Decision and Order The defendant, Loanda Duque Buenaventura, is charged with Driving While Intoxicated — Per Se (VTL §1192(2)), Driving While Intoxicated (VTL §1192(3)), and Driving While Ability Impaired (VTL §1192(1)). The accusatory instrument alleges that on July 17, 2023, at approximately 9:10 am, the defendant was observed driving in a bicycle lane for multiple blocks in the vicinity of Meserole Street and Graham Avenue. Upon stopping the vehicle, the arresting officer observed that the defendant exhibited common signs of intoxication such as slurred speech, red watery eyes, and an unsteady gait. The defendant submitted to a breath test that determined she had a blood alcohol level of .089 percent. The criminal action commenced with the filing of a misdemeanor complaint on July 18, 2023. On September 27, 2023, the People filed and served a certificate of compliance and statement of readiness. On October 3, 2023, the People served additional discovery1 on the defendant and filed a supplemental certificate of compliance. By motion filed on November 3, 2023, the defendant challenges the validity of the People’s certificate of compliance and moves to dismiss the information pursuant to CPL §30.30. Additional submissions addressing the discovery disclosed with the People’s supplemental certificate of compliance were filed by both parties at the court’s request on January 3, 2024. For the reasons set forth below, the defendant’s motion is denied. Certificate of Compliance CPL §245.20(1) provides that, as part of initial discovery, the “prosecution shall disclose to the defendant, and permit the defendant to discover, inspect, copy, photograph and test, all items and information that relate to the subject matter of the case.” This statute then provides a non-exhaustive list of categories of materials that are subject to disclosure. The COC “shall state that, after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery, the prosecutor has disclosed and made available all known material and information subject to discovery.” CPL §245.50. The People have a corresponding obligation regarding their Certificate of Readiness, as a “statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of section 245 of this chapter and the defense shall be afforded an opportunity to be heard on the record as to whether the disclosure requirements have been met.” CPL §30.30(5). The People have a continuing duty to disclose material and, if they subsequently learn of material that should have been turned over, they are required to turn it over “expeditiously” pursuant to CPL §245.60. The court, in its discretion, has a vast array of remedies or sanctions for failure to comply with discovery, including preclusion of evidence, an adverse instruction to the jury or dismissal (see CPL §245.80(2)). Where the People acted with due diligence but nevertheless disclosed material belatedly, the court shall impose an appropriate sanction if the party entitled to disclosure makes a showing of prejudice (see CPL §245.80(1)). Additionally, “no adverse consequence …shall result from the filing of a certificate of compliance in good faith and reasonable under the circumstances; but the court may grant a remedy or sanction for a discovery violation as provided in section 245.80.” CPL §245.60. In any challenge to the People’s certification of compliance, the key question is whether the People exercised the requisite level of diligence and made reasonable inquiries to ascertain the existence of the materials. People v. Bay, 2023 Slip Op 06407 (2023). In this case-specific analysis, the court will consider, among other factors: the prosecutor’s efforts “to comply with the statutory requirements, the volume of discovery provided and outstanding, the complexity of the case, how obvious any missing material would likely have been to the prosecutor exercising due diligence, the explanation for any discovery lapse, and the People’s response when apprised of any missing discovery.” Id. at 16. Further, a subsequent filing of a supplemental certificate of compliance cannot cure a discovery failure where the People did not exercise due diligence before the initial certificate was filed. Id. at 17. Finally, when a certificate of compliance is found to be invalid for a lack of due diligence, a defendant need not demonstrate prejudice to obtain a speedy trial dismissal based on untimely discovery compliance. Id. at 19. Each item of discovery raised in the defendant’s motion is discussed below. 311 Complaint The defendant states that conversations captured on his body worn camera indicate that NYPD was called to the scene of her arrest pursuant to a complaint submitted to the NYC311 service. The arresting officer also notes in his activity log that he conducted a “car stop in regard to [a] previous 311 complaint of a vehicle blocking [a] driveway.” Defendant’s Motion Exhibit B. The defendant argues that the 311 complaint, which she describes as a call, is an electronic recording “made or received in connection with the alleged criminal incident” and, therefore, automatically discoverable under CPL §245.20(1)(g). She asserts that the People’s failure to disclose this call renders their certificate of compliance invalid. In response, the People assert that NYC311 is not an entity that is under the control of the Kings County District Attorney’s Office. Furthermore, they argue, a 311 complaint is not analogous to a 911 call because it is not logged or saved by the NYPD tapes and records department and is only accessible to the District Attorney’s Office by subpoena. The People state that they are informed by the NYPD 911 Tapes and Records Unit that 311 calls are only recorded by the NYPD if they are connected to a 911 call dispatcher. They were further informed by both the arresting officer and the Tapes and Records Unit that no 311 calls were received by the 911 dispatcher regarding the instant matter. The People assert that the 311 report that brought the officers to Meserole Street and Graham Avenue on July 17, 2023, was submitted via the NYC311 app and that any reports generated therefrom are only accessible to the People by subpoena duces tecum. NYC311 is a service provided by the City of New York that allows its residents to access information about all city government programs and non-emergency services. The agency promotes itself as a “bridge to city government” where New Yorkers can get “help with a broad range of services, including things like homeless person assistance, pothole repair, or help understanding a property tax bill.” See, https://portal.311.nyc.gov/article/?kanumber=KA- 02498#:~:text=NYC311 percent20can percent20provide percent20you percent20access,understanding percent20a percent20propert y percent20tax percent20bill. The service accepts over 500 request types, including noise complaints, sanitation issues and other reports of general concern, that it then refers to the appropriate agency. See, https://portal.311.nyc.gov/about-nyc-311. These service requests and inquiries can be made by phone, online, via the NYC311 app, or on various social media platforms. The 311 website states very clearly that “NYC311 is for non-emergency City services” and that fire, police or medical emergencies are handled by 911. Id. In contrast, 911 is an emergency communications system used to report dangerous situations or conditions to the NYPD, EMS, and FDNY. These calls are handled by a police calltaker who determines whether details of the call should be shared with a police dispatcher or directed to a fire department call-taker or an EMS call-taker. See, https://www.nyc.gov/site/911reporting/reports/reports.page. In keeping with its objective of providing the fastest possible response to emergency situations, the 911 service favors phone calls but will accept text messages in situations where phone calls are not feasible. Unlike 311 calls that are handled by an intermediary, these calls and texts go directly to the NYPD and are logged and recorded by the NYPD Tapes and Records Unit. The defendant urges the court to find that NYC311 service reports are akin to 911 calls and therefore under the control of the NYPD. Her sole argument in support of her position is that the NYPD website lists 311 as an “important NYPD phone number.” The court is unpersuaded by this argument. Given the stark difference between the management and objectives of each service it does not logically follow that listing 311 on the NYPD website proves the police department’s custody and control over 311 records. Instead, it shows an effort to direct the public’s attention to 311 for less pressing matters so that the time and resources of 911 operators are reserved for true emergencies. While it is true that the statute requires the People to make diligent good faith efforts to obtain discoverable materials, that very same subsection of the statute provides that “the prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain.” CPL §245.20(2). Because NYC311 is not under the control of the People and the agency’s records are readily available to the either party by subpoena duces tecum, the People’s certificate of compliance will not be deemed invalid for failure to obtain and disclose the 311 service report. Unredacted copies of CCRB records The defendant argues that the People have failed to meet their obligations under CPL §245.20(1)(k) because they have not provided the defense with unredacted copies of CCRB records for testifying officers. In response, the People assert that all redactions were proper and were limited to personal identifying information for those officers and unfounded, exonerated, or unsubstantiated claims against them. The People are ordered to submit redacted and unredacted copies of the CCRB records to the court for in camera inspection within 30 days of this decision so that the court can make a determination as to the propriety of the redactions. Documents Disclosed with the People’s October 3, 2023, SCOC On September 27, 2023, the People certified their compliance with their discovery obligations and stated ready for trial. On October 3, 2023, after conferring with defense counsel about missing items of discovery, they disclosed body worn camera footage for Police Officer Thelston Rose, membooks for Police Officers Donessa Edwards and Stevens Tiphaine, and underlying disciplinary records for Police Officer Bell. In their supplemental certificate of compliance, the People state by way of explanation that these items “were not included in the OneDrive erroneously and were served on defense counsel as soon as defense counsel emailed the People about the missing items.” In their supplemental affirmation, the People establish that they obtained these documents from NYPD on September 25, 2023, but did not correctly upload the documents to OneDrive on September 27, 2023, and thus did not disclose them to the defendant prior to filing their certificate of compliance. They assert that they believed that the documents were in the OneDrive folder that was shared with defense counsel on September 27th, and that their certificate of compliance was filed in good faith. When the defendant challenges the validity of the People’s certificate of compliance “the People bear the burden of establishing that they did, in fact, exercise due diligence and made reasonable inquiries prior to filing the initial COC despite belated or missing disclosure.” People v. Bay, 2023 NY Slip Op 06407 (2023). A failure to do so requires that the certificate of compliance “be deemed improper, the readiness statement stricken as illusory, and — so long as the time chargeable to the People exceeds the applicable CPL 30.30 period — the case dismissed.” Id. Simply stating that they acted diligently or that omissions were due to inadvertent error are not enough to meet their burden of showing due diligence. see, People v. Carter, 80 Misc3d 127A (App Term 2nd Dept 2023). Here, the People assert that the body worn camera footage and memobook were inadvertently omitted from the OneDrive folder that was shared with defense counsel. While the court does not question their good faith belief that the materials were properly disclosed, it cannot find that the People acted diligently when it is clear that they failed to thoroughly review the OneDrive folder prior to sending it to defense counsel and prior to filing their certificate of compliance. Due diligence requires that they ensure that their discovery folder actually contain what the materials their inventory of discovery purports they have disclosed. Accordingly, the court holds that the late disclosure of the membooks and body worn camera footage invalidates their September 17, 2023, certificate of compliance. However, the court deems their October 3, 2023, supplemental certificate of compliance to be valid. Gas Chromatography Records The defendant raises the absence of gas chromatography records for the first time in their supplemental filing. However, since the court limited the scope of the parties’ additional submissions to the documents disclosed in the People’s supplemental certificate of compliance, and since the schedule for submissions was structured in such a way that the People were unable to respond to any additional issues, this matter is not properly before the court at this time. If the defendant chooses to litigate this issue, she must file a new motion which set forth the reasons why this argument is not untimely. Accordingly, the defendant’s motion challenging the validity of the People’s certificate of compliance is granted so to their September 27, 2023, certificate of compliance but denied as to their October 3, 2023, supplemental certificate of compliance. Speedy Trial Criminal Procedure Law §30.30(1)(b) requires the People to be ready within 90 days of arraignment. After a careful review of the defendant’s motion and the People’s response, the motion to dismiss is denied; the court finds that 77 chargeable days have accrued since arraignment. July 18, 2023 to September 19, 2023 On July 18, 2023, the defendant was arraigned on a misdemeanor complaint. The matter was adjourned to September 29, 2023, for the People’s certificate of compliance. 63 chargeable days. September 19, 2023 to October 17, 2023 On September 19, 2023, the People had not yet filed their certificate of compliance. The matter was adjourned to October 17, 2023, for that purpose. On September 27, 2023, the People filed an invalid certificate of compliance and statement of readiness. However, on October 3, 2023, the People filed a valid supplemental certificate of compliance and statement of readiness. 14 chargeable days. October 17, 2023 to December 14, 2023 On October 17, 2023, a motion schedule was set. The matter was adjourned to December 14, 2023, for the court’s decision. This adjournment is excludable pursuant to CPL §30.30(4)(a). 0 chargeable days. December 14, 2023 to January 29, 2024 On December 14, 2023, the matter was adjourned to January 29, 2024, for the People’s supplemental submissions and the court’s decision. This adjournment is excludable pursuant to CPL §30.30(4)(a). 0 chargeable days. The People have accrued a total of 77 chargeable days since the defendant’s arraignment and the defendant’s motion to dismiss is therefore denied. This constitutes the decision and order of the court. Dated: January 29, 2024
