Criminal Court of the City of New York, New York County, October 19, 2021

Janet E. Sabel, The Legal Aid Society (Christina Francois of counsel), for defendant.

Cyrus R. Vance, Jr., District Attorney (Lindley Round of counsel), for plaintiff.

Motion by defendant Estiver Ramirez for an order deeming the prosecution's certificate of compliance improper under CPL 245.50 (1) and dismissing the information pursuant to CPL 30.30 (1) (b) and 170.30 (1) (e) is granted.

Defendant pleaded not guilty to a top charge of Penal Law § 120.00, assault in the third degree, a class A misdemeanor, at his arraignment on April 16, 2021. The court converted the complaint to an information and released defendant on his own recognizance, and he is at liberty.

As is relevant here, on June 28, 2021, the prosecution filed off-calendar a certificate of compliance, certificate of readiness, automatic discovery form and notice pursuant to CPL 710.30, and a Rosario and discovery list. On July 29, 2021, defendant filed this motion for an order deeming the prosecution's certificate of compliance improper under CPL 245.50 (1) and dismissing the information pursuant to CPL 30.30 (1) (b) and 170.30 (1) (e).

Defendant argues, in sum and substance, that the police officers on scene took photographs, but the prosecution did not produce them to defendant. Defendant further argues that the prosecution did not produce certain photographs taken by civilians, certain medical records, related reports as to the complaining witness, and certain disciplinary record disclosures of the arresting officer.

The prosecution argues in opposition, as to the photographs taken by police officers, that

"the defense is already in possession of the body-worn camera that captures the responding EMTs and officers' interactions with the complaining witness.{**73 Misc 3d at 666} That body-worn camera footage certainly depicts the state of the complaining witness in greater detail than would a still photo, and as such, no prejudice flowed from this omission. In any event, the People have been diligent and acted in good faith in attempting to obtain [the photographs taken by police officers] in response to defense counsel's request. On August 18, 2021, the People attempted to contact the arresting officer by phone and email in order to request the photos, but received no response." (Prosecution's affirmation in opp at 25-26.)

Defendant argues in reply that the datasheet and body-worn camera indicate that the arresting officer took photographs of the complaining witness's alleged head injuries on the date of the occurrence, December 28, 2020, but the prosecution has not produced them to defendant. Defendant further argues that the prosecution by definition has not been diligent in producing the photos because it knew about the arresting officer's photographs before the April 16, 2021 arraignment but did not attempt to contact the arresting officer until August 18, 2021.

CPL 170.30 (1) (e) provides that "[a]fter arraignment upon an information . . . the local criminal court may, upon motion of the defendant, dismiss such instrument or any count thereof upon the ground that . . . defendant has been denied the right to a speedy trial . . . ." CPL 30.30 (1) (b) provides, as is pertinent here, that such a motion "must be granted where the people are not ready for trial within . . . ninety days" of the arraignment. Here, there is no dispute between the prosecution and defendant that, upon the prosecution's off-calendar filing of the certificate of compliance, from April 16, 2021, to June 28, 2021, 73 days chargeable to the prosecution had elapsed. As such, the threshold issue is whether the prosecution was ready for trial as a matter of law upon the filing of the certificate of compliance or within 90 days of the arraignment after accounting for any excludable time.

Based upon the papers submitted, the court finds pursuant to CPL 245.50 (3) that the certificate of compliance filed in this case was not proper pursuant to CPL 245.50 (1), as the prosecution failed to comply with the court's automatic discovery order pursuant to CPL 245.20 (1) (h); (2) and (5) by filing a certificate of compliance without having produced the photographs{**73 Misc 3d at 667} taken by the arresting officer to defendant, photographs that the prosecution constructively possessed pursuant to CPL 245.20 (2) and 245.55 (1).

CPL 245.50 (3), titled "[t]rial readiness," provides, in relevant part, that "the prosecution shall not be deemed ready for trial for purposes of [CPL 30.30] until it has filed a proper certificate [of compliance] pursuant to [CPL 245.50 (1)]." CPL 245.50 (1) provides, in relevant part, that

"[w]hen the prosecution has provided the discovery required by [CPL 245.20] . . . it shall serve upon the defendant and file with the court a certificate of compliance. . . . No adverse consequence to the prosecution or the prosecutor shall result from the filing of a certificate of compliance in good faith and reasonable under the circumstances . . . ."

CPL 245.20 (1) (h) requires, in pertinent part, that

"[t]he prosecution shall disclose to the defendant . . . all items . . . 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, including but not limited to: . . . [a]ll photographs . . . made . . . by a public servant engaged in law enforcement activity . . . ."

CPL 245.20 (2) provides, in relevant part, that

"[t]he prosecutor shall make a diligent, good faith effort to ascertain the existence of material or information discoverable under [CPL 245.20 (1)] . . . . For purposes of [CPL 245.20 (1)], all items and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency shall be deemed to be in the possession of the prosecution."

Relatedly, CPL 245.55 (1) mandates a "flow of information" between the prosecution and law enforcement "sufficient to place within his or her possession or control all material and information pertinent to the defendant and the offense or offenses charged . . . ."

Here, the prosecution admits in its own affirmation that its failure to produce the subject photographs was an "omission" and that it did not contact the arresting officers to obtain them until August 18, 2021, nearly two months after filing the certificate of compliance and only upon the request of defendant. The prosecution's argument that no prejudice flowed from the{**73 Misc 3d at 668} omission is unavailing. The prosecution has not submitted the body-worn camera footage to the court, and there are no photographs to which to compare the footage. Further, the affirmation of the prosecution that the unsubmitted footage "certainly depicts the state of the complaining witness in greater detail than would a still photo" is conclusory and has no basis in any evidence submitted. Indeed, the still photos may very well be much more specific and detailed than that which is depicted in the body-worn camera footage. Moreover, it is not for the prosecution to select which discoverable material is of most value to the defense. As such, the prosecution's mere conjecture that the unsubmitted body-worn camera footage is, in effect, better evidence than a hypothetical still photo is meritless.

Pursuant to article 245, the prosecution must have made a diligent, good faith effort to ascertain the existence of the subject photographs and produce them to defendant as a condition precedent to the filing of a proper certificate of compliance. By the prosecution's own account, this was not done. Indeed, the prosecution makes no argument as to any effort made on its part to determine whether the subject photographs existed and, if so, to produce them to defendant, prior to August 18, 2021. Moreover, article 245 provides mechanisms to the prosecution available when more time is needed, such as an application for a hearing seeking an "individualized finding of special circumstances" (CPL 245.50 [3]) or for a protective order (see generally CPL [*4]245.70), but it failed to avail itself of any such recourse. Thus, the court finds that the certificate of compliance is improper, and its filing was not reasonable under the circumstances. Indeed, "[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 Brown, 28 NY3d 392, 404 [2016]). Accordingly, more than 90 days chargeable to the People have elapsed, and the information should consequently be dismissed.

The court has considered the prosecution's other arguments as to the subject police photographs and finds them to be without merit. In light of the court's finding, the court need not reach defendant's remaining contentions.

Accordingly, it is ordered that the motion by defendant Estiver Ramirez for an order deeming the prosecution's certificate{**73 Misc 3d at 669} of compliance improper under CPL 245.50 (1) and dismissing the information pursuant to CPL 30.30 (1) (b) and 170.30 (1) (e) is granted.