DECISION AND ORDER The defendant is charged with criminal possession of a controlled substance in the third degree and other related charges, stemming from the arrest of the defendant on June 7, 2023. The Defense moves for an order to dismiss the indictment under CPL 30.30. In doing so, the Defense argues that the People failed to perform their discovery obligations under CPL 245.20 and have exceeded the statutory speedy trial time. The People oppose the motion. For the reasons set forth, the Court finds 64 chargeable days. Since the People have not exceeded the statutory speedy trial time under CPL 30.30, the motion to dismiss the indictment is DENIED. The People’s COC Pursuant to CPL 245.20 (1), the People shall disclose “all items and information that relate to the subject matter of the case” including but not limited to, the items outlined in CPL 245.20 (1) (a — u). CPL 245.20 (2) directs the People to “make a diligent, good faith effort to ascertain the existence of material or information discoverable…and to cause such material or information to be made available for discovery where it exists but is not within the prosecutor’s possession, custody or control…” The People must file a certificate of compliance (COC), which shall identify the items provided, and 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.” (CPL 245.50 [1]). The People must file a supplemental COC when they disclose additional items. The filing of a supplemental COC “shall not impact the validity of the original certificate of compliance if filed in good faith and after exercising due diligence…” (CPL 245.50[1-a]). CPL 245.35 (1) requires the parties to diligently confer regarding discovery matters. The Defense must “notify or alert” the People of any potential defects related to the COC “as soon as practicable” (CPL 245.50 [4][b]). CPL Article 245 links the People’s discovery obligations with readiness for trial under CPL 30.30. “Any statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements” (CPL 30.30 [5]). “A statement of readiness at a time when the People are not actually ready is illusory and insufficient to stop the running of the speedy trial clock” (People v. England, 84 NY2d 1, 4 [1994]). On August 11, 2023,1 the People filed a COC, an inventory of discovery that had been disclosed to the defendant, and a statement of readiness (SOR). On August 10, 2023, the People shared the discoverable materials with the prior defense counsel via a OneDrive link. The OneDrive link contained body-worn cameras, arrest paperwork, invoices, memobooks, activity logs, radio runs, sprint reports, photographs, DD5s, Giglio, LIMS Packet, and photos. On October 24, 2023, the People re-shared the OneDrive link and discovery with the Defense. The OneDrive folder listed three body-worn cameras for Police Officer Jonathan Rios, but the body-worn camera that captured Officer Rios searching the defendant’s car at the precinct had not been uploaded. On April 16, 2024, the People disclosed that particular body-worn camera. The Defense argues that the COC is invalid, and SOR illusory because the People intentionally failed to timely disclose the body-worn camera. The People counter that the COC is valid and that the failure to disclose the body-worn camera was inadvertent because it was “mistakenly not uploaded” into the OneDrive folder. The People affirm that on April 16, 2024, the Defense alerted the People about the body-worn camera. The People explain that after conferring with the Defense, the People determined that although the OneDrive folder listed three body-worn cameras, only two had been uploaded. The People remedied the matter within three minutes and disclosed the third body-worn camera. The discovery statute imposes an affirmative duty for the People to obtain and provide discovery (see People ex rel. Ferro v. Brann, 197 AD3d 787,788 [2d Dept 2021]). However, in People v. Bay, 41 NY3d 200, 212 (2023), the Court of Appeals explained that the disclosure mandate of CPL 245 does not create a “rule of strict liability” or require a “perfect prosecutor.” The statute does not stand for the “uncompromising proposition” that the People may never file a COC absent full compliance (see People v. Erby, 68 Misc3d 625, 630 [Sup. Ct, Bronx County 2020]). Rather, “the key question in determining if a proper COC has been filed is whether the prosecution has exercised due diligence and made reasonable inquiries to ascertain the existence of material and information subject to discovery” (Bay, at 211). “Reasonableness, then, is the touchstone — a concept confirmed by the statutory directive to make ‘”reasonable inquiries”‘ (id. at 211-212). The question as to whether a prosecutor made reasonable efforts and exercised due diligence “is a mixed question of fact and law” (id. at 216), “case-specific,” and “will turn on the circumstances presented” (id. at 212). This requires a court to consider, among other factors: “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.). The “People bear the burden of establishing that they did, in fact, exercise due diligence and made reasonable inquiries prior to filing the initial COC despite a belated or missing disclosure” (id. at 213). Under the particular facts of this case, and viewing the nature of the belated discovery, as well as the explanation for the discovery lapse, and the efforts made by the People to immediately remedy the matter, this Court concludes that the belated disclosure of Officer Rios’s body-worn camera does not invalidate the People’s August 11, 2023, COC. Nothing in the record suggests that the COC was improper or filed in bad faith and was not reasonable under the circumstances (see People v. Torres, 205 AD3d 524 [1st Dept 2022]). Nothing in the record suggests that the People were trying to hide or omit Officer Rios’s body-worn camera. There is no merit to the Defense’s assertions that the defendant was deprived of the opportunity to present a defense solely because of the belated disclosure. Nor does this Court agree that the People’s failure to timely disclose Officer Rios’s body-worn camera inhibited or prejudiced the defendant in preparing for the suppression hearing. Officer Rios’s body-worn camera does not capture the initial stop of the defendant’s car or any interactions between the defendant and the police, which led to the defendant’s arrest. The hearing evidence established that on June 7, 2023, Officer Campuzano, Lieutenant Quintero, and Officer Rios were on patrol in an unmarked police vehicle in the vicinity of Classon Avenue and Putnam Avenue. Officer Campuzano observed that the defendant’s car had a defective headlight, and that the car was parked in the pedestrian crosswalk. These observations led to the lawful stop of the defendant’s car. Officer Campuzano observed a clear Ziploc bag with pink-capped vials containing crack cocaine on the ground within a foot of the defendant, where Officer Campuzano had observed the defendant’s hands fall when Officer Campuzano first approached the defendant. This Court determined that the defendant’s evasive movements from the time of the stop, coupled with the defendant’s refusal to step back into the car, and Officer Campuzano’s observation of the bag with pink-capped vials containing crack cocaine in the defendant’s immediate vicinity, elevated the encounter to probable cause to arrest the defendant (see People v. Alvarez, 100 NY2d 549, 550 [2003]; People v. Figueroa, 38 AD 3d 796 [2d Dept 2007]). The initial stop and approach of the defendant’s car were captured on Officer Campuzano’s, Lieutenant Quintero’s, and Officer Rios’s body-worn cameras, which were timely disclosed to the Defense. The hearing testimony established that after the defendant’s arrest, Officer Campuzano returned to the defendant’s car, picked up the bag with pink-capped vials, and placed it into the defendant’s car. When Officer Rowen later arrived on the scene, Officer Campuzano gave Officer Rowen the keys to the defendant’s car. Officer Rowen testified that he opened the driver’s side front door and observed a clear plastic bag with pink-capped vials on top of the car’s center console. Officer Rowen transported the defendant’s car to the precinct. Upon his arrival at the precinct, Officer Rowen vouchered the plastic bag with pink-capped vials as arrest evidence. Officer Rowen testified that he then gave the defendant’s car keys to Officer Rios and Officer Maxim Paul. Officer Rios searched the defendant’s car and recovered a single glass vial. Officer Rios gave the single glass vial to Officer Rowen, which Officer Rowen vouchered as arrest evidence. The Defense acknowledges that Officer Rios’s body-worn camera does not depict the single glass vial being recovered from the defendant’s car at the precinct. The defendant had been arrested and the police had already recovered the plastic bag with pink-capped vials as arrest evidence, before the search of the defendant’s car and the recovery of the single glass vial. Therefore, it would serve no purpose for the People to intentionally withhold Officer Rios’s body-worn camera. Moreover, this Court cannot see how the Defense could have been misled into believing that Officer Rowen had personally searched the car at the precinct. Officer Rowen did not testify in the grand jury that he searched the defendant’s car at the precinct. Although Officer Rowen is listed as the invoicing officer on the NYPD Property Clerk Invoice for the single glass vial, the invoice does not state that Officer Rowen personally searched the defendant’s car. Furthermore, the Defense was in receipt of Officer Maxim Paul’s body-worn camera that captured Officer Rios searching the defendant’s car. At the hearing, the Defense had an opportunity to question Officer Rowen about the recovery of the single glass vial. The Defense also called Officer Rios as a witness and questioned him regarding the recovery of the single glass vial. The People shared the OneDrive links with the Defense on October 23, 2023, and yet the Defense did not bring the missing body-worn camera to the People’s attention until April 16, 2024. The People took immediate steps and uploaded the body-worn camera to the OneDrive link within three minutes.2 The Defense brought the belated discovery to this Court’s attention on April 18, 2024. At that time, the People explained that Officer Rios’s body-worn camera had erroneously not been uploaded onto the OneDrive, and that the belated disclosure was an oversight. The record establishes that the People’s failure to timely disclose Officer Rios’s body-worn camera was inadvertent and was without bad faith or the lack of due diligence (see People v. Deas, 226 AD3d 823, 826 [2d Dept 2024]). The People’s SOR is presumed to be correct, “[i]n the absence of proof that the readiness statement did not accurately reflect the People’s position…” (People v. Carter, 91 NY2d 795, 798 [1998]). As such, the motion to declare the People’s August 11, 2023, COC invalid and SOR illusory is DENIED. CPL 30.30 Time Where a defendant is charged with a felony, a motion to dismiss must be granted if the People are not ready for trial within six months of the commencement of the criminal action (CPL 30.30 [1][a]). “Whether the People have satisfied this obligation is generally determined by computing the time elapsed between the filing of the first accusatory instrument and the People’s declaration of readiness, subtracting any periods of delay that are excludable under the terms of the statute and then adding to the result any post-readiness periods of delay that are actually attributable to the People and are ineligible for an exclusion” (People v. Cortes, 80 NY2d 201, 208 [1992]). The Defense has the initial burden of showing through sworn allegations of fact, that there has been an inexcusable delay beyond the time allotted by the statute. Once the Defense has made that showing, the People bear the burden of demonstrating sufficient excludable time to withstand a motion to dismiss (see People v. Santos, 68 NY2d 859, 861 [1986]; People v. Berkowitz, 50 NY2d 333, 349 [1980]). This action commenced on June 8, 2023, when the defendant was arraigned in criminal court on a felony complaint. The case was calendared to July 19, 2023, for the defendant’s supreme court arraignment. On July 19, 2023, the case was adjourned to July 20, 2023, for the defendant’s supreme court arraignment. The People did not file a COC or declare readiness during this period. Therefore, the People are charged 42 days. On July 20, 2023, the defendant was arraigned, and the case was adjourned to August 30, 2023, for the People’s COC. On August 11, 2023, the People served and filed a valid COC and SOR. Therefore, the People are only charged from July 20, 2023, to August 11, 2023. 22 days charged. Total 64 days charged. On August 30, 2023, the Defense requested a motion schedule, and the case was adjourned to October 20, 2023, for a decision. This period is excludable (see People v. Brown, 99 NY2d 488 [2003] [delay resulting from defense counsel's intention to file a motion was excludable from speedy trial period]). 0 days charged. Total 64 days charged. On October 20, 2023, no motion had been filed. The prior defense counsel was relieved and a new defense counsel was retained. The Defense requested a new motion schedule. The case was adjourned to December 15, 2023, for a decision. This period is excludable (see People v. Lopez, 49 AD3d 899 [2d Dept 2008]; People v. Beasley, 69 AD3d 741[2d Dept 2010]). 0 days charged. Total 64 days charged. On December 15, 2023, the Defense filed an omnibus motion. The Court also set a motion schedule for the People to file a motion to consolidate IND. Nos. 73811-23 and 70428-23. The case was adjourned to January 19, 2024, for decisions on both motions, and for the Defense to file a reciprocal COC. The period during which matters are under consideration by the Court is excludable under CPL 30.30 (4)(a). 0 days charged. Total 64 days charged. On January 19, 2024, the Court rendered a decision upon a review of the grand jury minutes and granted the motion to consolidate IND. Nos. 73811-23 and 70428-23. The case was adjourned to March 1, 2024, for the Defense to file a reciprocal COC. This period is excludable. 0 days charged. Total 64 days charged. On March 1, 2024, the Defense filed and served a COC. The case was adjourned to March 15, 2024, to select a hearing date and for potential modification in the Securing Order. This period is excludable. 0 days charged. Total 64 days charged. On March 15, 2024, a hearing date was selected, and the case was adjourned to April 18, 2024, for suppression hearings. The People are entitled to a reasonable time to prepare (see People v. Caussade, 162 AD2d 4 [2d Dept 1990]). This period is excludable. 0 days charged. Total 64 days charged. On April 18, 2024, the People were ready for the hearings. At the conclusion of the hearings on April 23, 2024, the case was adjourned to May 8, 2024, for the parties’ written arguments, and a decision. The period during which matters are under consideration by the Court is excludable under CPL 30.30 (4)(a). 0 days charged. Total 64 days charged. On May 8, 2024, this Court rendered its decision on the hearings and the case was adjourned to July 29, 2024, for trial. On June 6, 2024, the People filed a motion to reargue this Court’s granting of the suppression motion as to the September 8, 2022, incident. On June 24, 2024, this Court denied the People’s motion. The period during which matters are under consideration by the Court is excludable. Additionally, the People are entitled to a reasonable time to prepare for trial. 0 days charged. Total 64 days charged. On July 29, 2024, the People were not ready for trial. However, the Defense filed the instant motion to dismiss on July 25, 2024, which renders the period excludable under CPL 30.30(4)(a). The case was adjourned to August 23, 2024, for a decision. 0 days charged. Total 64 days charged. The People are charged with 64 days of CPL 30.30 speedy trial time. Therefore, the motion to dismiss the indictment is DENIED. The foregoing constitutes the Decision and Order of the Court Dated: August 23, 2024
