DECISION & ORDER Defendant filed a motion to invalidate the People’s certificate of compliance filed December 14, 2023, pursuant to CPL 245.50[4]. For the reasons stated below, defendant’s motion is granted. STATEMENT OF FACTS On July 28, 2023, defendant was arraigned on a criminal court complaint charging him with Grand Larceny in the Third Degree (PL 155.35[1]) and related offenses. It is alleged that on July 9, 2023, defendant stole $20,000.00 from complainant by tricking complainant into believing this money would be invested into cryptocurrency on her behalf. On July 27, 2023, defendant attempted to engage in the same conduct, but was arrested by police. On November 30, 2023, an indictment was filed charging defendant with Grand Larceny in the Third Degree, Attempted Grand Larceny in the Third Degree, and related offenses. Defendant was arraigned in Supreme Court on December 6, 2023. The People filed a certificate of compliance and a certificate of trial readiness on December 14, 2023. The certificate of compliance certifies that, after “exercising due diligence and making reasonable inquiries to ascertain the existence of discoverable material and information subject to discovery under CPL 245.20[l], the People have disclosed and made available to defendant all known material and information that is subject to discovery, except those items and information that are the subject of an order pursuant to CPL 245.70.” The certificate of trial readiness “affirms, under penalty of perjury, that the People are ready for trial” in this matter. The certificate of compliance was filed with an attached index of disclosures, which lists the discoverable items turned over to defendant. On January 5, 2024, a discovery conference was held, On that date, counsel for defendant indicated that numerous items of discovery were missing, including, but not limited to, property vouchers. Counsel requested that the People withdraw their certificate of compliance. This Court inquired as to the People’s position regarding the validity of the certification, and the People responded that they stood by their certificate of compliance filed on December 14, 2023. The People explained that the materials counsel was seeking, for one reason or another, did not exist. On this day the People specifically made reference to United States Secret Service voucher forms that they were advised did not exist. The Court set a motion schedule and has reviewed the submissions from both sides. In his motion dated January 19, 2024, counsel for defendant stated that on January 4, 2024, prior to the above-referenced court appearance, he notified the assigned prosecutor that screenshots of “WhatsApp” and “Evolution” application chats between complainant and defendant were missing from the discovery provided, as well as screenshots of the complainant’s cryptocurrency account, and the dollar bill presented by defendant to complainant. According to counsel, the complainant testified before the grand jury about using these applications to speak with defendant. In addition, counsel informed the prosecutor he could not access defendant’s telephone data, retrieved via search warrant, from the hard drive supplied by the People. Counsel’s motion further alleges that on January 5, 2024, subsequent to the above-referenced court appearance, the assigned prosecutor, via email, disclosed various screenshots of the complainant’s WhatsApp text messages, as well as screenshots of the Evolution Application messages, which had been in the NYPD case file. On January 8, 2024, the People disclosed a Certified Inventory of Evidence (United States Secret Service voucher) which lists two cell phones and a SIM card found in defendant’s vehicle. The inventory of evidence form was dated August 8, 2023. At the time of the filing of defendant’s motion, the People had still not disclosed the contents of defendant’s cell phones, a voucher/photograph of a dollar bill, as well as vouchers/photographs of items seized from defendant and his vehicle including defendant’s vehicle, gift cards, and an imitation pistol. The People responded to defendant’s motion on February 7, 2024. Various exhibits are included with the People’s submission, including an affidavit sworn to by Det. James Frascatore, search warrant materials, the People’s Initial Disclosure Form, emails between the assigned prosecutor and case detective, and emails between the assigned prosecutor and counsel for defendant. The People set forth a longwinded explanation as to why these various items of discovery were not turned over, which, in sum, amounts to the People having relied on “bad information.” According to the affidavit sworn to by Det. Frascatore, the assigned prosecutor asked for the WhatsApp and Evolution communications on August 9, 2023, however he advised the prosecutor that they were not secured and no longer existed. The People affirmed that they relied on this statement. When he was asked about these communications again on January 5, 2024, Det. Frascatore discovered that the files did exist within his NYPD file but were placed in the wrong folder. The affidavit makes reference to Santander Bank records which were also misplaced by Det. Frascatore, in that they were “inadvertently paperclipped” to the back of the arrest report, but were nonetheless in his file. These records were provided to the People on January 18, 2024. Finally, Det. Frascatore admits he had handwritten notes from his meeting with the complainant on July 25, 2023. These notes were not provided to the prosecutor because they contained essentially the same information as his DD5s. These notes were provided to the assigned prosecutor on January 18, 2024. With respect to the Secret Service vouchers, Det. Frascatore claims that on or about August 9, 2023, he contacted personnel from the Secret Service and was informed that the Secret Service did not have any equivalent of an NYPD voucher number by which items held in custody could be identified. This was once again relayed to the People, who relied on that information. According to the attached email communications, the assigned prosecutor and case detective appeared to make various efforts to obtain cell phone extractions from the Secret Service, but the communications make no reference to any inquiry regarding vouchers. On January 22, 2024, the People filed a supplemental certificate of compliance containing explanations as to why certain items were not turned over before filing the December 14, 2023 certificate. In sum, the People claim that certain discoverable materials existed in Det. Frascatore’s file but were not shared because he either believed them to be duplicative of other evidence in the case, or because they had been paperclipped in the wrong place. Also on January 22, 2024, after receiving technical assistance, the prosecutor was able to provide defense counsel with PDF versions of defendant’s cell phone extractions. On February 15, 2024, counsel for defendant filed a reply. CONCLUSIONS OF LAW Pursuant to the recent amendments to the Criminal Procedure Law, CPL 30.30[5] provides that any statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of CPL 245.20. CPL 245.20[1] provides for automatic discovery, requiring the disclosure to defendant of “all items and information that relate to the subject matter of the case and are in the possession, custody or control of the prosecution or persons under the prosecution’s direction or control.” The statute further provides that “materials possessed by a New York state or local police or law enforcement agency are deemed in the People’s possession for purposes of the discovery requirements” (CPL 245.20[2]). When the prosecution has provided the discovery required by CPL 245.20[1], it shall serve upon defendant and file with the Court a certificate of compliance (CPL 245.50[1]). It is worth noting that CPL article 245 was passed in response to the “government’s failure, whether through negligence or by design, to uphold our constitutional obligations to defendants” (People v. Rosario, 70 Misc. 3d 973, 978 [Albany Co. Ct. 2020]; citing 2017-2018 NY Senate Bill S8707 [Justification]). The CPL clearly contemplated situations where not every single item of discovery would be turned over prior to the filing of a certificate of compliance. CPL 245.60 provides that in the event the prosecution “subsequently learns of additional material…which it would have been under a duty to disclose…it shall expeditiously notify the other party and disclose the additional material and information as required for initial discovery under this article.” This Court notes that “good faith, due diligence, and reasonableness under the circumstances are the touchstones by which a certificate of compliance must be evaluated” See People v. Marin, 2022 N.Y. Misc. LEXIS 858 [Bronx Co. Crim. Ct. 2022]; People v. Perez, 73 Misc. 3d 171, 177 [Queens Co. Sup. Ct. 2021]. An analysis of whether the People made reasonable efforts sufficient to satisfy CPL article 245 is fundamentally case-specific, as with any question of reasonableness, and will turn on the circumstances presented (People v. Bay, 2023 N.Y. LEXIS 1997, 2023 N.Y. Slip Op 06407; 2023 WL 8629188 [Ct. App. 2023]; citing People v. Diaz, 97 N.Y.2d 109, 116 [2001]; People v. Budd, 46 N.Y.2d 930, 931-932 [1979]). The plain terms of the statute make clear that while good faith is required, it is not sufficient standing alone and cannot cure a lack of diligence. When making a determination of due diligence, courts should generally consider, among other things, the efforts made by the prosecution and the prosecutor’s office 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 a prosecutor exercising due diligence, the explanation for any discovery lapse, and the People’s response when apprised of missing discovery. See Bay, at 16. It should be noted that a “belated disclosure will not necessarily establish a lack of due diligence or render an initial COC improper, post-filing disclosure and a supplemental COC cannot compensate for a failure to exercise diligence before the initial COC is filed.” Id. at 17. Looking to the rubric outlined by the Court of Appeals in Bay, this Court has considered efforts made by the prosecution and the prosecutor’s office to comply with the statutory requirements. The efforts amount to nothing more than the People asking for certain items of discovery and relying on the word of their case detective when they were told said items did not exist. When Det. Frascatore advised the People that the WhatsApp and Evolution communications were not secured and no longer existed, the inquiry stopped. Similarly, when Det. Frascatore advised the People that the United States Secret Service does not have a system to inventory property, the inquiry, shockingly, stopped. The People appeared to have made no further inquiry until prompted by defense in January of 2024. The People made no efforts to verify the existence of Secret Service vouchers themselves, nor did the People look through Det. Frascatore’s file. A review of the NYPD file would have shown that many more discoverable items existed other than those pointed out by defense, such as bank records and handwritten notes. Next, the Court has looked at the volume of discovery provided and outstanding. Although a fair amount of discovery was provided to defense prior to the filing of the initial certificate of compliance, discovery was clearly not complete. According to counsel for defendant, the People provided thousands of pages of discovery materials, which amounted to almost 100 gigabytes of data, after they filed their December 14, 2023 certificate. According to the People’s supplemental certificate of compliance filed January 22, 2024, the People shared with defense, post-filing of their initial certificate of compliance: screenshots of WhatsApp communications; screenshots of Evolution App communications; Secret Service inventory of evidence and emails; images/records recovered from complainant’s phone; materials from Det. Frascatore’s physical and digital files, including, but not limited to: an FBI form, handwritten notes, Santander Bank records, and NYPD vouchers; memo books; DMV printout for defendant’s vehicle; emails between RCDA, NYPD and USSS; and search warrant results in PDF format. It is not unreasonable to find that this is a voluminous amount of discovery belatedly disclosed. The Court recognizes that this is a complex financial crimes case involving multiple agencies; however, any prosecutor exercising due diligence would have obviously known certain discoverable items were missing. First, this Court would like to point out that the People served and filed an Initial Disclosure Form on December 14, 2023. In that form, the People list NYPD voucher numbers pertaining to evidence that was recovered from defendant at the time of his arrest. The People failed to turn those vouchers over until January 22, 2024. Obviously, having been aware of the voucher numbers, the People should have realized voucher forms existed. Next, pertaining to the Secret Service vouchers, the People insisted, in open Court, that they were advised that the Secret Service does not have a system for inventorying evidence. Now, this Court recognizes and understands that the Secret Service cannot be considered a “state or local police agency,” and their property would likely not be deemed in the custody or control of the People. That being said, it defies logic that a prosecutor, when told by their case detective that the United States Secret Service does not have a system to voucher or inventory evidence, would rest on their laurels and not make an independent inquiry of that agency. This leads us to the next factor in our due diligence determination- the explanation for any discovery lapse. Every explanation proffered by the People merely shifts blame to another. The People’s affirmation basically explains that the assigned prosecutor consistently relied on “bad information.” Det. Frascatore swore out an affidavit admitting that he provided the “bad information” to the People. This, however, does not excuse the People’s responsibility to exercise due diligence. It is the People’s obligation to abide by the discovery statute; it is not the NYPD’s obligation. The People’s responsibility to exercise due diligence is not satisfied by asking the case detective whether items of discovery exist, especially when common sense would dictate that it must exist, as is the case here with both the NYPD and Secret Service vouchers. More is required; the People should have made an independent assessment of the NYPD file. Finally, this Court has considered the People’s response when apprised of the missing discovery. Rather than withdrawing their certificate of compliance when they were advised of some obvious missing items, the People dug in their heels, stood by their invalid certificate of compliance, and instructed defense to file the instant motion. There were no attempts made to work with the defense. Unnecessary motion practice and litigation would have been avoided if the People had just taken a step back and assessed their initial filing, which they would have realized was defective. This constitutes the decision and order of the Court. Dated: March 1, 2024
