20 [1][j] [emphasis added; see also People v. Rahman, 79 Misc 3d 129 [A], 2023 NY Slip Op 50692 [U], *4-*5 [App Term, 2nd Dept]). Nevertheless, insofar as medical records are not within the People’s control, nor any law enforcement entity under their direction, CPL §245.20 (2) requires the prosecution to act diligently and in good faith to ascertain the existence of discoverable records and to cause them to be made available (see Erby at 633). In the case at bar, counsel’s argument that defendant was unlikely to obtain a HIPAA authorization from the person she allegedly assaulted is entirely plausible, if not predictable. Consequently, the defendant could not credibly be expected to obtain these records by subpoena duces tectum. However, the facts at bar demonstrate that to comply with their discovery obligations the prosecution exercised their ability to compel production of records which were not in their custody, nor prepared at their request (see Rahman supra at *3). In Rahman, the Appellate Term, Second Department, affirmed a lower court’s decision to strike the prosecution’s CoC where the People inexplicably delayed their request for the complaining witness’ medical records (see Rahman at *2-*3). The Appellate Term court qualified their finding that “in the circumstances of this case” where FDNY/EMS records were “made by or at the request or direction of a public servant engaged in law enforcement activity,” disclosure was triggered by CPL §245.20 (1) (j) and the People were properly charged with speedy trial time for their non-compliance (Id.). As noted in Garcia, supra, the Appellate Term’s holding that medical records were in the prosecution’s possession turned on the specific finding that “EMS was summoned by law enforcement” (Garcia at *3). Like Garcia, the case at bar is similarly distinguishable. This Court finds that the People exercised due diligence to obtain by subpoena medical records which, presumably, were unavailable to defendant. Accordingly, the prosecution’s CoC, filed April 4, 2023, was valid. III. The CPL §30.30 Calculation In the case at bar, the People’s 30.30 calculation commenced the day after defendant’s arraignment on January 8, 2023. The People were not converted and were not ready for trial when the parties appeared in court on February 16, 2023 (January 9, 2023 to February 16, 2023 = 38 days chargeable). The People were not converted and were not ready for trial when the parties returned to court on March 15, 2023 (February 16, 2023 to March 15, 2023 = 27 days chargeable). On April 4, 2023, the People filed their CoC and SoR (March 15, 2023 to April 4, 2023 = 20 days chargeable). The People filed their SCoC on April 21, 2023, when the complaining witness’ medical records were disclosed.1 Consequently, 85 days in total are chargeable to the People, within the time statutorily prescribed to declare readiness when the top charge of multiple counts is a Class A misdemeanor (see CPL §30.30 [1] [b]; People v. Flores, 79 Misc 3d 1239 [A], 2023 NY Slip Op 50834[U], *2 [Crim Ct, Bronx County 2023] citing People v. Galino, 38 NY3d 199, 205 [Ct of App 2022]). IV. Defendant’s Request for an Order to Suppress and Preclude Evidence Defendant moves alternatively for an Order suppressing identification pursuant to §710.30 (1) (b) and precluding evidence at trial of defendant’s prior convictions, or alternatively, for Wade/Dunaway/Sandoval/Ventimiglia hearings. This Court denies defendant’s request for an Order suppressing evidence. However, the Court grants defendant’s request for Wade/Huntley pre-trial hearings, and respectfully refers the issue of Sandoval/Ventimiglia hearings to the trial court. CONCLUSION Based upon the foregoing, defendant’s motion for an Order dismissing the accusatory instrument pursuant to CPL §§245.50 (3), 30.30 (1) (b) and 170.30 (1) (e) or, alternatively, for an Order suppressing identification evidence pursuant to CPL §710.20 (1) (b) is DENIED. The People’s CoC filed April 4, 2023, is deemed VALID. Pre-trial Wade/Dunaway hearings are ORDERED. Defendant’s request for Sandoval/Ventimiglia hearings is REFERRED to the trial court. This constitutes the opinion, decision, and the order of the Court. Dated: September 11, 2023
