DECISION AND ORDER Mark C., hereinafter “defendant,” is charged by information with two counts of Criminal Mischief in the Fourth Degree (Penal Law §§145.00 [1] and [3]). Defendant moves this court to deem the People’s Certificate of Compliance (“COC”) and Certificate of Readiness (“COR”), dated November 21, 2023, and supplemental COCs dated November 27, 2023, and January 4, 2024, to be invalid and improper, and moves to dismiss the accusatory instrument on the ground that he has been denied a speedy trial pursuant to Criminal Procedure Law §§30.30 and 170.30. For the reasons articulated herein, the defendant’s motion to find the People’s COC improper and invalid is DENIED. The defendant’s motion to dismiss is likewise DENIED. Arguments of the Parties This case turns on a motorcycle repair invoice estimating the cost of damages allegedly caused by the defendant. The People disclosed this invoice at the time it was created, which was after they certified discovery compliance and more than ninety days after the case commenced. The defendant asserts that because the People sought restitution for the costs of repair, they were required to produce an official invoice to meet statutory discovery mandates (CPL 245.20 [1]). The defendant argues that the People were fully aware of this obligation, and the failure to produce this document prior to certifying discovery compliance shows a lack of good faith and due diligence. The defendant further claims that to validly certify readiness, the People (via the complainant under their direction) were required to procure and disclose the estimate within the ninety days required by CPL 30.30. Failing that, they were required to petition the court for a continuance under one of the mechanisms available in CPL 245. The defendant maintains that because the People obtained neither the document nor judicial relief within ninety days, they were not ready for trial within the mandatory time frame, necessitating the dismissal of the accusatory instrument. The People argue they complied with all mandatory discovery insofar as they disclosed everything related to the subject matter of the case that was within their possession, custody, or control, prior to certifying compliance and readiness. They assert that not only was the invoice outside their possession, custody or control — it did not even exist when they certified compliance. The People also emphasize that the information contained in the invoice had already been shared with the defendant via body-worn camera footage, and that the invoice itself was shared at the earliest possible moment, immediately upon their receipt, the day after it was created. The People assert that their pre-invoice statements and certifications of readiness were valid because 1) they complied with all discovery requirements, and 2) they did not need the invoice to prove the case at trial. Discussion The People must disclose to the defendant “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” (CPL 245.20 [1]). Insofar as the defendant is charged with a crime that requires the People to prove property damage in excess of $250 (Penal Law §145.00 [3]), the estimate is clearly related to the subject matter of the case. This court, however, struggles to find that a document can be in the possession, control or custody of the People — and therefore discoverable — before it exists. The discovery statute clearly anticipates subsequent disclosure and supplemental COCs, specifically providing that the validity of the original COC is not affected “if the additional discovery did not exist at the time of the filing of the original [COC]” (CPL 245.50 [1-a]; see also People v. Bay, ___ NY3d ___, 2023 NY Slip Op 06407, *5 [2023]). Nor can this court adopt the defendant’s claim that the People were required to generate this estimate in order to be ready for trial. “Nothing in CPL Article 245 requires the prosecution to create discoverable material so that it can be disclosed to the defendant.…[T]he People’s due diligence obligation does not extend to creating records for the purpose of discovery. Instead, the discovery scheme is designed to ferret out relevant material already in existence.” (People v. Sanchez, ___ NYS3d ___ [2024], 2024 NY Slip Op 24081, *5 [Crim Ct, NY County 2024].) The complainant is a car mechanic able to testify, from his personal and professional knowledge, that the cost of repair exceeded the statutory threshold of $250. As such, the People were in a position, absent the invoice, to bring their case to trial. If they had done so, defense counsel would certainly have been free to test the strength and weight of that testimonial evidence. But the sufficiency of proffered evidence presents an issue for the trier of fact — not an issue going to the validity of the COC. Just as the People cannot determine how and whether the defense will employ the discovery they are mandated to disclose, the defense cannot compel the People to produce better evidence to prove their case beyond a reasonable doubt. The fact that the People’s pre-trial offers included a demand for restitution does not alter the court’s conclusion. Written verification of actual damages might assist a defendant in weighing whether to accept a plea that includes restitution — but such utility does not oblige the People to create documentary evidence where none exists.1 The People were not required to solicit a written estimate of damages to properly certify discovery compliance. Yet once in existence, such an estimate is clearly discoverable. By disclosing it to the defendant the day they received it, the People complied with their ongoing discovery obligations (CPL 245.60). As such, this court accepts the People’s COCs as valid and proper. Motion to Dismiss — CPL §§30.30 and 170.30 The People must be ready for trial within ninety days of the commencement of a criminal action where, as here, the most serious offense is the equivalent of an A misdemeanor punishable by a sentence of imprisonment of more than three months (CPL 30.30 [1] [b]). Although a criminal action commences with the filing of an accusatory instrument, computation for speedy trial purposes commences on the next day (People v. Stiles, 70 NY2d 765 [1987]). In determining whether the People have satisfied their obligation to be ready for trial under CPL 30.30, the court must calculate the time between the filing of the first accusatory instrument and the People’s declaration of readiness, then subtract any statutorily excludable periods of delay, and finally add any periods of post-readiness delay that are attributable to the People for which no statutory exclusions apply (People v. Cortes, 80 NY2d 201 [1992]). Additionally, the People cannot be deemed ready for trial until a proper COC is filed with the court and served upon the defense. “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….” (CPL 30.30 [5]). “[A]bsent an individualized finding of special circumstances in the instant case by the court before which the charge is pending, the prosecution shall not be deemed ready for trial for the purposes of section 30.30…until it has filed a proper certificate…” (CPL 245.50 [3]). On September 27, 2023, the People filed the accusatory instrument. The time period pursuant to CPL 30.30 runs from “the commencement of a criminal action” (CPL 30.30 [1] [a]). This criminal action “commenced” when the first accusatory instrument was filed (CPL 1.20 [17]; People v. Stirrup, 91 NY2d 434, 438 [1998]). On September 27, 2023, the court arraigned the defendant and adjourned the case to November 13, 2023, for the People to file the required supporting deposition. The People are charged with 47 days. On November 13, 2023, the People filed and served a superseding information (CPL 170.65 [1]). The defendant was arraigned on the superseding information on that date and the court adjourned the case to January 5, 2024, for trial. Off calendar on November 21, 2023, the People filed their initial COC, COR, and an Automatic Discovery Form (“ADF”), and a Discovery Disclosure List. For the reasons articulated above, this court finds that COC proper and valid; accepts its accompanying COR; and rules that together they served to stop the speedy trial clock pursuant to CPL 30.30. The People are charged with 8 days. Off calendar on November 27, 2023, the People filed a supplemental COC and COR, disclosing that P.O. McGovern had no civilian complaints or disciplinary history. Off calendar on January 4, 2024, the People filed a supplementary COC and COR, disclosing the damage estimate. On January 5, 2024, the People were not ready; the defense requested a schedule be set for the instant 30.30 motion; such schedule was set for each party to file one submission; and the case was adjourned to February 23, 2024, for decision. This period is excludable (CPL 30.30 [4] [a]). On February 23, 2024, this court, having been recently assigned the motions, required additional time to render its decision. At this appearance, defense counsel requested leave to file a reply; the People did not object; and the case was adjourned to March 21, 2024, for decision. Off calendar, both parties subsequently requested additional time to submit their papers to this court; this court granted the requests and accordingly further postponed its decision to April 18, 2024. This period is excludable (CPL 30.30 [4] [a]). Based on the foregoing, the People are charged with 55 days of delay, which is within the statutory period set forth in CPL 30.30. Accordingly, defendant’s motion to dismiss the accusatory instrument pursuant to Criminal Procedure Law §§30.30 and 170.30 is DENIED. The foregoing constitutes the opinion, decision, and order of the court. Dated: April 18, 2024
