DECISION & ORDER By motion filed October 2, 2023, defendant moves alternatively for dismissal of the accusatory instrument for facial insufficiency pursuant to Criminal Procedure Law (“CPL”) §§170.30, 170.35, 100.15, 100.40 and 30.30 (1); for an order deeming the prosecution’s Certificate of Compliance (“CoC”) and Statement of Readiness (“SoR”), filed on August 3, 2023 and September 12, 2023, respectively, illusory pursuant to CPL §§245.20 and 245.50; for dismissal pursuant to CPL §§245.30 (3), 30.30 and 170.30; for leave to file a reply and conduct a hearing on the underlying facts pursuant to People v. Luperon, 85 NY2d 71, 78 [1995] and People v. Allard, 28 NY3d 41, 45-47 [2016]; and for such additional relief as the Court deems appropriate (“MTD”). Parenthetically, by omnibus motion also dated October 2, 2023 (“Omnibus”), defendant moves for an order suppressing any physical evidence seized from, or evidence of identification made of, defendant pursuant to Mapp/Dunaway and Wade/Crews/Rodriguez, respectively or alternatively, for a hearing on findings of fact and conclusions of law; and for an order precluding evidence of defendant’s prior convictions or bad acts pursuant to Sandoval/Ventimiglia. On October 23, 2023, the People opposed defendant’s motion to dismiss and consented to the hearings requested in his omnibus motion. On October 30, 2023, defendant filed a reply brief. Upon review and consideration of the submissions, court file and relevant legal authority, the Court finds that the People’s CoCs and SoRs, filed August 3, 2023 and September 12, 2023, respectively, were valid, and further: DENIES defendant’s motion to dismiss the information for facial insufficiency pursuant to CPL §§170.30, 170.35, 100.15, 100.40 and 30.30 (1); and DENIES defendant’s motion for dismissal pursuant to CPL §§245.30 (3), 30.30 and 170.30; and DENIES defendant’s request for a hearing on the underlying facts pursuant to Luperon, supra and Allard, supra; and GRANTS defendant’s motion for a Wade/Crews/Rodriguez pre-trial hearing; and DIRECTS the People to comply with their continuing discovery obligations pursuant to CPL §245, including Brady disclosures; and REFERS the issue of preclusion pursuant to Sandoval/Ventimiglia to the trial court. RELEVANT PROCEDURAL BACKGROUND On May 6, 2023, defendant Tyrone Price was arrested and charged with Penal Law (“PL”) §220.03 (criminal possession of a controlled substance in the seventh degree); two counts of PL §120.00 (1) (assault in the third degree), both misdemeanors, and two counts of PL §240.26 (1) (harassment in the second degree), a violation. Defendant was arraigned on May 8, 2023, and released on his own recognizance, and the matter was adjourned to June 22, 2023, for conversion and compliance. The People were not compliant nor was the complaint converted at the next court appearance and the matter was adjourned to August 10, 2023. At the next appearance, the People advised the court that a superseding information (“SSI”), CoC and SoR had been filed off-calendar on August 3, 2023; the SSI dropped the PL §220.03 charge; additionally, the SSI charges only one count each of PL §120.00 (1) and PL §240.26 (1). At a discovery conference held on September 11, 2023, defense counsel advised the court that she was in receipt of additional discovery, and she requested a motion schedule. DISCUSSION I. Applicable Legal Standards CPL §30.30 Challenge In a motion to dismiss misdemeanor charges pursuant to CPL §30.30 (1), a defendant has the initial burden to demonstrate that the prosecution failed to declare readiness for trial within ninety days (see CPL §30.30 [1] [b]); see Luperon at 77-78). Generally, a criminal action is commenced by the filing of an accusatory instrument against a defendant, and it is settled law that the date on which the action is commenced is excluded from the CPL §30.30 computation (see CPL §1.20 [17]; People v. Stiles, 70 NY2d 765, 767 [1987]). Following legislative reforms to the CPL, after January 1, 2020, the People must now also satisfy their statutory obligations pursuant to CPL §245.50 (3), which provides that “the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper certificate pursuant to subdivision one of this section” (see People v. Kendzia, 64 NY2d 331, 337 [1985]; People v. Pierna, 74 Misc 3d 1072, 1087 [Crim Ct, Bronx County 2022]; People v. Aquino, 72 Misc 3d 518, 520 [Crim Ct, Kings County 2021]). Consequently, courts examine the prosecution’s efforts to ensure that it has served all known discoverable materials pursuant to CPL §245.20 to determine the validity of a CoC (see People v. Adrovic, 69 Misc 3d 563, 574-575 [Crim Ct, Kings County 2020]; People v. Vargas, 76 Misc 3d 646, 652 [Crim Ct, Bronx County 2022]). Facial Insufficiency Challenge To meet the jurisdictional standard for facial sufficiency, a misdemeanor complaint “need only set forth facts that establish reasonable cause to believe that the defendant committed the charged offense” (see People v. Smalls, 26 NY3d 1064, 1066 [2015]; see also CPL §100.40 [1] [b]; CPL §70.10). The accusatory instrument must set forth non-hearsay facts of an evidentiary nature which, if true, establish every element of the offense charged (see People v. Suber, 19 NY3d 247 [2012]; People v. Dumas, 68 NY2d 729 [1986]). It is well-settled that “mere conclusory allegations are insufficient [ ] and a purported information which fails to meet these requirements is fatally defective” (see People v. Pamulo, 48 Misc 3d 1227 [A], 2015 NY Slip Op 51286 [U], **2 [Crim Ct, New York County 2015] [citations omitted] citing People v. Alejandro, 70 NY2d 133, 136 [1987]). However, “[t]he court should approach factual allegations with a fair, not overly restrictive, or technical reading” (see People v. Suquilanda, 80 Misc 3d 1220 [A], 2023 NY Slip Op 51045 [U], *2 [Crim Ct, Bronx County 2023] citing People v. Casey, 95 NY2d 354, 360 [2000]). However, “[t]he prima facie case requirement does not necessitate that the information allege facts that would prove defendant’s guilt beyond a reasonable doubt” (see People v. Washington, 46 Misc 3d 1210 [A], 2015 NY Slip Op 50030 [U], ***3 [ Crim Ct, New York County 2015] [internal citations omitted]. Consequently, the accusatory instrument need only set forth factual allegations which “give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense” (see Id. [internal citations omitted]). II. The Parties’ Arguments Defense counsel maintains that the SSI does not allege that defendant injured Patricia Williams, named along with the complaining witness, Wanda Cintron (“CW”) (MTD, affirmation of defendant’s counsel at 7). Counsel further avers that the SSI fails to allege that defendant acted with intent to injure the CW (Id. at 9). Defendant states that more than 90 days have elapsed since arraignment and the prosecution has failed to file a facially sufficient information or comply with their statutorily prescribed discovery obligations within 90 days (Id. at 10). It is further asserted that the SSI merely alleges that defendant raised his arm towards the CW, who then raised her arms, which caused them to collide (Id.). Defendant contends that the People’s August 3, 2023 CoC was not valid because the prosecution had yet to disclose an aided report for the CW or Ms. Williams’s medical records (Id. at 13). Specifically, counsel asserts that although the aided report is dated May 6, 2023, it was not disclosed until August 10, 2023, and not accompanied by a supplemental CoC (“SCoC”) to explain the delay as mandated by CPL §245.50 (1) (Id.). Defendant further complains that the People used their CoC as a placeholder instead of requesting additional time to procure records (Id. at 15). Similarly, counsel complains that the People’s SCoC filing was devoid of any explanation for the delay in disclosing medical records (Id. at 16). Defendant avers that although the prosecution stated that unfounded and exonerated IAB claims for testifying witness Police Officer Rivera (“PO Rivera”) are not discoverable, the People have yet to confirm the existence of any other misconduct records for PO Rivera (Id. at 16-17). Counsel also claims that the Central Personnel Indicator (“CPI”) record for testifying PO Myrick is not probative because the search was conducted before the date of defendant’s arrest (Id. at 16). Counsel maintains that disciplinary records pertaining to another officer, PO Rosario, are subject to disclosure pursuant to CPL §245.20 (1) (k) because that officer interviewed the CW and conducted the subject identification procedure (Id. at 17-18). Defense counsel’s reply brief reiterates his arguments and further argues that the People’s assertion that defendant has failed to demonstrate that he has been prejudiced by their belated disclosures is wholly inapposite (MTD, reply affirmation of defendant’s counsel at 4-6). Lastly, defendant argues that suppression of evidence, both physical and identification, is warranted where the original complaint asserted that he was holding a glass pipe containing a black, tar-like substance, but the charge of criminal possession of a controlled substance was subsequently dropped, and because he alleges that he was standing on a public street minding his own business yet unlawfully arrested and subjected to an identification procedure (Omnibus, affirmation of defendant’s counsel at 4). Initially, the People’s opposition argues that the charges set forth in the SSI do not pertain to the allegation that defendant struck Ms. Williams but refer instead to the allegation that defendant assaulted and harassed the CW (affirmation in support of People’s opposition at 7). Specifically, the People claim that the SSI alleges facts which support a reasonable inference that defendant intended to cause the CW injury where he raised his arm with a closed fist (Id.). The prosecution contends that the information has been sufficiently pled where defendant is alleged to have punched the CW in the elbow after she blocked her face with her arms (Id. at 8). Next, the People aver that the belated disclosure of an aided report does not warrant a finding that the CoC and SCoC were invalid because their due diligence was manifest in their repeated requests to their discovery liaison for relevant discovery and the prosecution’s continuing dialogue with defense counsel specifically regarding the aided report (Id. at 9-11). Similarly, the People argue that they diligently pursued medical records which were not in their custody and control when the initial CoC was filed (Id. at 11-13). The prosecution maintains that it satisfied its statutory obligation to disclose disciplinary records insofar as defense counsel was provided with the sole substantiated IAB log concerning PO Rivera and state that the People will disclose discoverable material if any new allegations are made against PO Myrick (Id. at 15). The People categorically deny defense counsel’s argument that the disciplinary records for non-testifying PO Rosario are discoverable and cite to this Court’s decision in People v. Peralta, 79 Misc 3d 945 [Crim Ct, Bronx County 2023] for the proposition that counsel has failed to establish a substantial nexus between PO Rosario and defendant’s arrest (Id. at 15-18). Lastly, the People assert that no more than 87 days are chargeable to the prosecution, within the statutory time to declare their readiness for trial (Id. at 19-22). III. The Court’s Analysis Facial Insufficiency Claim In pertinent part, the SSI provides that on May 6, 2023 at approximately 7:28 p.m. in front of 1308 Southern Boulevard, County of the Bronx, State of New York, Wanda Cintron, states that: Deponent states that, at the above time and place, deponent observed the defendant strike PATRICIA WILLIAMS about the face with a closed fist. Deponent further states that defendant approached deponent and raised his arm towards deponent, at which point deponent blocked her face with her arms causing defendant to strike deponent’s left elbow with a closed fist. Deponent further states that, as a result of defendant’s aforementioned actions, deponent suffered substantial pain, bruising, soreness, redness and a lump to her left elbow. Deponent further states that defendant’s aforementioned conduct caused her to experience annoyance, alarm and fear for her physical safety. Initially, the Court finds that it is apparent that the SSI, which charges one each count of PL §120.00 (1) and PL §240.26 (1), refers only to the CW and not to Patricia Williams. Accordingly, the issue of facial sufficiency of the accusatory instrument concerning Ms. Williams is rendered moot. A. Assault in the Third Degree Penal Law §120.00 (1) provides that “[a] person is guilty of assault in the third degree when, [w]ith the intent to cause physical injury to another person, he causes such injury to such person or to a third person” (see PL §120.00 [1]). New York Criminal Jury Instructions (“CJI”) further provides, in pertinent part, that “PHYSICAL INJURY means impairment of physical condition or substantial pain” and “INTENT means conscious objective or purpose. Thus, a person acts with intent to cause physical injury to another when that person’s conscious objective or purpose is to cause physical injury to another” (see (CJI2d[NY] Penal Law §120.00 [1], https://www.nycourts.gov/judges/cji/2-PenalLaw/120/120-00(1).pdf [last accessed November 30, 2023]). The accusatory instrument alleges that the deponent, who is the complainant, was punched in the elbow when she blocked defendant as he approached her with a closed fist. Deponent further stated that as a result of defendant’s actions, she suffered substantial pain, bruising, soreness, redness and a lump to her left elbow. Viewed in the light most favorable to the People, the factual allegations that defendant struck the deponent’s left elbow with a closed fist and that deponent experienced substantial physical injury including bruising, redness and pain, suffice to establish probable cause to believe that the defendant acted intentionally to injure the deponent and that she suffered physical harm as a consequence of defendant’s behavior (see People v. Calixto, 908 NYS2d 339, 342 [Crim Ct, New York County 2010]["(I)n assessing the facial sufficiency of a misdemeanor information, the court is not required to ignore common sense or the significance of the conduct alleged"][internal citations omitted] but see People v. Chavez, 972 NYS2d 858, 864 [Crim Ct, Bronx County 2013]["Defendant's act of pushing the arresting officer away from him, without more, does not demonstrate an intent to injure"]). B. Harassment in the Second Degree Penal Law §240.26 (1) provides that “[a] person is guilty of harassment in the second degree when, [w]ith the intent to harass, annoy or alarm another person, he or she strikes, shoves, kicks or otherwise subjects such person to physical contact, or attempts or threatens to do the same” (see PL §240.26 [1]). The CJI further provides, in pertinent part, that “a person is guilty of Harassment in the Second Degree when, with intent to harass, annoy or alarm another person, he or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same” and “INTENT means conscious objective or purpose. Thus, a person acts with intent to harass, annoy or alarm a person when his or her conscious objective or purpose is to do so” (see (CJI2d[NY] Penal Law §240.26 [1], https://www.nycourts.gov/judges/cji/2-PenalLaw/240/240-26.pdf [last accessed November 30, 2023]). Here, the SSI asserts that defendant’s actions caused the deponent to experience annoyance, alarm, and fear for her physical safety. Viewed in the light most favorable to the People, these factual allegations, coupled with the allegation that defendant struck deponent with a closed fist which caused her to suffer substantial physical pain, suffice to establish probable cause to believe that defendant acted deliberately to cause the deponent annoyance and alarm (see People v. Lewis, 61 NYS3d 467, 472 [Crim Ct, New York County 2017]["(C)ourts have found that when harassment in the second degree is pled in conjunction with an intentional assault, that the intent to harass, annoy, or alarm element may be inferred"][internal quotations omitted]; see also Suquilanda at *4). Defense counsel appears to surmise that the CW’s elbow would not have been struck had she not raised her hands to guard against the defendant as he approached her with a closed fist. This Court finds that argument, and the assertion that the facts as alleged do not suffice to establish physical injury, meritless. Accordingly, pursuant to CPL §§100.40 (1) (c) and 100.15 (3), based upon the four corners of the People’s SSI, the accusatory instrument is deemed facially sufficient on both charges. CoC Challenge: Belated Disclosures A. The CW’s Aided Report In People v. Amissah, 79 Misc 3d 401, 405 [Crim Ct, Bronx County 2023], this Court recognized that while the People’s duty to file a supplemental CoC upon the disclosure of additional discovery pursuant to CPL §245.50 (3) is inflexible, “the filing of a SCoC does not automatically negate prior filings, as long as the People demonstrate that they acted in good faith and used due diligence to fulfill their discovery obligation” (see Amissah at 405 citing People v. Askin, 68 Misc 3d 372, 377 [County Ct, Nassau County 2020][Court rejected defense counsel's proposition that the filing of subsequent certificates of compliance was a presumptive admission that the People failed at their discovery obligations][internal citations omitted]). The prosecution in Amissah did not endeavor to serve an SCoC until they opposed the defendant’s motion (see Amissah at 565 ["(T)he court finds that filing an SCOC and SSOR 60 days after disclosing long-requested outstanding Giglio materials was unreasonable, unpracticable, and unfair to the defense"] [emphasis added]). The facts at bar are distinguishable, quantitatively and qualitatively, because although the People’s opposition elides any explanation for the failure to file an SCoC upon the disclosure of the outstanding aided report, they enumerate multiple efforts to follow-up with their discovery liaison before and after the CoC filing- the very essence of due diligence. Additionally, this Court credits the prosecution’s representation that the People had a good faith basis to believe that no aided report was generated for the CW after two specific requests resulted only in an aided report for Ms. Williams prior to their initial filing. Based upon the circumstances presented at bar, and where CPL §245.50 provides multiple references to “reasonable inquiries” and “reasonable under the circumstances,” the Court finds no plausible reason to find that the failure to file an SCoC with the aided report warrants invalidation of the People’s CoC. B. Medical Records Equally unavailing is defendant’s argument that the People’s SCoC should be deemed defective because they did not provide an explanation for the belated disclosure of Ms. Williams’s medical records. In People v. Hernandez, this Court addressed this issue (see Hernandez, 80 Misc 3d 1035, 1039 [Crim Ct, Bronx County 2023]["It is well-settled that the disclosure of a complaining witness's medical records after the initial CoC is filed does not serve as a basis to invalidate it where "the records were not in the People's possession or control when the initial CoC was filed"] [internal citations omitted]. While medical records are unambiguously enumerated as an item subject to automatic disclosure pursuant to CPL §245.20 (1) (j), the People’s duty to disclose those medical records is prescribed by CPL §245.20 (2) and, as such, the prosecution is required to act diligently to ascertain their existence and cause them to be made available (see Hernandez at 1040 citing People v. Erby, 68 Misc 3d 625, 633 [Sup Ct, Bronx County 2020]. The record demonstrates that the People “exercised their ability to compel production of records which were not in their custody, nor prepared at their request” (compare Hernandez at 1040, with People v. Rahman, 79 Misc 3d 129 [A], 2023 NY Slip Op 50692 [U], *3 [App Term, 2d Dept 2023][Disclosure of medical records made by or at the request of a public servant engaged in law enforcement deemed discoverable]). C. Disciplinary Records In People v. Nichols, we held that defense counsel failed to proffer any articulable facts to support the proposition that files related to exonerated charges, as opposed to unsubstantiated or substantiated allegations, could implicate the People’s duty to disclose pursuant to CPL §245.20 (1) (k) (see Nichols, 79 Misc 3d 1211 [A], 2023 NY Slip Op 50591 [U], *7 [Crim Ct, Bronx County 2023]. The Nichols holding is dispositive because the prosecution has already disclosed one substantiated IAB log for PO Rivera and represented that there are no unsubstantiated IAB claims against PO Rivera and no IAB records pertaining to PO Myrick. The People have fulfilled their Giglio obligation regarding the testifying witnesses. Additionally, the issue of whether this Court finds that Giglio disclosures are required for non-testifying officers has been discussed with varying outcomes based upon the particular facts presented in Peralta at 955-956 [Non-testifying officer's disciplinary records disclosed where defendant's arrest would not have occurred but for his involvement]; People v. Vargas, 78 Misc 3d1235 [A], 2023 NY Slip Op 50425 [U], *5-*6 [Crim Ct, Bronx County 2023] [Disciplinary records concerning non-testifying arresting officer not inscrutable]; and People v. Thomas, 80 Misc 3d 1227 [A], 2023 NY Slip Op 51115 [U], *4-*5 [Crim Ct, Bronx County 2023] [Cursory involvement in the defendant's arrest does not trigger Giglio disclosure]. Here, counsel posits that disciplinary records for PO Rosario could be of significance to the defense because he interviewed defendant and conducted defendant’s identification. We disagree with the People’s contention that impeachment material is only required for testifying officers pursuant to CPL §245.20 (1) (k) where the facts demonstrate that a non-testifying officer’s involvement has a substantial nexus to the defendant’s arrest and/or investigation sufficient to premise an argument for Giglio disclosure (see Thomas at *4). However, counsel has not met that threshold burden to establish that defendant would not have been arrested but for PO Rosario’s involvement. Accordingly, the People have fulfilled their Giglio disclosure obligations. 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, 90 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 App 2022]; see also CPL §30.30 [4]). The burden then shifts to the People to identify excludable delays (see Luperon at 77- 78 ["(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"]). In the case at bar, the People’s 30.30 calculation commenced on May 9, 2023, the day after defendant’s arraignment. At the court appearance on June 22, 2023, the People were not ready for trial (May 9, 2023 to June 22, 2023 = 44 days chargeable). On August 3, 2023, the People filed their CoC and SoR off-calendar (June 22, 2023 to August 3, 2023 = 42 days chargeable). At the next court appearance on August 10, 2023, the People advised the court that they had declared their trial readiness and the matter was adjourned for a discovery conference (August 3, 2023 to August 10, 2023 = 0 days chargeable). On September 11, 2023, defendant requested a motion schedule (August 10, 2023 to September 11, 2023 = 0 days chargeable). The People miscalculated their chargeable time as 87 days. In fact, 86 days are chargeable to the People and, thus, the prosecution was timely pursuant to CPL §30.30 (1) (b). V. Defendant’s Request for an Order to Suppress and Preclude Evidence Defendant moves for an order suppressing any physical evidence seized from, or evidence of identification made of, defendant pursuant to Mapp/Dunaway and Wade/Crews/Rodriguez, respectively, or alternatively for a hearing on findings of fact and conclusions of law; and for an order precluding evidence of defendant’s prior convictions or bad acts pursuant to Sandoval/Ventimiglia. The People consent to defendant’s request for pre-trial hearings. Insofar as the SSI dropped the charge of PL §220.03, defendant’s request for a Mapp/Dunaway pre-trial hearing has been rendered moot. Additionally, this Court denies defendant’s request for an order suppressing evidence pursuant to Mapp/Dunaway but grants defendant’s request for Wade/Crews/Rodriguez pretrial hearings, and respectfully refers the issue of Sandoval/Ventimiglia hearings to the trial court. VI. Defendant’s Request for a Hearing if Motion is Denied Defendant requests a hearing on the underlying facts pursuant to Luperon, supra and Allard, supra. However, the Court finds that the People’s opposition has settled all factual disputes. Thus, there are no unresolved disputes which require a hearing and defendant’s request is denied. CONCLUSION Based upon the foregoing, the People’s CoC and SCoC, filed on August 3, 2023 and September 11, 2023, respectively, were valid and further: DENIES defendant’s motion to dismiss the information for facial insufficiency pursuant to CPL §§170.30, 170.35, 100.15, 100.40 and 30.30 (1); and DENIES defendant’s motion for dismissal pursuant to CPL §§245.30 (3), 30.30 and 170.30; and DENIES defendant’s request for a hearing on the underlying facts pursuant to Luperon, supra and Allard, supra; and GRANTS defendant’s motion for a Wade/Crews/Rodriguez pre-trial hearing; and DIRECTS the People to comply with their continuing discovery obligations pursuant to CPL §245, including Brady disclosures; and REFERS the issue of preclusion pursuant to Sandoval/Ventimiglia to the trial court. This constitutes the opinion, decision, and the order of the Court. Dated: December 4, 2023
