Justice Court of the Town of Webster, Monroe County, January 13, 2022

Jill Paperno, Acting Public Defender (Tracey Sullivan of counsel), for defendant.

Sandra J. Doorley, District Attorney (Jacqueline Moyer of counsel), for plaintiff.

The defendant was charged with operating a motor vehicle impaired by drugs (Vehicle and Traffic Law § 1192 [4]), criminal possession of a controlled substance, seventh degree (Penal Law § 220.03), unsafe lane change (Vehicle and Traffic Law § 1128 [a]) and driving on the shoulder (Vehicle and Traffic Law § 1131) on February 18, 2020. The original return date was March 4, 2020. The arraignment did not take place on that date, because the defendant failed to appear. A criminal summons was issued for March 18, 2020. However, the court was shut down due to the COVID-19 pandemic from March 17, 2020, through July 27, 2020, i.e. 136 days. The court was forced to adjourn pending cases to future dates. The case was adjourned to August 5, 2020. However, the defendant failed to appear on that date. This case was adjourned to September 2, 2020, at which time the defendant was arraigned. The case was then adjourned to October 21, 2020, for further disposition. It was further adjourned to December 6, 2020. All of these adjournments were at the request of the defendant. The court was again shut down because of the pandemic from December 9, 2020, through March 1, 2021, i.e. 81 days. Again after the pandemic forced court shut down the court began to reschedule its outstanding cases. This matter was adjourned to April 21, 2021. The defendant failed to appear, so the court issued a criminal summons for June 2, 2021, at which time the case was adjourned at the request of the defendant to conduct probable cause and Huntley hearings as requested by defense counsel's omnibus motions. Those hearings were scheduled for{**74 Misc 3d at 561} July 16, 2021, but said hearings were rescheduled to July 30, 2021, again presumably at the request of the defendant. However, the hearings did not take place on that date, because the trooper was out of town. The court adjourned the case to September 10, 2021, over the objection of defense counsel. The hearings were again adjourned this time at the request of defense counsel to September 21, 2021. [*2]Upon the conclusion of the hearings on that date the court denied defense counsel's motion to suppress both the stop of the defendant's vehicle and any statements made by the defendant. It was at that time that the case was adjourned to January 13, 2022, for a jury trial. It is uncontroverted that the People filed a certificate of compliance (C of C) on September 28, 2020. It is further beyond dispute that the People filed a supplemental C of C on November 13, 2020, September 27, 2021, and January 6, 2022.

The defendant has filed motions with the court requesting that the case be dismissed, essentially on the eve of trial, on two grounds. First the defense alleges that the original C of C and supplemental certificates of compliance are invalid. Second, the defense alleges that the People were not ready for trial, within the statutory time frame required by CPL 30.30 (1) (b), i.e. 90 days. The People have submitted a cross motion and responding affirmation. Finally the defense has submitted a reply affirmation.

Speedy Trial

The court will first address the issue of readiness for trial within the context of CPL 30.30 (1) (b). In breaking down the various periods between adjournments and court appearances the court does not charge any of the time from the commencement of the action on February 18, 2020, through the date of arraignment on September 2, 2020. The time between those two dates was either at the request of the defendant (CPL 30.30 [4] [b]); or due to "exceptional circumstances" (CPL 30.30 [4] [g]), namely, the pandemic, which would include the rescheduling of cases at the end of the COVID-19 pandemic shut down. None of the time from the date of the arraignment on September 2, 2020, through July 30, 2021, can be charged to the People. Adjournments during that time frame were at the request of the defense (CPL 30.30 [4] [b]); or due to "exceptional circumstances" (CPL 30.30 [4] [g]), namely, the second pandemic court shut down and the failure of the defendant to appear after having been released on his own recognizance (CPL 30.30{**74 Misc 3d at 562} [4] [c] [ii]). At most the time from July 30, 2021, through September 10, 2021, i.e. 42 days, when the probable cause and Huntley hearings were adjourned due to the unavailability of the police officer through the date of the hearings, could arguably be charged to the People. However most of the time during that period was due to the unavailability of open dates in the court's schedule. (See People v Gates, 70 AD2d 734 [3d Dept 1979].) Furthermore, the lack of availability of court dates can be blamed for the length of time between September 10, 2021, and the date of trial, to wit: January 13, 2022. Notwithstanding the question as to their validity, the C of C and statement of readiness for trial filed by the People on September 28, 2020, as well as the supplemental certificates of compliance and statements of readiness on November 13, 2020, and September 27, 2021, were within the 90 day window required by CPL 30.30 (1) (b) based on the above calculations. However,

"[the] filing of the certificate of compliance pursuant to CPL 30.30 (5) could not be deemed complete until all of the material and information identified in the certificate as subject to discovery and electronically shared with the defendant was actually produced to the defendant, pursuant to CPL 245.50 (1) and (3) (see People v Aquino, 72 Misc 3d 518, 523 [2021])." (People ex rel. Ferro v Brann, 197 AD3d 787, 788 [2021].)

As further set out herein, that was not the case.

Validity of the Certificate of Compliance

CPL 245.50 (1) sets out the duties of the [*3]prosecutor relative to a certificate of compliance in pertinent part as follows:

"When the prosecution has provided the discovery required by subdivision one of section 245.20 of this article, except for discovery that is lost or destroyed as provided by paragraph (b) of subdivision one of section 245.80 of this article and except for any items or information that are the subject of an order pursuant to section 245.70 of this article, it shall serve upon the defendant and file with the court a certificate of compliance. The certificate of compliance 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{**74 Misc 3d at 563} the items provided. If additional discovery is subsequently provided prior to trial pursuant to section 245.60 of this article, a supplemental certificate shall be served upon the defendant and filed with the court identifying the additional material and information provided."

Defense counsel argues that the C of C dated September 28, 2020, and the supplemental C of C dated November 13, 2020, and September 27, 2021, are invalid and should be stricken for three reasons. First, the prosecution failed to provide a "NYSP Lab Discovery File updated 11/13/20" and a lab report. Second, the prosecution did not turn over Deputy Derik Plaisted's drug recognition expert (DRE) rolling log until September 27, 2021. Third, the People failed to provide a Brady/Giglio letter related to a disciplinary action taken against Trooper Jacob Wackowski, who was the arresting officer, until January 6, 2022.

The lab report was provided to the defense on November 13, 2020, more than a year before the scheduled date of trial. No indication is provided as to the actual significance of the lab report to the defendant's case. The only argument is that it was not provided prior to the C of C dated September 28, 2020. The DRE logs were in the possession of the retired deputy and were not turned over to the defense until September 27, 2021. Again, they were provided well in advance of trial. There is no indication as to the specific prejudice done to the defendant's case as a result of said delay. Nor was there any indication that the providing of said logs was intentionally withheld from the defense. Finally, the Brady/Giglio letter for Trooper Wackowski involved a censure for rear-ending his police vehicle into the car of a suspect he was chasing. This would seem to have no relevance to the case at hand.

It should be noted that CPL 245.50 (1) also states that "[n]o 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; but the court may grant a remedy or sanction for a discovery violation as provided in section 245.80 of this article." It does not appear to this court that there was any lack of good faith or that the People acted unreasonably. This court continues to agree with the principle "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 Pealo, 71 Misc 3d {**74 Misc 3d at 564}337, 345 [Penfield Just Ct 2021, Mulley, J.]; see also People v Kraten, 73 Misc 3d 1229[A], 2021 NY Slip Op 51147[U], *4 [Webster Just Ct 2021, DiSalvo, J.].)

In lieu of declaring a certificate of compliance invalid CPL 245.80 (1) (a) states

"[w]hen material or information is discoverable under this article but is disclosed belatedly, the court shall impose an appropriate remedy or sanction if the party entitled to disclosure shows that it was prejudiced. Regardless of a showing of prejudice the party entitled to disclosure shall be given reasonable time to prepare and respond to the new material."

In this case the defense has failed to disclose how it was prejudiced by the belated disclosure of the lab report, the rolling log or the Brady/Giglio letter.

However, the reply affirmation of the defense argues that CPL 245.50 (3) is the controlling statute. That statute states as follows:

"Notwithstanding the provisions of any other law, absent an individualized finding of special circumstances in the instant case by the court before which the charge is pending, the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper certificate pursuant to subdivision one of this section. A court may deem the prosecution ready for trial pursuant to section 30.30 of this chapter where information that might be considered discoverable under this article cannot be disclosed because it has been lost, destroyed, or otherwise unavailable as provided by paragraph (b) of subdivision one of section 245.80 of this article, despite diligent and good faith efforts, reasonable under the circumstances. Provided, however, that the court may grant a remedy or sanction for a discovery violation as provided by section 245.80 of this article."

The key phrase in said statute is "[n]otwithstanding the provisions of any other law." That would mean that despite the seemingly less drastic options provided by CPL 245.80, a trial judge cannot exercise the discretion of imposing an appropriate remedy unless there is a finding of "special circumstances." That phrase is not defined. It must be determined on a case by case basis. Nevertheless, none of the facts herein set out{**74 Misc 3d at 565} anything that could be considered special circumstances. The lab report was dated July 17, 2020, but was not turned over until November 13, 2020. There was no explanation as to the reason for the delay. The same lack of special circumstances applies to the DRE rolling logs. The fact that they were in the possession of a retired deputy does not explain why they were not sought out and provided to the defense until September 27, 2021. CPL 245.20 (2) states in pertinent part "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." Lastly, the same reasoning applies to the Brady/Giglio letter which was dated October 20, 2020, but was not provided to the defense until January 6, 2022. To review, the relevant certificates of compliance and statements of readiness were filed on September 28, 2020, November 13, 2020, and September 27, 2021. Pursuant to CPL 245.10 (1) (a) (ii) the People had 35 days from the arraignment on September 2, 2020, to complete their discovery obligation.^[FN*] As indicated [*5]above the People failed to fulfill that obligation. Given the stringent requirements of CPL 245.50 (3) the said certificates of compliance were invalid.

The motion to declare the September 28, 2020, November 13, 2020, and September 27, 2021 certificates of compliance invalid is hereby granted. The motion to dismiss the accusatory instruments herein based on a failure to declare readiness for trial during the time frame required by CPL 30.30 (1) (b) is hereby granted.