Summary 1. Defendant’s motion to deem invalid the People’s certificate of compliance dated April 18, 2023, is GRANTED. 2. Defendant’s motion to dismiss the information on statutory speedy trial grounds is GRANTED. 3. The remaining branches of defendant’s omnibus motion are DENIED AS MOOT. 4. Sealing of this matter is ORDERED STAYED for 30 days from the date of this decision and order. Decision and Order Defendant, Enmanuel Deleon Guzman, stands charged in an information with per se driving while intoxicated (Vehicle and Traffic Law §1192 [2]); common-law driving while intoxicated (Vehicle and Traffic Law §1192 [3]) and driving while ability impaired by alcohol (Vehicle and Traffic Law §1192 [1]). The People served and filed two supporting depositions on April 16, 2023, converting the accusatory instrument to an information, and served and filed a certificate of compliance (CoC) and statement of readiness (SoR) on April 18, 2023. Although the parties conferenced discovery disputes with each other (see CPL 245.35 [1]), no discovery conferencing has taken place with the court (see CPL 245.35 [2]). In one branch of defendant’s omnibus motion dated July 31, 2023, defendant asserts that the CoC is invalid because, “[d]espite the prosecution certifying compliance with Article 245,” purportedly discoverable material has remained outstanding, namely, the online booking arrest form, Civilian Complaint Review Board impeachment material for one named police officer and Internal Affairs Bureau impeachment material for multiple named police officers. Therefore, defendant continues, “the prosecution failed to exercise due diligence and [to] act[ ] reasonably under the circumstances because the prosecution failed to disclose known discoverable items in their possession prior to certifying compliance with C.P.L. Article 245.” The People explain in responsive papers dated August 29, 2023, that, after “shar[ing] all outstanding discovery with Defendant on April 18, 2023, the [People] also sent Defendant an email indicating that all discovery had been shared, and for Defendant to let the undersigned know if there were any materials Defendant believed were missing. Defendant never responded to this email. It wasn’t until…nearly three months (70 days) after discovery was initially shared with Defendant, that Defendant made the People aware of any issues with discovery.” Defendant, in reply papers dated September 11, 2023, clarified that any perceived “delay” in informing the People about their own discovery lapses “was not due to any dilatory tactics by the defense, but rather due [sic] to the time required to review the prosecution’s discovery file which exceeds two thousand five hundred pages, and defense counsel being out of the office for several weeks, including on the date the prosecution originally filed their COC…. Moreover, regardless of the timing of [the defense] challenge, the COC that was filed by the prosecution was not valid as it filed its COC without first disclosing all material in its possession.” Defendant’s effective complaint that “the missing discovery was not produced until after defense counsel alerted the prosecution to the fact that the material was missing overlooks the fact that the State Legislature designed the discovery statute to include this failsafe” (People v. Jerez, 80 Misc 3d 1238[A], 2023 NY Slip Op 51195[U], *2 [Crim Ct, Bronx County 2023] [internal quotation marks omitted]). “Although not expressly stated, the apparent intent in mandating that the opposing party should be notified of or alerted to the defect or deficiency ‘as soon as practicable’ is to provide that party an opportunity to address the complaint…[and to] allow a reasonable time for the parties to resolve a purported defect or deficiency set forth in a notice or alert” (William C. Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, CPL 245.50, quoting CPL 245.50 [4] [b]; see People v. Bay, ___ NY3d ___, 2023 NY Slip Op 06407, *2 [2023] ["parties must notify opposing parties of a COC deficiency or challenge the sufficiency of a COC as soon as practicable"]; People v. Smith, 79 Misc 3d 649, 654 [Sup Ct, Queens County 2023] [CPL 245.50 (4) (b) serves "to diminish any opportunity for manipulation and to provide some guidance on a party's duty to challenge a COC within a reasonable period of time, the Legislature amended the statute to require that the actions necessary to challenge a COC be made 'as soon as practicable' "] [same]; People v. Sellie, 77 Misc 3d 1234[A], 2023 NY Slip Op 50093[U], *5 [Schenectady County Court 2023] ["Where, as here, the defense is aware of a potential defect or deficiency related to a certificate of compliance, counsel must 'notify or alert the opposing party as soon as practicable' of the defect"] [same]; People v. Barralaga, 73 Misc 3d 510, 520-521 [Crim Ct, NY County 2021] ["[I]t would encourage gamesmanship to permit the defense to allow the speedy trial clock to run for an unreasonable period before…contacting the prosecutor to resolve discovery disputes. CPL 30.30 (5) was enacted to protect a defendant from being unfairly disadvantaged preparing for trial by the withholding of discovery. That protection must not be used as a sword by the defendant to run out the CPL 30.30 clock.”]; People v. Rodriguez, 73 Misc 3d 411, 419 [Sup Ct, Queens County 2021] [under the facts alleged, "the absence of several documents from the original certificate is excusable, so long as the People rectify it in a timely fashion when they realize the error"]). Granted, defendant explains here that any delay in informing the People about outstanding purported discovery was unintentional and not part of some “dilatory tactic[ ],” which representation the People do not dispute and the court wholly accepts. However, the reason or cause for the defense delay in providing mandatory CPL 245.50 (4) (b) notice to the People is of no moment. Whether intentional or strategic; the result of negligence; or caused by intervening, unintentioned external forces, the result is the same: There was a delay in providing the People with notice and an opportunity to correct purported discovery failures as required by statute. A discovery oversight or error by the People — particularly prior to the receipt of mandatory CPL 245.50 (4) (b) notice from the defense — does not per se render a CoC invalid (see People v. Pondexter, 76 Misc 3d 349, 354 [Crim Ct, NY County 2022] ["the People's failure to disclose [discoverable material] does not necessarily undermine a finding that they satisfied their statutory obligations when filing their certificate of compliance”]). There is a caveat, however. In serving and filing a CoC, the People must certify that prior thereto they have exercised “due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery” (CPL 245.50 [1]). Consequently, the People do not get to ignore discovery issues known to them just because defendant is unaware or has not provided CPL 245.50 (4) (b) notice. A CoC may be invalidated if, at the time of CoC service and filing, the People had actual or constructive knowledge of discovery shortcomings (see People v. Santos, 79 Misc 3d 11233[A], 2023 NY Slip Op 50778[U] [Crim Ct, Bronx County 2023] ["here the People were apparently aware all along of [ ] missing [discoverable material], but, facing the imminent expiration of their 30.30 clock, proceeded to file a COC”]; People v. Higgins, 75 Misc 3d 1232[A], 2022 NY Slip Op 50713][U], *2 [Yonkers City Ct 2022] ["The People must indicate their efforts to obtain the discoverable material through reasonable inquiry, good faith and due diligence"]). Defendant does claim in the omnibus motion that the People had constructive knowledge of their noncompliance respecting the three categories of outstanding, purportedly discoverable material at the time the CoC was served and filed, again, (1) Civilian Complaint Review Board records of complaints against police officers involved in this matter; (2) an online booking arrest report; and (3) NYPD Internal Affairs Bureau (IAB) impeachment material concerning police officers involved in this matter. The court addresses each category in turn. CCRB Records: Defendant submits that the CCRB records are discoverable pursuant to CPL 245.20 (1) (k) (iv) and that the People were constructively aware of their failure to make them available in this case because “in almost every case, the prosecution does have possession of [the CCRB records]. That is true of this case as well.” Assuming arguendo the correctness of prepositional-phrase portion of the defense claim, the fact remains that “almost every case” is not the same as “every case.” Defendant provides no explanation, beyond mere speculation, for why he believes that CCRB records exist specifically in this matter. In any event, the CCRB, by its own words “is an independent agency…, composed entirely of civilian employees, [that] conducts investigations in an impartial fashion. The Board forwards its findings to the police commissioner” (Civilian Complaint Review Board, About the CCRB, https://www.nyc.gov/site/ccrb/about/about.page [last accessed Dec. 10, 2023]). The court agrees. “[I]t is well-settled that the CCRB is not a law enforcement agency nor an agency within the prosecution’s control. Therefore, the People’s discovery obligation concerning CCRB records is triggered not by CPL §245.20 (1) (k)” (People v. Peralta, 79 Misc 3d 945, 956 [Crim Ct, Bronx County 2023]; see People v. Robinson, ___ Misc 3d ___, 2023 NY Slip Op 23222, *6 [Crim Ct, Kings County 2023]; People v. Carter, 76 Misc 3d 1206[A], 2022 NY Slip Op 50837[U], *6 [Crim Ct, Bronx County 2022]; People v. Alvarez, 71 Misc 3d 1206[A], 2021 NY Slip Op 50292[U], *9 [Sup Ct, Queens County]). Online Booking Arrest Report: Defendant argues that the People “should have known that [the online booking arrest report] was generated…in this case because the arrest checklist which the prosecution disclosed to the defense[] indicates that an ‘online booking arrest system report’ was completed in this case.” Defendant overlooks, however, his own acknowledgement that discovery material submitted by the People “exceeds two thousand five hundred pages.” In this context, without more, the late disclosure of this single document to the defense does not per se invalidate the People’s CoC (see Bay, 2023 NY Slip Op 06407, *2 ["There is no rule of 'strict liability'; that is, the statute does not require or anticipate a 'perfect prosecutor' "]; People v. Vaillant, 80 Misc 3d 856, 870 [Crim Ct, Bronx County 2023] ["flawless perfection is not the proper standard against which to judge the People's discovery compliance"]). IAB Impeachment Material: The People assert in their responsive papers that they are not obligated under CPL art 245 to turn over impeachment material for the non-testifying police officers named in the CoC. In the same CoC, the People notified the defense that they “have requested information that may be considered exculpatory or impeaching from the NYPD…as it relates to all of the law enforcement personnel” (emphasis added), which necessarily includes the named, non-testifying officers. However, the People — who have asserted consistently, if not universally as a policy position, that impeachment material for non-testifying officers is not discoverable — failed to notify the defense in the CoC, or in some other writing shared with the defense at that time, of their intent to withhold such information pending court determination of its discoverability (see CPL 245.10 [1] [a] [iv] [A] ["Portions of materials claimed to be non-discoverable may be withheld pending a determination and ruling of the court…; but the defendant shall be notified in writing that information has not been disclosed under a particular subdivision of such section"] [emphasis added]). The lack of written notification is fatal to a finding of due diligence respecting the IAB impeachment material, as the People have, at best, failed to “make a proper record permitting [ ] review of the issue” of discovery compliance (People v. Rodriguez, 77 Misc 3d 23, 25 [App Term, 1st Dept 2022]; see Peralta, 79 Misc 3d at 949 ["If the defense alleges that the People's COC is invalid because they have failed to discharge their discovery obligations, the People must demonstrate their efforts to comply with CPL §245.20 (1)"]; People v. Higgins, 75 Misc 3d 1232[A], 2022 NY Slip Op 50713][U], *2 [Yonkers City Ct 2022] ["The People must indicate their efforts to obtain the discoverable material through reasonable inquiry, good faith and due diligence"]). “Because the People did not establish that they exercised due diligence prior to filing the initial COC,” respecting the IAB impeachment material, “the [ ] court should [ ] determine[ ] that the COC was improper” (Bay, 2023 NY Slip Op 06407, *3; at *2 ["We also note that nothing prevents the People from detailing their efforts to exercise due diligence within the COC itself"]). Accordingly, the branch of the omnibus motion moving the court to deem invalid the CoC dated April 18, 2023, is GRANTED specifically “[b]ecause the People did not establish that they exercised due diligence prior to filing the initial COC” with respect to the IAB impeachment material. The court reemphasizes that it sees no basis to question the People’s good faith and due diligence respecting their discovery obligations as concerns the online booking arrest report and CCRB materials. “The legislature tethered the People’s CPL article 245 discovery obligations to CPL 30.30′s speedy trial requirements, through both the enactment of CPL 245.50 (3) and amendments to CPL 30.30 itself” (id., at *2; see CPL 30.30 [5] ["Any statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of section 245.20 of this chapter"]; CPL 245.50 [3] ["the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper [CoC]“]). Thereby, the “New York State Legislature crafted a compulsory interplay between the discovery and speedy trial statutes whereby the People must first verify that they have fulfilled their obligations in satisfaction of the former (via a valid CoC) before they may declare themselves ready to proceed to trial pursuant to the latter (via a valid SoR)” (People v. Diallo, 78 Misc 3d 1218[A], 2023 NY Slip Op 50255[U], *3 [Crim Ct, Bronx County 2023). As the CoC dated April 18, 2023, is invalid, the SoR served and filed the same day is necessarily illusory (see CPL 30.30 [5] ["Any statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of section 245.20 of this chapter"]; CPL 245.50 [3] ["the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper [CoC]” ] ). Therefore, all time is chargeable from the day after defendant’s January 22, 2023, arraignment (see General Construction Law §20; People v. Stiles, 70 NY2d 765, 767 [1987]) to May 10, 2023, when the matter was adjourned for discovery conferencing, except the April 6-12, 2023 period during which a bench warrant was ordered and stayed due to defendant’s unexcused absence from court (see People v. Benjamin, 292 AD2d 191, 192 [2002] ["The 18 --- day period at issue was properly excluded from the time in which the People were required to be ready because defendant failed to appear and a bench warrant was issued and stayed against him"]; People v. Alexander, 67 Misc 3d 126[A], 2020 NY Slip Op 50373[U], *1 [App Term, 1st Dept 2020] [" 'the time during which a defendant is absent and a bench warrant is stayed is excludable pursuant to CPL 30.30 (4) (c)' "]; quoting People v. Notholt, 242 AD2d 251, 254 [1997]). This 101-day time period is beyond the People’s 90-day statutory “clock” (see CPL 30.30 [1] [b]). Accordingly, the branch of defendant’s motion seeking dismissal of the information on statutory speedy trial grounds is GRANTED. The other branches of defendant’s omnibus motion are rendered academic, and the court declines to address them. The court STAYS SEALING of this matter for 30 days from the date of publication of this decision and order (see CPL 160.50). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. Dated: December 18, 2023
