DECISION & ORDER On July 29, 2023, defendant moved, inter alia, for dismissal of the misdemeanor charges on statutory speedy trial grounds pursuant to Criminal Procedure Law (“CPL”) §§170.30 (e), 30.20 (1) (b) and 30.30. Specifically, defendant asserts that dismissal is warranted where the prosecution failed to comply with their disclosure obligations pursuant to §245.20 (1) prior to filing their Certificate of Compliance (“CoC”) and Statement of Readiness (“SoR”). Defense counsel further argues that the case must be dismissed if the People are charged with the period of their non-compliance. The People opposed the motion on August 18, 2023, and defendant filed his reply on September 1, 2023. Upon review and consideration of the submissions, court file and relevant legal authority, the Court finds that the People failed to exercise good faith and due diligence in the discharge of their discovery duties and, thus: The People’s CoC filed June 1, 2023, is deemed INVALID; and Dismissal pursuant to CPL §§170.30 (e), 30.20 (1) (b) and 30.30 is GRANTED. RELEVANT PROCEDURAL HISTORY Defendant Panteleon Hernandez was arrested on February 17, 2023, and issued a Desk Appearance Ticket (“DAT”) to appear in court on March 9, 2023, at which time he was arraigned and charged with Penal Law (“PL”) §120.00 (1) (assault in the third degree) and PL §120.15 (menacing in the third degree), both misdemeanors, and PL §240.26 (1) (harassment in the second degree), a violation. The complaint was deemed an information at defendant’s arraignment. On June 1, 2023, the People filed their CoC and SoR. At a discovery conference held on June 30, 2023, before Hon. Seth Steed, the parties discussed outstanding discovery: 1) video surveillance of the incident; 2) NYPD Legal Bureau Document Production Unit Letters (the “NYPD Legal Letters”); 3) Giglio records for testifying and non-testifying officers; and 4) an aided card/report. Judge Steed set a motion schedule, and directed the People to investigate whether surveillance video was captured and to disclose, if the items were in their custody and control, the NYPD Legal Letters and CCRB files. DISCUSSION I. The Parties’ Arguments Defendant argues that body worn camera footage (the “BWC”) from PO Logrono, PO Alvarado and PO Torres Santana depicts PO Logrono using his cell phone to capture surveillance video of the incident, which belies the prosecution’s representation that PO Logrono had no discoverable evidence on his cell (affirmation of defendant’s counsel at 8, Exhibit A, pgs, 25-49, annexed to reply affirmation of defendant’s counsel). Defense counsel also claims that the People’s failure to secure and preserve the surveillance video demonstrates a lack of diligence and good faith (reply affirmation of defendant’s counsel at 8). Counsel further claims that the People are obliged to produce Giglio materials for non-testifying witnesses PO Alvarado and PO Torres Santana because they both spoke with the complainant and observed PO Logrono record the surveillance video (affirmation of defendant’s counsel at 12). Counsel seeks Giglio disclosure concerning all involved officers whether the claims are substantiated, unsubstantiated or exonerated, and including underlying documents and/or any PDFs, audio/video/media material (affirmation of defendant’s counsel at 13). Defense maintains that the prosecution has failed to diligently discharge its disclosure obligation regarding items enumerated in CPL §245.20 (1) and, thus, the People’s CoC was illusory and did not stop their speedy trial time from accruing (affirmation of defendant’s counsel at 13-14). Defendant seeks an order suppressing identification evidence or, alternatively, a Dunaway hearing (affirmation of defendant’s counsel at 16). Lastly, counsel maintains that the prosecution must be deemed untimely pursuant to CPL §170.30 (e), §30.20 and §30.30 if the People are charged with the period of their non-compliance (affirmation of defendant’s counsel at 16-18). Initially, the People argue that they are not required to obtain by subpoena duces tecum material, such as surveillance video from a private business, which defendant can thereby obtain himself (People’s affirmation at 3). The People concede that they could have issued their own subpoena before the presumed 30-day tape erasure, but they ascribe some delay in marshalling discoverable items to the fact that defendant’s DAT did not order his return to court until three weeks later (People’s affirmation at 4). The prosecution maintains that defense counsel’s demand for a separate copy of the surveillance material is unreasonable insofar as the surveillance video is observable in the BWC (People’s affirmation at 5). Further, the prosecution also recites their efforts to contact PO Logrono, who confirmed that he did not have any recordings, and they annex a timestamped image from the BWC which they purport further confirms that he was not recording (People’s affirmation at 7, referencing People’s exhibit 4). The People deny that NYPD Legal Letters for the IAB records exist and state that although prepared for a short time, the letters were entirely duplicative of the information provided in the actual IAB logs (People’s affirmation at 7). Moreover, the prosecution avers that defendant has failed to articulate a basis for disclosure of Giglio, NYPD Legal Letters, or Central Personnel Index (“CPI”) material for non-testifying witnesses not demonstrated to have played a central role in his arrest (People’s affirmation at 9). The People represent that they are not in possession of CCRB records (People’s affirmation at 9). The prosecution further contends that defense counsel’s demand for records and any PDFs, audio/video/media material for claims — whether substantiated, unsubstantiated, or exonerated — is unreasonable (People’s affirmation at 11). The prosecution asserts that defense counsel did not confer with the People until June 29, 2023, the day before their discovery conference (People’s affirmation at 12). Lastly, the prosecution states that it declared trial readiness 83 days after defendant’s arraignment, within the prescribed statutory time, and the People oppose defendant’s request for an order suppressing identification evidence or, alternatively, granting a Dunaway hearing (People’s affirmation at 13-14). II. Applicable Standard for CoC Challenge Where defendant alleges that the accusatory instrument should be dismissed because the People’s CoC is illusory based upon the prosecution’s failure to diligently discharge their automatic disclosure obligations pursuant to CPL §245.20 (1), the People must establish that they have met their discovery burden (see e.g., People v. Adrovic, 69 Misc 3d 563, 572 [Crim Ct, Kings County 2020]; CPL §245.50 [3]). Courts will then conduct an inquiry to determine whether the People are in compliance by examining the prosecution’s efforts to obtain outstanding discovery materials (see People v. Quinlan, 71 Misc 3d 266, 271 [Crim Ct, Bronx County 2021]; People v. Pierna, 74 Misc 3d 1072, 1088 [Crim Ct, Bronx County 2022]). Where the prosecution has demonstrated due diligence and a good faith effort to discharge their discovery obligations although items remain unavailable, a court may still deem the CoC to be valid and the People ready for trial (see People v. Diaz, 77 Misc 3d 727, 733 [Crim Ct, Bronx County 2022]). Additionally, pursuant to CPL §245.80, a court may impose a remedy or sanction where discoverable information is belatedly disclosed which is appropriate and proportionate to the prejudice suffered by the party entitled to the discovery (CPL §245.80 [1] [emphasis added]). However, where the People fail to detail their efforts to obtain discoverable items such that a court cannot make a finding that the prosecution acted in good faith, their CoC will be deemed invalid (see People v. Perez, 75 Misc 3d 1205[A], 2022 NY Slip Op 50387[U], *3 [Crim Ct, Bronx County 2022]; People v. Georgiopoulous, 71 Misc 3d 1215[A], 2021 NY Slip Op 50380[U], *6 [Sup Ct, Queens County 2021]; People v. Valdez, 80 Misc 3d 544, 547 [Crim Ct, Kings County 2023]). III. The Court’s Analysis Incident Surveillance Video Annexed to defense counsel’s reply as Exhibit A are twenty-five non-sequential and sometimes duplicative color still images taken from the BWC, the earliest and latest of which are denoted, respectively, as: 2023-02-17 10:51:10-0500 AXON BODY 3 X60325122 2023-02-17 10:51:33-0500 AXON BODY 3 X60325122 The unidentifiable person in each of these 25 BWC images is pointing a cell phone towards what appears to be a surveillance screen which is displaying an image. The Court has carefully reviewed the BWC, and it appears that the individual is recording because the cell is illuminated, the person’s bent thumb is hovering over the record button (which is illuminated red) and the image on the phone mirrors what appears on the surveillance screen. Although the person holding the phone is not readily identifiable as a police officer, the individual is wearing the same distinctive chain bracelet displayed in the BWC annexed to the People’s opposition as Exhibit 4, which is denoted as: 2023-02-17 10:49:43-0500 AXON BODY 3 X60325122 The People have argued, alternatively, that 1) any cell phone footage would be duplicative of images of the surveillance video displayed on the BWC, 2) PO Logrono did not record surveillance images- and their BWC image confirms that his phone was not recording, and 3) they exercised good faith in attempting to confirm the existence of cell phone footage from the surveillance video of the incident. All three arguments are wholly unavailing. The prosecution would have this Court accept the premise that the existence of cell phone video is of no import where surveillance images of the incident are depicted in the BWC. As a threshold issue, this BWC evidence may be of negligible value because the images on the screen are small and blurry. Moreover, this Court finds that it strains credulity for the People to adamantly disagree with defense counsel’s assertion that PO Logrono recorded on his cell phone where the People’s own BWC depicts him recording the surveillance screen over a span of at least 23 seconds. It was particularly imprudent for the prosecution to cull one BWC image, time stamped at 10:49:43, in support of the proposition that PO Logrono’s phone was “clearly not capturing any video” when earlier timestamped frames of the disclosed BWC show the exact opposite. Additionally, the People’s representation that PO Logrono unequivocally stated that he did not take any videos, is belied by the email submitted into evidence as Exhibit 3, wherein on August 18, 2023, at 4:37PM, PO Logrono wrote “I apologize, but I do not have any recordings for this incident” (Exhibit 3, annexed to People’s affirmation). This email exchange, six months after the purported incident, does not clarify why images were displayed on the officer’s cell phone, which mirror what was on the surveillance screen, nor the issue of whether those images were preserved and for how long. To be clear, we find that the breadth of defense counsel’s discovery demands, including a request for underlying Giglio materials, and underlying materials to the underlying Giglio materials, appears calculated to deluge the People with document requests rather than uncover exculpatory evidence. Nevertheless, the Court must examine the People’s efforts to confirm the existence of an NYPD recording of the surveillance video to determine whether they acted in good faith and with due diligence (see Georgiopoulos at *6; see Valdez at 547; see Perez at *3; see Diaz at 733; see Pierna at 1088; see People v. Franklin, 78 Misc 3d 1232[A], 2023 NY Slip Op 50400[U], *6 [Crim Ct, Bronx County 2023]). In Georgiopoulos, the prosecution’s CoC listed dashboard camera footage as evidence that might have been lost or destroyed but six months later, after serving supplemental disclosures, they failed to explain what happened to the potentially exculpatory evidence (Id. at *6). In finding that the CoC was illusory, the Georgiopoulos court held that the prosecution’s failure to explain this issue undermined the validity of their CoC (Id.). In the matter at bar, the People submit an explanation which is wholly at odds with their own evidence insofar as they maintain that PO Logrono did not make any recording in spite of what is depicted in the BWC. Even if the People had not reviewed their own BWC before disclosure, the possibility that such cell phone evidence existed was front and center following the June 30, 2023 discovery conference. Yet the People, contemporaneous with filing their opposition, contacted PO Logrono to seek clarification that he did not take nor have videos of the incident instead of clarifying why it appeared on the BWC that he was recording with his phone. The Valdez court found that the prosecution’s unexplained delay in disclosing Giglio materials was not reasonable because they failed to demonstrate that sufficient inquiries had been made prior to filing their CoC (Id. at 547). Although the prosecution’s CoC was deemed illusory because of their lack of due diligence, the court found that defense counsel lacked clean hands because he had not complied with a court order to file defendant’s CoC (Id. at 555). Thus, the People were partially charged with the period of their non-compliance, but the accusatory instrument was not dismissed (Id. at 556). An analogy could be made with the Valdez decision insofar as defense counsel at bar did not endeavor to address the issue of the surveillance video until the eve of the discovery conference, three months after the CoC and BWC had been served. Certainly, CPL §245.50 provides that challenges to the CoC shall be addressed by motion as soon as practicable (see CPL §245.50 [4] [c]). But for the People’s insistence that there is nothing to see here, the Court may have been inclined to find that defendant’s laxity in addressing deficiencies in the People’s disclosures should be dispositive, and that the imposition of remedies pursuant to CPL §245.80 (2) was the appropriate consequence for the People’s non-compliance. In Perez, the court held that the prosecution’s conclusory assertions of good faith, without specific details about their efforts to marshal police records, failed to demonstrate the requisite diligence required by CPL §245.50 (1) (see Perez at *11 citing Georgiopoulos, supra at *3 ["good faith and due diligence are the touchstones by which a certificate of compliance must be evaluated"]). Accordingly, the court invalidated the prosecution’s CoC and the period of their non-compliance exceeded the statutorily prescribed time to declare trial readiness (see Perez at *13). In the case at bar, it is not the People’s silence concerning their efforts to ascertain the existence of a cell phone recording of a surveillance video which defeats their cause. Rather, it is the People’s failure, at best, to review their own BWC evidence and to follow up with PO Logrono for specific clarification concerning why he appears to be recording the surveillance screen. In light of what is demonstrably evident in the BWC, it was incumbent on the People to discuss this issue with PO Logrono before disclosure, and certainly in preparation for the discovery conference; anything less could not reasonably constitute due diligence. In Diaz, Hon. Michael Hartofilis rejected the premise advanced by defense counsel that the prosecution’s CoC could not be deemed valid until every item enumerated in CPL §245.20 (1) has been disclosed (Id. at 733). Thus, the Diaz court reasoned that “the court has the power to deem the COC and SOR valid and timely as reasonable under the circumstances, even if some items are lost, destroyed or otherwise unavailable” (see Id. at 734 [internal citations omitted]). Applying the Diaz standard of “reasonable under the circumstances,” this Court finds that the People’s actions were quite unreasonable. The opposition gives no quarter in its refusal to acknowledge that the same BWC which supposedly suffices to display the surveillance images also depicts an individual, presumed to be PO Logrono, recording those images with his cell. The court in Pierna found that “the crux of any challenge to a certificate of compliance is whether the People acted in good faith and with due diligence by conducting reasonable inquiries to obtain discovery materials when they filed their COC” (see Id. at 1088). Additionally, the court noted that the prosecution could be held to have exercised due diligence where evidence was not disclosed because of minor oversights in the production of material or a good faith position that the material in question was not discoverable (see Pierna at 1088 citing People v. Perez, 73 Misc 3d 171, 176 [Sup Ct, Queens County 2021]). However, the Pierna court held that the prosecution had not acted diligently because there was no evidence that they had ever asked their witnesses about the existence of the missing disclosure, nor did the People indicate that the items had been lost or destroyed (Id. at 1091-1092). Consequently, the court deemed the CoC illusory, and the prosecution was held untimely because the chargeable time exceeded the statutory requirement (Id. at 1093). As stated herein, the People maintain that they reasonably relied upon representations made by PO Logrono and their discovery liaison that no cell phone video of the surveillance images existed. However, we find that the People had an affirmative duty, under these circumstances, to reconcile, if possible, NYPD’s assurances that no cell phone video was taken with what is plainly depicted in not one but twenty-five BWC images, and the failure or refusal to do so cannot be ascribed to mere inadvertence. In Franklin, this Court rejected a CoC challenge where the prosecution documented efforts to interview witnesses, confirm the existence of video taken by a civilian witness, and to procure records from the arresting officer and two police precincts (see Franklin at *3-*4). This is not to suggest that there is a single approach to managing the vagaries of an on-going investigation. Rather, by following up, the very essence of what it means to exercise due diligence, the People demonstrated that they had acted in good faith even though some discovery was missing and/or belatedly disclosed (see Id. at *6). In this Court’s estimation, the prosecution cannot have diligently discharged their discovery obligations absent an articulable explanation for why the People do not clarify the incongruity of disclosing BWC which depicts their testifying witness recording evidence of the purported incident while adamantly rejecting the notion that any recording was ever made. Accordingly, the Court finds that the People’s CoC, filed June 1, 2023, was illusory and did not toll the prosecution’s speedy trial time. Other outstanding discovery It is well-settled that the CCRB is not a law enforcement agency nor an agency within the prosecution’s control (see People v. Carter, 76 Misc 3d 1206[A], 2022 NY Slip Op 50837[U], *6 [Crim Ct, Bronx County 2022]. The People have stated they have no CCRB records in their possession and, as such, they have satisfied their duty pursuant to CPL §245.20 (2) (see People v. Peralta, 79 Misc 3d 945, 956-57 [Crim Ct, Bronx County 2023]). Presumably, there were no constraints on defense counsel’s ability to subpoena CCRB records. Defense counsel further seeks Giglio materials for all officers involved, including any PDFs, audio/video/media material for claims- whether substantiated, unsubstantiated, or exonerated- essentially underlying records to the underlying IAB logs. Defense counsel’s reliance on this Court’s decision in Peralta, which directed Giglio disclosures for non-testifying officers, is entirely misplaced where counsel has proffered no evidence that PO Alvarado and PO Torres Santana played an integral role in the arrest and/or investigation of the incident such that disclosure is warranted (see Peralta at 956). Moreover, counsel has failed to articulate a reason for why exonerated claims against PO Logrono would have any probative value to the defense. Next, defense counsel asserts that defendant is entitled not just to IAB logs, but also sundry items used to compile the IAB logs, and he relies upon the holding in Matter of Jayson C., for the proposition that all impeachment materials must be disclosed (see Jayson C., 200 AD3d 447, 448 [1st Dept 2021]). However, it is respectfully submitted that this holding is inapposite to the facts at bar, wherein the narrow question before the Appellate Division was whether it was unconstitutional to deny disclosure of impeachment evidence to a juvenile respondent in Family Court that which is afforded to a defendant in a criminal proceeding, and where the presentment agency had only disclosed their summaries of disciplinary histories and not the actual records. Here, defendant has already been provided with personnel records, IAB logs and the CPI for PO Logrono. Accordingly, under the circumstances presented here, we find no reasonable basis to conclude that CPL §245.20 (1) would compel disclosure of the underlying records to the underlying IAB log which is an underlying record to the IAB summaries. Additionally, we credit the People’s representation that there are no NYPD Legal Letters associated with the disclosed IAB logs. Lastly, the People have consistently represented that no aided report was prepared for the matter. Defense counsel’s argument that the prosecution should explain the absence of this record is unavailing where defendant would presumably benefit from an adverse inference at trial. IV. The CPL §30.30 Calculation In a motion to dismiss an accusatory instrument where the top charge is a misdemeanor, pursuant to CPL §30.30 (1), defendant has the initial burden to demonstrate that the prosecution failed to declare readiness for trial within the statutorily prescribed time, ninety days (see CPL §30.30 [1] [b]; see also 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]; see also CPL §30.30 [4]). The burden then shifts to the People to identify excludable delays (see People v. Luperon, 85 NY2d 71, 77-78 [1995] ["(T)he People must ordinarily identify the exclusions on which they intend to rely, and the defense must identify any legal or factual impediments to the use of these exclusions"]). The People’s 30.30 calculation commenced on March 10, 2023, the day after defendant’s arraignment. On April 25, 2023, the People informed the court that they were not ready for trial (March 10, 2023 to April 25, 2023 = 46 days chargeable). On June 1, 2023, the People filed their CoC and SoR off-calendar (April 25, 2023 to June 1, 2023 = 37 days chargeable). On June 30, 2023, the parties appeared at a discovery conference, the People advised the court that they had declared their trial readiness and the instant motion schedule was set (June 1, 2023 to June 30, 2023 = 29 days chargeable because the CoC has been deemed illusory). Accordingly, because 112 days in total are chargeable to the People, the prosecution was not timely pursuant to CPL §§170.30 (e), 30.20 (1) (b) and 30.30, and the case must be dismissed. CONCLUSION Based upon the foregoing, defendant’s motion for dismissal of the accusatory instrument on statutory speedy trial grounds pursuant to §§30.30 (1) (b) and 170.30 (1) (e) is GRANTED. This constitutes the opinion, decision, and the order of the Court.1 Dated: November 16, 2023
