DECISION AND ORDER On October 12, 2023, the defendant was arraigned on a misdemeanor complaint charging him with two counts of Assault in the Third Degree (Penal Law §§120.00[1][one count]; 120.00[2][one count]) and one count each of Criminal Obstruction of Breathing or Blood Circulation (Penal Law §121.11[a]), Aggravated Harassment in the Second Degree (Penal Law §240.30[4]), Attempted Assault in the Third Degree (Penal Law §§110/120.00[1]), Disorderly Conduct (Penal Law §240.20[1]), and Harassment in the Second Degree (Penal Law §240.26[1]). The accusatory instrument alleges that, on or about September 17, 2023 in the County and State of New York, the defendant used both of his hands to forcefully squeeze the complainant’s neck, causing her to experience difficulty breathing and substantial pain. It is further alleged that the defendant struck the complainant in her back with a closed fist, pulled her hair, and bit her lip, causing her to suffer a small laceration to her lip and substantial pain. On December 8, 2023, the People filed an automatic discovery form (ADF), a Rosario and discovery list, a certificate of compliance (COC), and a certificate of readiness (COR). Thereafter, the People filed supplemental COCs on the following dates: January 5, 2024, January 8, 2024, February 13, 2024, and March 25, 2024. Each of these supplemental COCs included a restatement of readiness for trial. Additionally, the People declared their readiness for trial at the court appearances on January 24, 2024 and February 26, 2024. By motion filed February 23, 2024, the defendant moves for: (1) a finding that the People’s COCs and their subsequent statements of readiness are invalid; (2) dismissal of the information on the ground that the People have denied him the statutory right to a speedy trial; and (3) should the court deny the speedy trial motion on papers, a hearing to resolve the motion. By response papers filed March 22, 2024, the People oppose the motion. By reply papers filed April 12, 2024, the defendant further affirms his contentions. For the reasons that follow, the People’s COCs are deemed invalid and the defendant’s motion to dismiss pursuant to CPL 30.30 is granted. As discussed below, there are 134 days charged to the People. CERTIFICATION OF COMPLIANCE Criminal Procedure Law §245.20(1) sets forth a non-exhaustive list of items the People must turn over to the defendant and includes a general provision that “[t]he 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 and are in the possession, custody or control of the prosecution or persons under the prosecution’s direction or control.” Notably, “[t]here shall be a presumption in favor of disclosure” (CPL 245.20[7]). In order to meet their discovery obligations, the People must “make a diligent, good faith effort” to determine the existence of discoverable material and “to cause such material…to be made available for discovery where it exists but is not within the prosecutor’s possession, custody or control” (CPL 245.20[2]). Of particular note, “all items and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency shall be deemed to be in the possession of the prosecution” (id.). When the People have complied with these automatic discovery obligations, they shall file a certificate of compliance stating that, after exercising due diligence and making reasonable inquiries to ascertain the existence of material subject to discovery, they have disclosed and made available all known material (CPL 245.50[1]). In addition, where additional discovery is disclosed after an initial COC, the People shall serve and file a supplemental COC identifying the additional material and detailing the basis for the delayed disclosure “so that the court may determine whether the delayed disclosure impacts the propriety of the certificate of compliance” (CPL 245.50[1], [1- a]). Notably, absent a finding of special circumstances, the People cannot be deemed ready for trial for CPL 30.30 purposes until they have filed a proper COC (CPL 245.50[3]). That is, “[a]ny statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of [CPL 245.20] 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]). Importantly, the People’s automatic discovery obligations “shall have the force and effect of a court order, and failure to provide discovery pursuant to [CPL 245.20(2)] may result in application of any remedies or sanctions permitted for non-compliance with a court order under [CPL 245.80]” (CPL 245.20[5]). However, the mere fact that an item of discovery is disclosed after a COC is filed does not necessarily invalidate that COC (see People v. Gaskin, 214 AD3d 1353, 1355 [4th Dept 2023]). Rather, a COC may be found proper where it is “filed in ‘good faith and reasonable under the circumstances’ despite the belated discovery” (id.; see CPL 245.50[1]). “[T]he key question in determining if a proper COC has been filed is whether the prosecution has ‘exercis[ed] due diligence and ma[de] reasonable inquiries to ascertain the existence of material and information subject to discovery.’ Although the statute nowhere defines ‘due diligence,’ it is a familiar and flexible standard that requires the People ‘to make reasonable efforts’ to comply with statutory directives” (People v. Bay, ___ NY3d ___, 2023 NY Slip Op 06407, *2 [2023][citations omitted]). Whether the People made reasonable efforts “is fundamentally case-specific” and “will turn on the circumstances presented” (id.). “[T]he statute does not require or anticipate a ‘perfect prosecutor’” (id.). In his motion papers, the defendant contends that the People’s COCs are improper because various discovery materials were either belatedly disclosed or have not yet been turned over. Among the late disclosures are the body worn camera videos from Police Officer Andrew Brown and Detective Keith McNicholl, the two police officers that apprehended the defendant. In addition, he asserts that the People have not yet disclosed several items, including audit trails for body worn camera videos and unredacted NYPD paperwork. More specifically, he claims that several previously disclosed NYPD documents contain impermissible redactions for which the People did not seek a protective order. Arguing that the People have failed to demonstrate due diligence in meeting their discovery obligations, he states that the People’s COC and supplemental COCs are invalid, and, in turn, all of the People’s statements of readiness must be deemed ineffective as well. In response, the People argue that they exercised due diligence in meeting their discovery obligations under CPL 245.20(1), and, therefore, their COCs and statements of readiness are proper. To support this claim, they note that they shared 122 items of discovery with the defendant prior to their initial COC. Regarding body worn camera videos for Officer Brown and Detective McNicholl, the People state that they did not learn that the defendant was apprehended by two officers, and not one, until defense counsel shared cell phone video of the defendant’s apprehension with them on January 3, 2024. They explain that they relied on Officer Brown’s DD5 file which does not indicate that a second officer joined him in apprehending the defendant. Further, they assert that they were not aware that these officers recorded body worn camera footage until viewing the cell phone video but note that they made multiple efforts to obtain the footage upon learning of it. In any event, they argue that the camera footage is not related to the subject matter of the case because the defendant was not arrested at the scene of the alleged incident. As to the redacted police paperwork, they state that the redactions are appropriate under CPL 245.20(1)(c) or pertain to information that is not subject to automatic discovery. Finally, they assert that they are not obligated to disclose body worn camera audit trails. Body Worn Camera Footage Pursuant to CPL 245.20(1)(g), the People are required to disclose “all tapes or other electronic recordings” 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….” Further, as police officer body worn camera footage is NYPD material, it is deemed to be in the People’s possession (see CPL 245.20[2]). Thus, the People are required to disclose any such footage relating to the instant case as part of their automatic discovery obligations. Contrary to the People’s contention, the court finds that the apprehension of the defendant is related to the subject matter of the instant case, notwithstanding that it occurred several weeks after the alleged incident and in a different location. The NYPD Fugitive Enforcement Division Completed Apprehension Report and Closing Report, both of which are annexed to the People’s response, show that Officer Brown apprehended the defendant at home on October 12, 2023 and brought him to the 5th Precinct, where he was arrested. The court finds that the People did not exercise due diligence or act reasonably in failing to ask if Officer Brown recorded body worn camera footage when apprehending the defendant or if there was any other pertinent information relating to the defendant’s apprehension. Had the People done so, they would have known that Detective McNicholl accompanied Officer Brown and that Officer Brown and Detective McNicholl recorded body worn camera footage. A defendant’s apprehension is a significant stage in the chronology of a case. While the People did make efforts to ascertain Officer McNicholl’s identity and to obtain the body worn camera footage after defense counsel shared the cell phone video in January 2024, these efforts were nearly three months after commencement of this case. Importantly, it is upon the District Attorney to “endeavor to ensure that a flow of information is maintained between the police…and his or her office sufficient to place within his or her possession or control all material and information pertinent to the defendant and the offense or offenses charged…” (CPL 245.55). Moreover, the discovery statute plainly states that “[t]here shall be a presumption in favor of disclosure” (CPL 245.20[7]). ]). Accordingly, upon consideration of these circumstances, the court finds that the People did not demonstrate due diligence or act reasonably in their efforts to comply with the discovery requirements of CPL 245.20(1). As such, the court finds the People’s COCs are improper (see People v. Bay, 2023 NY Slip Op 06407, *2; People v. Gaskin, 214 AD3d 1353), and, in turn, their statements of readiness are invalid (see CPL 30.30[5]). Body Worn Camera Audit Trails The issue of whether body worn camera audit trails are subject to the automatic discovery requirements of CPL 245.20 is prevalent in New York City criminal courts. In the case of People v. Ballard, 82 Misc 3d 403 (Crim Ct, Queens County 2023), the court held a fact-finding hearing on October 18, 2023 to clarify the definition of audit trails and ascertain how they are created, stored, and shared. At the hearing, testimony was taken from Allison Arenson, who has been employed as Executive Agency Counsel and Director of the NYPD Body Worn Camera Unit Legal Bureau since 2017. Ms. Arenson’s unit handles all requests for body worn camera footage, which involves sharing footage with district attorney’s offices, federal prosecutors, the NYC Law Department, and oversight agencies as well as responding to FOIL requests. All body worn cameras operated by the NYPD are supplied by one company, Axon, and all camera footage is uploaded into Evidence.com, a cloud-based storage system provided by Axon. The audit trails at issue here are data stored in Evidence.com which show actions taken with the camera or the video footage. There are different types of audit trails, including device audit trails and evidence audit trails. The device audit trails collect information about the camera, including when it is turned on or off, when it is connected to a charger or dock, and the battery life of the device. The evidence audit trails include various information, such as the recording start time, the upload time, the name of the police officer who uploaded the video, and the names of anyone who took some action regarding the video. Both of these types of audit trails also show categories, descriptions, and notes added to the video and information about sharing of the video. Ms. Arenson also testified that categories can be added as well as removed, and each action is documented in the audit trail. During her testimony, Ms. Arenson discussed the NYPD Patrol Guide Section 212-123, which sets forth procedures for use of body worn cameras.1 It details when officers must activate their cameras and when they are prohibited from doing so. It also directs officers to upload the videos at the completion of their tours and to categorize the videos within their next two scheduled tours. According to Ms. Arenson, officers are instructed to access the videos on Evidence.com and categorize them based upon the nature of the event by selecting categories of encounters via a drop down list. The system provides approximately 50 categories of encounters, including car stop, summons, domestic incident, and emotionally disturbed person. Additionally, there are “description” and “notes” sections where officers can include any other information regarding an encounter. Further, the Patrol Guide directs officers to provide copies of body worn camera video footage to the district attorney’s offices by using the “Case Share” function in Evidence.com. Ms. Arenson testified that, in order to generate a report of the data, an officer must click on the “audit trail” tab and, when sharing the video footage with a district attorney’s office, the officer must check a box to share these reports as well. She further stated that each of the New York City district attorney’s offices have their own unique logins for Evidence.com. CPL 245.20 requires the prosecution to disclose information that relates to the subject matter of the case and is in the possession, custody, or control of the prosecution. Based upon review of Ms. Arenson’s testimony and the Patrol Guide, the court finds that the audit trails are required to be disclosed pursuant to this section because they are information about the body worn camera device and the body worn camera video footage from this case (see People v. Ballard, 82 Misc 3d 403; People Champion, 81 Misc 3d 292 [Crim Ct, New York County 2023]; People v. Torres, 79 Misc 3d 1204[A], 2023 NY Slip Op 50532[U][Crim Ct, Queens County 2023]). Further, as the videos and audit trails are NYPD materials, they are deemed to be in the People’s possession (see CPL 245.20[2]). In addition, the Patrol Guide requires officers to make entries to audit trails. If officers did not follow the Patrol Guide directive by failing to make such entries in this case, that may be impeachment material under CPL 245.20(1)(k)(iv) (see People v. Ballard, 82 Misc 3d 403, 413 ["a defendant has a right under the discovery statute to review audit trails for possible impeachment."]). Moreover, the court cannot overlook that there is a mandated presumption in favor of disclosure when interpreting CPL 245.20(1) (see CPL 245.20[7]). Redacted NYPD Documents Upon review of the NYPD arrest reports and complaint reports, the court finds that the materials contain impermissible redactions. Indeed, some redactions are permitted by statute without application to the court (see CPL 245.20[1][c], [1][d], [6]; Public Officers Law §89 [2- b], [2-c]). However, where, as here, the People seek to redact information beyond that provided for by law, they must move for a protective order (see CPL 245.70; People v. Harrigan, 187 AD3d 830 [2d Dept 2020]). Notably, they did not do so. MOTION TO DISMISS FOR SPEEDY TRIAL VIOLATION Because the top count charged on the accusatory instrument is a misdemeanor punishable by a term of incarceration not to exceed one year, the People are required to be ready for trial within 90 days of the commencement of the criminal action, less any excludable time (CPL 30.30[1][b]). The People are considered to be ready for trial when they communicate their actual readiness in open court or file a certificate of actual readiness with the court and serve a copy on the defendant’s attorney (People v. Kendzia, 64 NY2d 331 [1985]). On October 12, 2023, this action commenced with the filing of a misdemeanor complaint (see CPL 1.20[17][a "criminal action is commenced by filing of the accusatory instrument against a defendant in a criminal court…"]). On that day, the defendant was arraigned on the complaint, and the court adjourned the case to November 30, 2023 for the People to file the necessary supporting deposition. The People filed the supporting deposition off-calendar on October 18, 2023.2 As the speedy trial clock did not toll between October 12, 2023 and November 30, 2023, the entirety of this period is chargeable to the People. Because the day on which an action is commenced is not chargeable (see People v. Stiles, 70 NY2d 765), the People are charged with 49 days for this period. [49 total days charged] On November 30, 2023, the court deemed the accusatory instrument an information and adjourned the case to January 24, 2024 for trial. On December 8, 2023, the People filed a COC and a COR off-calendar. Thereafter, on January 5, 2024 and January 8, 2024, the People filed supplemental COCs with restatements of readiness for trial. As previously discussed, these COC are invalid, and, therefore, these statements of readiness are ineffective. Accordingly, the entirety of this 55-day adjournment is chargeable to the People. [104 total days charged] On January 24, 2024, the People announced their readiness for trial, and defense counsel stated that she was not ready for trial due to a computer issue at her employer, The Legal Aid Society. The court then adjourned the case to February 26, 2024 for trial. On February 13, 2024, the People filed a supplemental COC with a restatement of readiness for trial. As noted earlier, this supplemental COC is invalid, and, as a result, the People could not effectively declare ready for trial on these dates. In their response papers, the People assert that this adjournment period is excludable because they stated ready for trial and the defendant requested an adjournment to review discovery. It appears they may be asserting that this adjournment period was at the defendant’s request and therefore, is excludable. It is well settled that the People bear the burden of establishing their entitlement to an exclusion for a period of prereadiness delay (see People v. Cortes, 80 NY2d 201, 216 [1992]). Although the court’s action sheet notes that defense counsel was not ready due to a computer issue, there is no notation on the court’s action sheet that defense counsel requested an adjournment. Further, the People have not demonstrated that the defendant requested an adjournment. Moreover, it is important to note that “a mere failure by defense counsel to object to an adjournment does not constitute ‘consent’ within the meaning of CPL 30.30(4)(b)” (People v. Cortes, 80 NY2d at 214; see People v. Meierdiercks, 68 NY2d 613, 615 [1986] ["where there was no waiver by defendant, the sua sponte [preindictment] adjournment period was properly charged against the People”). Therefore, the court finds that the People have not met their burden of demonstrating that this period should be excluded. Nevertheless, even if this adjournment period is excluded, the People already exceeded the allotted speedy trial time by January 11, 2024. Accordingly, the People are charged with the 30 days from January 24, 2024 until February 23, 2024, the date upon which the defendant filed the instant motion. [134 total days charged] On February 26, 2024, the People announced their readiness for trial. At that time, the court acknowledged the defendant’s off-calendar filing of the instant motion on February 23, 2024, set a motion schedule, and adjourned the case to May 10, 2024 for its decision. On March 25, 2024, the People filed a supplemental COC with a restatement of readiness for trial. As noted earlier, this COC and statement of readiness are invalid. Nevertheless, because this adjournment period was occasioned by motion practice, it is excludable (see CPL 30.30[4][a]). [134 total days charged] Thus, the court finds that there are 134 chargeable days to date. Since more than 90 days are charged, the defendant’s motion to dismiss the information pursuant to CPL 30.30 is granted. The foregoing constitutes the opinion, decision, and order of the court. Dated: May 10, 2024
