DECISION AND ORDER Robert K., hereinafter “defendant,” is charged by information with two counts of Assault in the Third Degree (Penal Law §120.00 [1], [2]) and one count of Aggravated Harassment in the Second Degree (Penal Law §240.30 [4]), class A misdemeanors; one count of Attempted Assault in the Third Degree (Penal Law §110/120.00 [1]), a class B misdemeanor; and one count of Harassment in the Second Degree (Penal Law §240.26 [1]), a violation. The defendant moves this court to deem the People’s Certificate of Compliance (COC) and Certificate of Readiness (COR) (dated January 29, 2024) and supplemental COCs with CORs (dated February 1, 2024; February 15, 2024; March 4, 2024; March 5, 2024; and April 18, 2024) to be invalid and improper, and moves to dismiss the accusatory instrument on the ground that she1 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 COCs improper and invalid is GRANTED. The defendant’s motion to dismiss is likewise GRANTED. Arguments of the Parties The defendant argues the People’s initial January 29, 2024 COC was improper and invalid for failure to include materials automatically discoverable pursuant to CPL 245.20, including: 1) medical records of the complainant (CPL 245.20 [1] [e], [j]); 2) routine police paperwork related to the processing and investigation of the case (CPL 245.20 [1] [e]), including the Domain Awareness System (DAS) report (id., CPL 245.20 [1] [u]); 3) audit trails (also known as audit logs) from police body-worn camera (BWC) footage (CPL 245.20 [1] [g], [u] [ii]); 4) and law enforcement disciplinary materials for testifying NYPD officers (CPL 245.20 [1] [k] [iv]). Some medical records were disclosed on February 1, 2024, and February 15, 2024, while some remain outstanding; the defendant argues that by waiting until January 25, 2024 — two business days before filing the COC — to subpoena the records, the People failed to exercise the due diligence required for a valid COC (People v. Bay, 41 NY3d 200 [2023]). The routine police paperwork was not disclosed until March 4, 2024, five weeks after the People certified compliance. The NYPD DAS report was only shared in illegible form: fully blacked out, edge to edge, without resort to the protective order envisioned by the statutory scheme (CPL 245.70). The audit trails were disclosed on April 18, 2024, eighty days after the People certified compliance with their discovery obligations. As for the disciplinary materials of the testifying police witnesses: their NYPD Internal Affairs Bureau (IAB) logs (three concerning P.O. Coley and one for P.O. Mehale) were disclosed in redacted form, without court permission; the underlying attachments for these four IAB logs have not been disclosed at all. The defendant contends the People’s failure to disclose these automatically discoverable materials, coupled with their failure to make diligent, reasonable efforts to obtain and disclose that material, renders their initial and supplemental COCs and their accompanying statements of readiness improper and invalid. According to the defendant, this failure to validly state ready means the People have violated the defendant’s right to a speedy trial under CPL 30.30, necessitating the dismissal of the accusatory instrument. The People argue their January 29, 2024 COC was valid because they acted with due diligence and in good faith to make full and complete disclosures as required by CPL 245, as shown by their initial sharing of 122 items. On the specific topics the court discusses below, the People advance the following arguments: 1) audit trails (ultimately disclosed 168 days after the case commenced) are not automatically discoverable because they are not covered by a specific provision not cited by the defense (CPL 245.20 [1] [u] [i]); they do not relate to the subject matter of the case; and defense counsel has not articulated what discoverable information they contained; 2) the People are not required to seek a protective order before redacting IAB logs because the People can determine what is related to the subject matter of the case, and therefore what is discoverable; and 3) the same argument applies to the People’s redaction of the DAS report without court order: they would only need to seek court permission to withhold information if they first decide they are obligated to share it. As such, the People maintain only 88 chargeable days have elapsed since the commencement of this case, placing them within the time period permitted by CPL 30.30. Discussion This court need not reach every point briefed by the parties. Several categories of missing or belated discovery are enough, standing alone, for this court to rule that the People failed to meet their CPL 245 obligations. Yet mere failure to disclose is not enough to invalidate a COC; in determining the validity of the COC, the court is also required to consider whether the People made diligent, good faith efforts, reasonable under the circumstances of the individual case, to comply with CPL 245 prior to filing their COC (Bay, 41 NY3d 200). For reasons discussed below, the People’s COCs are invalid and improper. Because the People have made no showing of special circumstances that would permit this court to find them ready for trial notwithstanding their lack of discovery compliance (CPL 245.50 [3]), this court rules their on — and off-record statements of readiness to be illusory. Redaction of NYPD DAS Report The People’s power to withhold certain automatically discoverable material is specifically circumscribed (CPL 245.20 [1] [c], [d], [g], and [u] [iv]). The statutory provisions set forth the circumstances requiring a protective order; the form for mandatory notice to the defendant; and timelines for ultimate disclosure. The People, like the defendant, may also unilaterally redact social security numbers and tax numbers from all discovery (CPL 245.20 [6]). For any other information that the People seek to withhold for good cause, the prosecution must move for a protective order (CPL 245.20 [5] and 245.70; see also People v. Randolph, 69 Misc 3d 770 [Sup Ct, Suffolk County 2020]). “Portions of materials claimed to be non-discoverable may be withheld pending a determination and ruling of the court under Section 245.70 of this article; but the defendant shall be notified in writing that information has not been disclosed under a particular subdivision of this section, and the discoverable portions of such materials shall be disclosed to the extent practicable.” (CPL 245.10 [1] [a], emphasis added.) What the People may not do, is withhold portions of automatically discoverable materials indefinitely. It is not within the People’s power to determine whether there is good cause to ultimately deny the defendant access to such information — the court alone makes that determination (CPL 245.70). Here, the People effected wholesale redactions of two pages from the defendant’s NYPD arrest packet without seeking a protective order. These pages have been blacked out from edge to edge and reveal absolutely no information beyond the defendant’s name, indicating she is the subject of the DAS report. DAS is a technology database that “centralizes vital information that would otherwise be kept throughout different isolated data compartments within NYPD computer systems.”2 A DAS report is a synthesis of the information gathered through and formulated by this extensive surveillance and data processing system: “DAS allows NYPD personnel to efficiently access critical information such as real-time 911 information, past history of call locations, crime complaint reports, arrest reports, summonses, NYPD arrest and warrant history, as well as a person’s possible associated vehicles, addresses, persons, phone numbers, date of birth, and firearm licensure history.” (Id.) “Information contained within DAS may only be used for legitimate law enforcement purposes or other official business of the NYPD, including in furtherance of criminal investigations, civil litigations, and disciplinary proceedings.” (Id. at 6, emphasis added.) Insofar as the NYPD generated this report and included it in the defendant’s arrest packet, it formed part of the police investigation and, as such, is clearly related to the subject matter of the case. Like others before, this court is “disinclined to hold that materials in a police investigative file are not related ‘to the subject matter of the case’ simply because, in the People’s estimation, they appear to be of minimal value.” (People v. Amir, 76 Misc 3d 1209[A], 2022 NY Slip Op 50856[U], *5 [Crim Ct, Bronx County 2022], citing People v. Lustig, 68 Misc 3d 234, 239 [Sup Ct, Queens County 2020].) People v. Payne, 75 Misc 3d 1224(A), 2022 NY Slip Op 50656(U), *3 (Crim Ct, Bronx County 2022) (“The Court strains to imagine a situation where material contained within records in the People’s case file would somehow not ‘relate’ to the case.”). Additionally, whether the information contained in the DAS report can be used for further investigation or to craft a defense, is for defense counsel to determine, not the People. “The People do not choose what the accused’s defense will be.” (Amir, 2022 NY Slip Op 50856[U], *5.) It is of no moment that the DAS report in question concerns the defendant. A DAS report is not an autobiographical account. Rather, it details what the police attribute to or associate with the subject of that report. Like any report compiled from data entered by humans and processed by machines, it is subject to error — error that can impact a criminal investigation and may warrant challenge. The People fail to appreciate that when conducting an investigation and preparing a defense, there may be great value in understanding what the police and prosecution believe they know about a defendant. Whether the defendant knows what is contained in the DAS report can never be ascertained if he is deprived of disclosure. If the People are concerned with the sensitivity of its contents,3 they should do as the statute instructs and seek a protective order, otherwise the DAS report is discoverable in its entirety (CPL 245.20 [1] [a], 245.70). Without a protective order, its disclosure, like all other discoverable material, should have been “automatic, absolute and without redaction, adulteration, or censorship by the People, except as allowed in CPL 245.20 (6).” (People v. Best, 76 Misc 3d 1210[A], 2022 NY Slip Op 50859[U], *5 [Crim Ct, Queens County 2022].) People v. Goggins, 76 Misc 3d 898 (Crim Ct, Bronx County 2022). Audit Trails The People’s assertion that audit trails are not related to the subject matter of the case is perplexing. Footage captured by police BWC in the course of an investigation or arrest is undoubtedly related to the subject matter of the case — and so too are audit trails. Audit trails comprise the record of when BWC footage is initially uploaded, subsequently viewed (whether by that officer or a supervisor), and later categorized, annotated, or otherwise used by law enforcement: Audit trails are documents that can be assembled from information within evidence.com [where all BWC footage is uploaded]; they are reports of data and notes created by NYPD for BWC footage and videos created by cameras in Intoxicated Driver’s Unit rooms. All types of audit trails record information in an ongoing process. Whenever a user takes action with a video, whether to view the footage, share it, or add information, those actions are recorded in the audit trails. Audit trails are retrieved once a user requests a specific audit trail type from the software. (People v. Ballard, 202 NYS3d 683, 691 [Crim Ct, Queens County 2023] [holding audit trails to be automatically discoverable because they contain written statements by police, may impeach testifying officers, are electronic information created and obtained on behalf of law enforcement, and are inherently related to the subject matter of the case].) The NYPD Patrol Guide Procedure Number 212-1234 specifically directs all uniformed members of service to access the video management system to properly label and annotate all BWC footage “by the end of next scheduled tour.” (NYPD Patrol Guide Pro No. 212-123, at 5.) Information in an audit trail, as well as its absence, can serve defense counsel in a myriad of ways, especially where NYPD policy places a duty upon police officers to dock their body worn cameras, annotate the footage, and create a case file in a timely manner. Indeed, “whether a testifying police officer follows NYPD BWC protocol, or whether they ignore their training, is proper grounds for impeachment.” (Ballard, 202 NYS3d at 694.) This court holds that audit trails are categorically related to the subject matter of the case. They are automatically discoverable, and the People’s failure to disclose them renders them out of compliance with their CPL 245 discovery obligations (Ballard, 202 NYS3d 683; People v. Champion, 81 Misc 3d 292 [Crim Ct, NY County 2023]; People v. Torres, 79 Misc 3d 1204[A], 2023 NY Slip Op 50532[U] [Crim Ct, Queens County 2023]; People v. Cumbe, 82 Misc 3d 1242[A], 2024 NY Slip Op 50524[U] [Crim Ct, Kings County 2024]; People v. Duran, 210 NYS3d 710 [Crim Ct, Bronx County 2024]; People v. Rollerson, 82 Misc 3d 1212[A], 2024 NY Slip Op 50291[U] [Crim Ct, Bronx County 2024]; People v. Shar, 82 Misc 3d 1251[A], 2024 NY Slip Op 50589[U] [Crim Ct, Richmond County 2024]; People v. James, 82 Misc 3d 1248[A], 2024 NY Slip Op 50570[U] [Crim Ct, Kings County 2024]; People v. Lyte, 83 Misc 3d 1204[A], 2024 NY Slip Op 50655[U] [Crim Ct, NY County 2024]). While audit trails are unquestionably in the People’s constructive possession by virtue of the NYPD’s possession (CPL 245.20 [2]), this court notes abundant support for the notion that that they are also in the People’s actual possession. As the Champion court observed, upon noting that protocol requires the NYPD to include audit trails when sharing BWC footage with the prosecution, “[A]ssuming mandatory procedures are followed, the People are in actual possession of this material.” (Champion, 81 Misc 3d at 425.) Allison Arenson, executive agency counsel and Director of the NYPD BWC Unit Legal Bureau, testified in an extensive evidentiary hearing held by the Ballard court (Ballard, 202 NYS3d at 407-411, 418). That evidentiary hearing revealed a flow of information between the NYPD and the district attorneys of all five boroughs, wherein each DA’s office has a login to the Evidence.com BWC cloud-based storage system (Lyte, 2024 NY Slip Op 50655[U], *8). Essentially, audit trails appear to be available to the People at the push of a button and represent a de minimis discovery burden. Bay requires this court to consider the reasonableness of the People’s efforts before ruling on the validity of their COC. The People admittedly made no effort to acquire audit trails prior to certifying compliance. After the defense requested the audit trails by email on February 15, 2024, the People did not reply. When the defense renewed their request, again by email on February 29, 2024, the People replied on March 4, 2024, that “audit trails are not discoverable under CPL 245.” (Defense exhibit J.) The People rest their position on what they believe to be a reasonable reliance on lower court decisions. This court rules now as it has in the past that when the People rely on conflicting decisions from courts of concurrent jurisdiction, they do so at their own peril. The ease with which the People could have obtained the audit trails, coupled with the statute’s explicit presumption in favor of disclosure (CPL 245.20 [7]) and a significant body of lower court rulings contrary to the People’s stated position (see above), should have caused the People to disclose the audit trails before certifying compliance — that is what reasonableness dictates in this instance. This court also considers the People’s free access to the audit trails and notes that furnishing these materials to the defendant constitutes perhaps the lightest of all burdens. In declining to disclose materials in their possession, the People engaged in a strategic gamble which did not end in their favor. Under these circumstances, this court cannot find the choice to withhold audit trails diligent or reasonable. Redacted IAB Logs for Testifying Witnesses This court holds that IAB logs for testifying officers are automatically discoverable and in the constructive possession of the People under CPL 245.20 (2), and the People’s failure to disclose them in their full, unredacted form renders their COC improper and invalid. (People v. Rodriguez, 77 Misc 3d 23 [App Term, 1st Dept 2022]; Matter of Jayson C., 200 AD3d 447 [1st Dept 2021]; People ex rel. Ferro v. Brann, 197 AD3d 787, 788 [2d Dept 2021]; People v. Figueroa, 78 Misc 3d 1203[A], 2023 NY Slip Op 50149[U] [Crim Ct, Queens County 2023]; People v. Polanco-Chavarria, 160 NYS3d 562 [Rockland County Ct 2021]; People v. Kelly, 71 Misc 3d 1202[A], 2021 NY Slip Op 50264[U] [Crim Ct, NY County 2021]; People v. Herrera, 71 Misc 3d 1205[A], 2021 NY Slip Op 50280[U] [Nassau Dist Ct 2021]; People v. Perez, 71 Misc 3d 1214[A], 2021 Slip Op 50374[U] [Crim Ct, Bronx County 2021]; People v. Castellanos, 72 Misc 3d 371 [Sup Ct, Bronx County 2021]; People v. Soto, 72 Misc 3d 1153 [Crim Ct, NY County 2021]; People v. Williams, 72 Misc 3d 1214[A], 2021 NY Slip Op 50743[U] [Crim Ct, NY County 2021]; People v. Salters, 72 Misc 3d 1219[A], 2021 NY Slip Op 50800[U] [Nassau Dist Ct 2021]; People v. Portillo, 73 Misc 3d 216 [Sup Ct, Suffolk County 2021]; People v. Barralaga, 73 Misc 3d 510 [Crim Ct, NY County 2021]); People v. Sozoranga-Palacios, 73 Misc 3d 1214[A], 2021 NY Slip Op 51036[U] [Crim Ct, NY County 2021]; People v. Edwards, 74 Misc 3d 433 [Crim Ct, NY County 2021]; People v. Francis, 75 Misc 3d 1224[A], 2022 NY Slip Op 50655[U] [Crim Ct, Bronx County 2022]; People v. Alvia, 76 Misc 3d 704 [Crim Ct, Bronx County 2022]; People v. Silva-Torres, 81 Misc 3d 1121 [Crim Ct, NY County 2023]; People v. Dorado, 80 Misc 3d 829 [Crim Ct, Kings County 2023]; People v. Santos, 79 Misc 3d 1233[A], 2023 NY Slip Op 50778[U] [Crim Ct, Bronx County 2023]; People v. Pacheco, 83 Misc 3d 1201[A], 2024 NY Slip Op 50636[U] [Crim Ct, Queens County 2024]; People v. Hamizane, 80 Misc 3d 7, 11 [App Term, 2d Dept 2023] [with respect to every listed police witness, the People are obligated to determine whether any disciplinary records exist and "to provide the defense with copies of any existing records"].) Here, the People have yet to provide full, unredacted copies of IAB logs for testifying officers Coley and Mehale; the logs they have furnished for these officers were impermissibly reacted without the permission of a court. A redacted IAB log is incomplete and therefore represents an insufficient disclosure (Salters, 2021 NY Slip Op 50800[U]; Goggins, 76 Misc 3d 898.) On these grounds alone, the People are out of compliance with their CPL 245 obligations. As to whether the People’s efforts to disclose these requisite materials were diligent and reasonable under the circumstances of this case, this court rules they were not. Here, the People made the unilateral decision to withhold discoverable information in their constructive possession, yet certified compliance without having disclosed that material. They did not seek additional time from the court to obtain full, unredacted IAB logs (CPL 245.70 [2]; People v. McGee, 78 Misc 3d 1229[A], 2023 NY Slip Op 50380[U] [Crim Ct, Kings County 2023]). Most crucially, they did not seek the court’s permission to redact, even though the statute contemplates this scenario and provides a roadmap for seeking that lawful relief (CPL 245.70 [1]). They simply chose to certify that they had disclosed all known materials, even though they knew otherwise (People v. Luna, __ NYS3d __, 2024 NY Slip Op 24146 [App Term, 2d Dept 2024]; People v. Henry, 82 Misc 3d 828 [Crim Ct, Queens County 2024]; ex rel Ferro, 197 AD3d 787). Recognizing that “reasonableness…is the touchstone” for assessing the validity of a COC (Bay, 41 NY3d at 211-212), the court finds that the People’s instant impermissible withholding of discoverable information is, in light of the plain language of the statute, patently unreasonable. Additionally, while the court has focused on the DAS report, audit trails and IAB logs, it also considers the totality of the circumstances in the case at bar — the actions and inactions that comprised the People’s disclosure efforts, as well as which materials were disclosed and which were withheld — and concludes that the People’s efforts to discharge their CPL 245 obligations fell short of the requisite due diligence. Their COCs are therefore improper and invalid, and their statements of readiness are, by extension, illusory. 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 November 2, 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 November 3, 2023, the court arraigned the defendant and adjourned the case to November 22, 2023, for the People to file the required supporting deposition. The People are charged with 20 days. On November 22, 2023, the court adjourned the case to January 17, 2024, again for supporting deposition. The People are charged with 56 days. On January 17, 2024, the court adjourned the case to February 6, 2024, again for supporting deposition. After hours on January 17, 2024, the People filed and served the supporting deposition. Off calendar on January 29, 2024, the People filed their COC, COR, an Automatic Discovery Form (“ADF”), and a Discovery Disclosure List. For the reasons articulated above, the People’s COC and COR are invalid and improper and therefore did not serve to toll the speedy trial clock. Off calendar on February 1, 2024, the People filed their first supplemental COC and restatement of readiness, with the same result. The People are charged with 20 days. On February 6, 2024, the court deemed the complaint an information. The People stated ready; the defense stated it was still reviewing the discovery provided. The court adjourned to March 4, 2024, for trial. Off calendar on February 15, 2024, the People filed their second supplemental COC with a restatement of readiness. For the reasons articulated above, this supplemental COC is also invalid and improper; as a result, their statement of readiness is illusory and did not serve to toll the speedy trial clock. The People are charged with 27 days. On March 4, 2024, the People stated ready. The defense stated he had tried to confer several times with the assigned ADA regarding missing discovery and received no reply. The court adjourned to April 16, 2024, for trial. Off calendar on March 4, 2024, and March 5, 2024, the People filed their third and fourth supplemental COCs with restatements of readiness. For the reasons articulated above, these supplemental COCs are also invalid and improper; as a result, their statements of readiness are illusory and did not serve to toll the speedy trial clock. The People are charged with 43 days. On April 16, 2024, the People stated ready and the defense objected to the COC and challenged the People’s statements of readiness from February 6, 2024. The court set a motion schedule and adjourned to June 27, 2024, for decision. Off calendar on April 18, 2024, the People filed a fourth supplemental COC and restatement of readiness. This period is excludable (CPL 30.30 [4] [a]). Based on the foregoing, the People are charged with 166 days of delay, which is beyond the statutory period set forth in CPL 30.30. Accordingly, the defendant’s motion to dismiss the accusatory instrument pursuant to Criminal Procedure Law §§30.30 and 170.30 is GRANTED. The foregoing constitutes the opinion, decision, and order of the court. Dated: June 27, 2024
