Justice Court of the Town of Penfield, Monroe County, February 15, 2021

James Riotto II for defendant.

Sandra Doorley, District Attorney (Nicholas T. Fletcher of counsel), for plaintiff.

The issue before the court is whether defendant is entitled to an order striking the certificate of compliance (CoC) and statement of trial readiness (SoR) based on alleged violations of the People's discovery obligations under CPL article 245. The court finds that the CoC was valid, even though it identified discovery material the prosecution was aware of, but did not yet possess.

On January 15, 2020, defendant was arraigned in Penfield Town Court on two counts of driving while intoxicated (Vehicle and Traffic Law § 1192 [2], [3]), and three traffic infractions. The offenses allegedly occurred on December 28, 2019. The People filed a CoC and an SoR on March 25, 2020, and supplemental CoCs and SoRs on April 15, 2020, and November 2, 2020. Defendant filed objections to the CoCs and SoRs, contending that the original CoC was untimely and filed before the prosecutor obtained and made available all the material{**71 Misc 3d at 339} identified in the CoC. Defendant seeks a ruling striking the CoC and SoR. The People contend that they have complied with their discovery obligations, stating that they made good faith and diligent efforts to obtain the material identified in the initial CoC, and that other items sought have previously been disclosed or do not exist.

CPL article 245, part of discovery reform legislation, took effect January 1, 2020. The legislation prescribes an extensive, but non-inclusive, list of materials that the People are obligated to disclose to defendant (CPL 245.20). The legislation also sets forth time periods within which discovery must be provided (CPL 245.10, 245.20 [1] [s]). When the prosecution has provided the required discovery, they must serve upon the defendant and file with the court a CoC (CPL 245.50). The legislation links the new discovery requirements to CPL 30.30 speedy trial provisions (CPL 245.50 [3]; 30.30 [5]). Unless the court makes an individualized finding of exceptional circumstances, the People shall not be deemed ready for trial until they have filed a proper CoC (CPL 245.50 [3]).

The following dates are relevant in resolving the issues presented:

December 28, 2019—Defendant arrested for driving while intoxicated (Vehicle and Traffic Law § 1192 [2], [3]) and three traffic infractions.

January 15, 2020—Defendant arraigned. Assistant District Attorney acknowledged that discovery was not complete. No CoC or SoR filed.

February 19, 2020—Plea offer placed on the record. No CoC or SoR filed. Case adjourned to March 18, 2020, for response to plea offer.

March 7, 2020—Governor Cuomo signed Executive Order (A. Cuomo) No. 202 (9 NYCRR 8.202) declaring a state disaster emergency for the entire state due to COVID-19 pandemic.

March 11, 2020—No appearances. Defendant filed omnibus motion.

March 18, 2020—No appearances. Court closed due to pandemic.

March 20, 2020—Governor Cuomo signed Executive Order (A. Cuomo) No. 202.8 (9 NYCRR 8.202.8), essentially tolling and suspending all criminal statutes of limitations and other statutory time frames and deadlines.{**71 Misc 3d at 340}

March 25, 2020—People emailed CoC and SoR to court and counsel. The CoC indicated that the People requested preservation of all electronic recordings of 911 calls and computer-aided dispatch reports, but did not have that information in their possession.

April 15, 2020—Court closed due to COVID-19 pandemic. People emailed supplemental CoC and SoR to court and counsel. People obtained 911 calls and computer aided dispatch reports not previously in their possession and control and turned the material over electronically.

April 21, 2020—Court closed due to pandemic. People's response to defendant's omnibus motion emailed to court.

July 23, 2020—Pretrial conference held telephonically. Plea offer reviewed. Case adjourned for plea or argument of motions.

October 21, 2020—Motions argued. Court granted defendant's request for probable cause hearing. Counsel advised the court that defendant wished to waive the pretrial hearings and proceed to a bench trial. Case adjourned to November 4 to set bench trial date.

October 26, 2020—Defendant emailed court and counsel objections to People's CoC and SoR. Defendant claimed that the March 25 CoC was invalid because the People filed it before acquiring and providing all discovery material known to exist.^[FN1]

November 18, 2020—Motions argued. Defense claims People did not meet discovery obligations. Defense claims that the March 25, 2020 CoC was defective because it was filed before the People obtained the 911 records. Defense does not seek sanctions; only request is to strike CoC and SoR. People asserted that they acted in good faith and diligently in an effort to meet their discovery obligations. The court reserved decision and permitted counsel the opportunity to submit additional written arguments.

The court now turns to the legal issues presented.

I. Validity of the Certificate of Compliance filed March 25, 2020

The CoC filed March 25, 2020, advised defendant of the existence of 911 recordings, but did not make the information available because the recordings were not yet in the prosecution's possession.{**71 Misc 3d at 341}

CPL 245.50 governs the filing of certificates of compliance. That section requires that the CoC "state that . . . the prosecutor has disclosed and made available all known material and [*3]information subject to discovery . . . . If additional discovery is subsequently provided prior to trial pursuant to section 245.60 . . . , a supplemental certificate shall be served" (CPL 245.50 [1] [emphasis added]).

CPL 245.60, referenced in CPL 245.50, allows the prosecution or the defendant to disclose information if either party "subsequently learns of additional material" which it would have been under a duty to disclose (see e.g. People v Davis, 70 Misc 3d 467 [2020]).

Defendant contends that CPL 245.50 requires the prosecution to acquire and make available all material before a valid CoC may be filed. Defendant further contends that the CPL 245.60 exception allows subsequent disclosure of newly discovered information; not information the prosecution is aware of, but has not yet obtained.

The courts that have considered this issue agree that where new information is discovered after the filing of the CoC, CPL 245.60 permits the People to disclose the newly discovered information and file a supplemental CoC without penalty. However, the courts are split on whether the People can file a valid CoC and declare readiness for trial in cases where the prosecution is aware of, but has not obtained the information or material.

In People v Askin (68 Misc 3d 372 [2020]), the court considered two supplemental CoCs. The first concerned the belated disclosure of the curriculum vitae of a prosecution witness. The second concerned the belated disclosure of medical records. The court concluded that the subsequent filing of the documents did not negate the People's initial CoC:

"the . . . curriculum vitae [was] not within the control of the People and filing same upon receipt does not negate the People's compliance certification and state of readiness for trial. The same ruling holds for medical records obtained via subpoena . . . [T]hey have no control over when an outside agency will fill a subpoena request. As long as the People timely submit the subpoena and advise defense of same, this court finds that they may certify compliance while awaiting these documents." (68 Misc 3d at 380-381.)

{**71 Misc 3d at 342}The court reached the same conclusion in People v Nelson (67 Misc 3d 313 [2020]), where the prosecution advised defendant of the existence of radio logs they had not yet obtained from the New York State Police.

Thus, there is authority to support the People's position that as long as the prosecutor is acting in good faith, and advises defendant of the existence of the information not in their possession or control, they may file a valid CoC and SoR before obtaining the information and providing it to the defense.

Other courts have taken a contrary view (People v Adrovic, 69 Misc 3d 563 [2020]; People v Rosario, 70 Misc 3d 753 [Albany County Ct 2020]; People v Quinlan, 71 Misc 3d 266 [Crim Ct, Bronx County 2021]). In Adrovic, the court criticized the approach taken in Askin and Nelson regarding known but unattained discovery, reasoning that such an approach "ignores the solution provided for by the legislature: if there is discoverable material which the prosecution knows of but doesn't yet possess, it should either move for an extended time line pursuant to CPL 245.70 (2) or seek an individualized finding of exceptional circumstances pursuant to CPL 245.50 (3)" (People v Adrovic at 572 n 4, 573 n 7). The court detailed what it determined to be the two options available to the prosecution when confronted with this situation:

"despite the People's diligent and reasonable inquiries to obtain material subject to required disclosure, they may from time to time identify some particular items they have not yet acquired. When that occurs . . . the legislature gave the People the option to apply, under CPL 245.70 (2), for a good cause extension for additional time in which to deliver [*4]the required discovery . . . . Under these circumstances, the People must make a motion in which they establish good cause for extending the discovery period. . . . By following the prescribed procedure and upon the granting of the motion the People would get additional time to disclose these hard-to-obtain items without penalty. . . .

"The statute provides one additional option for prosecutors who are unable to provide known-but-unobtained discovery. CPL 245.50 (3) allows the People to request the court to find exceptional circumstances for the nondisclosure. If the court makes an individualized finding that such exceptional{**71 Misc 3d at 343} circumstances exist in a case, it can accept the People's statement of readiness and permit the People to go forward with their case notwithstanding the lack of a certificate of compliance . . . What the People may not do is file a certificate of compliance in which they claim to have exercised due diligence and turned over all known material and information . . . while at the same time not actually turning over all known material and information, without the express permission of the court." (People v Adrovic at 572-574 [internal quotation marks omitted and emphasis added].)

This court agrees that the People have the option of making a motion under CPL 245.70 (2) for a good cause extension of additional time in which to deliver the required discovery.

However, to the extent Adrovic suggests that a court may not make a CPL 245.50 (3) finding of exceptional circumstances unless the prosecution obtained a prior judicial ruling, this court respectfully disagrees. The People's failure to make a prior motion does not prevent the court from making an individualized finding of exceptional circumstances under CPL 245.50 (3), in the context of a motion to strike a CoC or a motion to dismiss pursuant to CPL 30.30 brought after the fact.^[FN2]

[1] The conclusion that the court may find exceptional circumstances without a prior motion is supported by the text of the statute. The clearest indicator of legislative intent is the statutory text (People v Andujar, 30 NY3d 160,169 [2017]). CPL 245.70 (2) permits modification of time periods for discovery "[u]pon motion of a party." Consequently, a prosecutor seeking an extension of time under that provision must secure a prior judicial ruling. However, unlike CPL 245.70 (2), CPL 245.50 (3) does not require that the court's finding of exceptional circumstances be made upon motion of a party. Thus the statutory text suggests that the exclusion may be applied after the fact. If the legislature intended to require that a prosecutor bring a motion before a court could find exceptional circumstances, it certainly knew how to do so.

This court's interpretation is consistent with the law involving the exclusion of a period of delay occasioned by exceptional{**71 Misc 3d at 344} circumstances under CPL 30.30 (4) (g) speedy trial provisions. In People v Price (14 NY3d 61 [2010]), the Court of Appeals found that the People are not required to obtain a prior judicial ruling before time may be excluded under the exceptional circumstances provisions of that statute. Although "the Legislature . . . envisioned an approach by which the prosecutor could secure a prior judicial ruling as to exceptional circumstances rather than ask a court to apply the exclusion after the fact," securing a prior [*5]judicial ruling is "not required" (People v Price, 14 NY3d at 64).

To summarize, in circumstances where the prosecution is aware of but has not yet obtained automatic discovery, as detailed in People v Adrovic, the prosecution should (1) move under CPL 245.70 (2) to modify the time period for discovery; or (2) request the court to make an individualized finding of exceptional or special circumstances under CPL 245.50 (3). However, where a defendant challenges the validity of a CoC and/or an SoR, or seeks dismissal pursuant to CPL 30.30, the prosecution's failure to obtain a prior judicial ruling does not prevent a finding of exceptional or special circumstances under CPL 245.50 (3). The court may make the finding after the fact.

[2] Turning to this case, the certificate was filed three months after the wholesale changes to the discovery laws became effective. The 911 records at issue were not in the People's actual possession or in the possession of any New York State or local police or law enforcement agency (CPL 245.20 [2]). The People acted in accordance with CPL 245.55 (3), which requires them to take reasonable steps to ensure that 911 telephone calls and police radio transmissions are preserved. The initial CoC advised defendant of the existence of the 911 records and indicated their intention to make these available when they were obtained. Within 20 days, the People acquired the records and provided them to defendant. It is also important to note that, during this time, court operations were limited as a result of the COVID-19 pandemic.^[FN3] Defendant did not appear in court from February 19 through October 21, making the judicial oversight of the discovery process envisioned by the statutory scheme difficult to implement (CPL 30.30 [5]). The result was that a CoC and SoR filed March 25 was not challenged until October 26; a situation that is far from ideal.{**71 Misc 3d at 345}

In light of the above, the court finds the existence of exceptional or special circumstances justifying the delay. The records were unavailable despite the prosecutor's diligent and good faith efforts which were reasonable under the circumstances. The court deems the prosecution ready for trial as of March 25, 2020.

Finally, the court notes that this conclusion is consistent with a number of cases that have determined that where the People exercised due diligence and made a good faith effort to obtain and provide all of the discoverable items in a timely fashion, the striking of a certificate of readiness is a "drastic remedy which should be used both sparingly and judiciously." (People v Nelson at 318; see also People v Randolph, 69 Misc 3d 770 [2020]; People v Davis, 70 Misc 3d 467 [2020]; People v Lustig, 68 Misc 3d 234 [2020].)

Accordingly, defendant's motion to strike the March 25, 2020 certificate of compliance and statement of readiness is denied.