Supreme Court, New York County, March 17, 2022

Neighborhood Defender Service of Harlem (Avinash Samarth and Jane Merrill of counsel) for defendant.

Alvin Bragg, District Attorney (Elizabeth Kuehn of counsel), for plaintiff.

Charged with multiple felony counts of criminal possession of a weapon and of a forged instrument, defendant moves to dismiss on the ground that his statutory right to a speedy trial has been violated. When a defendant is accused of one or more offenses, at least one of which is a felony, the People must be ready for trial within six months of the commencement of the criminal action (see CPL 30.30 [1] [a]), minus any excludable periods (see CPL 30.30 [4]; People v Cortes, 80 NY2d 201, 208 [1992]).^[FN1] Here, where the criminal action commenced on January 28, 2021, the applicable six-month period is 181 days.

On March 20, 2020, CPL 30.30 was tolled by executive order of the Governor (see Executive Order [A. Cuomo] No. 202.8 [9{**74 Misc 3d at 1150} NYCRR 8.202.8]; see also Executive Law § 29-a [1]). This CPL 30.30 suspension remained in effect through a series of extensions (see Executive Order [A. Cuomo] Nos. 202.14 [9 NYCRR 8.202.14], 202.28 [9 NYCRR 8.202.28], 202.38 [9 NYCRR 8.202.38], 202.48 [9 NYCRR 8.202.48], 202.60 [9 NYCRR 8.202.60]) through October 19, 2020 (see Executive Order [A. Cuomo] No. 202.67 [9 NYCRR 8.202.67]). On that date, the suspension was lifted for indicted felony matters but remained in effect in the City of New York for "all criminal actions proceeding on the basis of a felony complaint," until it was due to "no [*2]longer be effective" on January 2, 2021 (id.). On December 30, 2020, however, the Governor issued another executive order, without expiration date, suspending CPL 30.30 "to the extent necessary to toll any time periods contained therein for the period during which the criminal action is proceeding on the basis of a felony complaint through arraignment on the indictment or on a superior court information and thereafter shall not be tolled" (Executive Order [A. Cuomo] No. 202.87 [9 NYCRR 8.202.87]). That suspension remained in effect until it was rescinded effective May 24, 2021 (see Executive Order [A. Cuomo] No. 202.106 [9 NYCRR 8.202.106]).^[FN2]

[1] Following defendant's January 28, 2021 arraignment on a felony complaint, the criminal action proceeded until he was arraigned on the indictment on November 24, 2021. Thus, pursuant to the executive order, no includable CPL 30.30 time accrued from January 28, 2021, until the suspension was rescinded on May 24. Defendant contends, however, that because he could have been indicted sooner, the executive order's tolling provision should not apply to him. The plain terms of the order, however, admit of no such exception.

Citing "internal records" from his attorney's office reflecting that indictments were returned in unrelated cases during this time period, defendant reads "to the extent necessary to toll any time periods" to mean that the statute was to be suspended up through arraignment on indictment only when and if the People were unable to indict because grand juries could not convene—for example, if a sitting grand jury were "forced to quarantine due to COVID-19 exposure." But the Governor's order {**74 Misc 3d at 1151}says no such thing. Rather, the plain language of Executive Order No. 202.87 makes clear that it means exactly what it says: CPL 30.30 is not (any longer) suspended in its entirety, but rather only insofar as it pertains to (i.e., "to the extent necessary to toll") "any" period from the filing of the felony complaint through arraignment on the indictment (see CPL 1.20 [16] [criminal action commences with filing of accusatory instrument]).

Notably, Executive Order No. 202.87 did not tie its statutory suspension to the status of juries, as certain previous orders had done (see Executive Order [A. Cuomo] Nos. 202.28 [9 NYCRR 8.202.28] [suspending time limitations of CPL 180.80 and 190.80 to the extent that a court must satisfy itself that good cause has been shown that a defendant should continue to be held on a felony complaint "due to the inability to empanel a grand jury due to COVID-19"], 202.60 [9 NYCRR 8.202.60] [suspending CPL 30.30 time limitations in a jurisdiction "until such time as petit criminal juries are reconvened in that jurisdiction"]). Rather, the order at issue here set forth a bright-line rule applying to all cases in the same procedural posture.

Of course, the suspensions in those previous orders were triggered by the total absence of or inability to convene juries, not individual, discretionary determinations as to whether it was "necessary" to delay or expedite a grand jury presentation in any particular case following the resumption of at least some grand jury proceedings. Defendant's misreading of "to the extent necessary" would require courts to make factual findings not only on the number of grand juries able to be safely convened in a particular county at various points throughout the pandemic, as compared with the number of arrests made and felony complaints filed, but also on the complexity of a given prosecution—the number of witnesses, the body of evidence, the length [*3]of time and number of days expected to take up the limited resources of the fewer-than-normal grand juries that could be safely empaneled during various spikes and declines in COVID-19 cases and associated positivity rates, which in turn might prevent other, more routine cases from being heard, all in the context of the enormous backlog of unindicted felony complaints that had amassed since the start of the pandemic. Courts, however, are wholly unsuited to inquire into the appropriateness of the various investigative steps intended to be undertaken by the district attorney in furtherance of a prosecution, let alone the particular plans underlying{**74 Misc 3d at 1152} secret grand jury proceedings (cf. People v Jones, 19 Misc 3d 1126[A], 2008 NY Slip Op 50884[U],{**74 Misc 3d at 6} *6-7 [Crim Ct, NY County 2008] [concluding that courts are ill-equipped to determine how much time the People reasonably need to get ready for trial in any particular case, or to thereby apportion segments of the delay period between the People and the defendant; entire adjournment "resulting from" defendant's actions excludable (quoting CPL 30.30 [4])]).

Accordingly, because CPL 30.30 was then tolled by executive order, the period from January 28, 2021, through May 24, 2021, is excludable.

Following defendant's October 7 indictment, the People filed certificates of discovery compliance and readiness for trial on November 12, 2021 (see People v Goss, 87 NY2d 792 [1996]; People v Correa, 77 NY2d 930 [1991]; People v Kendzia, 64 NY2d 331, 337 [1985]). Defendant challenges the validity of these filings.

Central to the discovery reform enacted by the legislature in 2020, the People cannot validly answer ready for trial until they first file "a certification of good faith compliance with the disclosure requirements of" CPL 245.20 (CPL 30.30 [5]; see also 245.50 [3] [prosecution "shall not be deemed ready for trial" until it has filed a proper certificate of compliance with discovery]). CPL 245.20 (1), in turn, requires the People to disclose "all items and information 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." Further, in satisfying their automatic discovery obligations, the People must "make a diligent, good faith effort to ascertain the existence" of discoverable material and to cause such material "to be made available for discovery where it exists but is not within the prosecutor's possession, custody or control" (CPL 245.20 [2]).

[2] Contrary to defendant's contention, the November 12 certificate of compliance was valid. Although defendant maintains that the People failed to provide him with the substance of oral statements allegedly made by him during an attempted debriefing by a field intelligence officer prior to his interrogation on the instant case, the sworn and credited hearing testimony by that officer provides no reason to believe that any such statements were ever made. Defendant does not dispute that all police reports pertaining to the attempted debriefing, or generated by the relevant officer, were properly disclosed. The{**74 Misc 3d at 1153} officer's contemporaneous paper work, which was timely provided to the defense, characterized the debriefing as "negative." Even assuming that the officer's testimony that defendant responded to his questioning with no "useful" or "viable" information could conceivably be taken to mean that perhaps defendant did provide some information, or make some statement, albeit a useless or unviable one, here the officer had no memory of defendant's having made any statements to him at all. The People need not provide discovery that does not exist in order to satisfy their statutory obligations, or to certify compliance with them.

Nor did the People act improperly by failing to include the field intelligence officer on their list of witnesses expected to be called at the hearing. Only after learning, following the [*4]continuation of the hearing to a second day at defendant's request, that a witness had inadvertently testified to an inaccurate fact, did the People, cognizant of their ethical obligation to correct the record, decide to call the field intelligence officer to the stand as a rebuttal witness. And all of that officer's paper work had already been disclosed.

In any event, no adverse consequence to the prosecution "shall result from the filing of a certificate of compliance in good faith and reasonable under the circumstances" (CPL 245.50 [1]). The testimony of the field intelligence officer, who never questioned defendant about the crime for which he was charged—indeed, the officer did not even know the nature of the crime at the time of the attempted debriefing—revealed that he did not "have evidence or information relevant to any offense charged or to any potential defense thereto" (CPL 245.20 [1] [d]), and at a minimum established that he was not someone "whom the prosecutor knows to have" such evidence (id.; see People v Lustig, 68 Misc 3d 234, 247-248 [Sup Ct, Queens County 2020] [new discovery statute represents dramatic departure in need of interpretation; "Given this learning curve, a court should not invalidate a certificate of compliance simply because it ultimately rejects a good faith argument made by the prosecution . . . especially when, as in this case, the People have been demonstrably diligent in satisfying their discovery obligations"]; People v Knight, 69 Misc 3d 546, 552 [Sup Ct, Kings County 2020] [absence of "(a) very few discovery items" from original certificate of compliance "does not vitiate it. By any measure it was filed 'in good faith' and was 'reasonable under the circumstances' "]; People v Erby, 68 Misc 3d 625, 630-633 [Sup Ct, Bronx County 2020]).{**74 Misc 3d at 1154}

CPL 245.80 authorizes the court to impose sanctions for noncompliance with discovery, but only "if the party entitled to disclosure shows that it was prejudiced" (CPL 245.80 [1]). Here, defendant has suffered no prejudice from any potential failure to disclose statements that he is ultimately unable to show were ever made. Even in his motion papers, defendant does not identify, or even speculate as to, the substance of any such statements (which he himself would presumably know, since only he alleges that he may have made them) or how they may have impacted on his case. Indeed, the rebuttal testimony of the field intelligence officer prejudiced only the People, not defendant, because, this court concluded, the officer's questioning of defendant without reading him his rights (see Miranda v Arizona, 384 US 436 [1966]), even in the absence of defendant's having made any statements in response, tainted defendant's later Mirandized interrogation, resulting in suppression of his videotaped confession.

Since the certificate of compliance was not invalid, the November 12 certificate of readiness served to toll the speedy-trial clock (see People v Brown, 28 NY3d 392, 404 [2016]; People v Stirrup, 91 NY2d 434, 440 [1998]).

Thus, the 172-day period from the rescission of the executive order on May 24, 2021, until November 12, 2021, during which time the case was repeatedly adjourned for grand jury action, is chargeable to the People.

[3] On November 24, defendant was arraigned on the indictment, a motion schedule set, and the case adjourned to January 19, 2022, for the court's decision.^[FN3] By omnibus motion papers (see CPL 255.20 [2]), defendant moved, among other things, for suppression of physical evidence and statements. This adjournment for pretrial motions is excludable (see CPL 30.30 [4] [a]).

On January 19, the court ordered that evidentiary hearings be held on defendant's motions to suppress (see Mapp v Ohio, 367 US 643 [1961]; People v Huntley, 15 NY2d 72 [1965]; Dunaway v New York, 442 US 200 [1979]) and the case was adjourned to March 7 for hearings. This adjournment is excludable as the period during which defendant's pretrial motions were "under consideration by the court" (CPL 30.30 [4] [a]; see People v Sinisgalli, 24 Misc 3d 135[A], 2009 NY Slip Op{**74 Misc 3d at 1155}51489[U] [App Term, 1st Dept 2009]; People v Taylor, 16 Misc 3d 339 [Crim Ct, NY County 2007] [initial adjournment for suppression hearings is generally excludable for purposes of statutory speedy trial]).

On February 25, 2022, the hearing commenced but was continued, at defendant's request, to March 1, for the testimony of a defense witness. This adjournment is excludable both because defendant's pretrial motion was still under consideration by the court (see id.) and at the request of defense counsel (see CPL 30.30 [4] [b]; People v Kopciowski, 68 NY2d 615, 617 [1986]).

At the conclusion of the hearing, a motion schedule was set for the instant CPL 30.30 motion. This adjournment for pretrial motions is excludable (see CPL 30.30 [4] [a]; People v Shannon, 143 AD2d 572, 573 [1st Dept 1988]; People v Bruno, 300 AD2d 93, 95 [1st Dept 2002]).

On March 8, defendant filed the instant motion, which has, since that time, been under consideration by the court. (The People filed their response on Mar. 15; defendant filed a reply later that same day.) This period is excludable (see id.).

Accordingly, since only 172 chargeable days have elapsed, defendant's motion to dismiss must be denied.

"is generally determined by computing the time elapsed between the filing of the first accusatory instrument and the People's declaration of readiness, subtracting any periods of delay that are excludable under the terms of the statute and then adding to the result any postreadiness periods of delay that are actually attributable to the People and are ineligible for an exclusion" (Cortes, 80 NY2d at 208).