Summary HOLDING: The People’s failure to adhere to the provision of initial mandated discovery pursuant to the timeframe set forth in Criminal Procedure Law (CPL) §245.10, which has been statutorily given the effect of a court order, combined with the untimeliness of the People’s motion for modification of time to provide automatic discovery, warrants the sanction of dismissal in the underlying matter. 2. The People’s application to reargue the denial of their motion for a modification of time to provide discovery pursuant to CPL §245.70(2) and dismissal of the accusatory instrument is GRANTED, and, upon reargument, the court adheres to its original determination. 3. The defendant’s cross motion to deem the accusatory instrument facially insufficient is DENIED. 4. The defendant’s application to deem the certificate of compliance invalid dated March 21, 2024 and dismiss the accusatory instrument on statutory speed trial grounds is DENIED as academic and/or moot. Decision and Order By a notice of motion dated May 1, 2024, the People move for leave to reargue a prior order of this court, dated April 8, 2024. The prior order denied the People’s motion to enlarge their 35-day statutory timeframe within which to provide initial mandatory discovery and dismissed the accusatory instrument because of the People’s failure to timely seek an enlargement of the statutory deadline or provide any initial mandated discovery before the expiration of the statutory timeframe to do so. The defendant opposes the People’s motion and cross moves to dismiss the accusatory instrument on the grounds that the accusatory instrument is facially insufficient; the People’s certificate of compliance is invalid; and dismissal is warranted because of the People’s failure to (1) timely request a modification of time to provide automatic discovery or (2) timely comply with their initial mandatory discovery obligations as set forth in CPL §245.10. The People submit opposition to the defendant’s cross motion, dated October 16, 2024. The motion for leave to reargue is granted and, upon reargument, the court adheres to its original determination. Pursuant to CPLR §2221, a motion to reargue is addressed to the sound discretion of the court that decided the underlying motion (Partanio v. Federal Realty Investment Trust, 213 AD3d 685 [2d Dept 2024]). To prevail on a motion to reargue pursuant to CPLR §2221(d)(2), the movant must show that the court overlooked material facts or misapprehended matters of law. Here, the People have failed to demonstrate that this court has either overlooked or misapprehended material facts or law. At the outset, the court admonishes the People for their failure to follow the proper procedure to seek relief from the underlying order when they inappropriately contacted chambers and the supervising judge’s office for that purpose. In their correspondence, the People urged the court to reconsider its decision and asked, “since this case is on tomorrow, can we expect a corrected decision to be sent before the case is called?”. In People v. Lawson, the Court of Appeals amplified the proposition that a motion to reargue is the appropriate mechanism for seeking reconsideration of a criminal court’s order (See Lawson, 2024 NY Slip Op 06238 [2024]). Here, the People’s actions flout the Court’s procedural prescription in Lawson and exhibit the same disregard for the process as they demonstrated when they failed to provide any initial mandatory discovery and seek an enlargement of time, prior to the expiration of the statutory deadline to provide initial mandatory discovery. Turning to the merits of the underlying motion, the defendant was arraigned pursuant to a misdemeanor complaint on December 31, 2023, and charged with Penal Law §195.05, Obstructing Governmental Administration in the Second Degree; Vehicle and Traffic Law (VTL) §509(1), Unlicensed Operator and VTL §§1192(1) and (2), both Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs offenses; and various other charges. The top charge in this matter is a Class A misdemeanor. The defendant was released on his own recognizance. CPL §245.10 sets forth the time periods within which the People’s initial, or automatic, discovery obligations under CPL §245.20(1)(a) (i) and (ii) must be satisfied. CPL §245.10(1)(a) states, “[s]ubject to subparagraph (iv) of this paragraph, the prosecution shall perform its initial discovery obligations under subdivision one of section 245.20 of this article as soon as practicable but not later than the time periods specified in subparagraphs (i) and (ii) of this paragraph, as applicable.” Those subdivisions lay out the applicable time frames for compliance depending on whether the defendant is in custody during the pendency of the criminal case. “When the defendant is not in custody during the pendency of the criminal case, the prosecution shall perform its initial discovery obligations within thirty-five [35] calendar days after the defendant’s arraignment on an indictment, superior court information, prosecutor’s information, information, simplified information, misdemeanor complaint or felony complaint” (CPL §245.10(1)(a)(ii)). In addition, CPL §245.20(5) provides that CPL §245.10 “shall have the force and effect of a court order, and failure to provide discovery pursuant to such section…may result in the application of any remedies or sanctions permitted for non-compliance with a court order under section 245.80″ — including dismissal of the charges — for the People’s non-compliance with its discovery obligations. In particular, CPL §245.80(2) sets forth the remedies and sanctions for non-compliance with discovery requirements as follows: For failure to comply with any discovery order imposed or issued pursuant to this article [Article 45], the court may…order the dismissal of all or some of the charges provided that, after considering all other remedies, dismissal is appropriate and proportionate to the prejudice suffered by the party entitled to disclosure. CPL §245.20, the automatic discovery provision, sets forth a non-exhaustive list of 21 categories of critical mandated items that the prosecution must provide to the defendant. Included in those categories are police activity logs or memo books, police reports, Giglio material1, Civilian Complaint Review Board (CCRB) reports, photographs, and body-worn camera video (see CPL §245.20(1)(a-u)). In the present matter, the People were statutorily mandated to comply with their initial discovery obligations within 35 days of the defendant’s arraignment on December 31, 2023, or no later than February 4, 2024, as he has not been in custody during the pendency of this proceeding (CPL §245.10(1)(a)(ii)). However, the People did not provide any initial automatic discovery by that juncture. Among the mandated automatic discovery items that were not timely provided in this case were the police memo books; Threat, Resistance, or Injury (TRI) Report; updated CCRB reports; and Giglio material. The People failed to produce such disclosure in its entirety until well beyond the 35-day automatic discovery deadline and beyond the 90-day speedy-trial deadline. Having failed to meet any part of their initial mandatory statutory disclosure obligation by February 4, 2024, the People likewise failed to avail themselves of a possible 30-day extension of time to provide mandated discovery permitted by CPL §245.10(1)(a). Instead of timely complying with their initial discovery obligations, they provided no mandated discovery to the defendant until the simultaneous filing of their COC and SOR and belated motion to enlarge the time for discovery on March 21, 2024, which was 46 days after the expiration of the 35-day automatic disclosure deadline. Stated another way, the People impermissibly availed themselves of more than double the 35-day statutory period to provide any initial mandatory discovery to the defendant. Further, even assuming, arguendo, that the People had availed themselves of the aforementioned 30-day extension, which they did not, they also exceeded that additional 30-day period by more than two weeks. It was only on the 81st day after arraignment, and well beyond the expiration of their time to provide initial mandatory discovery, that the People requested an extension of time to enlarge the mandatory discovery deadline, at which time they offered no excuse for the belated request. CPL §245.70(2) permits a party to make a motion for the modification of the time period for discovery. The statutory rubric requires the People to ask for permission to enlarge the time to provide belated discovery, rather than forgiveness for unilaterally exceeding their deadline to provide initial discovery as the People have done in this case. The court finds that the People’s failure to comply with the strictures of CPL §245.10(1)(a)(ii), requiring the production of automatic disclosure, prejudiced the defendant by depriving him of the opportunity to avail himself of the earlier and broader discovery contemplated and mandated by the Legislature in enacting that provision. The People’s dilatory behavior in failing to provide any mandatory discovery for more than double the statutorily permissible number of days, without any excuse for their delay in seeking an extension, cannot be condoned because their conduct flouted the statute and substantially impaired the defendant’s ability to mount a vigorous defense within the prescribed statutory timeframe. Indeed, fairness dictates that the People’s exceedingly late request for an enlargement of time cannot be accommodated when they have met none of their 35-day initial discovery obligations for a grand total of 81 days. As such, the People’s motion to enlarge their time to comply with mandatory discovery was properly denied (see People v. Bay, 41 NY3d 200 [2023]). The People’s failure to adhere to CPL §245.10, which has been statutorily given the effect of a court order, and avail themselves of a permissive enlargement of time, combined with the untimeliness of the People’s motion for modification of time to provide automatic discovery, could only properly result in the denial of the underlying motion and dismissal of the matter. Having considered all permissible sanctions under CPL §245.80, the court concludes that dismissal of the accusatory instrument is the only sanction that is proportionate to the People’s flagrant disregard of the 35-day mandatory discovery deadline and their attempt to bypass the deadline by seeking an extension of time 46 days after the deadline had lapsed. The recent decision in People v. Burnett, 81 Misc 3d 144(A) [2024], is distinguishable from the case at bar. In Burnett, the court held that the sua sponte dismissal of accusatory instruments based upon CPL §30.30 speedy-trial grounds was improper because the People were not put on notice that the court was contemplating dismissal on those grounds. The facts and law applicable to Burnett are inapposite to the facts and law pertaining to this matter. In the present case, CPL §245.80(2) allows the court to dismiss the accusatory instrument as a permissible sanction. Additionally, the court may do so without notice because, as indicated above, the mandatory discovery statute has been given the effect of a court order under CPL §245.20(5). Thus, contrary to the People’s contentions, as a consequence of their utter failure to provide initial discovery as required by CPL §245.20(1)(a), or timely request an extension of time to provide automatic discovery, this court previously acted within its authority and discretion to impose the sanction of dismissal of the accusatory instrument in deciding the underlying motion (see CPL §§245.20(5) and 245.80[2]). Finally, regarding the defendant’s cross motion to dismiss, he contends that dismissal of the accusatory instrument is warranted because it was not properly converted to an information, and is also facially insufficient. The defendant argues that the People’s COC and statement of readiness (SOR) are invalid because certain discoverable materials were not disclosed. Additionally, the defendant asserts that more than 90 days of speedy-trial time has accrued to the People. As such, the defendant maintains that the People have violated CPL §30.30, and the case must be dismissed. In opposition, the People contend that they have filed a facially sufficient, valid accusatory instrument alleging all essential elements of the charges against the defendant. Further, they assert that their COC was valid because it was filed in good faith and after exercising due diligence to ascertain the existence of, obtain, and turn over all discoverable material. Therefore, the People maintain that the court should find that their COC and SOR were proper and deny the defendant’s motion to invalidate these instruments. The court finds that the defendant’s argument challenging several counts of the accusatory instrument as facially insufficient lacks merit, as the statutory elements of those charges were met (see VTL §§509(1), 1192(1), and 1192(2)). Further, the factual allegations of the complaint meet the Casey standards of sufficient notice for preparation of a defense and adequate detail to prevent double jeopardy (see People v. Casey, 95 NY2d 354, 360). The court also finds that the People’s CPL §30.30(5-a) sworn certifications attesting to the establishment of the statutory elements at issue here are valid. As such, the charges in dispute are not facially insufficient, and the court declines to dismiss this matter on this basis (see CPL §§100.15, 100.40, 170.30[1][a], and 170.35[1][a]). Based upon the foregoing, the defendant’s application to dismiss the accusatory instrument as facially insufficient must be denied. The court has considered the parties’ remaining contentions and finds them to be academic or without merit. Accordingly, upon reargument, it is: ORDERED that the People’s underlying motion is denied; ORDERED that the case is dismissed and sealed; and it is further ORDERED that the defendant’s cross motion is denied as academic and/or without merit. The foregoing constitutes the Decision and Order of the court. Dated: December 30, 2024
