DECISION & ORDER On January 19, 2024, defendant moved for an order deeming the People’s Certificate of Compliance (“CoC”) invalid pursuant to Criminal Procedure Law (“CPL”) §§245.20 and 245.50 (1), dismissing the accusatory instrument on statutory speedy trial grounds pursuant to CPL §§30.30 (1) (b), 30.30 (5), 170.30 (1) (e) and the New York State and Federal Constitutions, and granting such additional relief as the Court deems just and proper. On February 22, 2024, the People opposed defendant’s motion in its entirety. Upon review and consideration of the submissions, court file and relevant legal authority, the Court adjudicates defendant’s motion to dismiss as follows: The People’s CoC, filed and served on September 29, 2023, was VALID; and The prosecution, pursuant to CPL 30.30 (1), (b) 30.30 (5), 170.30 (1) (e), inter alia, was TIMELY; and We respectfully REFER to the trial court for consideration of the suitability for remedy or sanction which is appropriate to the prejudice suffered by defendant pursuant to CPL §245.80 occasioned by the deletion of PO Dustin’s photograph; and Defendant’s motion to dismiss the accusatory instrument is DENIED. RELEVENT PROCEDURAL BACKGROUND On July 23, 2023, defendant Rosemarie Rollerson was arrested and charged with violating Penal Law (“PL”) §§120.05 (2) (assault in the second degree), a felony, 120.00 (1) (assault in the third degree), a misdemeanor, and 240.26 (1) (harassment in the second degree), a violation. Defendant was arraigned on July 24, 2023, and released under supervision. On September 14, 2023, the People dismissed the felony count and defendant was arraigned on a superseding information which added one count PL §265.01 (2) (criminal possession of a weapon in the fourth degree). On September 29, 2023, the People filed their CoC and statement of readiness (“SoR”) offcalendar and at a discovery conference held on December 22, 2023, defense counsel advised this Court that the People had not disclosed Giglio materials for non-testifying officers, body worn camera (“BWC”) audit trails and an image of defendant which appears on Police Officer (“PO”) Dustin’s mobile as depicted in his BWC. The Court deemed the audit trails to be discoverable and ordered their disclosure within one week of the conference. Additionally, the instant motion schedule was set. On January 2, 2024, the People served a supplemental CoC (“SCoC”) to which they appended BWC audit trails for all responding officers and Giglio material for non-testifying PO Urman. On February 22, 2024, the People served a second SCoC to which they appended materials they received the day before from the Bronx District Attorney’s Crime Victim’s Assistance Unit “CVAU”) concerning services rendered to the complaining witness (the “CW”). DISCUSSION I. Applicable Standard for CoC Challenge While there is no one-size fits all analysis for determining discovery compliance, this Court has held that “by following-up, the very essence of what it means to exercise due diligence,” the prosecution’s CoC can be deemed valid although some discovery is missing and/or belatedly disclosed (see People v. Hernandez, 81 Misc 3d 1201[A], 2023 NY Slip Op 51201[U], *6 [Crim Ct, Bronx County 2023] citing People v. Franklin, 78 Misc 3d 1232[A], 2023 NY Slip Op 50400[U], *6 [Crim Ct, Bronx County 2023]). Consequently, in response to a motion to strike their CoC, the People must demonstrate that they have met their discovery burden by detailing their efforts to obtain discoverable information (see Hernandez, 2023 NY Slip Op 51201[U], *15 citing People v. Adrovic, 69 Misc 3d 563, 572 [Crim Ct, Kings County 2020]; CPL §245.50 [3]). In People v. Bay, ___ NE3d ___, 2023 NY Slip Op 06407 [2023], the Court of Appeals posited that trial courts evaluate prosecutorial due diligence based upon whether “the prosecution has exercised due diligence and made reasonable inquiries to determine the existence of material and information subject to discovery,” a case-specific inquiry of the record at bar (see Bay, 2023 NY Slip Op 06407, *15-16 [emphasis added]; CPL §§245.20 [1], 245.50 [1]). II. The Parties’ Arguments Defendant avers that the People’s CoC is invalid because they did not disclose BWC audit trails nor Giglio material for PO Urman until January 2, 2024 (affirmation of defendant’s counsel at 10). Defendant further asserts that, in contravention of the legislative intent to require certification after all known material and information is disclosed, the prosecution’s CoC functioned more as a placeholder while the People continued to gather outstanding materials (affirmation of defendant’s counsel at 13). Defendant maintains that the People have yet to provide outstanding discovery, including Giglio information for non-testifying POs Ashraf and Dustin, and a photograph taken by PO Dustin; however, defendant withdraws her request concerning POs Diaz and Istorico (affirmation of defendant’s counsel at 12). Next, counsel argues that the belated service of BWC audit trails pursuant to CPL §245.20 (1) (e) must render the prosecution untimely because the People could not validly certify their compliance nor declare their readiness for trial pursuant to CPL §30.30 until all known material and information subject to discovery had been disclosed (affirmation of defendant’s counsel at 13- 14). Defendant further asserts that the Court should deem Giglio impeachment materials for POs Urman, Ashraf and Dustin as mandated automatic discovery, such that belated disclosure and/or non-disclosure of said items renders the CoC filing invalid (affirmation of defendant’s counsel at 14-15). Specifically, relying upon this Court’s holding in People v. Peralta, 79 Misc 3d 945, 952- 956 [Crim Ct, Bronx County 2023], counsel claims that POs Ashraf and Dustin have a substantial nexus to defendant’s arrest and investigation because they spoke to both the CW and EMS, and because PO Dustin’s BWC depicts him taking a photograph which may show defendant or other pertinent information (affirmation of defendant’s counsel at 16). Initially, the People assert that CPL §245.20 does not evince any legislative intent to require complete compliance with mandated disclosure prior to the CoC filing (affirmation in opposition at 8). While the prosecution contends that disputed discovery issues have already been partly resolved because device audit trails and Giglio materials for PO Urman were disclosed well before hearing or trial, the People argue that neither device audit trails nor Giglio material for a non-testifying officer are automatically discoverable (affirmation in opposition at 11). The People maintain that CPL §245.20 (1) (g) makes no specific reference to audit trails or metadata nor do audit trails, unlike BWC footage, provide statement evidence, factors they believe strongly mitigate against mandating automatic disclosure (affirmation in opposition at 13). Specifically, the prosecution argues that device audit trails provide purely technical information and in support of this contention submits an “AXON Device Audit Trail” report, generated on January 2, 2024, for the “audit report date range of 23 Jul 2023-23 July 2023,” for the BWC worn by AO Aqieb (affirmation in opposition at 11-12). Next, the prosecution avers that CPL §245.20 does not mandate disclosure of Giglio material for non-testifying officers because subsection (1) (k) (iv) pertains to information that tends to…impeach the credibility of a testifying prosecution witness (affirmation in opposition at 15). Further, the People assert that while they belatedly disclosed Giglio material for PO Urman, he arrived at the scene after defendant had already been placed into custody and other than taking pedigree information and completing the booking process, this officer had no substantial nexus with defendant akin to the facts presented in Peralta supra (affirmation in opposition at 17). Similarly, the prosecution posits that although PO Ashraf spoke with the CW, he did so in the presence of AO Aqieb, who purportedly stepped away for only a minute to separate the CW and defendant before returning (affirmation in opposition at 18-19). Furthermore, the prosecution argues that PO Dustin’s involvement with the arrest and investigation was equally incidental where, despite speaking with the CW and EMS personnel, he performed no actions for which AO Aqieb was not also present (affirmation in opposition at 19). The People concede that they have been advised by PO Dustin that a photograph he took at the scene had been deleted but nonetheless was captured by his BWC, submitted as an exhibit to their opposition, but they maintain that the BWC image is entirely duplicative which argues against the imposition of any sanction or remedy pursuant to CPL §245.80 (1) (b) (affirmation in opposition at 21-22). Defendant’s reply brief generally reiterates her arguments and specifically suggests that the timestamp which appears on the screenshot image taken from PO Dustin’s BWC, originally submitted by the People in support of their argument that the deleted photograph is merely duplicative of the BWC, does not comport with his BWC audit trail, an excerpt of which is included in counsel’s brief (reply affirmation of defense counsel)1. III. The Court’s Analysis In People v. Vargas, this Court opined that “BWC audit trails- essentially chain of custody metadata that tracks the creation or revision of a document- have negligible utility for the defense” and, thus, were not held to be within the ambit of mandatory automatic disclosures (see Vargas, 78 Misc 3d 1235[A], 2023 NY Slip Op 50425[U], * 8 [Crim Ct, Bronx County 2023]. However, this Court is no longer persuaded by arguments advanced by the People which suggested that BWC footage, unlike drugs, is self-authenticating and not fungible, and that the care and maintenance of device audit trail metadata was outside of the prosecution’s possession, custody, and control. Audit Logs As a threshold matter, the NYPD Patrol Guide Procedure Number 212-123, which governs the use of Body-Worn Cameras, provides, in pertinent part, that the arresting officer/assigned officer is required to annotate BWC footage in an “Activity Log” which describes the circumstances of the encounter, investigation or arrest document and that “[i]f category that identifies incident is not available, enter pertinent details of event in the description section of evidence detail page” (see New York City Police Department Patrol Guide Procedure No. 212- 123,
