Criminal Court of the City of New York, Bronx County, March 16, 2022

The Bronx Defenders (Simratpal Kaur of counsel) for defendant.

Darcel D. Clark, District Attorney (Timothy J. Hammel of counsel), for plaintiff.

Defendant stands charged with two counts of criminal contempt in the second degree (Penal Law § 215.50 [3]) and one count of aggravated harassment in the second degree (Penal Law § 240.30 [1] [a]), all of which are class A misdemeanors. By criminal court complaint, defendant is accused of violating an order of protection, on May 25, 2021, and May 30, 2021, which had been issued in favor of the complainant. Specifically, the complaint alleges that defendant spoke to the{**75 Misc 3d at 316} complainant, his uncle, over the telephone and approached him on the street.

By motion filed on December 14, 2021, defendant moves to controvert the prosecution's certificates of discovery compliance pursuant to CPL 245.50, arguing that the prosecution failed to timely disclose certain text messages that the complainant had received from defendant. Defendant also argues that the prosecution did not timely disclose information about civil lawsuits involving a detective in this matter. On January 7, 2022, the prosecution filed an affirmation in opposition. On January 14, 2022, defendant filed an affirmation in reply.

After reviewing the parties' submissions and the court file, as well as the applicable law, the court grants defendant's motion and finds the certificates of discovery compliance are improper based on the untimely disclosure of the text messages.^[FN1] The court also finds the concomitantly [*2]filed statements of readiness are invalid, and have failed to stop the accrual of speedy trial time.

Defendant was arraigned on June 17, 2021, and the matter was adjourned for supporting deposition and certificate of discovery compliance. On August 18, 2021, the prosecution filed and served the supporting deposition. The next day, the prosecution conveyed a certificate of discovery compliance and statement of readiness to the court and defense counsel. On September 30, 2021, the prosecutor filed and served a supplemental certificate of discovery compliance and a statement of readiness, maintaining trial readiness as of August 19, 2021.

Defense counsel states that, upon review of the discovery materials, specifically the sprint report and the domestic{**75 Misc 3d at 317} incident report, she learned that the complainant had made additional statements to the police concerning defendant's alleged criminal conduct. Specifically, the complainant also told law enforcement that defendant had sent him threatening text messages, which also violated the order of protection. On October 7, 2021, defense counsel requested copies of these text messages from the prosecutor. At the time of the parties' submissions, defense counsel had yet to receive them.

Defendant now argues that the certificates of discovery compliance filed on August 19, 2021, and September 30, 2021, are improper because, prior to their filing, the prosecution failed to disclose the text messages that the complainant alleges defendant sent to him in violation of the order of protection. The prosecution counters that the certificates of discovery compliance are proper because they were filed in good faith, and reasonable under the circumstances. Specifically, the prosecutor avers that the complainant is not an individual within the prosecution's direction and control. In any case, the prosecutor maintains that he made reasonable and diligent efforts both on October 7, 2021, and on later unspecified dates, to obtain the text messages. The prosecutor further argues that, generally, certificates of discovery compliance have been deemed proper by other courts even where discoverable materials remain outstanding, particularly where a defendant has failed to show prejudice as a result of the prosecution's belated disclosures.

Pursuant to CPL article 245, the prosecution is required to provide "automatic" discovery to the defense in a timely manner (CPL 245.10). The statute contains an express "presumption of openness," favoring disclosures when interpreting the discovery provisions (CPL 245.20 [7]; William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, CPL 245.10 ["the prosecutor's obligations to provide discovery under the current statutes are so broad as to virtually constitute 'open file' discovery, or at least make 'open file' discovery the far better course of action to assure compliance. . . . Thus, a prosecutor who fails to engage in 'open file' discovery . . . may . . . jeopardiz(e) the viability of a prosecution"]).

CPL 245.20 delineates a lengthy but non-exhaustive list of information that the prosecution is required to disclose, when such information relates to the subject matter of the case and is "in the possession, custody or control of the prosecution or persons under the prosecution's direction or control" (CPL {**75 Misc 3d at 318}245.20 [1]). Additionally, the prosecution is required to make a diligent and good faith effort to ascertain the existence of discovery material and make it available to the defense even when the information is not in the prosecution's physical possession and control.

Under the law, "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" (CPL 245.20 [2]). Moreover, in order to facilitate compliance with the prosecution's discovery obligations, CPL 245.55 (1) requires a flow of information between the prosecution and the police "sufficient to place within [the prosecution's] possession or control all material and information pertinent to the defendant and the offense or offenses charged." Indeed, upon request, the police "shall make available to the prosecution a complete copy of its complete records and files related to the investigation of the case or the prosecution of the defendant for compliance with this article" (CPL 245.55 [2]).

A certificate of discovery compliance is proper when "all known" discoverable materials have been disclosed after the prosecutor has exercised due diligence and made reasonable inquiries (CPL 245.50 [1]). The statute also permits a court to deem a certificate of discovery compliance proper even where discoverable material has not been disclosed if that material has been lost or destroyed within the meaning of CPL 245.80 (1) (b) or is the subject of a protective order (CPL 245.50 [1]). Notably, the statute does not exempt from disclosure materials subject to CPL 245.80 (1) (a); thus, a certificate of discovery compliance is not proper when required discovery is simply late, and not actually lost or destroyed. Indeed, when the prosecution is aware of outstanding discovery which, despite diligent efforts, it does not yet have in its possession, the law requires the prosecution to affirmatively move the court for additional time if it cannot provide the discovery in accordance with the time periods delineated in the statute.^[FN2]

The statute permits the prosecution to serve a supplemental certificate of discovery compliance when additional discovery is{**75 Misc 3d at 319} provided pursuant to CPL 245.60, specifically where the prosecutor "subsequently learns of additional material or information" that must be disclosed pursuant to the statute (emphasis added). Thus, CPL 245.60 applies in situations where, despite the prosecution's diligent and reasonable inquiries to ascertain the existence of material subject to mandatory disclosure, new material or information later surfaces. When this occurs, the statute requires the prosecution to disclose this subsequently unearthed discovery expeditiously and to certify discovery compliance anew by filing a supplemental certificate of compliance (People v Adrovic, 69 Misc 3d 563 [Crim Ct, Kings County 2020]). As such, a supplemental certificate of discovery compliance under CPL 245.50 (1) is proper only if discovery is provided pursuant to CPL 245.60. A supplemental certificate of compliance may not be used to cure a defect in the original certificate.

The statute further specifies that "[n]o 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] [emphasis added]). Thus, a certificate of discovery compliance may also be deemed proper within the meaning of CPL 245.50 (3), when a court determines that [*4]it was filed in good faith and reasonable under the circumstances.

By allowing for the possibility that the prosecution may be deemed ready even when some discovery remains outstanding, the legislature acknowledged that unavoidable delays may prevent a diligent prosecutor from complying fully with the prosecution's discovery obligations, despite the prosecutor's best efforts to obtain all the relevant material in a timely fashion (People v Aquino, 72 Misc 3d 518 [Crim Ct, Kings County 2021]; see also Adrovic at 574 ["(b)y placing the issue before the court and seeking a ruling based on individualized circumstances, the People may then be able to move forward in their prosecution of a case before disclosure of, and perhaps without ever disclosing, outstanding discovery"]).

The prosecutor's mandate requires full discovery; the exceptions to this mandate are narrowly drawn, and only available if the prosecution persuades the court that the prosecutor's efforts to achieve full discovery compliance were sufficient under{**75 Misc 3d at 320} the statutory standard (CPL 245.50 [3]). Without the express permission of the court, the statute does not permit the prosecution to file a certificate of discovery compliance in which it claims to have exercised due diligence and turned over all known material and information when the prosecution has not actually done so. Moreover, the prosecution's obligations to provide discovery, and certify compliance with that obligation, are not relieved by an absence of prejudice to the defendant (People v Adrovic; People v Wingate, Crim Ct, Bronx County, Mar. 3, 2021, McCormack, J., 2020BX000967).^[FN3]

[1] In the instant matter, the prosecutor claims that the threatening text messages defendant allegedly sent to the complainant are not discoverable under CPL 245.20 (1) because the complainant is not an individual within the prosecution's direction and control. The court is not persuaded. Here, the complainant has signed the supporting deposition and is by all measures essential for the prosecution, particularly with regards to the count of aggravated harassment in the second degree (Penal Law § 240.30 [1] [a]). As such, the court finds that the complainant is under the prosecution's direction and control. Indeed, this appears to be confirmed by the fact that the prosecution has since obtained and disclosed five images of the text messages at issue.^[FN4] Thus, the text messages are discoverable items that the prosecution was required to timely disclose pursuant to CPL 245.20 (1) (e).

[2] The prosecutor's contention that the certificates of discovery compliance are proper because defendant failed to establish prejudice as a result of the belated disclosures misapprehends the law. The statute's framework does not contemplate a prejudice analysis when [*5]assessing the validity of a certificate of discovery compliance, which is a threshold matter (see Adrovic, 69 Misc 3d at 574 ["the People's obligation to {**75 Misc 3d at 321}provide discovery, and to certify compliance with that obligation, is not relieved by an absence of prejudice to the defendant"]; see also Aquino). The impact of missing or belated discovery and whether prejudice was incurred by either party are evaluated separately when either party seeks a remedy or sanction for noncompliance under CPL 245.80. Here, defendant has not moved for sanctions; thus, prejudice is not relevant.^[FN5]

The prosecutor also contends that, although the text messages had not yet been disclosed, the certificates of discovery compliance filed on August 19, 2021, and September 30, 2021, are nonetheless proper because he acted in good faith and with the requisite due diligence. Specifically, the prosecutor makes the singular assertion that he "made diligent efforts to obtain said text messages. On October 7, 2021, . . . the assigned immediately reached out to the complainant, via telephone, in order to procure said text messages on that same day, and on numerous separate occasions afterwards" (prosecution affirmation at 7).

[3] This explanation is utterly devoid of any details regarding all but one date, as well as the substance of any communications between the prosecution and the complainant. The prosecutor does not even indicate what other efforts, if any, he made to obtain the text messages, such as contacting the complainant's messaging service. The only facts he offers are that he called the complainant on October 7, 2021, and on unspecified later dates. These facts do not demonstrate that he exercised the requisite diligence and reasonableness as required by the statute, and the court cannot excuse his failure based on these facts. Absent a valid and detailed explanation, this court concludes that the prosecution did not act reasonably and diligently under the circumstances.

While CPL article 245 requires good faith, the plain language of the statute also requires that the prosecutor disclose "all known material" and exercise due diligence and reasonableness (CPL 245.50 [1]). Simply put, a claim of good faith alone is not sufficient to find that a certificate of discovery compliance{**75 Misc 3d at 322} is proper (see Aquino). The court acknowledges that the prosecutor made some efforts to obtain the text messages; however, these efforts were not made until after two certificates of discovery compliance had already been filed, and it was defense counsel who alerted the prosecution to the missing discovery. Under the circumstances of this case, where discovery materials previously disclosed to the defense clearly referred to undisclosed threatening text messages, the failure to disclose these messages cannot be viewed as reasonable.

Accordingly, defendant's motion is granted, and the court finds the certificates of discovery compliance filed on August 19, 2021, and September 30, 2021, are improper. The court also finds the statements of readiness submitted concomitantly with these certificates of [*6]discovery compliance are invalid, and have failed to stop the accrual of speedy trial time.^[FN6]