DECISION AND ORDER The defendant has moved to invalidate the People’s Certificate of Compliance (“COC”). The People oppose the defendant’s motion. For the reasons set forth below, the defendant’s motion is denied. The People shall disclose to the defense “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.” See CPL §245.20(1). CPL §245.20(1) sets forth a detailed, non-exhaustive list of discovery materials that the People are obligated to disclose to defendant soon after the commencement of the action. The People “shall make a diligent, good faith effort to ascertain the existence of” discoverable material and to “cause such material or information to be made available for discovery.” CPL §245.20(2). The service of a valid COC is a condition precedent to the People’s declaration of trial readiness and serves to toll the statutory speedy trial time. See CPL §30.30(5). The filing of a supplemental certificate of compliance “shall not impact the validity of the original [COC]” if, as relevant, the original COC was filed “ in good faith and after exercising due diligence.” CPL §245.50(1-a). Due diligence “is a familiar and flexible standard” requiring the People to make “reasonable efforts to comply with statutory directives.” People v. Bay, 41 N.Y.3d 200, 211 (2023). Any analysis of whether the People made reasonable efforts sufficient to satisfy CPL 245 is “fundamentally case-specific, as with any question of reasonableness, and will turn on the circumstances presented.” Id. at 212. The statute does not contemplate the “perfect prosecutor”; nevertheless, good faith will be insufficient if there is a lack of diligence. Id. When assessing whether a prosecutor has acted with due diligence, a court should consider (1) the efforts that the prosecutor made to comply with CPL §245; (2) the volume of discovery “provided and outstanding” in the case at the time of the challenge; (3) whether the missing material would have been obvious to a diligent prosecutor; (4) the “complexity of the case;” (5) the prosecutor’s “explanation for any discovery lapse;” and (6) how the People responded when they were informed that discovery was missing. Id. The defendant contends that the People failed to act with due diligence in obtaining surveillance footage or incident reports from the grocery store where the alleged crimes took place. The defendant notes that, in attempts to obtain the footage, the People spoke with the assigned detective, the complaining victim, and the complaining victim’s supervisor. Nonetheless, the defendant urges that the People did not exercise sufficient diligence because the People did not subpoena the records from the grocery store’s parent company, who the defense contends would have maintained the surveillance footage for 30 days. In response, the People note the several occasions they attempted to obtain the footage through various sources and argue that the defense’s suggestion that the parent company would have retained the footage for 30 days is unfounded. The People have demonstrated that they acted with due diligence in obtaining the surveillance footage and incident reports. The People explained that, on February 28, they requested the complaining victim provide copies of the footage from both incidents, along with any paperwork. That same day, the People also asked the Manager of Security and Loss Prevention for the footage; that employee advised that the grocery store no longer possessed the footage, but that if it still existed, the responding police officers would have it. Then, on February 28 and February 29, the People asked the detective to request the footage from the responding officers. On March 1, the complaining victim confirmed that he no longer had the footage, and the detective likewise confirmed that the responding officers did not have it either. Here, the People’s numerous inquiries establish that they were acting with due diligence in seeking the surveillance footage and incident reports. The defendant’s contentions about the parent company’s supposed retention policy are insufficient to show that the People did not act diligently.1 To be sure, it would have been preferable for the People to indicate in their ADF that this footage was “lost or destroyed,” see People v. Smith, 73 Misc.3d 1212(A) (City Ct. Albany Co. 2021), but that does not affect this court’s finding that the People acted with due diligence in attempting to obtain the footage. See People v. McCullough, 83 Misc.3d 1217(A) (Sup. Ct. N.Y. Co. 2024) (COC valid in light of the People’s attempts to obtain video footage and voluminous discovery disclosed; noting that it was “not a scenario” where the People erroneously represented that routinely generated materials did not exist); cf. People v. Viafara, 83 Misc.3d 209, 215 (Crim. Ct. N.Y. Co. 2024) (COC invalid where the People were aware of 911 call recordings but “made no effort” to preserve or request them). Accordingly, the defendant’s motion is denied. The foregoing is the decision and order of the court. Dated: August 9, 2024
