DECISION & ORDER By notice of motion dated June 7, 2024, defendant moves for dismissal of the accusatory instrument pursuant to Criminal Procedure Law (“CPL”) §§245.20 (1), 245.50 (1), 170.30 (1) (e) and 30.30 because the People’s Certificate of Compliance (“CoC”) and supplemental CoC (“SCoC’) were illusory and, thus, the People could not declare trial readiness before the expiration of their speedy trial time. Additionally, defendant moves to reserve his right to file additional applications for further relief, and for hearings on the underlying facts pursuant to People v. Luperon, 85 NY2d 71 [1995] and People v. Allard, 28 NY3d 41 [2016], respectively, if the motion is not granted, and for such additional relief as this Court deems just and proper. The People opposed the motion in its entirety. Upon review and consideration of the submissions, court file and relevant legal authority, the Court: DENIES defendant’s motion to dismiss pursuant to CPL §§170.30 (1) (e) and 30.30; and DEEMS the People’s CoC filed on March 26, 2024, VALID pursuant to CPL §245.50 (1); and DENIES defendant’s request for a hearing on the underlying facts pursuant to Luperon, supra and Allard, supra; and DIRECTS the People to disclose body worn-camera (“BWC”) device audit trails concerning BWC footage previously disclosed for Police Officer (“PO”) Jorge Arteaga Perez, PO Michael Charlery, PO Janielle Mendoza and PO Derrick Wright within ten (10) days of this Decision and Order; and DIRECTS the People to file and serve an SCoC certifying compliance with their CPL §245.20 disclosure obligations concerning BWC audit trails pertaining to PO Jorge Arteaga Perez, PO Michael Charlery, PO Janielle Mendoza and PO Derrick Wright pursuant to this Decision and Order contemporaneously with their disclosure; and DIRECTS the People to comply with their continuing discovery obligations pursuant to CPL §245, including Brady disclosures; and DIRECTS defendant to comply with his reciprocal discovery obligations pursuant to CPL §245.20 (4); and GRANTS defendant’s application seeking the right to make further motions to the extent provided by CPL §255.20 (3). RELEVANT PROCEDURAL BACKGROUND On December 9, 2023, defendant Jose Oquendo was arrested and charged with violating Vehicle and Traffic Law (“VTL”) §§511 (1) (a) (aggravated unlicensed operation of a motor vehicle in the third degree), 511 (2) (a) (iv) (aggravated unlicensed operation of a motor vehicle in the second degree), both misdemeanors, and 509 (1) (unlicensed operation of a motor vehicle), a violation. Defendant was issued a Desk Appearance Ticket and he was arraigned on December 29, 2023. At the court appearance held on April 8, 2024, the People advised the court that their CoC and Statement of Readiness (“SoR”) had been filed on March 26, 2024. On April 4, 2024, the People served an SCoC wherein they certified that outstanding memo books for PO Charlery and PO Wright and roll call logs from the 46th Precinct had recently been disclosed. Defense counsel requested the instant motion schedule to challenge the validity of the prosecution’s CoC at the May 10th court appearance. Defendant’s motion to dismiss was filed on June 7, 2024, the People opposed the motion on July 2, 2024, and defense counsel filed a reply brief on July 8, 2024. DISCUSSION I. Applicable Legal Standards The CoC Challenge To oppose a motion to dismiss claiming that the prosecution’s CoC is illusory due to the alleged failure to comply with CPL §245.20, the People must demonstrate that they met their burden by detailing their efforts to obtain discoverable information (see People v. Hernandez, 81 Misc 3d 1201[A], 2023 NY Slip Op 51201[U], *6 [Crim Ct, Bronx County 2023] citing People v. Adrovic, 69 Misc 3d 563, 572 [Crim Ct, Kings County 2020]; CPL §245.50 [3]). If the record does not establish that the People have detailed their efforts to discharge their obligation such that a court cannot determine their due diligence, the CoC must be deemed invalid (see Hernandez, 2023 NY Slip Op 51201[U], *7 citing People v. Perez, 75 Misc 3d 1205[A], 2022 NY Slip Op 50387[U], *3 [Crim Ct, Bronx County 2022]). In People v. Bay, the Court of Appeals addressed the issue of how trial courts can evaluate prosecutorial due diligence (see Bay, 41 NY3d 200 [2023]). The Bay Court found that the “key question in determining if a proper certificate of compliance has been filed is whether the prosecution has exercised due diligence and made reasonable inquiries to determine the existence of material and information subject to discovery,” a case-specific inquiry of the record at bar (see Bay at 211[emphasis added]; CPL §§245.20 [1], 245.50 [1]). The CPL §30.30 Challenge In a motion to dismiss misdemeanor charges pursuant to CPL §30.30, a defendant has the initial burden to demonstrate that the prosecution failed to declare readiness for trial within ninety days (see CPL §30.30 [1] [b]); see Luperon at 77-78). Generally, a criminal action is commenced by the filing of an accusatory instrument against a defendant, and it is settled law that the date on which the action is commenced is excluded from the CPL §30.30 computation (see CPL §1.20 [17]; People v. Stiles, 7 NY2d 765, 767 [1987]). Additionally, the People must now satisfy their statutory obligation pursuant to CPL §245.50 (3), which provides that “the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper certificate pursuant to subdivision one of this section” (see People v. Kendzia, 64 NY2d 331, 337 [1985]). Consequently, courts must examine the prosecution’s due diligence to determine the validity of the CoC and, importantly, whether the accusatory instrument should be dismissed as a consequence of any chargeable period of non-compliance which renders the prosecution untimely (see Bay at 214). II. The Parties’ Arguments Defense counsel asserts that the prosecution failed to fully comply with its discovery obligations prior to filing its CoC (affirmation of defendant’s counsel at 5). Specifically, counsel argues that the People belatedly disclosed memo books for PO Charlery and PO Wright and precinct roll calls, and failed to exercise due diligence concerning outstanding inquiries for BWC audit trails/metadata, Giglio materials for officers and a warrant check for defendant (affirmation of defendant’s counsel at 5). Additionally, defendant contends that the People did not validly declare trial readiness before their statutory 30.30 time expired (affirmation of defendant’s counsel at 14-15). Next, counsel’s reply brief reiterates the arguments that CPL §245 does not sanction a “substantial compliance” standard for prosecutorial compliance (reply affirmation of defendant’s counsel at 5-6). Further, defense counsel maintains that the prosecution’s explanation for missing and belated discovery failed to satisfy the factors articulated in the Bay decision for consideration of whether the People exercised due diligence, including how obvious the missing disclosure would be to a diligent prosecutor, the volume of discovery and the complexity of the case (reply affirmation of defendant’s counsel at 11-15). Initially, the People aver that they first requested responsive materials from their NYPD liaison on December 29, 2023, shortly after defendant’s arraignment (People’s affirmation at 2-9). Thereafter, the prosecution followed up for outstanding items on February 16, 2024, February 26, 2024, and April 3, 2024, for roll calls; on February 16, 2024, February 23, 2024, and March 26, 2024, for memo book and activity logs for PO Wright and PO Charlery; and on February 16, 2024, February 26, 2024, March 26, 2024, April 3, 2024, April 4, 2024, and July 1, 2024, for a WINQ report-to no avail (People’s affirmation at 9-10). The prosecution contends that audit trails that constitute statement evidence were duly disclosed but that device audit trails were withheld because they are not contemplated by CPL §245.20 (1) as discoverable evidence related to the subject matter of the case (People’s affirmation at 10-11). Next, the prosecution asserts no Giglio materials were disclosed for PO Wright and PO Arteaga Perez because neither had substantiated or unsubstantiated allegations (People’s affirmation at 12-13). Finally, the assigned ADA claims that the CoC filing was reasonable under the circumstances since the People continued to exercise due diligence to follow up for outstanding materials until the filing of their opposition (People’s affirmation at 10, 13-15). III. The Court’s Analysis CoC Challenge: Belated and Outstanding Disclosures It is settled that “[n]ot every failure to provide a document which the People are obligated to provide under the letter of the statute [CPL §245.20] is necessarily fatal to an assertion of readiness under CPL §30.30″ (see People v. Vargas, 78 Misc 3d 1235[A], *3 [Crim Ct, Bronx County 2023] citing People v. Rahman, 74 Misc 3d 1214[A], *2 [Sup Ct, Queens County 2022]). Although the Bay Court’s admonishment to trial courts that “there is no rule of strict compliance” will not preemptively shield the prosecution’s CoC from challenge, the record at bar, namely the CoC and the SCoC, demonstrate the People’s continual efforts to meet their discovery obligation (see Bay at 212; see also CPL §245.60). Arguably, the People could have indicated in their CoC that no Giglio materials existed for PO Arteaga Perez and PO Wright, but it must be axiomatic that the People have no duty to disclose that which does not exist. Similarly, we credit the People’s representation that despite numerous attempts to confirm whether a WINQ report existed, the only item concerning defendant’s warrant history is the Entity — Detailed Report, disclosed with their CoC filing. However, we reject the prosecution’s assertion that BWC device audit trails do not constitute responsive discovery pursuant to CPL §245.20 (1) (see People v. Rollerson, 89 Misc 3d 1212[A], *3 [Crim Ct, Bronx County 2024]). As this Court found in Rollerson, where we reconsidered our prior holding that audit trails were of negligible utility to the defense, “[a]lthough the prosecution argues that device logs [trails] provide purely technical information, the essence is in the details. The People’s insistence that no substantive information can be gleaned from trails which is not already evident from the BWC recording itself is belied by the fact that these device trail reports apparently track every permutation involved in the functioning of the BWC recording. Therefore, this Court now finds that an audit trail is more expansive than metadata that tracks the creation or revision of a document” (see Rollerson at *3 [internal quotations omitted], see also People v. Ballard, 202 NYS3d 683, 692 [Crim Ct, Queens County 2023]). The Court is unaware of controlling appellate authority concerning the discoverability of device audit trails, and courts of concomitant jurisdiction disagree about the issue (see People v. Rodriguez, 214 NYS3d 666, 671 [Sup Ct, Kings County 2024] ["It (discovery) should not be an ever-expanding, Sisyphean burden meant to end in more speedy trial dismissals"]). As a threshold matter, the Legislature provided recourse to any prosecutor seeking an extension of time to comply with automatic disclosures pursuant to CPL §245.70 (2) and, thus, we reject the argument that discovery compliance, where there is a statutory presumption towards openness, should be construed as a zero-sum game which discounts a category of discovery based upon the supposed hardship in marshalling responsive items because of the jeopardy to the prosecution’s speedy trial time (see CPL §245.70 [2] ["Upon motion of a party in an individual case, the court may alter the time periods for discovery imposed by this article upon a showing of good cause"]; see also CPL §245.20 [7]). That is a false dilemma where, as in the case at bar, the audit trails are readily obtainable (see Rollerson at *5 ["The (BWC) video management system maintains an audit trail for all transactions conducted in the system"] citing the New York City Police Department Patrol Guide [Procedure No. 212-123, 16, §Additional Data, Operational Considerations]). Thus, this disclosure is neither burdensome nor pointless and there is no credible reason to find that device audit trails for BWC footage concerning the subject of the prosecution at bar do not also necessarily concern the subject matter of the case. Accordingly, this Court declines to hold that the People’s belated disclosure of memo books and roll calls is a basis to invalidate the prosecution’s CoC. We further credit the prosecution’s representations that no WINQ report or Giglio disclosures exist. However, the People are directed to disclose BWC device audit trails relating to the BWC footage already disclosed for PO Arteaga Perez, PO Charlery, PO Mendoza and PO Wright within ten (10) days of this Decision and Order. Other Relief Sought by Defendant Defendant’s request for a hearing on the underlying facts pursuant to Luperon, supra and Allard, supra is denied because the Court finds that the People’s opposition has settled all factual disputes. IV. The CPL §30.30 Calculation The People’s 30.30 calculation commenced on December 30, 2023, the day after defendant’s arraignment. On March 26, 2024, the People filed a valid CoC (December 30, 2023 — March 26, 2024: 87 days). Consequently, 87 days are chargeable to the People and, thus, the prosecution was timely pursuant to CPL §30.30 (1) (b). CONCLUSION Based upon the foregoing, the Court DENIES defendant’s motion to dismiss pursuant to CPL §§170.30 (1) (e) and 30.30; and DEEMS the People’s CoC filed on March 26, 2024, VALID pursuant to CPL §245.50 (1); and DENIES defendant’s request for a hearing on the underlying facts pursuant to Luperon, supra and Allard, supra; and DIRECTS the People to disclose body worn-camera (“BWC”) device audit trails concerning BWC footage previously disclosed for Police Officer (“PO”) Jorge Arteaga Perez, PO Michael Charlery, PO Janielle Mendoza and PO Derrick Wright within ten (10) days of this Decision and Order; and DIRECTS the People to file and serve an SCoC certifying compliance with their CPL §245.20 disclosure obligations concerning BWC audit trails pertaining to Jorge Arteaga Perez, PO Michael Charlery, PO Janielle Mendoza and PO Derrick Wright pursuant to this Decision and Order contemporaneously with their disclosure; and DIRECTS the People to comply with their continuing discovery obligations pursuant to CPL §245, including Brady disclosures; and DIRECTS defendant to comply with his reciprocal discovery obligations pursuant to CPL §245.20 (4); and GRANTS defendant’s application seeking the right to make further motions to the extent provided by CPL §255.20 (3). This constitutes the opinion, decision, and order of the Court. Dated: August 19, 2024
