Criminal Court of the City of New York, New York County, June 30, 2022

The Legal Aid Society (Elizabeth Anne Skeen of counsel) for defendant.

Alvin Bragg, District Attorney (Cyril Heron of counsel), for plaintiff.

Defendant stands charged with three counts of operating a motor vehicle while under the influence of alcohol (Vehicle and Traffic Law § 1192 [1], [2], [3]). He moves for an order invalidating the People's certificates of compliance (COC) and contemporaneously filed certificates of readiness (COR). He also moves to dismiss the accusatory instrument on the ground that he has been denied a speedy trial pursuant to CPL 30.30, and for other forms of relief. The People oppose the motion in all respects.

Operating a motor vehicle while under the influence of alcohol in violation of Vehicle and Traffic Law § 1192 (2) and (3) is a misdemeanor punishable by a sentence of up to one year imprisonment (Vehicle and Traffic Law § 1193 [1] [b]). Therefore, absent excludable time, the People must declare their readiness for trial within 90 days of commencement of the criminal action (CPL 30.30 [1] [b]). A criminal action commences{**76 Misc 3d at 351} with the filing of an accusatory instrument, but computation for speedy trial purposes commences on the next day (People v Stiles, 70 NY2d 765 [1987]).

The criminal action in this case commenced on December 5, 2021, with the filing of a criminal court complaint. The case was adjourned to January 27, 2022, for trial. The People concede that this period of 53 days is chargeable to them.^[FN*] (Subtotal—53 days.)

On January 27, 2022, the People were not ready. The case was adjourned to March 10, 2022, for trial. On February 18, 2022, the People served on defense counsel discovery material, [*2]an automatic discovery form (ADF), a discovery and Rosario list, a COC and a COR. The discovery served included the following: body-worn camera (BWC) footage and metadata; prisoner pedigree card; the arresting and responding officers' activity logs; the omniform arrest complaint; the complaint report; the District Attorney body-worn camera checklist; the scratch complaint; the New York State evidential breath analysis test; pages from the highway intoxicated driver examination; the arresting officer's report for intoxicated driver arrest; the interrogation warnings form; the IDTU (intoxicated driver testing unit) paper work, including gas chromatography and simulator solution records and the certificate of calibration; PBT calibration report; defendant arrest photographs; the signed complaint; the unsigned complaint; the District Attorney datasheet; and Giglio reports.

In the People's response they state that they subsequently realized certain BWC videos had not been provided to counsel. As a result, on February 28, 2022, the People served those videos along with a supplemental ADF, a supplemental COC and a COR. The number of chargeable days for this entire period will be discussed below under the next adjournment.

On March 10, 2022, the People were not ready and requested an adjournment to the next day. The case was adjourned to April 27, 2022, for trial. The parties agree that also on March 10, defense counsel sent an email to the prosecutor regarding discovery issues. When the People were preparing to respond to counsel's inquiry, they realized that they previously served gas chromatography and simulator solution records for the wrong IDTU machine. On March 14, 2022, the People turned{**76 Misc 3d at 352} over the correct gas chromatography and simulator solution records, in addition to a prisoner movement slip. They also filed and served a supplemental ADF, a supplemental COC and a COR.

The People concede that the 32-day period from January 27 to February 28, 2022, and the 4-day period from March 10 to 14, 2022, are chargeable to them. However, they claim to have exercised good faith and due diligence in filing the supplemental COC and COR on February 28, 2022, thus tolling the speedy trial clock until March 10, 2022. Defendant argues that the speedy trial clock continued to run from January 27 until March 14, 2022, when the People actually provided the required discovery materials.

CPL 245.20 (2) requires the People to make a diligent, good faith effort to ascertain the existence of discoverable material, and when they exist, cause them to be made available for discovery even if the material is not within their possession, custody or control. Under the statute, 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 are deemed to be in the possession of the prosecution. Once the People have satisfied their automatic discovery requirements, they may file and serve a COC pursuant to CPL 245.50. The COC shall identify the items provided and 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" (CPL 245.50 [1]). Where the People provide additional discovery in connection with their continuing duty to disclose, they must file a supplemental certificate (CPL 245.50 [1]; 245.60). "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; but the court may grant a remedy or sanction for a discovery violation as provided in section 245.80 of this article" (CPL 245.50 [1]).

The discovery statute must also be read in conjunction with CPL 30.30. The People cannot be deemed ready for trial until a proper COC is filed with the court and served upon the [*3]defense (CPL 245.50 [3]). Any statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of the automatic discovery statute (CPL 30.30 [5]; 245.20).{**76 Misc 3d at 353}

Inadvertent errors or omissions will not automatically invalidate a COC and COR (see People v Nelson, 75 Misc 3d 1203[A], 2022 NY Slip Op 50347[U] [Crim Ct, NY County 2022]; People v Rodriguez, 73 Misc 3d 411 [Sup Ct, Queens County 2021]; People v Moore, 72 Misc 3d 903 [Sup Ct, Kings County 2021]). However, when a COC is challenged, it is incumbent upon the People to demonstrate that they operated in good faith, exercised due diligence and expeditiously provided any missing materials. They must sufficiently articulate their efforts to comply with the statute and explain how the error occurred and was detected, and when it was remedied (see People v Pierna, 74 Misc 3d 1072 [Crim Ct, Bronx County 2022]). A "bare-bones assertion does not provide the Court with the necessary factual basis to make a finding" of due diligence (People v McKinney, 71 Misc 3d 1221[A], 2021 NY Slip Op 50456[U], *4 [Crim Ct, Kings County 2021]; see also People v Aquino, 72 Misc 3d 518 [Crim Ct, Kings County 2021]).

On June 3, 2022, this court conducted a colloquy with the parties in order to gather additional facts regarding the discovery error claims. The prosecutor explained that on February 18, 2022, he only disclosed BWC videos for officers he expected to testify although he had additional footage for other officers. Subsequently, he came to realize that CPL 245.20 required disclosure of all relevant BWC footage, and thus he provided the additional BWC videos on February 28, 2022. The People appropriately concede that this period of 10 days should be chargeable to them since this error of law cannot excuse their belated disclosure.

Next, the court inquired why the People initially provided gas chromatography and simulator solution records for the wrong IDTU machine. The prosecutor stated that when he requested these records from the police, he sought to match them by the machine's serial number rather than by the simulator solution's lot number. He received a packet from the police that contained two sets of records, one that matched the serial number (but was for an unrelated intoxicated driving case), and the correct records that matched the lot number in this case. The prosecutor explained that he did not realize these sets of records were different and randomly chose the incorrect set to provide to the defense. On March 10, 2022, he detected the error when he examined all the materials after counsel contacted him about other discovery issues.

[1] The court is satisfied that the People have sufficiently articulated their efforts to provide the gas chromatography and{**76 Misc 3d at 354} simulator solution records and explained the reason for their error. Despite their mistake, the People acted in good faith when they initially provided the wrong records. Clearly, their intent was to disclose this discoverable material to the defense. The People had the correct records in their possession at that time but did not appreciate that they were not merely a duplicate copy of the other records. The People's unintentional failure to achieve their goal does not demonstrate bad faith or a lack of diligence and is not a basis to invalidate the supplemental COC and COR filed on February 28, 2022.

Turning to the late disclosure of the prisoner movement slip, the People stated that the police neglected to submit it with the original paper work. The prosecutor explained that this form is filled out in many but not all cases, so he was unaware of the omission until notified by defense counsel. When the court inquired of the defense how this document relates to the subject material of the case, counsel explained that it can be important as a timeline when a defendant is arrested in a DWI case. On that representation, I find that the prisoner movement slip in this case is related to the subject matter of the case and qualifies as material required to be [*4]disclosed to the defense pursuant to CPL 245.20.

However, the People's failure to disclose this single document does not necessarily undermine a finding that they satisfied their statutory obligations when filing their certificate of compliance with discovery.

"The statute does not require the impossible; it does not demand that every scrap of discoverable information be turned over before the People may file a certificate of their compliance with discovery. But it does demand that the People use diligence, act in good faith, and take reasonable steps to ensure that discoverable material is turned over before filing a COC" (People v Barralaga, 73 Misc 3d 510, 514 [Crim Ct, NY County 2021] [citations omitted]).

Neither "due diligence" nor "reasonable inquires" are statutorily defined. Moreover, there is no precise formula by which due diligence is measured; instead, each case must be reviewed on an individual basis to determine if the People made reasonable efforts to secure relevant material that must be disclosed to the defense. As one court has held,

"due diligence is understood as: '[t]he diligence reasonably expected from, and ordinarily exercised by,{**76 Misc 3d at 355} a person who seeks to satisfy a legal requirement or to discharge an obligation.' . . . Paired with the phrase 'reasonable inquiries,' the most natural and ordinary meaning of 'due diligence' in this context requires the People to conduct a 'reasonable' search for discovery material" (People v Surgick, 73 Misc 3d 1212[A], 2021 NY Slip Op 51007[U], *2 [Albany City Ct 2021] [citations omitted]).

In other contexts, the legislature has described due diligence as the level of "care and skill which ordinarily prudent [individuals] would exercise under similar circumstances in like positions" (see e.g. Rose Mary Bailly, William Josephson & Peter J. Kiernan, Practice Commentaries, McKinney's Cons Laws of NY, N-PCL 717). It is tempting to evaluate the People's obligation with the benefit of hindsight and to focus solely on a particular missing item. By that standard, almost any missing item would lead to a conclusion that due diligence was lacking. Yet, the court's review should not be cabined so narrowly. The court must look to the entire circumstances surrounding the People's attempt to comply with CPL 245.20 when evaluating their level of diligence and reasonableness. Among the factors the court should consider are: the efforts the prosecutor made to comply with their discovery obligations; the importance of the missing material and whether it should have been obvious to a reasonably prudent prosecutor that the item was missing; the overall amount of relevant material required to be disclosed and whether the prosecutor devoted adequate attention to comply with discovery (the greater the amount of material in a given case, the likelihood that even a diligent effort could result in a lapse of disclosure for relatively nonessential items); the explanation provided by the People for the discovery lapse and, when alerted to possible missing material, the attentiveness of a prosecutor in securing the items and promptly delivering the item or items to counsel. So long as the People and law enforcement make reasonable steps to ensure full disclosure of relevant material to the defense, the People are permitted to file a certificate of compliance with the discovery statute, even though some items, unknown to the prosecutor to exist, were missing and later belatedly disclosed. Of course, to the extent that any belated disclosure has caused prejudice to the defense, an appropriate sanction may be imposed (see CPL 245.80).

[2] In this case, I find the People diligently complied with their disclosure obligations by taking reasonable steps to ensure that discovery was provided to the defendant. Moreover,{**76 Misc 3d at 356} once alerted to the single missing document—which was of minor importance—the People immediately sought and disclosed it and provided a reasonable explanation for its belated production. The court therefore finds that the People have met their burden of showing that the supplemental COC and COR filed on February 28, 2022, were valid and tolled the speedy trial [*5]clock until March 10, 2022. The 32-day period from January 27 to February 28, 2022, and the 4-day period from March 10 to 14, 2022, are chargeable to the People. (Subtotal—89 days.)

On April 27, 2022, defendant filed the instant omnibus motion and motion to dismiss. The case was adjourned several times until June 30, 2022, for decision. These periods are excludable (CPL 30.30 [4] [a]).

Based on the foregoing, 89 days are chargeable to the People which is within the statutory period under CPL 30.30.

Accordingly, defendant's motion to dismiss the accusatory instrument pursuant to CPL 30.30 is denied.

Defendant's motion to suppress statements is granted to the extent that a Huntley/Dunaway hearing is ordered.

Defendant's motion to suppress identification evidence is denied since the People did not serve notice of their intent to introduce such evidence.

Defendant's motion for a Sandoval hearing is deferred to the trial judge.