DECISION AND ORDER On July 17, 2023, the court issued an oral decision from the bench (hereinafter, the July 17th Decision) denying the defendant’s challenge to the validity of the People’s certificate of compliance (COC) and statement of readiness (SOR). The defendant now moves to renew his challenge to the validity of the COC that was denied in the July 17th Decision based on new law. For the reasons set forth below, the defendant’s motion for leave to renew is denied, and the motion to dismiss on speedy trial grounds is also denied. It is alleged that on January 17, 2023, the defendant was observed operating a motor vehicle with suspended driver’s privileges, and he exhibited watery eyes and an odor of alcohol on his breath. On January 19, 2023, the defendant was arraigned on charges of Aggravated Unlicensed Operation of a Motor Vehicle in the First Degree pursuant to VTL §511(3)(a)(I), Driving While Under the Influence of Alcohol and Drugs pursuant to VTL §§1192(1) and 1192(3), and other related charges. On February 16, 2023, the sole felony count was dismissed. On May 12, 2023, the People filed their COC and SOR. On September 20, 2023, the defendant filed the instant written motion challenging the validity of the May 12, 2023, filings and, for the first time argues that the People failed to turn over all the underlying disciplinary records prior to filing the COC and SOR. The defendant has never filed reciprocal discovery pursuant to CPL §245.20(2). CERTIFICATE OF COMPLIANCE On July 17, 2023, the defendant orally challenged the COC and SOR based solely on the absence of an IDTU logbook. Indeed, the court specifically inquired if there was anything else missing, and the defendant stated that there was not. The case was second called for the People to obtain information from the assigned Assistant District Attorney. The People then stated that the IDTU logbook did not exist. The court again inquired if there was any other missing discovery. The defendant again stated that there was none. After hearing oral argument on the matter, the court ruled that the People had acted diligently in complying with their automatic discovery requirements and the COC and SOR were deemed valid. On July 13, 2023, the Appellate Term, Second Department ruled that the failure to turn over underlying disciplinary records renders the COC and SOR invalid (People v. Hamizane, 80 Misc3d 7 [App Term, 2d Dept 2023]). Hamizane was decided and published prior to the July 17th Decision. On August 4, 2023, the Appellate Term, Second Department ruled that a statement of readiness was invalid because the People had not certified the facial sufficiency of the accusatory instrument (People v. Carter, 80 Misc3d 127[A] [App Term, 2d Dept 2023]). The Carter court also reasoned that the certificate of compliance was invalid for failure to actually disclose all of the items listed in the certification, and there were no special circumstances shown for the delay. Carter was decided and published after the July 17th Decision but is inapplicable to the prior determination on the defendant’s COC challenge (which was not predicated on facial insufficiency or missing discovery that was certified as disclosed). Even if Carter was applicable, it would not change the outcome of the July 17th Decision. In his initial motion, the defendant failed to raise any challenge to the COC on the grounds that the underlying disciplinary records had not been disclosed or that he did not receive all of the documents certified as having been disclosed by the People. Rather, the defendant possessed the discovery for almost two months prior to the July 17th Decision and still challenged the COC solely on the absence of the IDTU logbook. Moreover, the defendant did not request the underlying disciplinary records until September 11, 2023, which is almost four months after disclosure and two months after the July 17th Decision. The instant motion does not offer an explanation for the failure to raise a challenge to the COC based upon the absence of the underlying disciplinary records at the time of the July 17th Decision and fails to assert new facts or law applicable to the determination on the IDTU logbook challenge (Weitzenberg v. Nassau County Dept. of Recreation and Parks, 53 AD3d 653 [2d Dept 2008]).1 A motion for leave to renew may not be granted “to parties who have not exercised due diligence in making their first factual presentation” (A.G. Parker, Inc. v. 246 Rochester Partners, LLC, 165 AD3d 743, 745 [2d Dept 2018]). Here, the defendant failed to challenge the COC on the grounds that the underlying disciplinary records were not disclosed at the time of the July 17th Decision. He also fails to set forth a basis for his failure to raise such a challenge previously (id.; Weitzenberg, supra) and fails to set forth new facts or law regarding the prior determination on the challenge to the COC based upon the IDTU logbook. Accordingly, the motion to renew is denied (CPL §2221[e][2 & 3]). SPEEDY TRIAL Since the felony charge was dismissed on February16, 2023, the charges in the instant accusatory instrument require the People to be ready within ninety days of reduction (CPL §§30.30[1][b] & 30.30[7][c]). 1. January 19, 2023, to March 2, 2023: 14 Days Charged The defendant was arraigned on January 19, 2023, and the case was adjourned to March 2, 2023. On February 16, 2023, the case was advanced. The sole felony charge was dismissed, and the top count on the accusatory instrument was now an “A” misdemeanor. The People did not announce ready, and a COC was not filed at the time of reduction on February 16, 2023. The case was then adjourned to March 2, 2023. The speedy trial calculation commenced on the date of reduction, February 16, 2023 (CPL §30.30[7][c]). The pre-readiness period from February 16, 2023, to March 2, 2023, is includable. The People are charge 14 days from the date of the reduction. 2. March 2, 2023, to April 20, 2023: 49 Days Charged A COC was not filed on March 2, 2023. The case was adjourned to April 20, 2023. The pre-readiness period from March 2, 2023, to April 20, 2023, is includable. The People are charge 49 days. 3. April 20, 2023, to May 19, 2023: 22 Days Charged The People filed a served a valid COC and SOR off calendar on May 12, 2023. The case was adjourned to July 17, 2023, for the defendant to appear. The pre-readiness period from April 20, 2023, to May 12, 2023, is includable. The People are charged 22 days. The post-readiness period from May 12, 2023, to May 19, 2023, is excludable. The People are charged 0 days. 4. May 19, 2023, to July 17, 2023: 0 Days Charged On May 19, 2023, the defendant was not present in court, and the case was adjourned for the defendant to appear. The period from May 19, 2023, to July 17, 2023, is post-readiness and is also excludable due to the defendant’s absence (CPL §30.30[4][c]). The People are charged 0 days. 5. July 17, 2023, to September 20, 2023: 0 Days Charged On July 17, 2023, the defendant was present, and the People consented to the defendant’s motion for suppression hearings. The case was adjourned to September 20, 2023, for hearings and trial (CPL §30.30[4][a]). On September 11, 2023, just nine days before hearings and trial, the defendant first notified the People of their request for underlying disciplinary records. Additionally, the defendant had still not met his obligation to file reciprocal discovery (CPL §245.10[2]). This post-readiness period is excludable (CPL §30.30[4][a]; CPL §245.10[2]; People v. Lewis, 76 Misc.3d 1211[A] [Sup Ct, Kings Co 2022]; People v. Roland, 67 Misc3d 330 [Crim Ct, Kings Co 2020]). The People are charged 0 days. 6. September 20, 2023, to October 24, 2023: 0 Days Charged On September 20, 2023, the defendant was not present, and the hearings and trial could not be conducted. The case was adjourned for hearings and trial to October 24, 2023. On September 20, 2023, the defendant also filed the instant motion off calendar. This post-readiness period is excludable due to the defendant’s absence (CPL §30.30[4][c]), and for consideration of the instant motion (CPL §30.30[4][a]). The People are charged 0 days. The People are charged a total of 85 days. Accordingly, the motion to dismiss is denied. This constitutes the Decision and Order of the Court. Dated: October 24, 2023
