DECISION AND ORDER This matter having come before the court on July 15, 2024, is a motion by defendants, Steven Robles and Michael Robles, dated March 11, 2024, to dismiss this matter on speedy trial grounds pursuant to CPL 30.30. The defense, by motion, seeks this court to find the prosecution’s certificate of compliance invalid and dismissing the indictment herein, pursuant to CPL 30.30. and CPL 210.20(g), for failure of prosecution to be ready for trial within six monts of the commencement of this criminal action and denial of the defendants to a speedy trial; and for any additional relief that this court may find proper. BACKGROUND On February 19, 2023, a birthday party was held for the daughter of defendant Steven Robles and one of the complaining witnesses in this matter Suheidy Ortiz. The party took place at a Dave and Busters restaurant. At that time, a verbal disagreement which led to an altertaction allegedly ensued between the parties. There were multiple people allegedly involved in the altercation including Complaining Witness Denise Ortiz, who is the sister of Ms. Suheidy Ortiz; Complaining Witness James Madero who was at the time the boyfriend of Ms. Suheidy Ortiz; Complaining Witness Temar Marte, who is an acquaintance of Ms. Suheidy Ortiz; and the co-defendant, Michael Robles. Mr. Madero and Ms. D. Ortiz allegedly became involved in the verbal disagreement. At that time, Michael Robles allegedly punched Mr. Madero about the face. At the same time, Defendant Steve Robles allegedly pulled out a knife, put Mr. Marte in a headlock and stabbed him about the face. Ms. Denise Ortiz allegedly attempted to to break up the altercation but was cut on the hand with the knife. Defendant Michel Robles allegedly punched Mr. Marte about the face while defendant Steven Robles allegedly followed Ms. Suheidy Ortiz into a back room and threatened her. Bystanders called 911 for assistance and the New York Police Department (NYPD) responded to the call. Mr. Marte, Ms. Denise Ortiz and Mr. Madero were all then transported to Methodist Hospital to treat their injuries. Both defendants were arrested on March 1, 2023. On March 2, 2023, both defendants were arraigned in Kings County Criminal Court on felony complaints with Attempted Assault in the First Degree among other charges. The defendants pled not guilty to the charges and the court set bail. The matters were then adjourned to March 6, 2023, in A P I F for Grand Jury Action. On March 2, 2023, Steven Robles posted bail. Michael Robles subsequently posted bail on March 3, 2023. On March 6, 2023, the People proffered that their office sent subpoenas requesting various items of discovery including but not limited to medical records of Ms. Denise Ortiz, Mr. James Madero and Mr. Temar Marte. The People also contend that there was no response to their initial discovery requests and subsequently submitted a second set of subpoenas for the medical records of the three complaining witnesses on May 25, 2023. On June 13, 2023, the Grand Jury indicted the defendants Michael Robles and Steven Robles under indictment number 73471-23, charging the defendants with Attempted Assault in the First Degree, two counts of Assault in the Second Degree, four counts of Assault in the Third Degree and Criminal Possession of a Weapon in the Fourth Degree. The indictment also charged Mr. Steven Robles with Menacing in the Second Degree, and two counts of Endangering the Welfare of a Child. In late June, the People contend that internal personnel changes with regard to handling this matter meant that a new Assistant District Attorney would be handling the matter. The People also contend that at that time, they followed up with Methodist Hospital regarding the outstanding records for the complaining witnesses and the Records Department indicated that the requests were being processed. On July 17, 2023, Defendant Steven Robles and Michael Robles were arraigned on the indictment in Part SCDV2 before the Hon. Elizabeth Warin. Steven Robles’ case was adjourned until August 10, 2023 to this court. Michael Robles’ case was adjourned to September 6, 2023 to Part TAP 2. On July 24, 2024, the People contend that that they received the records from the subpoena they issued on May 25, 2023 for Mr. Marte. On August 10, 2023, Steven Robles appeared in this court before the prior Jurist, the Hon. Esther Morgenstern. At the time, counsel for the defendant requested an inspection of the Grand Jury Minutes, which stopped the C.P.L. 30.30. clock. The case was adjourned to October 10, 2023 for a Decision on the Grand Jury minutes and the People’s Certificate of Compliance. At the time, Justice Morgenstern stated that she intended to transfer the other case against defendant Michael Robles into this court. On August 22, 2023, the People filed and served Certificate of Compliance (COC), Statement of Readiness (SOR) and Notice and Disclosure form. The People contend that at this time, they served the medical records for Mr. Marte. On September 6, 2023, Michael Robles appeared in this court before Justice Morgenstern and counsel for the defendant requested an inspection of the grand jury minutes. This matter was then adjourned to October 10, 2023 for a Decision on the minutes. Both defendants appeared in this court on October 10, 2023, where in a written Decision, Justice Morgenstern found the minutes to be sufficient. The matter was adjourned to November 29, 2023 for the defense to file their COC and any objections to the People’s COC. On November 13, 2023, the People contend that their office sent a third subpoena for the outstanding records of the two remaining complaining witnesses, Mr. James Madero and Ms. Denise Ortiz. The records for Mr. Marte, according to the People, were received on November 15, 2023. The People further contend that they received the records for Ms. Denise Ortiz on November 29, 2023 after their office followed up on their request. The parties again appeared in this court on November 29, 2023, where it would be adjourned to January 18, 2024 for possible disposition. During that appearance, the assigned ADA announced that he would be departing the District Attorney’s office and a new handling ADA, Ms. Danielle Ripka, would be assigned to this case. At this appearance, the People contend that no issues were raised regarding outstanding discovery. On December 5, 2023, the People contend that they served the defense with redacted medical records for Ms. Denise Ortiz and Mr. James Madero. The People contend that at least one conference took place between the People and the defense between October 10, 2023 and November 29, 2023 and the People contend that discovery issues were never raised and by December, all records in their possession were turned over to the defense. On January 17, 2024, the People contend that they spoke to counsel for both defendants and was made aware that the defense would file this instant motion to challenge the People’s COC because of the delay of the medical records. The People then filed their supplemental COC on the same date as the newly assigned ADA realized that the previously assigned ADA failed to file a supplemental COC with the subsequent disclosure of the medical records. On January 18, 2024, the parties again appeared in this court where a motion schedule was set and the matter was adjourned to March 112, 2024. This instant motion was filed on March 11, 2024. ARGUMENT Criminal Procedure Law §30.30, the speedy trial statute, sets forth the time frame, beginning with the commencement of the action, within which the People must answer ready for trial and specifies certain periods of time that must be excluded from the calculation of the People’s readiness time (CPL 30.30[1],[4]). People v. Farkas, 16 N.Y.3d 190 (2011) at 193. Further, CPL §245.50 states in pertinent part that: “When the prosecution has provided the discovery required by subdivision one of section 245.20 of this article, except for discovery that is lost or destroyed as provided by paragraph (b) of subdivision one of section 245.80 of this article and except for any items or information that are the subject of an order pursuant to section 245.70 of this article, it shall serve upon the defendant and file with the court a certificate of compliance. The 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. If additional discovery is subsequently provided prior to trial pursuant to section 245.60 of this article, a supplemental certificate shall be served upon the defendant and filed with the court identifying the additional material and information provided. No adverse consequence to the prosecution or the prosecutor shall result from the filing of a certificate of compliance in good faith and reasonable under the circumstances; but the court may grant a remedy or sanction for a discovery violation as provided in section 245.80 of this article. CPL §245.20 (1) states in pertinent part that “the 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.” Moreover, §245.20 (2) states, “The People must make diligent, good faith efforts to ascertain the existence of and turn over discoverable material even if that material is not in the Poeple’s Possession, custody or control, “provided that the prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain.” The defense proffered that the instant case is analogous to People v. Rahman, 2023 N.Y. Misc LEXIS 3289. The court disagrees. In Rahman, the Court of Appeals found that the FDNY/EMS records were discoverable under CPL 245.20 despite the People’s representation that they had exercised “due diligence in attempting to obtain [discoverable reports or materials not in their possession.] Id at 6. Further the court found that “in the circumstances of this case” where the “record is clear that the People made no attempt to obtain the FDNY/EMS records until December 15, 2021, 47 days after they had filed their October 29, 2021, CoC. In these circumstances, we find that the People failed to “exercis[e] due diligence and mak[e] reasonable inquiries to ascertain the existence of’ the FDNY/EMS records (CPL 245.50 [1]) and, thus, their CoC was not filed in good faith” Id at 7. The facts in the case at bar are not analogous. The People issued three subpoenas in this case to obtain records, which by the third subpoena, these records were obtained. Unlike the prosecution in Rahman, the People issued their first subpoena for records on May 25, 2023, prior to their filing of their COC on August 22. 2023. Further, the records in question are part of the file at Methodist Hospital and are not, as the statute requires, in the actual “possession or control of the People.” Accordingly, this court finds nothing in the facts of this case to suggest that the People failed to exercise due diligence to obtain the records, despite the personnel changes that occurred in handling this matter. As such, the Court finds the defense arguments to be unavailing. This court denies the defendant’s Motion to Dismiss on Speedy Grounds Pursuant to CPL 30.30. This constitutes the Decision and Order of the Court. Dated: July 15, 2024
