DECISION AND ORDER Craig Harris is charged with Assault in the First Degree and other related charges stemming from an incident on July 27, 2023, where Harris is alleged to have cut Jermaine George in the face with a razor blade, requiring sutures at a local hospital to close the wound. On December 20, 2023, the People served and filed a Certificate of Compliance (“COC”), Statement of Readiness (“SOR”), and an inventory of discovery. On March 14, 2024, Harris filed the instant motion, moving for an order finding the People’s COC and SOR illusory for a failure to disclose several materials with the COC. Harris also moves pursuant to CPL §30.30 for a speedy trial dismissal of the indictment. The People oppose the motion in its entirety. Upon a thorough review of the record, the motion is denied for the reasons discussed herein. DISCUSSION To satisfy the initial burden under a motion to dismiss pursuant to CPL §30.30, the accused need only allege that the prosecution failed to declare readiness within the statutory period. See People v. Luperon, 85 N.Y.2d 71, 77-78 (1995). The prosecution then bears the burden of demonstrating and identifying periods of post-readiness excludable delay, such that the People have not exceeded the requisite time limit for declaring readiness. See People v. Cortes, 80 N.Y.2d 201, 208 (1992); People v. Berkowitz, 50 N.Y.2d 333, 349 (1980). Unless this burden is met, the motion to dismiss must be granted. Id. The prosecution also cannot validly state ready under CPL §30.30 without certifying that all automatic discovery was disclosed in accordance with CPL §245.20(1). See also CPL §§245.50(1), (3); People ex rel Ferro v. Brann, 197 A.D.3d 787, 788 (App. Div. 2d Dept. 2021). If the People demonstrate that they have acted in good faith and with due diligence, their COC and SOR can be found valid despite belated or outstanding disclosure of discoverable material. See CPL §245.50(1). To support such a finding, however, the People must explain, in sufficient detail, the reasonable inquiries they made to obtain the discoverable materials prior to the filing of the COC and SOR. See People v. Bay, 41 NY3d 200 (2023). Courts must also consider “the efforts made by the prosecution and the prosecutor’s office to comply with the statutory requirements, the volume of discovery provided and outstanding, 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. As an initial matter, the People have, in accordance with this standard, acted diligently in obtaining discovery and sharing it with Harris. The People’s discovery disclosures involve, among other items, 911 audio, body-worn camera videos, Giglio letters, activity logs, arrest paperwork, grand jury minutes, the complainant’s medical records, and more. 1) Activity Logs for Detectives (“Dets.”) Erik Malak, Janet Dorta, Jean Seder, Bernard Corso, and Rodney Demorcy Harris argues that the People’s COC is invalid for the belated disclosure of activity logs for Dets. Malak, Dorta, Seder, Corso, and Demorcy pursuant to CPL §245.20(1)(e). The People only claim that these materials were not shared at the time the COC was filed because, in the People’s experience, detectives normally do not maintain activity logs. Although that comports with the Court’s understanding, it is unclear if these materials do, in fact, exist. Accordingly, the People are directed to make a diligent and good faith effort to ascertain whether this material exists, and to obtain and disclose this material to Harris in 15 calendar days, if the material, in fact, exists. If any discovery violation has occurred, Harris may ask for an appropriate remedy pursuant to CPL §245.80(1). 2) DD5 Companion Cases Next, Harris argues that the COC is invalid for the People’s failure to obtain DD5s for companion cases numbered 2023-2376 and 2023-1500 prior to the filing of the COC. These materials are not the present case. Instead, they appear to be related matters. As such, the “items and information” do not “related to the subject matter of the case” before the Court. See CPL 245.20(1). Accordingly, the Court finds that the material did not need to be produced at the fime of the filing of the COC. Assuming arguendo that the materials are related to the subject matter of the case, the People have outlined numerous attempts to obtain these materials prior to the filing of the COC. The prosecution’s first documented request for the DD5s for the companion cases from the lead case detective, Jean Seder, took place on November 28, 2023. The People sent another e-mail to Detective Seder the following day, on November 29, 2023. By November 30, 2023, Detective Seder sent DD5s to the People — with the exception of the two companion cases at issue. The People reached out to the detective again on December 11, 2023 to request the companion cases, but Detective Seder yet again failed to respond. On December 18, 2023, the People made another request through a discovery liaison for the companion cases. By December 20, 2023, the People filed their COC without the companion cases. The People do not make any record about any further attempts to obtain these materials until April 18, 2024, when the assigned prosecutor contacted Detective Demorcy. That same day, Detective Demorcy shared the materials at issue, which were then purportedly disclosed to Harris via OneDrive. Harris alleges that the materails were not actually shared by the time briefing completed on the instant motion. Assuming that the materials from the companion cases fall within CPL §245.20(1), which does not appear to be the case, the People’s numerous attempts to obtain these materials demonstrates good faith and with due diligence. Accordingly, the COC is valid. However, if these materials were in fact discoverable, their belated disclosure will not be excused. CPL §245.80(1)(a) (where materials or information discoverable under CPL §245.20[1] are “disclosed belatedly,” a court “shall impose a remedy or sanction that is appropriate and proportionate to the prejudice suffered by the party entitled to disclosure.”) Here, neither party’s briefing describes the import of these documents to the case, although both Detectives Demorcy and Seder are listed as possible trial witnesses for the People. Therefore, if these materials were discoverable, which does not appear to be the case, the proportionate remedy to the apparently minor prejudice suffered by Harris for the late disclosure of discoverable material is preclusion of the DD5s from the companion cases from the People’s case-in-chief. To the extent that these companion cases have not been disclosed to counsel, the People are ordered to do within 15 calendar days of the instant decision.1 3) BWC Audit Trails Harris also argues that the People must disclose BWC audit trails at the time the COC is filed. This Court is compelled by the evidentiary findings in People v. Ballard, 2023 NY Slip Op 23392 (Crim. Ct. Queens Cty. 2023) (Gershuny, J.) and People v. Torres, 2023 N.Y. Slip Op 50532 (Crim. Ct. N.Y. Cty. 2023) (Licitra, J.) in finding that these materials are discoverable, as they are electronically created” information “obtained by” or “on behalf of” the NYPD, pursuant to C.P.L. §245.20(1)(u)(i)(B). See also People v. Foceri, Ind. No. 71116-2022 (Sup. Ct. Kings Cty. Feb. 26, 2024) (Cesare, J.) (denying the COC challenge as untimely, but ordering the disclosure of BWC audit trails). The Court will not, however, invalidate the People’s COC on these grounds, as no binding appellate authority yet exists about this issue, and the People’s reliance on authority from courts of concurrent jurisdiction was reasonable under the circumstances. See People v. Mei, Docket No. CR-033510-23KN (Crim. Ct. Kings Cty. Feb. 27, 2024) (Glick, J.) (finding the same). Accordingly, the Court grants Harris’s request for an order directing the People to disclose the (i) the “Axon Evidence Audit Trail” document for each body-worn camera recording provided in discovery; and (ii) the “Axon Device Audit Trail” document for each body-worn camera. The People are directed to make a diligent and good faith effort to ascertain whether this material exists, to obtain this material if it exists, and to disclose it to the defense within 15 calendar days of this decision. 4) DAS Reports for Jermaine George and Craig Harris Harris argues that the failure to disclose DAS Reports for Harris and the complainant, Jermaine George, invalidates the COC pursuant to CPL §§245.20(1)(e) and (k). The People, however, claim that the DAS Reports are not relevant to the subject matter of the case. Because these reports can often contain information about 911 calls, DIRs, aided reports, and other contacts with law enforcement, which are often (but not always) discoverable, the People are ordered to provide the DAS Reports for in camera review within 15 calendar days. If any discovery violation has occurred, Harris may ask for an appropriate remedy pursuant to CPL §245.80(1). 5) NYPD Paperwork Harris next argues that numerous pieces of NYPD paperwork, such as the Body-Worn Camera Checklist, the Arraignment Card, the Pre-Arraignment Notification Report, the NYPD Online Prisoner Arraignment Database, Command Logs, and Roll Call Logs are outstanding and must invalidate the COC. The People inexplicably claim that these materials are not in their possession, even though CPL §245.20(1) generally deems material generated by law enforcement in the People’s constructive possession. See CPL §245.20(1)(e) (Automatic discovery consists of “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]ll statements, written or recorded or summarized in any writing or recording, made by persons who have evidence or information relevant to any offense charged or to any potential defense thereto, including all police reports, notes of police and other investigators, and law enforcement agency reports.”) see also CPL §245.55(2) (“each New York state and local law enforcement agency shall make available to the prosecution a complete copy of its complete records and files related to the investigation of the case or the prosecution of the defendant for compliance with this article.”) The Court adheres to its determination that the People’s COC was filed in good faith and with due diligence, and Harris has not demonstrated any prejudice from the belated disclosure of these documents. Pursuant to CPL §245.80(1)(a), however, the “remedy or sanction that is appropriate and proportionate to the prejudice suffered by the party entitled to disclosure” is preclusion of the above-listed outstanding or belatedly disclosed NYPD paperwork. Accordingly, the People are precluded from using the above-listed NYPD paperwork in their case-in-chief at trial. To the extent that these materials exist and are still outstanding, the People are still directed to make a diligent and good faith effort to ascertain whether this material exists, to obtain this material if it exists, and to disclose it to the defense within 15 calendar days of this decision. 6) Curriculum Vitae (“CV”) and Publications of Intended Expert Dr. David Mandil Harris next argues that the People’s failure to disclose the CV and publications of the People’s intended expert, Dr. David Mandil of Brookdale Hospital, renders the People’s COC illusory. The People argue that, because Dr. Mandil does not work for law enforcement, but instead a public hospital, that these materials are not in the People’s actual or constructive custody or control pursuant to CPL §245.20(2) (excepting the People from “obtain[ing] by subpoena duces tecum material or information which the defendant may thereby obtain”). The plain language of CPL §245.20(1)(f) mandates the disclosure of “[e]xpert opinion evidence, including the name, business address, current curriculum vitae, a list of publications, and a list of proficiency tests and results administered or taken within the past ten years of each expert witness whom the prosecutor intends to call as a witness at trial or a pre-trial hearing.” This same section affords the People some leeway in the timing of these disclosures, precisely because individuals frequently sought as experts are employed in the private sector and outside of the People’s custody or control. If, “in the exercise of reasonable diligence, this information is unavailable for disclosure within the time period specified” for automatic discovery, “that period shall be stayed without need for a motion…except that the prosecution shall notify the defendant in writing that such information has not been disclosed, and such disclosure shall be made as soon as practicable and not later than sixty calendar days before the first scheduled trial date.” CPL §245.20(1)(f). Here, the People have made no showing of any attempts to obtain the CV or publications by Dr. Mandil, nor have they asserted that Harris was notified in writing, pursuant to CPL §245.20(1)(f), that such information had not been disclosed and is forthcoming. Accordingly, this Court precludes Dr. Mandil from testifying at trial pursuant to CPL §245.80(1)(a). The People noticed Dr. Mandil as a possible expert witness for his treatment of the complainant at Brookldale Hospital, and in the several months since filing their COC, the prosecution has ostensibly made no attempts to disclose any relevant expert materials. This delay causes significant prejudice to Harris in preparing a full defense. It also causes a waste of judicial resources. Accordingly, the proportionate remedy for this inaction, in violation of CPL §245.20(1)(f), is preclusion of the witness from the People’s case-in-chief. 7) Surveillance Camera Footage Harris argues that surveillance camera footage is outstanding, because possible cameras were listed in the NYPD’s Complaint Worksheet, and that the failure to disclose this video must invalidate the COC. The People make a bare assertion that they are not in possession of any camera footage of the subject location. It is unclear, from either party’s submission, whether this material actually exists and whether it was in the possession of the NYPD by the time the COC was filed. To the extent that any surveillance videos are in the possession of the NYPD, the People are directed to obtain this material if it exists and to disclose it to the defense within 15 calendar days of the instant decision. If any discovery violation has occurred, Harris may ask for an appropriate remedy pursuant to CPL §245.80(1). 8) 911 Calls Harris argues that the disclosure of only one 911 call renders the People’s COC invalid because the People’s Notice and Disclosure Form (“NDF”) lists two 911 calls. The People have confirmed, however, that the NDF was in error — there exists only one 911 call in this matter, which was recorded in two different files. Both files were shared with Harris at the time the COC was filed, so the COC will not be invalidated on these grounds. 9) Interview Video, Metadata for the Interview Video, and the Miranda Card for Harris There are no grounds to believe that these interview materials exist, as no statements were made by Harris at the time of his arrest. Accordingly, the COC will not be invalidated on these grounds. 10) Victim Assistance Services The People have confirmed that no victim assistance services were provided to the complainant. The COC will not be invalidated on these grounds. 11) Giglio Material Harris next argues that the People’s COC is invalid for failing to disclose complete underlying Giglio materials. Under CPL §245.20(1)(k), the People are required to disclose several categories of items that would have a negative effect on the People’s case, including evidence and information that tends to “impeach the credibility of a testifying prosecution witness.” CPL §245.20(1)(k)(iv). Harris first seeks underlying Civilian Complaint Review Board materials for Detectives Corso, Demorcy, and Seder, Police Officer Valencia, and any other non-testifying witnesses. The CCRB is not a law enforcement agency, nor is it an agency within the People’s control. People v. Perez, 73 Misc. 3d 173, 183-84 (Sup. Ct. Queens Cty. 2021); People v. McKinney, 71 Misc. 3d 1221(A) (Crim. Ct. Kings Cty. 2021). Therefore, the People are only obligated to turn over those CCRB records that are in their actual possession. Harris also contends that the People’s COC and SOR are invalid for failing to turn over all underlying IAB records for all witnesses, though IAB Logs have been shared for testifying witnesses Detectives Roodly, Seder, and Corso, and Police Officer Valencia. The People argue that underlying IAB records are not subject to initial discovery under CPL §245.20(1)(k), relying on, inter alia, People v. Johnson, 218, A.D.3d 1347 (4th Dept. 2023), and People v. Weisman, 2023 NY Slip Op. 51248(U) (App. Term 2d Dept. 9th & 10th Jud. Dists. 2023). Harris relies upon, inter alia, In re Jayson C., 200 A.D.3d 447 (1st Dept. 2021), which holds that summary disclosure letters were insufficient for a valid COC, to support invalidating the People’s COC on these grounds. People v. Hamizane, 2023 NY Slip. Op. 23233 at 3 (App. Term, 9th and 10th Jud. Dists July 13, 2023) held that the People are required to disclose underlying Giglio records for testifying officers, stating that “with respect to every listed potential police witness, it was the People’s obligation to disclose whether or not disciplinary records exist, and to provide the defense with copies of any existing records.” In People v. Weisman, 2023 NY Slip. Op. 51248(U) (App. Term 2d Dept 9th & 10th Jud. Dists. 2023), the Appellate Term applied the ruling in Hamizane to specific records at issue in that matter, and ultimately held that the IAB files were not discoverable, as they failed to contain impeachment material related to the subject matter of that case. Similarly, in People v. Fuentes, 2023 NY Slip. Op. 51399(U) (App. Term 2d Dept 9th & 10th Jud. Dists.) (Dec. 14, 2023), the Appellate Term also applied Hamizane to IAB records in that case, and again, the court determined that the IAB records were not related to the subject matter of the case. Here, the People exercised good faith and diligence and, even where they did not believe material was subject to automatic discovery, they adhered to the statutory presumption in favor of disclosure, CPL §245.20(7), by disclosing underlying IAB Logs for testifying officers. As such, and given the persuasive developments in Fuentes and Weisman, the People’s COC is valid on these grounds. To the extent that any CCRB or IAB records currently in the People’s possession contain redactions of potential impeachment material for testifying witnesses, the People are now ordered to turn over unredacted copies of such documents for these officers within 15 days of this decision in keeping with the statutory presumption in favor of disclosure. Again, this does not disturb the Court’s decision that the People acted diligently and in good faith prior to filing their COC and SOR. As a result, the COC will not be invalidated on these grounds. 12) ICARD Harris next argues that the People’s failure to disclose a copy of a probable cause ICARD for his arrest renders the COC invalid. The People assert that they failed to confirm whether an ICARD was generated in this case due to an oversight, but that Detective Seder’s DD5s provide the same information as the ICARD, such as the type of ICARD and offense for which it was issued for. This information was shared at the time the COC was filed, and as such, the failure to disclose this document will not result in invalidating the COC. To the extent that any ICARDs are in the possession of the NYPD, the People are directed to obtain this material if it exists and to disclose it to the defense within 15 calendar days of this decision. If any discovery violation has occurred, Harris may ask for an appropriate remedy pursuant to CPL §245.80(1). CONCLUSION The six-month period in which the People must be ready for trial on a felony is measured by the number of days in the intervening calendar months. See People v. Cortes, 80 N.Y.2d 201 (1992). In the instant case, the People are allotted 184 days to be ready for trial. August 2, 2023 — October 4, 2023 = 63 days charged This action commenced with the filing of the accusatory instrument on August 2, 2023 until Harris requested an inspection of the grand jury minutes on October 4, 2023 in TAP2. October 5, 2023 — November 29, 2023 This period is excludable for motion practice. November 30, 2023 — December 20, 2023 = 20 additional days charged The speedy trial clock restarted with the issuance of Judge Sciarrino’s November 29, 2023 decision reviewing the grand jury minutes and stopped when the People filed their COC and SOR on December 20, 2023. The People are charged 83 days total, which is less than the 184 days permitted in this action. Accordingly, the motion is denied. The foregoing constitutes the decision and order of this Court. Dated: July 18, 2024
