Motion

The defendant, Juan Francisco Cruz Garcia moved by Notice of Motion, dated May 19, 2021, seeking the following relief:

1) An order dismissing the Indictment due to prosecutorial misconduct in the grand jury, rendering the Indictment defective pursuant to Criminal Procedure Law (CPL) §§ 210.30 and 210.35(5);

2) An order pursuant to CPL §245.20 and 245.50(1) deeming the prosecution's certificate of compliance (COC) invalid and directing full compliance with CPL §245.20;

3) An order pursuant to CPL §§ 245.50(3) and 30.30(5), deeming the prosecution not ready for trial; and

4) For such other relief as this Court may deem proper.

On June 23, 2021, Assistant District Attorney Lauren Fitton filed an Affirmation in Opposition to the defendant's Notice of Motion.

On January 15, 2020, the defendant was arrested (Docket # CR-001227-20KN) and charged with the following crimes alleged to have taken place on October 6, 2019:

Assault in the Third Degree [PL §120.00(1)];

Attempted Assault in Third Degree [PL §110/120.00(1)];

Menacing in the Third Degree [PL§120.15]; and

Harassment in the Second Degree [PL §240.26(1)].

On January 16, 2020, the defendant was arraigned by the Hon. Quynda Santa Croce who issued a TOP in favor of T.C. (hereinafter "the CW"), which was in effect until July 31, 2020 and adjourned the case to January 24, 2020 in DV-1.

On January 22, 2020, the People filed a Superseding Information (SSI) on Docket # CR-001227-20KN with the following charges alleged to have occurred on four (4) [*2]separate dates:

March 6, 2016:

Assault in the Third Degree [PL §120.00(1)];

Attempted Assault in Third Degree [PL §110/120.00(1)];

Menacing in the Third Degree [PL§120.15]; and

Harassment in the Second Degree [PL §240.26(1)].

October 13, 2018:

Assault in the Third Degree [PL §120.00(1)];

Attempted Assault in Third Degree [PL §110/120.00(1)];

Menacing in the Third Degree [PL§120.15]; and

Harassment in the Second Degree [PL §240.26(1)].

April 29, 2019:

Assault in the Third Degree [PL §120.00(1)];

Attempted Assault in Third Degree [PL §110/120.00(1)];

Menacing in the Second Degree [PL §120.14(1)];

Menacing in the Third Degree [PL§120.15];

Criminal Obstruction of Breathing or Blood Circulation [PL §121.11(B)];

Harassment in the Second Degree [PL §240.26(1)]; and

Criminal Possession of a Weapon in the Fourth Degree [PL §265.01(2)].

October 6, 2019:

Assault in the Third Degree [PL §120.00(1)];

Attempted Assault in Third Degree [PL §110/120.00(1)];

Menacing in the Third Degree [PL§120.15]; and

Harassment in the Second Degree [PL §240.26(1)].

On January 23, 2020, the defendant's criminal case (Docket # CR-001227-20KN; IDV Docket # 20009V-2020) was transferred to IDV2 along with the CW's Family Offense Petition (Family Court Docket # O-28505-19; IDV Docket # O-00108-20) and scheduled for February 6, 2020.

On February 6, 2020, the defendant failed to appear in IDV2, and the Court stayed a warrant and extended the TOPs on the criminal case and Family Offense Petition in favor of the CW to the adjourn date of the April 1, 2020.

On March 17, 2020, the Kings County IDV Court began operating virtually in response to the Covid-19 pandemic.

Due to the ongoing Covid-19 pandemic, the April 1, 2020 court date was administratively adjourned to July 27, 2020. All TOPs in favor of the CW were extended to July 27, 2020 automatically by Administrative Order 70/20 of the Chief Administrative Judge.

On April 23, 2020, the defendant was re-arrested and arraigned on a felony complaint (Docket # CR-009164-20KN) and was charged with the following crimes alleged to have been committed against the CW on April 13, 2019:

On April 24, 2020, the defendant was arraigned virtually on the felony complaint (Docket # CR-009164-20KN) by the Hon. Alan J. Schiff in Kings County Criminal Court who set bail in the amount of $25,000 cash over 25,000 partially secured bond (10% with two signers) over $25,000 insurance company bail bond. Judge Schiff issued a TOP which was in effect through October 30, 2020 in favor of the CW. The matter was then adjourned to June 8, 2020 in Part AP1F.

On May 11, 2020, the defendant filed a CPL § 180.80 Motion for statutory release and a preliminary hearing.

On May 13, 2020 the Hon. Michael Yavinsky issued a Decision and Order denying the defendant's CPL § 180.80 motion.

On May 15, 2020, the defendant filed a writ of habeas corpus.

On May 20, 2020, the People filed an Affirmation in Opposition to the defendant's CPL § 180.80 Motion.

On May 28, 2020, the defendant filed a letter in Reply to the People's Affirmation in Opposition.

On May 29, 2020, the Hon. Danny K. Chun denied the defendant's writ of habeas corpus.

On June 1, 2020, the defendant filed a second CPL § 180.80 application for statutory release and a preliminary hearing.

On June 3, 2020, the People filed an Affirmation in Opposition to the defendant's second CPL § 180.80 application.

On June 8, 2020, the defendant appeared in AP-1F on the felony complaint (Docket # CR-009164-20KN) and the same bail conditions were continued. The matter was adjourned to August 11, 2020 in Part AP-1F.

On June 25, 2020, the Hon. Michael Yavinsky issued a Decision and Order which denied the defendant's second CPL § 180.80 application finding good cause to extend 180.80 until such time as a Grand Jury could be empaneled.

On July 27, 2020, the defendant appeared virtually in IDV2 on Docket # 20009V-2020 and the TOPs were extended to the adjourn date of August 11, 2020.

On August 14, 2020, a Kings County Grand Jury voted a True Bill on the following 19 counts on Indictment #1044-2020:

The defendant was then remanded by the Court.

On August 20, 2020, the defendant appeared before the Hon. Laura Johnson in the Miscellaneous Motions Part. The defendant posted a partial security bond and was released and directed to appear virtually in Part IDV2 on September 24, 2020 for arraignment on Indictment # 1044-2020.

On September 24, 2020, the defendant appeared virtually, with Margaret McCarthy, Esq. of Brooklyn Defenders Services as counsel, and Docket # 20009V-2020 was consolidated into Indictment # 1044-2020. The defendant was arraigned on Indictment # 1044-2020 and pled not guilty. The Court directed the People to provide a copy of the Grand Jury minutes for "in camera" review and extended the TOP to the adjourn date of November 24, 2020.

On November 24, 2020, all parties and counsel appeared virtually on the Indictment and the CW's Family Offense Petition. The defendant consented to a Final Order of Protection in favor of the CW on the Family Offense Petition without a finding of fault (Docket # O-00108-20) which is in effect until November 23, 2022.

Additionally on November 24, 2020, the People served and filed a Certificate of Compliance (COC), Inventory of Discovery and a statement of readiness on the Indictment. The Court extended the TOP to the adjourn date of January 11, 2021.

On January 8, 2021, defendant's counsel sent a letter to the People, cc'd to the Court, detailing alleged deficiencies of the COC filed on November 24, 2020.

On January 11, 2021, all parties and counsel appeared virtually in IDV2. The Court reviewed the Grand Jury minutes, in camera, and issued a Decision and Order determining that the evidence was legally sufficient to establish the offenses and sustain [*6]the Indictment and found that the People had correctly charged the Grand Jury on the relevant law. The Court extended the criminal TOP and adjourned the case to April 7, 2021.

On April 2, 2021, the People filed a Supplemental Certificate of Compliance as well as a response to the letter from defense counsel of January 8, 2021 regarding alleged deficiencies in the People's November 24, 2020 COC.

On April 7, 2021, all parties and counsel appeared virtually in IDV2 and the Court extended the TOP and adjourned the case to May 26, 2021.

On April 15, 2021, this Court signed a Judicial Subpoena Duces Tecum, submitted by the defendant, for the CW's medical records from NYU Langone Medical Center.

On May 4, 2021, this Court signed a Judicial Subpoena Duces Tecum for the CW's medical records from NYC Health and Hospitals/Woodhull.

On May 19, 2021 the defendant filed this Notice of Motion seeking to dismiss the Indictment due to prosecutorial misconduct and to find that the People's COC is invalid.

On May 26, 2021, all parties and counsel appeared virtually in IDV2. The Court extended the TOP and adjourned the case to August 2, 2021 for the People to respond to the defendant's motion to dismiss and for a decision on the defendant's motion.

On June 17, 2021, this Court turned over a redacted copy of the CW's medical records from NYC Health and Hospitals/Woodhull to the People and to the defendant.

On June 23, 2021, the People filed an Affirmation in Opposition to the defendant's Notice of Motion as well as a third Supplemental COC which included the CW's Instagram and Facebook posts from April 13, 2019.

On June 27, 2021, the People filed a fourth Supplemental COC and an additional Inventory of Discovery.

The defendant now seeks to reargue and for the Court to reconsider its January 11, 2021 Decision and Order which found that the People's evidence submitted to the Grand Jury was legally sufficient to establish the offenses and that the People's instructions to the Grand Jury was proper to sustain Indictment # 1044-2020 and dismiss the Indictment due to prosecutorial misconduct pursuant to CPL §§ 210.30 and 210.35(5).

Before the Court considers the merits of the defendant's argument, the Court must determine if the defendant's motion is appropriate and timely pursuant to CPL §§ 255.20 and 210.30.

In their Memorandum of Law, the People contend that the defendant is time-barred from filing this pre-trial motion pursuant to CPL §255.20, which states:

1. Except as otherwise expressly provided by law, whether the defendant is represented by counsel or elects to proceed pro se, all pre-trial motions shall be served or filed within forty-five days after arraignment and before commencement of trial, or within such additional time as the court may fix upon application of the defendant made prior to entry of judgment. In an action in which either (a) material or information has been disclosed pursuant to paragraph (m) or (n) of subdivision one of section 245.20 of this title, (b) an eavesdropping warrant and application have been furnished pursuant to section 700.70 of [*7]this chapter, or (c) a notice of intention to introduce evidence has been served pursuant to section 710.30 of this chapter, such period shall be extended until forty-five days after the last date of such service. If the defendant is not represented by counsel and has requested an adjournment to obtain counsel or to have counsel assigned, such forty-five-day period shall commence on the date counsel initially appears on defendant's behalf.

2. All pre-trial motions, with supporting affidavits, affirmations, exhibits and memoranda of law, whenever practicable, shall be included within the same set of motion papers, and shall be made returnable on the same date, unless the defendant shows that it would be prejudicial to the defense were a single judge to consider all the pre-trial motions. Where one motion seeks to provide the basis for making another motion, it shall be deemed impracticable to include both motions in the same set of motion papers pursuant to this subdivision.

3. Notwithstanding the provisions of subdivisions one and two hereof, the court must entertain and decide on its merits, at any-time before the end of the trial, and appropriate pre-trial motion based upon grounds of which the defendant could not, with due diligence, have been previously aware, or which, for other good cause, could not reasonably have been raised within the period specified in subdivision one of this section or included within the single set of motion papers as required by subdivision two. Any other pre-trial motion made after the forty-five-day period may be summarily denied, but the court, in the interest of justice, and for good cause shown, may, in its discretion, at any time before sentence, entertain and dispose of the motion on the merits.

The People argue that since the defendant's Notice of Motion was filed on May 19, 2021, more than forty-five (45) days after the defendant's arraignment on September 24, 2020, it is time barred.

The defendant contends that pursuant to CPL §255.20(3) the Court "in the interest of justice, and for good cause shown, may, in its discretion, at any time before sentence, entertain and dispose of the motion on the merits" and should do so in this case. The defendant argues that this Court should consider this pre-trial motion timely based on the People's "deliberate withholding of exculpatory information from the grand jurors and refusal to call eyewitnesses to testify" in the Grand Jury.

The People acknowledge that the Court may consider the application regardless of its timeliness pursuant to the CPL §255.20(3) exception, but argue that even if the Court were to find that the motion was timely, there is no basis to grant renewal and reargument because there is no filed motion to renew or reargue. The People contend that in order to file a motion to dismiss an Indictment pursuant to CPL §210.30, a prerequisite to the filing of said motion is the filing of a motion for the Court to inspect the Grand Jury minutes, which was never filed.

Pursuant to CPL §210.30:

1. A motion to dismiss an Indictment or a count thereof pursuant to paragraph (b) of subdivision one of section 210.20 or a motion to reduce a count or counts of an Indictment pursuant to subdivision one-a of section 210.20 must be preceded or accompanied by a motion to inspect the grand jury minutes, as prescribed in subdivision two of this section.

2. A motion to inspect grand jury minutes is a motion by a defendant requesting an examination by the court and the defendant of the stenographic minutes of a grand jury proceeding resulting in an Indictment for the purpose of determining whether the evidence before the grand jury was legally sufficient to support the charges or a charge contained in such Indictment.

3. Unless good cause exists to deny the motion to inspect the grand jury minutes, the court must grant the motion. It must then proceed to examine the minutes and to determine the motion to dismiss or reduce the Indictment. If the court, after examining the minutes, finds that release of the minutes, or certain portions thereof, to the parties is necessary to assist the court in making its determination on the motion, it may release the minutes or such portions thereof to the parties. Provided, however, such release shall be limited to that grand jury testimony which is relevant to a determination of whether the evidence before the grand jury was legally sufficient to support a charge or charges contained in such Indictment. Prior to such release the district attorney shall be given an opportunity to present argument to the court that the release of the minutes, or any portion thereof, would not be in the public interest. For purposes of this section, the minutes shall include any materials submitted to the grand jury pursuant to subdivision eight of section 190.30 of this chapter.

The People contend that on September 24, 2020, the Court sua sponte requested that the People turn over the Grand Jury minutes and those minutes were provided to the Court via e-mail on December 2, 2020. The People maintain that no motion to inspect the Grand Jury minutes was ever filed by the defendant. The People contend that the relevant portion of the Grand Jury minutes were provided to the defendant on November 24, 2020.

The defendant contends that the Court "has the discretion to grant a motion to reargue and reconsider its earlier ruling finding the grand jury minutes legally sufficient" citing People v. Harrington, (193 AD2d 756, [2d Dept. 1993]), People v. DeFreitas, 48 Misc 3d 569, 571 (NY Crim. Ct. 2015) and People v. Schuler, 23 Misc 3d 1137(A) (Kings Crim. Ct. 2009).

In People v. Harringtion (supra), the Appellate Division, Second Department held that the lower Court had the inherent power to grant reargument where the People attempted to argue new points after losing on the merits. The People contend that in order to move to renew and reargue this Court's January 11, 2021 Decision and Order regarding the sufficiency of the Grand Jury minutes in this case, the defendant is required to have made a timely motion for the Court inspect the minutes pursuant to CPL §210.30 in the first place. The People argue that since the defendant never made a timely, formal motion to dismiss, the defendant cannot now move to renew and reargue a motion that never existed.

In the case at bar, no prior motion was filed by the defendant and as such there is no basis for the court to grant a motion to reargue and renew.

However, the defendant contends that regardless of the timeliness of the motion or the fact that no prior motion was made to inspect the Grand Jury minutes, the Court should consider the motion since the Court has the "inherent power to correct its own mistakes" (People v. Defreitas (supra) and People v. Schuler (supra)).

Even if this Court were to ignore the procedural defects of defendant's instant motion outlined above, the Court adheres to its original ruling that the evidence presented to the Grand Jury was legally sufficient to establish the offenses charged and sustain the [*8]Indictment and the instruction on the law was proper.

In the Affirmation in Support of the Notice of Motion, the defendant contends that on August 13, 2020 his attorneys sent a letter to the Grand Jury, specifically requesting that they call witnesses to testify, and the Grand Jury be permitted to inspect the CW's and defendant's Facebook posts for the date of the alleged sexual assault. The defendant argues that ADA Fitton informed his attorney that on August 17, 2020 she would be available to escort the two (2) available defense witnesses to the Grand Jury. The People contend that the Grand Jury stated that they did not want to hear from the two (2) witnesses, and thus they were not produced to the Grand Jury.

The defendant argues that he was only provided with a copy of the CW's testimony before the Grand Jury, and in those minutes, there is no mention that the two (2) defense witnesses proffered to testify were presented to the Grand Jury nor of the Facebook posts made at the time of the alleged incident.

In their Affirmation in Opposition to the defendant's Notice of Motion, the People contend that on August 17, 2020, the People did in fact ask the Grand Jury if they wanted to hear testimony from the defendant's two (2) witnesses which can be read in the minutes from August 17, 2020 (pages 3-7):

MS. FITTON: My name is Lauren Fitton. And I'm an assistant district attorney in Kings County. Here with me for the purposes of observation and assistance is Assistant District Attorney Mark Pagliuco: I have previously presented the case to you entitled: The People of the State of New York versus Juan Cruz Garcia. Grand Jury number 1044 of 2020. You have already voted to indict 19 counts of Rape and other related charges for this case. Is there a request that I marshal the evidence in this case?

JURORS: Yes.

MS. FITTON: Let the record reflect that there is a request to marshal the evidence. Before I marshal the evidence, please remember that nothing I say constitutes evidence or has any probative value. You must rely upon your own recollection of the evidence because it is your recollection, not mine, that controls. That being said, it is my recollection that on August 12th, 2020 you heard testimony from [T.C.], who testified to the effect that on April 13th, 2019 the defendant came home earlier in the morning and accused the complainant of cheating on him, and the defendant's sister had to intervene — I see some heads nodding. Is everyone's recollection refreshed?

JURORS: Yes.

MS. FITTON: Let the record so reflect that it is. I'm here today because the defendant is requesting that you hear the testimony of his sister and brother-in-law. I anticipate that the defendant's sister would testify to her observations on April 13th, 2019. And I anticipate the brother-in-law to testify to his observations on April 13th, 2019 and October 6th, 2019. It is your discretion whether or not you want to hear testimony from the defendant's sister or brother-in-law, or both. You must vote by 12 or more to hear testimony for each witness. Me, Assistant District Attorney Pagliuco, and the Court Reporter will now leave the room for you to vote. Once you have made a decision, we'll return, and your foreperson will announce for the record the action taken by the Grand Jury.

(Whereupon, the Assistant District Attorneys and the Court Reporter exited the Grand Jury room.)

(Whereupon, the Assistant District Attorneys and the Court Reporter entered the Grand Jury room.)

FOREPERSON: Assistant district attorney, before we make the vote, we have some jurors that want to ask you a question.

MS. FITTON: Okay.

JUROR: Yeah. We wanted know, we are unclear if we vote to hear their testimonies, do we revote on the charges that we have already indicted on?

MS. FITTON: Yes.

JUROR: Thank you.

MS. FITTON: Any other questions?

JURORS: (No verbal response.)

MS. FITTON: Let the record reflect that there are no more questions. The Court Reporter, I and Assistant District Attorney Mark Pagliuco, will now leave the room.

(Whereupon, the Assistant District Attorneys and the Court Reporter exited the Grand Jury room.)

(Whereupon, the Assistant District Attorneys and the Court Reporter exited the Grand Jury room.)

MS. FITTON: Madam Foreperson, has the jury reached a determination?

FOREPERSON: Yes, we have.

MS. FITTON: And what is that?

FOREPERSON: No.

MS. FITTON: You do not want to hear from the witnesses?

FOREPERSON: No, we do not.

MS. FITTON: And you voted by 12 or more to not hear from either witness?

FOREPERSON: Yes, we have.

MS. FITTON: Thank you. The case is closed.

Here, the People clearly presented the Grand Jury with the opportunity to hear testimony from the two (2) defendant's witnesses and voted not to hear from them. As such, the Court finds no prosecutorial misconduct as to that allegation.

Furthermore, the defendant contends that the People were selective in the evidence presented to the Grand Jury in that they failed to inform the Grand Jury of certain exculpatory evidence: the CW and defendant's Facebook posts from the night of the alleged assault and information relating to the CW's psychiatric history. Furthermore, the defendant contends that the People selectively presented evidence to the Grand Jury and that these errors by the prosecution render the Grand Jury procedure defective and impair the integrity of the proceeding.

The defendant contends that since the People did not present any of the exonerating witnesses or information to the Grand Jury, dismissal is warranted pursuant to CPL §210.35(5).

The People contend that they did not introduce the defendant's or CW's Facebook posts or CW's alleged psychiatric history to the Grand Jury because they are not Brady [*9]material and the defendant makes no colorable argument as to how these posts are exculpatory.

In the context of Grand Jury procedure, the Court of Appeals held in People v. Gordon, (88 NY2d 92, 95—96 [1996]) that "legally sufficient evidence means proof of a prima facie case, not proof beyond a reasonable doubt (see, People v Mayo, 36 NY2d 1002, 1004 [1975]; People v Haney, 30 NY2d 328, 335-336 [1972]; see also, CPL 70.10). Evidence that is legally sufficient to establish a prima facie case in the Grand Jury may nevertheless be inadequate to prove guilt beyond a reasonable doubt at trial. A court reviewing the legal sufficiency of evidence presented to the grand jury must determine whether that evidence, when viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury (see People v. Jensen, 86 NY2d 248, 251 [1995]; People v. Jennings, 69 NY2d 103, 114 [1986])."

"The People maintain broad discretion in presenting their case to the Grand Jury and need not seek [out] evidence favorable to the defendant or present all of their evidence tending to exculpate the accused" (People v. Mitchell, 82 NY2d 509, 515 [1993]; People v. Lancaster, 69 NY2d 20, 26 [1986], cert. denied 480 U.S. 922, 107 S.Ct. 1383 [1987]; People v. Kaba, 177 AD2d 506, 508 [2d Dept. 1991]).

Moreover, "[i]n the ordinary case, it is the defendant who, through the exercise of his own right to testify and have others called to testify on his behalf before the Grand Jury (CPL 190.50[5], [6]) brings exculpatory evidence [before] the Grand Jury" (People v. Lancaster, supra, 69 NY2d at 26). Furthermore, the Court of Appeals has observed that not every complete defense suggested by the evidence need be charged to the Grand Jury. The test is the potential of the defense in question to eliminate a "needless or unfounded prosecution" (People v. Lancaster, supra at 27).

In the case at bar, the People were not required to accept the defendant's representations concerning the alleged exculpatory evidence at face value and to present it to the Grand Jury without inquiring into its veracity. Upon conducting their investigation and upon concluding that the defendant's representations could not be confirmed, the People permissibly exercised their "broad discretion" by declining to present the evidence to the Grand Jury (People v. Ramjit, 203 AD2d 488, 489[2d Dept. 1994]).

Thus, this Court adheres to its prior ruling that the evidence presented to the Grand Jury, viewed in the light most favorable to the People, was legally sufficient to support each count of the Indictment. As such, that portion of the defendant's motion seeking to dismiss the Indictment due to prosecutorial misconduct in the grand jury, rendering the Indictment defective pursuant to Criminal Procedure Law (CPL) §§ 210.30 and 210.35(5) is hereby denied without a hearing.

CPL § 245.20, effective January 1, 2020 (amended on May 3, 2020), requires the People to disclose twenty-one (21) categories of discoverable material to the defendant "as soon as practicable" but not later than a fixed period of time. CPL § 245.20 (1)(k), and provides in pertinent part:

"Information under [CPL § 245.20 (1)(k)] shall be disclosed whether or not such information is recorded in tangible form and irrespective of whether the prosecutor credits the information. The prosecutor shall disclose the information expeditiously upon its receipt and shall not delay disclosure if it is obtained earlier than the time period for disclosure in subdivision one of section 245.10 of this article"

However, the court must determine what evidence is "relate[d] to the subject matter of the case" (CPL § 245.20(1)). "The Court of Appeals has held that evidence is relevant 'if it has any tendency in reason to prove the existence of any material fact, i.e., it makes determination of the action more probable or less probable than it would be without the evidence." (People v. Askin, 68 Misc 3d 372, 379 (Nassau Co. Ct. 2020).

The sole "condition precedent to the prosecutor's ability to file a [COC] is the discovery of all material considered [a]utomatic [d]iscovery" (People v. Napolitano, 67 Misc 3d 1241(A) [Sup Ct, New York County 2020]).

CPL § 245.20 (2) provides, in relevant part:

Duties of the Prosecutor:

"The prosecutor shall make a diligent, good faith effort to ascertain the existence of material or information discoverable under subdivision one of this section 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; provided that the prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain. For purposes of subdivision one of this section, 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."

Any assessment of a prosecutor's due diligence with discovery compliance must be considered in conjunction with the provisos contained within CPL § 245.55 (1) and (2) including whether the People made good faith efforts to provide evidence, including impeachment material, relevant to the defendant's case (People v. Rosario, 70 Misc 3d 753, 756 [County Ct, Albany County 2020]).

CPL § 245.55 (1) provides in relevant part:

"The district attorney and the assistant responsible for the case shall endeavor to ensure that a flow of information is maintained between the police and other investigative personnel and his or her office sufficient to place within his or her possession or control all material and information pertinent to the defendant and the offense or offenses charged, including, but not limited to, any evidence or information discoverable under paragraph (k) of subdivision one of section 245.20 of this article."

Furthermore, CPL § 245.50 now requires the People to state their readiness for trial, in writing, by serving and filing a COC which:

"shall 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. It shall also identify the items provided" (CPL § 245.50 [1])

The sole "condition precedent to the prosecutor's ability to file a [COC] is the discovery of all material considered [a]utomatic [d]iscovery" (People v. Napolitano, [*10]supra). The filing of a certificate of compliance with discovery is a prerequisite to asserting trial readiness under CPL § 30.30 (see CPL § 245.50 [3]).

Since CPL § 245.50 became effective on January 1, 2020 (amended on May 3, 2020), the New York Trial Courts have taken divergent approaches on the novel issue of a defendant's challenge to the validity of a COC. While no Appellate Court has ruled on this issue, it is clear that the New York Trial Courts are determining this issue on a case-by-case basis depending on the facts of each case.

In People v. Nelson (67 Misc 3d 313, 317—18 [County Ct, Franklin County 2020]) the People had filed a COC on January 13, 2020, but admitted to the Court a few weeks later, on January 27, 2020, that there was outstanding discovery that had not been provided to the defendant; specifically New York State Police radio logs. The defendant then moved to strike the People's COC as illusory based upon the People's admission that the COC was filed prior to "all known" discovery being produced.

The Nelson Court held that:

"Criminal Procedure Law §§ 245.30, 245.35, 245.55, and 245.60 all contemplate disclosure of materials and evidence after the filing of the initial certificate of compliance and certificate of readiness. Therefore, delayed disclosure does not, alone, require the striking of a certificate of readiness, especially where the defense has not alleged any prejudice. Even if prejudice is proven, the Court has other, less extreme, remedies available, such as giving the defense additional time respond to the new material (see CPL § 245.80). The Court considers the striking of a certificate of readiness to be a drastic remedy which should be used both sparingly and judiciously."

Furthermore, in People v. Askin (supra), the People filed a COC on February 5, 2020, and then filed two subsequent COC's as new discovery, specifically an additional curriculum vitae and medical records, became available. The defendant filed a motion to strike the People's first COC, filed on February 5, 2020 as illusory since two (2) subsequent COC's were filed resulting in a "presumptive admission that [the People] failed" at their discovery obligations under the new statute.

The Askin Court held that:

"Based on the above, the court has carefully evaluated each document provided to defense subsequent to the People's initial certificate of compliance and statement of readiness to determine if the initial certificate of compliance was filed in "good faith" and reasonable under the circumstances. Regarding the subsequent filing of curriculum vitae, the court finds that such documents are 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. Although the People may be legally required to obtain same (depending on the nature of the charges), they 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."

In People v. Pealo (71 Misc 3d 337 [Just Ct., Monroe County 2021], the People [*11]filed a COC on March 25, 2020 and alerted defense counsel as to the existence of outstanding 911 recordings which were not yet in the People's possession. The People then filed two supplemental COCs on April 15, 2020 and November 2, 2020. The defendant filed a motion to strike the original COC as untimely because the 911 recordings were known and not provided at the time the first COC was filed.

The Pealo Court held that:

"[..] [T]he 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 twenty 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. 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.

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."

In the case at bar, the defendant has included a list of items in the Notice of Motion which he contends are required to be provided by the People pursuant to CPL §245. The defendant argues that the People failed to provide these items prior to filing their November 24, 2020 and April 2, 2021 COCs and thus the Court should deem these COCs and Statements of Readiness as invalid.

In their Affirmation in Opposition to the defendant's Notice of Motion, the People have addressed each of these items individually. The People have given a detailed explanation of their efforts to locate these items and have clearly indicated to the Court which items were provided to the defense, when the missing items will be provided to the defense and which items, if any, were deemed not discoverable.

The defendant contends that during the April 7, 2021 court appearance in IDV2, the parties argued before the Court as to the remaining outstanding items of discovery sought by the defendant. The defendant argues, without submitting a copy of the April 7, [*12]2021 transcript, that the Court directed the People to supply the defense with the CW's Facebook and Instagram posts from April 13, 2019.

The defendant contends that this information is necessary and required to be provided by the People because the CW has made public posts about domestic violence awareness and alleged domestic violence in her relationship with the defendant.

The People contend that they provided copies of the CW's Facebook and Instagram posts as part of their June 23, 2021 Supplemental COC. They argue that they were not in possession of these posts at the time they filed their November 24, 2020 and April 2, 2021 COCs as they did not deem them relevant to the case. Furthermore, the People contend that defendant is seeking this information as part of a "fishing expedition" because the CW allegedly posted about domestic violence awareness in the past.

Here, the defendant alleges that on April 7, 2021 the Court directed the People to turn over the CW's Facebook and Instagram posts from April 13, 2019, but does not attach a copy of the transcript from the April 7, 2021 appearance. Nonetheless, the People did provide copies of the requested material as part of their June 23, 2021 Supplemental COC. Without determining the relevance of this material, the court finds that the CW's Facebook and Instagram posts from April 13, 2019 were not within the control of the People at the time of the filing of the initial COC, and that providing this material to defense, as part of a Supplemental COC, upon receipt of said material does not negate the People's initial COC with discovery and statement of readiness for trial.

The defendant contends that the People provided a list of the CW's medical conditions, but that this list is inadequate to meet the People's Brady obligation as to their knowledge of the CW's mental health. The defendant argues that the CW lied to the Court on February 6, 2020 as to how far along in her pregnancy she was and that she also made false claims in Family Court in 2020. The defendant acknowledges that the Court signed a subpoena for the CW's medical providers known to the People and that the People provided a redacted copy of the CW's medical records from October 6, 2019 to June 3, 2020. The defendant claims he does not know who is prescribing the CW's psychiatric medication, if any, and where the CW has received inpatient psychiatric treatment. Further, the defendant contends that the People should not have redacted the CW's medical records, as they did not seek a protective order, and no information from April 13, 2019 was provided.

The People contend that the CW has indicated to them that she has never been on any psychiatric medication and thus the People have no information to provide the defendant. Furthermore, the People argue that they provided the defendant with a list of the CW's medical and psychiatric history, including that she attempted suicide and was diagnosed with depression in 2013, mood disorder in 2014, post traumatic disorder in 2017, and polycystic ovarian syndrome in 2018. However, the People contend that the CW's complete psychiatric history is not Brady material because it is not material to the question of the defendant's guilt in this case. The People argue that providing this list, a [*13]redacted copy of the CW's medical records from October 6, 2019 to June 3, 2020, satisfies their burden and provides the defense with sufficient information to prepare an adequate defense.

Furthermore, the People contend that CPL §245 does not require the People to seek a protective order to redact any information that is not relevant to the subject matter of the case and is personal and confidential. The People argue that they redacted the CW's immunizations, past medical history, active diagnoses, unrelated medical procedures, family history, current outpatient medications and unrelated subsequent doctor's visits. The People argue that they redacted this information in good faith as it fell outside the subject matter of the case.

The People contend that the CW has never been on any psychiatric medication and thus have no discovery to provide on that issue. Further, the CW's psychiatric records, which were clearly out of the control of the People and are not directly related to the case at bar, were provided to the defendant albeit with redactions.

The Court holds that "[CPL] Article 245 does not require the People to seek a protective order to redact information that is not discoverable (See People v Gonzalez 68 Misc 3d 1213(A) [Sup. Co. Kings Ct. 2020].

The defendant alleges, without providing any evidence, that the Court directed the People to provide the CW's phone location data from April 13, 2019. The defendant is also seeking production of the cell phone used by the CW between March and October 2019 to be sent for forensic imaging. If the Court does not require the production of this information by the People, the defendant is seeking text messages to and from the CW including, but not limited to, October 5-6 of 2019 and April 12-13 of 2019, which includes the relevant time periods for the two incidents charged in the Indictment.

The People contend that they inquired of the CW whether she had the same phone from April 13, 2019 and she indicated that she did not. As such, the People argue that they are not in possession of the phone in question, and in turn the text messages on said phone, and thus will not be able to provide same to the defendant.

Here, the defendant did not provide the transcript of the April 7, 2021 court conference where the Court allegedly ordered the People to provide the CW's phone geolocation. However, given the fact that the CW is no longer in possession of the phone in question, it appears the People will not be able to provide this information to the defendant and that this material fits under the "lost or destroyed" exception to CPL §245.50(1) outlined in CPL § 245.80(1)(b).

The defendant further requests the names, work location, and whether the prosecution intends to call as witnesses the two officers from the 72nd precinct, car 72D, who responded to the CW's first 911 call on October 6, 2019. Furthermore, the defendant seeks any and all body worn camera footage, dash camera footage and memo book entries from the two unnamed officers in car 72D on October 6, 2019 as well as the contact [*14]information for witness David Perez.

As part of their Supplemental COC filed on June 23, 2021, the People provided the names of additional officers and potential witnesses: Roman Rashevskiy and Peter Ciappa, Officer Rashevskiy's memobook from October 6, 2019 as well as a 72nd Precinct Discovery e-mail. As part of their Supplemental COC filed on June 27, 2021, the People provided Officer Ciappa's memobook.

The People argue that they exercised diligent, good faith efforts to locate the information sought by the defense and that this information was requested of the NYPD on November 23, 2020, March 29, 2021 and April 6, 2021. They contend that they have now provided the defendant with everything they have received from the NYPD in their June 23, 2021 and June 27, 2021 Supplemental COCs and that no body camera or dashboard camera footage exists from October 6, 2019.

Furthermore, the People contend that they do not have any contact information for the named alleged assailants Andy Sosa, Noe Contreras and David Perez.

This court finds that the People's effort with respect to these items, including calling numerous relevant officers and medical providers, discussing the existence of such material with them, and either confirming its non-existence or attempting to locate it, amounted to due diligence pursuant to CPL § 245.20(1) with respect to these alleged items (See People v. Alvarez, 71 Misc 3d 1206(A) [Queens Co. Sup. Ct. 2021]).

The defendant requests the 911 calls, NYPD radio transmissions, any and all dashboard and body camera footage and records pertaining to the July 21, 2018 and March 13, 2019 incidents. The defendant contends that the detective investigating this case deemed them relevant and argues that it is not the defendant's burden to prove the relevance of a 911 domestic violence call made from a CW's phone in a case where repeated acts of domestic violence are alleged.

The People contend that these incidents were captured by the NYPD's Domain Awareness System (DAS) using the CW's phone number which resulted in information that 911 calls were placed by this number on those dates. However, the People argue that the defendant is "purely speculating" in stating that the detective investigating this case found these dates relevant. The People contend that each of these incidents resulted in either an unfounded report or no criminal complaint made. Furthermore, the People contend that these incidents are unrelated to the defendant's current criminal case and as such the People did not preserve either 911 call. They argue that because they did not preserve these calls, these 911 calls no longer exist as the NYPD deletes them after one (1) year.

Regarding the Domain Awareness System (DAS) records, the lower courts have held that DAS records of prior incidents where the CW has called the police are not related to the subject matter of the case and rejected the argument that this material goes towards the CW's credibility (People v. Jeffrey Jones, Ind. 3750/2019 (J. Ward, NY Co Sup Ct. 6/9/20); People v. Gregory Gill, Ind 5410/2019 (J. Rodriguez Kings Co. Sup Ct [*15]11/24/20); People v. Kendra Perry, Ind 8700/2018 (J. Hecht, Kings Co. Sup Ct. 2020). As such, this Court holds that the People are not obligated to provide discovery relating to these two (2) incidents regardless of their existence or availability.

The defendant contends that the People's COC lists Giglio information about law enforcement officers that are incomplete and not in full compliance with the law. The defendant argues that the People failed to provide adequate impeachment materials for testifying prosecution witnesses in the form of only a one-page summary for each officer containing vague language regarding allegations of misconduct.

The People contend that they have satisfied their automatic discovery obligations by providing the defendant disclosure letters listing all pending and substantiated complaints against testifying police officer witnesses.

CPL 245.20 (1) (k) (iv) provides, as relevant here, that the People must disclose to the defense '[a]ll evidence and information, including that which is known to police or other law enforcement agencies acting on the government's behalf in the case, that tends to . . . impeach the credibility of a testifying prosecution witness.' As with all of the other automatic discovery provisions, the People are only required to produce information that is in their "possession, custody or control," or the possession, custody or control of other entities under the People's "direction or control" (CPL 245.20 [1]). (People v. Lustig, 68 Misc 3d 234, 241—42 (Queens Co. Sup. Ct. 2020).

In the case at bar, the Court holds that the Giglio disclosure letters provided by the People are adequate and satisfies the People's automatic initial discovery burden by providing all substantiated and pending complaints against testifying police officers. Anything further than this would be beyond the People's requirement to make a "diligent, good faith effort" (Id).

In the case at bar, the People filed their November 24, 2020 COC in good faith, providing the defendant with all "known" material at the time of the filing of the COC. The People's November 24, 2020, April 2, 2021, June 23, 2021 and June 27, 2021 subsequent COCs are all valid although the People identified pieces of outstanding discovery that needed to be provided to the defendant after the initial COC was filed. As outlined above, the outstanding existing relevant discovery was out of the People's control at the time the first COC was filed, and/or good faith efforts were made by the People to ensure that the defendant received those relevant items when they became available.

For the foregoing reasons, this Court hereby denies defendant's motion to dismiss the Indictment due to prosecutorial misconduct in the Grand Jury proceedings and to strike the People's COCs served and filed in this matter without a hearing.

This constitutes the Decision and Order of the Court.