DECISION AND ORDER The Defendant, Marco Mosquera, has submitted a motion dated May 24, 2023 to invalidate the People’s original certificate of compliance and supplemental certificates of compliance, find the People’s statements of readiness to be illusory, and dismiss the indictment based upon a violation of his rights to a speedy trial. The People’s response, dated June 23, 2024, opposes the relief sought. The Defendant filed a reply dated July 12, 2024. The Court’s staff held a discovery conference on July 22, 2024 to discuss these matters with the attorneys. The Court decides the motion as follows: I. The People’s Original Certificate of Compliance from December 9, 2021 The Defendant has moved to invalidate the People’s original certificate of compliance (which was served and filed on December 9, 2021) because he argues that there are two categories of discovery which had not been disclosed prior to the filing of the People’s original certificate of compliance and are therefore in dispute: 1) The People’s original certificate of compliance did not indicate whether forty-one of the law enforcement officers listed would testify at trial; and 2) The People’s original certificate of compliance indicated that there was no known impeachment information for the complainant who was [and is] a member of the New York City Police Department [NYPD] at that time, but the People were already in possession of allegations of misconduct against the complainant in her capacity as a police officer because a paralegal had corresponded with an NYPD discovery liaison via e-mail in 2020. The Court will now address each category in dispute: 1) Indication About Whether Forty-One Police Officers Would Testify at Trial The Defendant first argues that the People’s original certificate of compliance did not indicate whether forty-one police officers would testify at trial, it simply stated “TBD”. The People state that they provided information that 21 other police officers listed in their certificate of compliance were listed as being witnesses for trial and provided that it would be determined later who amongst the remaining 41 law enforcement witnesses would be called as witnesses. 2) Impeachment Material Regarding Complainant as a Police Officer The Defendant argues that he has repeatedly asked for any and all impeachment material regarding the complainant in her role as a police officer and for any records relating to administrative discipline in connection with this case. The Defendant has attached an affidavit from one of his attorneys as an exhibit to his motion and that affidavit indicates that he had repeatedly requested discovery related to IAB investigations and disciplinary proceedings both on and off the record. In their response, the currently assigned Assistant District Attorney (ADA) affirms that when he was first assigned to this case in May of 2023, he conferred with defense counsel about these items and then ran a search of the Queens County District Attorney’s Office’s [QCDA] files. The People state that there were no such files in QCDA possession at that time. In April of 2024, the currently assigned ADA states that he was reviewing discovery materials for this case when he discovered a quantity of material which he mistakenly believed had already been shared with the Defendant by the previously assigned ADA. It was through the discovery of these items (many of which are the subject of the supplemental certificate of compliance disputes addressed below) that the ADA realized that he needed to do a new search for additional Rosario material that may have been outstanding. The ADA stated that he submitted a new Rosario request form to IAB and worked with the District Attorney’s LEOW Unit to obtain any new discovery related to this case. The ADA then conducted a new search for police disciplinary records for the complainant which were in the QCDA’s database. That search resulted in a newly updated LEOW letter (from on April 4, 2024) for the complainant as well as underlying paperwork for some of those incidents (which was received from IAB and uploaded on April 4, 2024). There was also an e-mail from the NYPD to a member of the District Attorney’s LEOW unit which clarified a dismissed allegation against the complainant (uploaded to the QCDA’s system on October 17, 2022) and a CCRB history sheet for the complainant (uploaded in October of 2022). The People note that any substantiated findings against the complainant for this incident had not occurred prior to the filing of their original certificate of compliance on December 9, 2021. CPL §245.20(1) requires the People to 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”. The People must disclose this initial automatic discovery within twenty calendar days of the Defendant’s arraignment where the defendant is in custody (CPL §245.10[1][a][i]) unless the discoverable materials are “exceptionally voluminous or, despite diligent, good faith efforts, are otherwise not in the actual possession of the prosecution,” in which case an extension may be granted pursuant to CPL §245.70 (CPL §245.70 (CPL §245.10[1][b]). Furthermore, pursuant to CPL §245.60, both the People and the Defendant have a continuing duty to disclose “additional material or information which it would have been under a duty to disclose pursuant to any provisions of this article had it known of it at the time of a previous discovery obligation or discovery order”. “[W]hether the People made reasonable efforts to satisfy CPL article 245 is fundamentally case-specific, as with any question of reasonableness, and will turn on the circumstances presented” (People v. Bay, 41 NY3d 200 [2023]). “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 (id. quoting People v. Bolden, 81 NY2d 146, 155 [1993])…. Although the relevant factors for assessing due diligence may vary from case to case, the courts 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 and outstanding, the complexity of the case, how obvious any missing material might have been to a prosecutor exercising due diligence, the explanation for any discovery lapse, and the People’s response when apprised of missing discovery” (Bay at 212). The Court has considered the factors that the Court of Appeals listed in Bay and finds that the People have exercised due diligence in providing discovery as part of their original certificate of compliance for this case. First, considerable efforts have been made by the People to generate the discovery they are obligated to turn over in this and every case. For example, the Queens County District Attorney’s Office has established a Discovery Compliance Unit to coordinate with law enforcement agencies in an effort to streamline both interagency communication and the exchange of discoverable information. Additionally, the Queens County District Attorney’s Office has also established a Law Enforcement Officer Witness Unit to obtain disciplinary’ information for their witnesses as well as a Forensic Science Unit to obtain scientific and forensic evidence that may exist in any case. Finally, the Queens County District Attorney’s Office has also embedded paralegal discovery liaisons in many of its bureaus, whose duties and responsibilities include interacting with a variety of law enforcement agencies in an effort to oversee discovery compliance and to troubleshoot any outstanding discovery issues. The creation of these additional units and allocation of resources to generally address their discovery obligation under CPL Article 245 support a finding of due diligence on the part of the Queens County District Attorney’s Office in fulfillment of their discovery obligation in this case. Second, in comparing the amount of discovery turned over to the amount of discovery outstanding, it is clear that the People have exercised due diligence. It is not in dispute that the People turned over voluminous discovery before filing their original certificate of compliance, including at least 710 sets of files, which contained multiple thousands of pages of material and attachments including at least 47 body-worn camera videos, more than 900 pages of medical records, hundreds of pages of DD5s, video surveillance, drone surveillance footage, hundreds of crime scene photos and notes, lab reports, 911 calls, radio runs, audio interviews, and grand jury testimony. In contrast, the only item of missing discovery at the time the People filed their original certificate of compliance was a single e-mail from January 30, 2020 between a paralegal and a NYPD discovery liaison about the complainant’s disciplinary history with IAB. This e-mail was not related to the facts and circumstances of this case, but was rather referring to any IAB complaints against the complainant in her capacity as a police officer prior to the year 2020. As to that e-mail, the facts are that the previously assigned ADA searched for any disciplinary records within the QCDA databases and did not find anything. The fact that this e-mail did exist but was not uploaded into a discovery or LEOW database does not indicate a lack of due diligence. It is unreasonable to expect an ADA to inquire of every employee in QCDA as to whether they have e-mails related to the disciplinary history of the complainant. Indeed, this disputed e-mail was from January of 2020 when the discovery laws had just changed, and the QCDA was in the process of generating a system for gathering and disclosing impeachment materials to the defense bar. It is not surprising that this e-mail did not turn up in an earlier version of the QCDA’s discovery database in December 2021. Furthermore, this e-mail did not turn up when the currently assigned ADA inherited the case and conferred with defense counsel about discovery. It was only in April of 2024, as the QCDA has continued to develop and evolve its discovery procedures, that this e-mail became available to the currently assigned ADA. Once the ADA realized that this e-mail existed, it was disclosed to the defense. During the discovery conference, the defense attorneys conceded that they believed that they had received all known discovery items. It is self-evident that the comparison of the discovery turned over to the discovery which was outstanding at the time the People filed their original certificate of compliance supports a finding of due diligence on the part of the Queens County District Attorney’s Office in fulfillment of their discovery obligation in this case. Third, in analyzing the complexity of this case, all indications provided to this Court is that the instant case is an extremely complex case. This case involved a hostage situation where the Defendant held the complainant, who was a police officer, at gunpoint with her own guns. Multiple dozens of police officers responded to the crime scene including the hostage negotiation team, emergency services unit, and crime scene unit. Not long after their arrival at the scene, the Defendant fired a bullet through a glass-pane in his front door which struck a Sergeant in the foot. As the hostage situation unfolded over time, the complainant became convinced that the Defendant was going to shoot her and ended up jumping out of her window and shattering her leg on an air conditioning unit below. A police officer who had a ballistics-proof shield then dove on top of the complainant, thereby shielding her from a barrage of bullets which the Defendant began firing at them using the complainant’s own two handguns. The Defendant is clearly depicted on video firing two guns, which were literally smoking, at the police and at the complainant. Body-worn camera videos also depict the police officers returning fire and striking the Defendant in the arm as he was firing at the police. After the Defendant threw down the guns and surrendered, there were still many months of investigation that needed to be done, including by the Force Investigation Division. During the discovery conference, the parties agreed that this was a complex case. Accordingly, the Court finds that this case is extremely complex. Fourth, it does not appear to this Court that the People missed any discoverable material in this case at the time they filed their original certificate of compliance other than the single aforementioned e-mail. In addition, the Court finds that the People met their discovery obligation under CPL §245.20(1)(d) by providing the Defendant a list of 21 police officers whom they expected to call as witnesses at trial. It was completely reasonable, in a case of this complexity, for the People to not lock themselves into a definitive decision about the remaining 41 police officers. Because it appears that the People missed only one e-mail at the time they filed their original certificate of compliance, this supports a finding of due diligence on the part of the Queens County District Attorney’s Office in fulfillment of their discovery obligation in this case. Fifth, the People’s explanation for the discovery errors is reasonable under the circumstances of this case. The People indicated that the discovery e-mail was not uploaded into any discovery database when they filed their original certificate of compliance. Then, when the currently assigned ADA took over the case, he searched again for any impeachment material for the complainant and did not find anything. It was only when he searched in April of 2024 that he discovered that such information did exist and had been in the QCDA’s system since April 4, 2024. As such, this also supports a finding of due diligence on the part of the Queens County District Attorney’s Office in fulfillment of their discovery obligation in this case. Finally, the response by the People when they learned of the missing discovery further indicates an exercise of due diligence. As mentioned above, while reviewing discovery as part of trial preparation, the currently assigned ADA discovered that there were some undisclosed discovery materials which he mistakenly believed had been disclosed by the previously assigned ADA. The currently assigned ADA immediately notified the Court and defense counsel, disclosed these records, and then made the efforts referred to above to obtain additional Rosario material. The People timely pursued all discovery corrections in this case, and that also supports a finding of due diligence on the part of the Queens County District Attorney’s Office in fulfillment of their discovery obligation in this case. In total, the People have exercised due diligence and made reasonable efforts to identify mandatory discovery prior to filing their original certificate of compliance in this case. Accordingly, the Defendant’s motion to invalidate the People’s original certificate of compliance, deem their statements of readiness illusory, and to dismiss the indictment due to a violation of his right to a speedy trial is denied. II. The People’s Supplemental Certificates of Compliance The Defendant has also moved to invalidate the People’s supplemental certificates of compliance (which were served and filed on September 13, 2023, June 12, 2024, and June 21, 2024) for belated discovery disclosures made on three dates: 1) An April 30, 2024 disclosure of: (a) 49 metadata files relating to body-worn camera videos which had been disclosed prior to their original certificate of compliance; (b) audio-recorded interviews of the complainant. Detective Ortiz, and Sergeant Daly; (c) an NYPD memorandum (dated January 18, 2023) from the Force Investigation Division (FID) to the Department Advocate’s Office; and (d) three surveillance videos from the location of occurrence; 2) A May 1, 2024 disclosure of: (a) the Police History Personnel Report of the complainant, which included six substantiated Internal Affairs Bureau (IAB) complaints, and accompanying records; and (b) three audio-recorded telephone calls from the local precinct to IAB which included facts about this case; and 3) A May 16, 2024 disclosure of: (a) 52 FID DD5 follow up reports which relate to the subject matter of this case; (b) a memorandum from the First Deputy Commissioner imposing discipline against the complainant; (c) 35 IAB investigation reports; (d) the Hostage Negotiation Team’s investigative report; (e) the Office of the Chief Medical Examiner (OCME) certified file for this case; and (f) an OCME memorandum (dated December 12, 2023) which notified the QCDA that two criminalists, one of whom worked on this case, were found to have been in violation of the FBI’s Quality Assurance Standards and that the DNA testing performed in connection with this case did not meet standards. 1) The April 30, 2024 Discovery Disclosures The Defendant argues that the People’s late disclosure of: (a) 49 metadata files relating to body-worn camera videos which had been disclosed prior to their original certificate of compliance; (b) audio-recorded interviews of the complainant. Detective Ortiz, and Sergeant Daly; (c) an NYPD memorandum (dated January 18, 2023) from the FID to the Advocate’s Office; and (d) three surveillance videos from the location of occurrence should render their original certificate of compliance and supplemental certificate of compliance (filed September 13, 2023) invalid. The People argue that these items were all created after the People filed their original certificate of compliance. The People further indicate that they immediately notified the Court and defense counsel about this material when it was discovered and then disclosed it to defense counsel by adding it to the discovery portal. Furthermore, some of the attachments to the DD5s, such as the three surveillance videos mentioned above in (d), as well as a crime scene sketch, had already been disclosed prior to the filing of their original certificate of compliance and were turned over again because they were digital attachments to the newly discovered DD5s. The People stated that the audio recorded interviews of the complainant, Detective Ortiz, and Sergeant Daly were uploaded to the QCDA’s discovery system by the NYPD on January 26, 2023. The memorandum from the FID to the Advocate’s Office were uploaded to the QCDA’s discovery system on January 27, 2023. The metadata files for the previously disclosed body-cam videos were uploaded by the NYPD during the month of January 2023. 2) The May 1, 2024 Discovery Disclosures The Defendant further argues that the People’s May 1, 2024 disclosure of: (a) the Police History Personnel Report of the complainant, which included six substantiated Internal Affairs Bureau (IAB) complaints and accompanying records; and (b) three audio-recorded telephone calls from the local precinct to IAB which included facts about this case should render the People’s original and supplemental certificates of compliance invalid because the the Defendant contends that these materials should have been disclosed before the original certificate of compliance. The People argue that the complainant’s disciplinary records are not related to the subject matter of the case and that those records were not in their possession at the time they filed their original certificate of compliance. The People indicate that the Police History Personnel Report for the complainant was created on April 4, 2024, and the underlying records for those IAB complaints were uploaded on or about the same date. 3) The May 16, 2024 Disclosures The Defendant argues that the People’s belated May 16, 2024 disclosure of: (a) 52 FID DD5 follow-up reports; (b) a memorandum from the First Deputy Commissioner imposing discipline against the complainant; (c) 35 IAB investigation reports; (d) the Hostage Negotiation Team’s investigative report; (e) the Office of the Chief Medical Examiner (OCME) certified file for this case; and (f) an OCME memorandum (dated December 12, 2023) which notified the QCDA that two criminalists, one of whom worked on this case, were found to have been in violation of the FBI’s Quality Assurance Standards and that the DNA testing performed in connection with this case did not meet standards, renders their original and supplemental certificates of compliance to be invalid. The People argue that these reports and memos did not exist at the time their original certificate of compliance was filed, and were not in their possession or control at the time they filed their first supplemental certificate of compliance on September 13, 2023. For example, the 52 DD5s created by FID were uploaded to QCDA’s discovery system on January 27, 2023, which was after they filed their first supplemental certificate of compliance. The People further indicate that they received the Hostage Negotiation Team report on February 28, 2024, which was also after the filing of their first supplemental certificate of compliance. Criminal Procedure Law §245.50(1) provides that, following an original certificate of compliance, “[i]f additional discovery is subsequently provided prior to trial pursuant to section 245.60 of this article (entitled: “Continuing duty to disclose”), a supplemental certificate shall be served upon the defendant and filed with the court identifying the additional material and information provided.” Criminal Procedure Law §245.50(1-a) further illustrates: “The filing of a supplemental certificate of compliance shall not impact the validity of the original certificate of compliance if filed in good faith and after exercising due diligence pursuant to section 245.20 of this article, or if the additional discovery did not exist at the time of the filing of the original certificate of compliance.” The Court has considered the factors that the Court of Appeals listed in Bay and finds that the People have exercised due diligence in providing discovery as part of their supplemental certificates of compliance for this case. First, as noted above, considerable efforts have been made by the People to generate the discovery they are obligated to turn over in this and every case. The discovery liaisons discussed above actually resulted in the discovery of additional Rosario information for this case. The creation of these additional units and allocation of resources to generally address their discovery obligation under CPL Article 245 support a finding of due diligence on the part of the Queens County District Attorney’s Office in fulfillment of their discovery obligation in this case. Second, in comparing the amount of discovery turned over to the amount of discovery outstanding, it is clear that the People have exercised due diligence. It is not in dispute that the People turned over voluminous discovery at this point in the case, 917 total sets of files (the 710 with the original certificate of compliance and more than 207 files since then). In contrast, there are no missing items of discovery at this time. During the discovery conference, the defense attorneys conceded that they believed that they had received all known discovery items. Because there is no known outstanding discovery at this time, this supports a finding of due diligence on the part of the Queens County District Attorney’s Office in fulfillment of their discovery obligation in this case. Third, as noted above, this is an extremely complex case. Adding further complexity to this case is the complainant’s status as an active-duty police officer. In addition, because of the police-involved shooting in this case, the Force Investigation Division needed to undertake their investigation which included, among other things, audio interviews of the complainant as well as Detective Ortiz, and Sergeant Daly, who had discharged their firearms on the date of the incident. It is clear from the motions of both parties that considerable amounts of discoverable material continued to be created more than two years after the Defendant’s arrest. Most if not all of the interviews, reports, memos, and audio-recordings which are the basis of the Defendant’s motion to invalidate the People’s supplemental certificates of compliance were related to the complainant’s status as a police officer and the departmental discipline she received for failing to properly safeguard her firearms. Because this case is extremely complex, this supports a finding of due diligence on the part of the Queens County District Attorney’s Office in fulfillment of their discovery obligation in this case. Fourth, it does not appear to this Court that the People missed any discoverable material in this case. The issue then is whether the People acted in good faith and with due diligence in obtaining the new discovery as it was created and in disclosing that material to the Defendant. The Court finds that the ADA acted in good faith and with due diligence with respect to the newly created items. When the ADA realized that there were some items in his discovery monitor that he mistakenly believed had been disclosed by the previous ADA, he immediately alerted the Court and defense counsel. Rather than simply turning over those materials alone and taking no further action, the ADA acted in good faith by making a new Rosario request to IAB. He affirmatively sought to proactively obtain any new material that might exist, and when he obtained it he then disclosed it to the defense. This supports a finding of due diligence on the part of the Queens County District Attorney’s Office in fulfillment of their discovery obligation in this case. Fifth, the People’s explanations for the discovery errors are reasonable. Although some of these items had existed for many months before they were discovered by the ADA, it is unreasonable to place some arbitrary guideline on the QCDA to perform an exhaustive search for new discovery on a daily, weekly, or even monthly basis for each and every case in their inventory. The Legislature intended that the People would have a “continuing duty to disclose” (CPL §245.60) with the goal that the Defendant would have everything to prepare for trial. The Court finds that it would have been reasonable, given the unique facts and circumstances of this case, for the ADA to search for updated police disciplinary materials at the time they filed their original certificate of compliance (which the People did) and then again as he prepared for trial. The complainant’s law enforcement disciplinary records have very little to no relevance to the facts and circumstances of this particular case. The complainant was off duty at the time of this incident and was not acting in a law enforcement capacity at the time the Defendant tried to shoot her. As such, this added context also supports a finding of due diligence on the part of the Queens County District Attorney’s Office in fulfillment of their discovery obligation in this case. Finally, the response by the People when they learned of the missing discovery further indicates an exercise of due diligence. The Court notes that the pre-trial suppression hearing for this matter was completed on May 26, 2022. At that point, this case entered a trial posture. The People have never announced “not ready” for trial since May of 2022. The People had a valid original certificate of compliance that they filed on December 9, 2021 under which they could have tried this case in 2022. This matter could conceivably have been tried in late 2022 before all of the discovery documents which are the basis for the Defendant’s current motion to challenge the supplemental COCs were even created. The main reason why this case has not yet been tried is because of the lead defense attorney’s busy trial schedule1. For more than two years, the Court and the People have waited for the day when defense counsel will finally be ready to try this case. It would be manifestly unfair to penalize the People for missing discovery which did not exist at the time they filed their original certificate of compliance and was only created during a time when all of the delay in this case is attributable to the defense. It is clear to the Court that discoverable materials continued to be created long after the Defendant was arrested and, most importantly, long after the People initially answered ready and certified this case. This case was not only complex and serious due to the Defendant’s shooting at police officers, but the complainant’s status as a police officer herself added to the amount of discovery which was generated. After new discovery material was uploaded to the QCDA’s discovery system, the currently assigned ADA shared it with defense counsel and has now filed three supplemental certificates of compliance for this case. The People timely pursued all discovery corrections, which continued to unfold as this case awaited an opportunity to be tried, and that also supports a finding of due diligence on the part of the Queens County District Attorney’s Office in fulfillment of their discovery obligation in this case. As to the Defendant’s argument that the People did not immediately file a supplemental certificate of compliance after their disclosures made on April 30, 2024, May 1, 2024, and May 16, 2024, the Court finds it to be without merit. The Court is unaware of any statute or caselaw, and the Defendant has failed to cite to any authority, which requires the People to file a supplemental certificate of compliance the same day that they initiate the data transfer which sends discovery to the defense. Criminal Procedure Law §245.50[1-a] simply requires that a supplemental certificate of compliance detail “the basis for the delayed disclosure…” Some courts have held that “a timely filing would be expected either contemporaneously or shortly after discovery is provided to defense…to give the defense a fair opportunity to review and object to, if necessary, the validity of the [supplemental certificate of compliance]” (People v. Flores-Garcia, 80 Misc3d 1239(A) [Crim Ct, Bx Cty 2023]; see People v. Amissah, 79 Misc3d 401 [Crim Ct, Bx Cty 2023]). The People have since filed two supplemental certificates of compliance on June 12, 2024 and June 21, 2024. The Court has reviewed these supplemental certificates of compliance and finds that the People did provide thorough explanations, including information as to when the People became aware of the new discovery and when they disclosed it. Pursuant to CPL §245.50[1-a], the Court finds that the delayed disclosure did not impact the propriety of the original certificate of compliance. In total, the People have exercised due diligence and made reasonable efforts to identify mandatory discovery prior to filing their original certificate of compliance in this case. Any discovery which was generated after the People’s original certificate of compliance was obtained with due diligence and disclosed to the defendant within a reasonable time. Accordingly, the Defendant’s motion to invalidate the People’s original and supplemental certificates of compliance, deem their statement of readiness illusory, and to dismiss the indictment due to a violation of his right to a speedy trial is denied. This constitutes the decision and order of the Court. Dated: July 23, 2024
