DECISION & ORDER Upon review and consideration of the submissions, court file and relevant law, defendant’s motion to, inter alia, deem the People’s certificate of compliance filed on February 2, 2024 invalid and the statement of readiness illusory under CPL §§245.20 and 245.50, and to dismiss the accusatory instrument on speedy trial grounds pursuant to CPL §§245.50 (3), 30.30 and 170.30 (1)(e) is granted. The reasons for the court’s decision are explained below. Procedural Background On November 4, 2023, defendant Shekara Davis was arrested and charged with assault in the third degree (Penal Law “PL” §120.00 [1]), criminal possession of a weapon in the fourth degree (PL §265.01 [2]) and harassment in the second degree (PL §240.26 [1]). On November 5 2023, defendant was arraigned and released on her own recognizance. The People were not ready for trial and therefore the matter was adjourned to January 8, 2024, for the People to file a supporting deposition (for the conversion of the complaint to an information), certificate of compliance (“COC”) with their discovery obligations and statement of readiness. At the January 8, 2024 court appearance, the People had not filed a supporting deposition or COC, and they were not ready for trial. The matter was therefore adjourned to February 7, 2024, for the filing of a supporting deposition, COC, and statement of readiness. On February 2, 2024, the People filed (off calendar), a supporting deposition, COC and statement of readiness. At the February 7, 2024 court appearance, that matter was adjourned to February 16, 2024 for a discovery conference. By letter on February 11, 2024, the defense notified the People of discovery which remained outstanding including contact information for eyewitnesses to the incident, unredacted versions of IAB logs for a testifying officer (Amelia Brown), and surveillance camera video footage of the subject incident. At the February 16, 2024 court appearance, a discovery conference was held. At the defense’s request, a motion schedule was issued, and the matter was adjourned for decision. By notice of motion dated March 8, 2024, defendant sought an order: (1) dismissing the charge of criminal possession of a weapon (PL §265.01 [2]) as facially insufficient pursuant to CPL §§170.30, 170.35, 100.15 and 100.40; (2) deeming the People’s February 2, 2024 COC invalid and the accompanying statement of readiness illusory pursuant to CPL §§245.20 and 245.50; (3) dismissing the action pursuant to CPL §§245.50 (3), 170.30 (1)(e) and 30.30 because more than 90 days elapsed without the prosecution being ready for trial.1 By affirmation dated April 18, 2024, the People opposed the motion.2 Reply papers were served and filed by the defense on April 29, 2024. Discussion Validity of the Certificate of Discovery Compliance/Dismissal on Speedy Trial Grounds Pursuant to CPL §30.30 (1), a motion to dismiss must be granted when the prosecution is not ready for trial within the time set forth by the relevant speedy trial provision. To satisfy the initial burden under CPL §30.30, a defendant need allege “only that the prosecution failed to declare readiness within the statutorily prescribed time period” (People v. Luperon, 85 NY2d 71, 77-78 [1995]). Once a defendant has alleged that more than the statutorily prescribed time has elapsed since the commencement of the action without a declaration of readiness, the prosecution bears the burden of establishing sufficient excludable delay (see People v. Berkowitz, 50 NY2d 333, 349 [1980]). The time within which the prosecution must be ready is computed by subtracting any periods of delay that are excludable under the statute (see People v. Cortes, 80 NY2d 201, 208 [1992]). In this case, it is undisputed that the prosecution must be ready for trial within ninety (90) days of the commencement of the action. Trial readiness means that the prosecutors must have “done all that is required of them to bring the case to a point where it may be tried” (People v. England, 84 NY2d 1, 4 [1994]) and a proper certificate of compliance with the disclosure requirements of CPL §245.20 must have been filed (see CPL §§245.50 [3]; 30.30 [5]; People v. Adrovic, 69 Misc 3d 563, 575 [Crim Ct, Kings County 2020]). Under the “initial discovery” provision of CPL §245.20 (1), soon after the commencement of an action, “[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, including” a non-exhaustive list of materials. As relevant here, the statue requires that the People disclose as part of automatic discovery, inter alia, “[t]he names and adequate contact information for all persons other than law enforcement personnel whom the prosecutor knows to have evidence or information relevant to any offense charged or to any potential defense thereto, including a designation by the prosecutor as to which of those persons may be called as witnesses…” (CPL§245.20 [1][c]). The prosecution is to make a diligent and good faith effort to ascertain the existence of the discovery materials and make them available to the defense, even if the information is not in the prosecution’s physical possession, except for lost or destroyed material, and materials subject to a protective order (see CPL §§245.20 [2]; 245.70 [1]; 245.80 [1][b]). “CPL 245.55 mandates a ‘flow of information’ between the prosecution and law enforcement ‘sufficient to place within [the prosecution's] possession or control all material and information pertinent to the defendant and the offense or offenses charged…’” (People v. Audino, 75 Misc 3d 969, 975 (Crim Ct, New York County 2022). Unless the court has made “an individualized finding of special circumstances…the prosecution shall not be deemed ready for trial for purposes of section 30.30…until it has [fulfilled its discovery obligations under CPL §§245.20 (1) and] filed a proper certificate [of compliance]” (CPL §245.50 [3]; see also People v. Aquino, 72 Misc 3d 518, 520 [Crim Ct, Kings County 2021]). Further, under CPL §245.20 (7), “[t]here shall be a presumption in favor of disclosure” and “openness” when interpreting the disclosure provisions (see also People v. Randolph, 69 Misc 3d 770, 772 [Sup Ct, Suffolk County 2020]). CPL §245.50 (1) sets for the requirements for a COC as follows: [t]he certificate of compliance shall state that, after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery, the prosecutor has disclosed and made available all known material and information subject to discovery. It shall also identify the items provided (emphasis supplied). To interpret CPL §§245.50(1) and 30.30 together, in the context of a motion to dismiss on speedy trial grounds, the Court first examines the People’s “actual readiness” (CPL §30.30 [5]); that is, whether the prosecution has “done all that is required of them to bring the case to a point where it may be tried,” including filing a valid COC (People v. England, 84 NY2d at 4). In order to find the COC to be valid, the Court must be satisfied that it was filed in “good faith and reasonable under the circumstances” (CPL§245.50 [1]). The Court of Appeals has held that if any known discoverable materials were not exchanged prior to the filing of the COC, the prosecution must establish that it exercised due diligence and made reasonable inquiries to comply with Article 245, prior to filing its COC (People v. Bay, __ NY2d __, 2023 NY Slip Op 0647 [December 14, 2023]). In evaluating whether the People exercised due diligence, a court “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, 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 any missing discovery” (id. at *6). If after review of the details provided by the prosecution, the court is satisfied that the COC was filed in good faith despite the discovery that was not exchanged, it may consider appropriate sanctions pursuant to CPL §245.80, the severity of which may depend on the prejudice suffered by the defendant as a result of the discovery that was not exchanged prior to the filing of the COC (see CPL §245.50 [1]). However, if the court finds that the COC was not filed in good faith or was not reasonable under the circumstances, the COC shall be deemed improper and the statement of readiness stricken, and there is no need to consider the sanctions under CPL §245.80, or to consider if the defendant was prejudiced (see People v. Bay, supra *7; People v. Perez, 75 Misc 3d 1205 [A], *3 [Crim Ct, Bronx County 2022]; see also People v. Georgiopoulos, 71 Misc 3d 1215 [A], *3 [Sup Ct, Queens County 2021]; People v. Adrovic, 69 Misc 3d at 574). Thus, “discovery compliance is a question of diligence and reasonableness given the particular facts of the case: neither a claim of good faith nor an absence of bad faith, standing alone, can exempt the People from these requirements” (People v. Aquino, 72 Misc 3d at 5; People v. Georgiopoulos, 71 Misc3d 1215[A], *3 ["good faith and due diligence are the touchstones by which a certificate of compliance must be evaluated"]). Rather, “[w]hen the People submit documentation to the court certifying their compliance with their statutory obligation, they must do more than merely mouth the words” (People v. Adrovic, 69 Misc 3d at 574-75). Here, the court finds that the People failed to meet their discovery obligations when they filed their February 2, 2024 COC and therefore, the COC is deemed improper (see People v. Bay, supra at *1, *7 [COC not proper because the People failed to show that they exercised due diligence and made reasonable efforts to identify mandatory discovery under CPL §245.20); People v. Rodriguez, 77 Misc 3d 23, 25 [App Term, 1st Dept 2022] [COC invalid where people failed to provide relevant discovery to the defense and failed to establish they exercised due diligence and that the COC was filed in good faith]; People v. Perez, 75 Misc 3d at 1205 [A], *4 [COC invalidated where People failed to provide known discovery and no showing of diligence]; People v. Aquino, 72 Misc 3d at 523-24 [same]; People v. Georgiopoulos, 71 Misc3d 1215[A], *6 [CPL §245.50 [1] [given the deficiencies in both the COC and People's explanation, the court found no showing of due diligence and certificate deemed invalid]). Specifically, the People failed to disclose, inter alia, the names and adequate contact information for civilian eyewitnesses to the subject incident required under CPL §245.20 (1)(c) to be automatically supplied. In conjunction with the filing of its original COC, the People identified only one witness, Lillian Rose (the complainant), as someone who has “evidence or information relevant to any offense charged or to any potential defense” (CPL §245.20 [1] [c]). However, it is undisputed that a number of eyewitnesses were also present during the alleged incident between defendant and the complaining witness which occurred in the hallway of the apartment building where the two lived, yet the identity and contact information for those eyewitnesses was not disclosed to the defense. The court rejects the People’s assertion that because they failed to obtain any contact information for the individuals in the hallway at the time of the arrest, they are relieved of their discovery obligations under Article 245 with respect to that information. Significantly, under CPL §245.20 (2), to the extent that automatic discovery provided in CPL §245.20 (1) is not within the People’s “possession, custody, or control,” the People are required to make a “diligent, good faith effort to ascertain the existence of [such] material or information.” Further, CPL §245.50 (1) requires that the People’s COC “state that, after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery, the prosecutor has disclosed and made available all known material and information subject to discovery” (emphasis supplied). Here, the People failed to articulate any efforts or inquiries made to obtain the identity and contact information for the eyewitnesses prior to filing their COC or any efforts or inquiries made after they were notified that the information was missing (see CPL §245.20 [2]; People v. Bay, supra at *7 [the People bear the burden of establishing that they exercised due diligence prior to filing the initial COC despite the belated or missing disclosure]; People v. Rodriguez, 77 Misc 3d at 25 [no showing the People exercised due diligence and that the COC was filed in good faith]; People v. Aquino, 72 Misc 3d at 523-24 [COC invalidated where People failed to provide known discovery and no showing of diligence]; People v. Georgiopoulos, 71 Misc3d 1215[A], *6 [CPL §245.50 [1] [given the deficiencies in both the COC and People's explanation, the court found no showing of due diligence and certificate deemed invalid]). Moreover, despite being advised by the defense that the material was outstanding as of February 11, 2024, the People have not disclosed any information regarding the civilian eyewitnesses, or any efforts they made to obtain such information. The People’s argument that the defense is in the same position as the People in that defense can contact the complainant (to obtain information about the eyewitnesses), and the eyewitnesses (who were all neighbors of defendant and the complaining witness), improperly shifts the burden to the defense to obtain material the prosecution is statutorily automatically required to disclose (see §245.20 [1][c]). The statute also mandates that the People make diligent efforts to “cause the information to be made available for discovery where it exists but is not within the prosecutor’s possession, custody or control. (see §245.20[2]). Additionally, this argument by the People fails to take into account the reality that the complaining witness is unlikely to be cooperative with defense counsel and that eyewitnesses are more likely to give their names to the police than to an attorney or investigator. Further, the People did not request a protective order or seek additional time to comply with their discovery obligations, upon a showing of good cause pursuant to CPL §245.70 (1) and (2) and did not seek “an individualized finding of special circumstances” from the court, as permitted by CPL §245.50 [3]). Additionally, the People’s “obligation to provide discovery, and to certify compliance with that obligation, is not relieved by an absence of prejudice to the defendant” (see People v. Bay, supra at *7; People v. Adrovic, 69 Misc 3d at 574; People v. Diaz, 75 Misc 3d 314, 320 [Crim Ct, Bronx County 2022] [prejudice analysis not to be considered when assessing validity of a certificate of discovery compliance]).3 Since the February 2, 2024 COC was deemed invalid, the People’s statement of readiness also filed on that day was illusory and failed to stop the speedy trial clock under CPL §30.30 (see CPL §245.50 [3]; People v. England, 84 NY2d at 4 ["A statement of readiness at a time when the People are not actually ready is illusory and insufficient to stop the running of the speedy trial clock"]; People v. Rodrgiuez, 77 Misc 3d at 25 [the invalid COC did not stop the speedy trial clock]). The court finds 94 days are chargeable to the prosecution for the period from November 5, 2024 to February 7, 2024.4 Since the prosecution was not ready for trial within 90 days of commencement of this criminal action, defendant’s motion to dismiss pursuant to CPL §30.30 is granted, and it is ordered that this matter is hereby dismissed. In light of the above decision, the Court need not address the defense’s additional arguments.5 Dated: May 8, 2024
