Criminal Court of the City of New York, New York County, June 7, 2022

New York County Defender Services (Margaret DaRocha of counsel) for defendant.

Alvin Bragg, District Attorney (Alexander Bourdakos of counsel), for plaintiff.

Motion by defendant Frank Audino 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 § 120.14, menacing in the second degree, a class A misdemeanor, at the arraignment on October 28, 2021. The court released defendant on recognizance, and defendant is at liberty.

As is relevant here, on January 25, 2022, the prosecution filed off-calendar a certificate of compliance, certificate of readiness, automatic discovery form and notice pursuant to CPL 710.30, and discovery list. On March 1, 2022, 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 defense has not received the radio runs, nor the audio of a certain August 20, 2021 call to 911, nor the audio of the September 7, 2021 [*2]identification proceeding, as required under CPL 245.20 (1) (g). Defendant further argues that the prosecution has failed to produce any "bodyworn [sic] cameras, handwritten notes, memo books, [or] notes" in connection with the subject incident, despite that the officers involved were notified regarding the case (defendant's affirmation in support at 9). Defendant then states that "[i]t appears that there was no effort made to contact any of these officers prior to the People certifying their compliance with discovery" (id.). Defendant further argues that the prosecution has failed to produce the complaining witness's{**75 Misc 3d at 971} video of the subject incident as required under CPL 245.20 (1) (e) and (k).

Defendant cites to this court's decision and order in People v Ramirez (73 Misc 3d 664 [Crim Ct, NY County 2021, Schumacher, J.]). That decision granted the defendant's motion to deem a certificate of compliance improper and dismiss pursuant to CPL 30.30 where the prosecution had failed to produce certain enumerated initial discovery, specifically photographs of the subject incident, having taken the position that such discovery was duplicative and of lesser value than certain body-worn camera footage of the subject incident that had already been produced to the defendant. This court rejected the prosecution's arguments and held that the prosecution was required to produce all enumerated initial discovery, noting that "it is not for the prosecution to select which discoverable material is of most value to the defense" (id. at 668).

The prosecution argues in opposition that, at the January 28, 2022 appearance, the court directed defendant to confer with the prosecution as to any missing discovery and to file a motion if a resolution was not reached, but that defendant filed the motion without conferring.

As to the CPL 245.20 (1) (g) material, the prosecution affirms that

"[a]fter the People received Defense Counsel's motion to deem the People's Certificate of Compliance invalid, the People discovered that the following items of discovery which should have been disclosed had not been provided to Defense Counsel: (1) a 911 Call and Radio Runs made on August 20, 2021 in connection with the case (incident date), (2) Radio Runs made on October 27, 2021 in connection with this case (arrest date), and (3) memo-books of NYPD Officers who originally responded on scene the date of the Menacing incident. The People subsequently gathered all missing discovery and turned it over to [the] defense on March 29, 2022 before the filing of this response." (Prosecution's affirmation in opp ¶ 11.)

As to the complaining witness's video of the subject incident, the prosecution affirms:

"[i]n early May, the People and Defense Counsel continued negotiations in regards [sic] to this case and Defense Counsel raised concerns to the People{**75 Misc 3d at 972} that the video taken by the victim on the date of the incident had yet to be disclosed by the People. Being under the impression that this video had previously been disclosed in January with the initial discovery, the People communicated their belief that Defense Counsel was already in receipt of said video. After further investigation, the People were made aware that the video itself was not disclosed and subsequently disclosed said video." (Id. ¶ 12.)

The prosecution "concede[s] that the four above-listed discovery materials should have been turned over with the initial discovery disclosures made on January 25" (id. at 6). The prosecution argues, in sum and substance, that the delayed disclosure of this missing initial discovery is the result of minor production oversights and constitutes unintentional error. The prosecution affirms that the "Discovery Packet served on Defense Counsel reflected the existence of the undisclosed discovery items, and upon learning of the failure to provide these discovery documents the People immediately began to remedy their error by gathering all undisclosed discovery and subsequently disclosing [it] to the defense" (id. at 5).

The prosecution affirms, as to the radio runs and 911 call audio from the date of the incident, that it disclosed their existence to defendant on January 25, 2022, but that the assigned ADA requested the records from the NYPD (New York City Police Department) for August 27, 2021, instead of the correct date of August 20, 2021, and this resulted in the NYPD rejecting the request. The prosecution further affirms that it did not learn of this mistake until receiving the moving papers, at which point it immediately requested the records correctly. The prosecution argues that it would have obtained these records sooner had defendant conferred with the prosecution.

As to the radio runs from the date of arrest, the prosecution affirms that it also disclosed their existence on January 25, 2022, but that, although it possessed these radio runs as of January 5, 2022, it failed to produce them due to an oversight amounting to a production error. The prosecution then argues that it would have produced these records sooner had defendant conferred with the prosecution.

As to the missing memo books, the prosecution affirms that it had failed to obtain them from certain responding officers on the date of the subject incident and "concede[s]" that they {**75 Misc 3d at 973}"should have been disclosed" (id. at 9). The prosecution argues that its failure to "obtain and disclose" the subject memo books was a "production error of a miniscule number of items tangentially-related to the matter of this case" (id.). The prosecution then argues, in sum and substance, that the information in these memo books "does not give Defense Counsel any new information, as the Defendant fled on the date of the Menacing incident and these memo-books from the responding NYPD Officers reflect nothing more than a negative canvas, information that was already available from the disclosed discovery" (id.). The prosecution further argues that "the previously disclosed discovery in relation to [two other officers is] much more in-depth in terms of information provided" (id. at 10).

As to the missing video from the complaining witness, the prosecution "concede[s] that this video was not turned over, but that the People were under the impression that this video was previously disclosed with their turned-over discovery on January 25, 202[2]" (id.). The prosecution then argues that "Defense Counsel has not made any attempt to confer with the People in order to resolve discovery issues, but instead tried to use the 30.30 motion as a way to gain an outright dismissal on the underlying case" (id.).

Defendant argues in reply that the evidence the prosecution concededly failed to provide timely to the defense is relevant and material, and would constitute most of what would be used at trial. Defendant argues, in sum and substance, that "[t]he only question is whether the Court will excuse [the prosecution's] overwhelming failures to disclose the most important pieces of evidence in this case, despite [the prosecution's] having months of notice" (defendant's reply affirmation ¶ 2). Defendant further argues that any argument from the prosecution regarding defendant's failure to confer resulting in later production of material improperly shifts the burden to defendant as to the prosecution's discovery obligations. Defendant further argues that, in any [*4]event, the prosecution was on notice from defendant as to potential discovery issues as early as January 28, 2022, three days after its document production and certificate of compliance, based on defendant's indications at the January 28, 2022 appearance that it intended to file a motion to dismiss on speedy trial grounds based on an improper certificate of compliance. Defendant further argues that the prosecution filed its certificate of compliance on the 89th{**75 Misc 3d at 974} chargeable day without having produced substantial discovery and failed to move for an extension of time.

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 October 28, 2021, to January 25, 2022, 89 days chargeable to the prosecution had elapsed. As such, the issue presented 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 those certain radio runs, 911 call audio, memo books, and video of the incident, all of which the prosecution either actually possessed or constructively possessed pursuant to CPL 245.20 (2) and 245.55 (1) prior to the filing of the certificate of compliance.

CPL 245.50 (3), concerning "trial 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, titled "automatic discovery," in subdivision (1), concerning "[i]nitial discovery for the defendant," requires, in pertinent part, that

{**75 Misc 3d at 975}"[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: . . .

"(e) [a]ll statements, written or recorded or summarized in any writing or recording, made by persons who have evidence or information relevant to any offense charged or to any potential defense thereto, including . . . notes of police . . . [and] by persons to be called as witnesses at pre-trial hearings . . .

"(g) [a]ll tapes or other electronic recordings, including . . . 911 telephone calls . . . [and]

"(k) [a]ll evidence and information . . . that tends to: (i) negate the defendant's guilt as to a charged offense; (ii) reduce the degree of [*5]or mitigate the defendant's culpability as to a charged offense; (iii) support a potential defense to a charged offense; (iv) impeach the credibility of a testifying prosecution witness; (v) undermine evidence of the defendant's identity as a perpetrator of a charged offense; (vi) provide a basis for a motion to suppress evidence; or (vii) mitigate punishment."

CPL 245.20 (2), concerning "[d]uties of the prosecution," 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 [the prosecution's] possession or control all material and information pertinent to the defendant and the offense or offenses charged."

A certificate of compliance is "not filed in good faith" where the prosecution "fail[s] to exercise due diligence and d[oes] not make reasonable inquiries to obtain" automatic discovery (People v Guzman, 75 Misc 3d 132[A], 2022 NY Slip Op 50445[U], *5 [App Term, 2d Dept, 9th & 10th Jud Dists 2022]). {**75 Misc 3d at 976}In Guzman, the Appellate Term, Second Department found unpersuasive the prosecution's argument that certain discovery not provided to the defense had not been timely obtained from the police due to unintentional oversight where the prosecution had known of the existence of the subject discovery for about 10 months prior to notification from the defense that it was missing from the document production (2022 NY Slip Op 50445[U],*4). The Guzman court held that it was the prosecution's burden to "check the items sent to them against a list of the requested items, or against the police reports they sent to the defense" in the first instance (id.). Specifically, as to missing video, the Guzman court noted that "the People provide no information as to what they initially requested of the police, when they requested those items from the police, or when the police sent them the [discovery] packet" (id.).

Here, the prosecution admits in its own affirmation that it failed to produce the subject discovery timely. The prosecution's affirmation demonstrates that the prosecution failed to check its own document production against the index of documents provided in its own discovery packet prior to defendant's motion, well over a month after the prosecution transmitted its first batch of discovery to defendant and filed its certificate of compliance. It is the prosecution's burden, not defendant's, to ascertain timely the existence of discoverable material or information and disclose it timely to a defendant. This was not done.

Further, the court finds the prosecution's argument regarding the memo books to be in direct contravention of this court's holding in People v Ramirez (73 Misc 3d 664 [Crim Ct, NY County 2021, Schumacher, J.]). It is not for the prosecution to select which discoverable material is of the most value to the defense (id. at 668). Here, the prosecution characterizes the outstanding memo books as lesser evidence than what had already been disclosed and, indeed, as lacking "new information" entirely (prosecution's affirmation in opp at 9). Even if the prosecution had annexed the subject memo books to its papers as exhibits for the court to review in order to determine the accuracy of this characterization, which it has not, such a determination [*6]would be wholly irrelevant and immaterial to the nature of the prosecution's violation of its duty here. The prosecution's duty to produce all applicable enumerated automatic discovery is a condition precedent to the filing of a proper certificate of compliance. Here, the prosecution concedes that this was not done.{**75 Misc 3d at 977}

Any argument from the prosecution that defendant had an obligation to confer with it in a way that would impact the accrual of speedy trial time is nowhere to be found in the statute. The prosecution's duties regarding discovery in this case are clear and its failure to comply timely with its automatic discovery obligations conceded. The prosecution's attempts to minimize or shift blame to the defense for the prosecution's own failure to check its document production for accuracy as to the radio runs, 911 call audio, or video of the incident, or to ascertain the existence of certain enumerated and undisputedly mandated materials, here, the memo books, are ineffectual in light of both the letter and the spirit of CPL article 245 (see e.g. CPL 245.50 [4] [b]).

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 245.70), but it failed to avail itself of any such recourse.

Based on the foregoing, the court finds that the certificate of compliance is improper, and its filing was not reasonable under the circumstances. Consequently, the prosecution's certificate of readiness and subsequent statements of readiness were "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 prosecution have elapsed and the information must be dismissed.

This court recognizes that the appearance court directed a conference pursuant to CPL 245.35 (1) on January 28, 2022, 92 days after the arraignment, and this was not done, with defendant electing instead to file this motion. Nonetheless, this court finds that, as more than 90 days of chargeable time had passed prior to the order to confer, any outcome of such an ensuing conference, even if resulting in the production of all outstanding discovery that very same day, would have been academic with respect to the accrual of chargeable CPL 30.30 time, which by then had exceeded 90 days. It was the prosecution's delay, not defendant's, which culminated in the filing of an eleventh-hour certificate of compliance on the 89th day of chargeable time. It is beyond cavil under the circumstances of this case that a subsequent conference could never have resulted in proper compliance that same day and would never have saved this case from dismissal for violation of defendant's right to a speedy trial.{**75 Misc 3d at 978}

Accordingly, it is ordered that the motion by defendant Frank Audino 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.