Criminal Court of the City of New York, Bronx County, July 15, 2022

The Bronx Defenders (Breanne Chappell of counsel) for defendant.

Darcel D. Clark, District Attorney (Kevin Risch of counsel), for plaintiff.

The People here did not meet their statutory duty to serve automatic discovery and file a certificate of compliance within 35 days of arraignments. Instead, without permission from any court, the People violated that deadline more than twice over. Then, a mere three days away from the speedy-trial deadline for the entire case, the People filed a "certificate" of discovery "compliance" and stated "ready for trial." This seemingly stopped the speedy-trial clock. But the People's certification was improper—they had not, in fact, complied with discovery. Then, they continued to disclose discovery files for months after their certificate and months after what would have been the speedy-trial deadline.

This practice violated the discovery statute. A certificate of compliance must genuinely certify compliance. It cannot be a certificate of compliance in name only. Nor can it be a simple placeholder that the People file while they continue to disclose discovery files piecemeal, far beyond the speedy-trial deadline. Accordingly, the court finds the certificate of compliance and its accompanying statement of readiness illusory. Since they were illusory, they were not effective to stop the speedy-trial clock. Therefore, the defense's CPL 30.30 motion to dismiss is granted.

The statute's plain text is clear. A "proper" certificate of compliance (COC) is necessary to stop the speedy-trial clock. (CPL 245.50 [3].) The statute defines a "proper" certificate of {**76 Misc 3d at 648}compliance in "subdivision one" of CPL 245.50. (Id.) Subdivision one, in turn, defines a certificate of compliance as one that is filed "[w]hen the prosecution has provided the discovery required by subdivision one of section 245.20," except for materials that are lost, destroyed, or under a protective order. (CPL 245.50 [1] [emphasis added].) Indeed, that is also what the statute directs the People to do in their certificate of compliance. They must certify [*2]that they have complied—that "the prosecutor has disclosed and made available all known material and information subject to discovery." (Id. [emphasis added].) It is only when this proper COC is filed that the People may state ready for trial. (CPL 245.50 [3].) Following this plain text, the Appellate Division has held that a COC "[can]not be deemed complete" for speedy-trial purposes until discovery is "actually produced" to the defense. (People ex rel. Ferro v Brann, 197 AD3d 787, 787-788 [2d Dept 2021].)

Here, the People filed a certificate of compliance even though they had not, in fact, provided the discovery required by CPL 245.20 (1). When they filed their COC, they had not provided:

• The NYPD Intoxicated Driving Testing Unit (IDTU) video from this case;

• An NYPD photograph of cocaine allegedly seized from Mr. Vargas;

• Four NYPD property vouchers;

• Seven NYPD memo books; and

• Five NYPD chain-of-custody documents. (See prosecution response exhibit 5 at 3-4.)

All these documents were clearly "discovery required by subdivision one of section 245.20." They were all NYPD documents created for this case, and so they were in the People's control and related to the subject matter of the case. (See CPL 245.20 [1], [2] [deeming documents with NYPD to be in the possession, custody, or control of the People].) Therefore, the certificate of compliance in this case was improper. The People filed it even though they had not provided the discovery required by subdivision one of section 245.20. This improper certificate could not support a valid statement of readiness.

The court notes that the discovery statute's requirements are not inflexible. If the People ever face logistical obstacles in meeting their statutory mandates, the discovery law provides them numerous opportunities to petition a court for relief. For instance, they may ask a court to modify the discovery periods for "good cause." (CPL 245.70 [2].) Or they may ask a court for{**76 Misc 3d at 649} permission to state ready on an improper COC because of "special circumstances." (CPL 245.50 [3].) But here, out of all the statute's numerous opportunities, the People sought none.

In their response, the People misread the discovery statute. They argue that even though they had not disclosed discovery required by CPL 245.20 (1), their COC was nonetheless proper because it was filed "in good faith after . . . due diligence." (Prosecution response at 1.) To be sure, the discovery statute does mention "good faith" and "due diligence." However, the statute mentions these concepts as necessary conditions to a proper COC. (See CPL 245.50 [1]; 245.20 [1], [2]; 30.30 [5].) The People's fundamental error is that they mistake these necessary conditions to each be sufficient for a proper COC.^[FN1]

Criminal Procedure Law § 245.50 (1) provides several necessary conditions to a proper COC. They include:

1. that the certificate is filed "[w]hen the prosecution has provided the discovery [*3]required by subdivision one of section 245.20," except for discovery that is lost, destroyed, or under a protective order;

2. that the certificate states in good faith^[FN2] that the People filed it "after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery"; and

3. that the certificate states in good faith that "the prosecutor has disclosed and made available all known material and information subject to discovery."

Courts and litigants must take care not to mistake each of these necessary conditions to be a sufficient one. A "good faith" certification of "due diligence" does not make a COC proper if {**76 Misc 3d at 650}another necessary condition is not met—like if the People failed to "provide[ ] the discovery required by subdivision one of section 245.20." (See CPL 245.50 [1].) This straightforward conclusion accords with the Appellate Division's case law. (Ferro, 197 AD3d at 788 [noting that a COC was not proper, despite the People's contentions of "good faith" and "due diligence," because discoverable items in the People's control were not "actually produced" to the defense].)^[FN3]

The People also rely on the adverse-consequence bar to support their claim that "good faith" makes a COC proper even if they fail to disclose automatic discovery. The adverse-consequence bar reads 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." (CPL 245.50 [1].)

But the adverse-consequence bar does not apply to this analysis. The question here is whether a COC was "proper" as that term is defined by CPL 245.50 (3)—i.e., whether it properly constituted what was necessary to stop the speedy-trial clock. Critically, that section says that it operates "[n]otwithstanding the provisions of any other law." (CPL 245.50 [3].) The adverse-consequence bar is plainly a provision of another law. (See People v Formicola, 74 Misc 3d 559, 564-565 [Webster Just Ct 2022] ["The key phrase in said statute is '(n)otwithstanding the provisions of any other law' "].) Therefore, by the plain terms of the statute, this bar does not apply to the question of whether a COC was sufficient to meet the requirement necessary to stop the speedy-trial clock. (See also People v Darren, 75 Misc 3d 1208[A], 2022 NY Slip Op 50415[U], *5-6 [Crim Ct, NY County 2022] [finding COC and readiness invalid "is not an 'adverse consequence' " as contemplated by statute]; People v Aquino, 72 Misc 3d 518, 526-527 [Crim Ct, [*4]Kings County 2021] [concluding the same]; People v Quinlan, 71 Misc 3d 266, 272 [Crim Ct, Bronx County 2021] [concluding the same].){**76 Misc 3d at 651}

Even if "good faith" and "due diligence" applied here, as the People urge, the People failed to establish them. The People are required to certify, in good faith, two things. First, they must certify in good faith that they "exercis[ed] due diligence and [made] reasonable inquiries to ascertain the existence of material and information subject to discovery." (CPL 245.50 [1].) Second, they must certify in good faith that "the prosecutor has disclosed and made available all known material and information subject to discovery." (Id.) Here, when considering all the People's failures to disclose, the court cannot find that the People certified these statements in good faith.

First, the People knew about the NYPD photograph of cocaine as early as five days after arraignments. (Prosecution response at 7.) They attribute the subsequent three-month delay in disclosure to "backlog[ ]" at the NYPD. (Id.) However, the People never petitioned a court for any of the numerous opportunities for relief that the discovery statute provides. "Where the People do not seek any of [the statute's] numerous opportunities for relief, they cannot be said to have exercised due diligence before filing their COC." (People v Spaulding, 75 Misc 3d 1219[A], 2022 NY Slip Op 50544[U], *3-4 [Crim Ct, Bronx County 2022].) Instead, without permission from a court, the People unilaterally decided to violate their 35-day discovery deadline; file a COC and statement of readiness on the 87th day after arraignments; and do so even though they knew they had not disclosed a discoverable item. That means their certifications about due diligence and disclosing "all known" discoverable material were not in good faith.

Second, the People here failed to disclose the IDTU video, one of the most important pieces of evidence in a DWI prosecution. The IDTU video is a video of the accused person from the night of their arrest, undergoing the formal blood alcohol analysis and performing coordination tests. It is a critical piece of evidence about an essential element of driving while intoxicated—namely, whether the person was intoxicated. In a DWI case, the People must, at the very least, make absolutely sure that the IDTU video is properly disclosed. As such, the court does not find the People's explanation that they simply committed an "error" to support a good faith certification of due diligence and disclosure. (See prosecution response at 9-10.)

Finally, the People provide no information about the circumstances regarding their failure to timely disclose four NYPD{**76 Misc 3d at 652} property vouchers, seven NYPD memo books, or five NYPD chain-of-custody documents. Instead, they say only that they disclosed these materials when they "became available." (Id. at 6.) The People provide no specific information about when these materials "became available." (See generally id. at 1-11.) They do not explain why these routine NYPD documents were purportedly not "available" until months after they had already filed their COC. (Id.) And they provide no information about what efforts they made to ascertain the existence of and disclose these NYPD materials before filing their COC. (Id.) Instead, when speaking of these continued belated disclosures, the People assert that they "have embodied the highest degree of compliance with CPL § 245, exercising exemplary due diligence." (Id. at 6.) But a "bare-bones assertion does not provide the Court with the necessary factual basis to make a finding" of "good faith" or "due diligence." (People v McKinney, 71 Misc 3d 1221[A], 2021 NY Slip Op 50456[U], *4 [Crim Ct, Kings County 2021].) So, the People failed to show that they certified disclosure and due diligence in good faith here, as well.

The court holds that the People's COC and statement of readiness were not valid. As a [*5]result, the CPL 30.30 clock ran from arraignments on October 17, 2021, to when the defense requested a motion schedule on February 11, 2022. That is 117 days, more than the 90-day speedy-trial limit. (CPL 30.30 [1] [b].) Accordingly, the defense's CPL 30.30 motion to dismiss is granted.

In light of this decision, the defense's remaining motions are moot.