Criminal Court of the City of New York, Kings County, October 18, 2022

Brooklyn Defender Services (Danielle Ribaudo of counsel) for defendant.

Eric Gonzalez, District Attorney (Jamie Sullivan of counsel), for plaintiff.

Defendant is charged with assault in the third degree (Penal Law § 120.00 [1]); petit larceny (Penal Law § 155.25); criminal possession of stolen property in the fifth degree (Penal Law § 165.40); endangering the welfare of a child (Penal Law § 260.10 [1]); attempted assault in the third degree (Penal Law §§ 110.00, 120.00 [1]); menacing in the third degree (Penal Law § 120.15); and harassment in the second degree (Penal Law § 240.26 [1]). Defendant filed a motion to dismiss pursuant to Criminal Procedure Law §§ 30.30 (1) and 170.30 (1) (e), challenging the timeliness and validity of the People's certificate of compliance (COC) and statement of readiness (SOR). The People oppose defendant's motion in its entirety. For the reasons set forth below, defendant's motion is denied.

On March 3, 2022, defendant was arraigned on the Kings County criminal complaint, docket No. CR-005402-22KN, and charged with assault in the third degree (Penal Law § 120.00 [1]) and other related charges. Defendant was released on his own recognizance.

On June 1, 2022, the People filed and served their COC and SOR.

On July 1, 2022, defendant filed a motion to dismiss. His motion challenged the timeliness and validity of the People's COC, arguing that the People failed to turn over certain discoverable materials as required by Criminal Procedure Law § 245.20 (1).{**77 Misc 3d at 495}

On July 6, 2022, the People filed and served their first supplemental certificate of compliance (SCOC), disclosing Administration for Children's Services (ACS) records.

On July 13, 2022, the People filed and served their second SCOC, disclosing Police Officer (PO) Daquard's memobook.

On July 15, 2022, the People filed their affirmation in opposition to defendant's motion.

On July 22, 2022, defendant filed a reply to the People's opposition papers.

On August 1, 2022, the court held an off-calendar discovery conference with the parties [*2]regarding the instant motion. At the conclusion of the conference, the court asked the People to submit a supplemental response to defendant's motion that included the information that was disclosed and discussed during this off-calendar discovery conference.

On August 9, 2022, the People submitted their supplemental affirmation in opposition to defendant's motion.

Pursuant to CPL 30.30 (5), "[a]ny statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of section 245.20." For a COC to be valid, the People must disclose and make available "all known material and information subject to discovery." (CPL 245.50 [1].) The statute further requires that the People "make a diligent, good faith effort to ascertain the existence of material or information discoverable" under the statute. (CPL 245.20 [2].) Thus, in any challenge to the People's COC with their discovery obligations the court must determine whether the People exercised the requisite level of diligence in obtaining the materials and whether their COC was filed in good faith and was reasonable under the circumstances. (See People v Erby, 68 Misc 3d 625 [Sup Ct, Bronx County 2020]; People v Knight, 69 Misc 3d 546, 552 [Sup Ct, Kings County 2020]; People v McKinney, 71 Misc 3d 1221[A], 2021 NY Slip Op 50456[U] [Crim Ct, Kings County 2021]; People v Adrovic, 69 Misc 3d 563 [Crim Ct, Kings County 2020].)

Photographs of Complainant's Injuries

Based on a review of the domestic incident report, defense counsel believes that there are photographs of the complainant's injuries that the People failed to turn over as required by{**77 Misc 3d at 496} the statute. (Defendant's affirmation ¶ 9; defendant's mem of law at 2.) The People assert that, in response to their inquiries made on July 6, 2022, the arresting officer in this case maintained that there are no photographs. (People's mem of law at 7; People's exhibit 2.)

As part of automatic discovery, the People are required to turn over "[a]ll photographs and drawings made or completed by a public servant engaged in law enforcement activity, or which were made by a person whom the prosecutor intends to call as a witness at trial or a pre-trial hearing, or which relate to the subject matter of the case." (CPL 245.20 [1] [h].) Here, the court is satisfied that the People made diligent efforts to obtain any available photographs but that no such photographs exist.

Police Officer Branch's Memobook

The People assert that, based on their review of the information and documents in this case, there is no PO Branch associated with this case and, therefore, no memobook for such officer exists. (People's mem of law at 7.) Defendant makes no mention of PO Branch's memobook in his motion.

The court is satisfied that the People made diligent efforts to obtain this memobook but that no such memobook exists.

Materials Related to Defendant's Binghamton Arrest

The People assert that the defense is not entitled to materials related to defendant's Binghamton arrest because they do not relate to the subject matter of the instant case, and they contain no relevant information to the instant case. (People's mem of law at 16, 22.) The People further argue that the defense can easily obtain this information because it is defendant's own conviction, not a conviction of one of the People's witnesses. (People's mem of law at 22.) Defendant does not raise this matter in any way as a basis for his challenge to the validity of the People's COC. As such, the court will not address this matter as a relevant factor in its [*3]determination of the instant motion.

Police Officer Daquard's Memobook

Defendant argues that the People's late disclosure of PO Daquard's memobook invalidates their COC because PO Daquard participated in the intake of the complainant, as indicated in the domestic incident report, and that said memobook is part of initial discovery. (Defendant's mem of law at 6; defendant's exhibit A.) The People argue that once they were made aware{**77 Misc 3d at 497} that PO Daquard's memobook was missing, they made diligent and good faith efforts to obtain and disclose said item to the defense. (People's mem of law at 8.) The People further argue that their COC should not be invalidated due to this belatedly disclosed item because PO Daquard was a peripheral officer and there was no new information in his memobook. (Id.)

[1] The court finds that the People exercised diligent and good faith efforts in disclosing PO Daquard's memobook. On March 3, 2022, the People emailed the New York City Police Department's (NYPD) discovery liaison requesting all discovery material. (People's supp affirmation ¶ 4.) After the defense informed the People that PO Daquard's memobook was missing, the People reached out to the NYPD on two separate dates requesting said item. (People's supp affirmation ¶¶ 12, 16-17.) On July 13, 2022, the People received said memobook and disclosed it immediately upon receipt with the filing of their second SCOC. (People's supp affirmation ¶ 18.) Consistent with the legislative history of CPL article 245, the statute "should not be construed as an inescapable trap for the diligent prosecutor who professionally, assiduously and in good faith attempts to comply with their new and extensive requirements under the discovery statute." (People v Georgiopoulos, 71 Misc 3d 1215[A], 2021 NY Slip Op 50380[U], *3 [Sup Ct, Queens County 2021].) Thus, the delayed disclosure of PO Daquard's memobook does not invalidate the People's initial COC.

Timeliness of Filing

Defendant argues that the People's COC and SOR should be deemed as being filed on June 2, 2022 (the 91st day), rather than on June 1, 2022 (the 90th day), because the documents were served after the close of business (i.e., 5:00 p.m.) on June 1, 2022, at 5:12 p.m. and, thus, could not have been actually filed with the court until the next day. (Defendant's affirmation ¶ 11; defendant's mem of law at 2-4.) In response, the People assert that their submissions were properly filed with the New York City Criminal Court's Electronic Document Delivery System (EDDS) on June 1, 2022, at 5:10 p.m. (People's mem of law at 4-7.)

[2] Pursuant to CPL 30.30 (1) (b), the People have 90 days from defendant's arraignment to declare their readiness to proceed with trial. This section specifically counts time in terms of days and does not impose any particular hour by which filings must be made so long as they occur on the correct day. This court is unaware of any specific statutory requirement{**77 Misc 3d at 498} that a statement of readiness for trial must be made during business hours. If the legislature wanted CPL 30.30 to be counted in hours, as opposed to days, they would have specifically articulated that in the statute, as they did in CPL 180.80. (See CPL 180.80 [setting deadline for certain actions that must occur within 120 or 144 hours of defendant's incarceration on felony complaint].) A comparison of CPL 180.80 to its analogue, CPL 170.70, which applies to misdemeanor complaints, reveals that the legislature made a conscious decision to calculate time in terms of days under CPL 170.70, as opposed to calculating time in terms of hours as required under CPL 180.80. (See CPL 170.70, 180.80.) The legislature further specified in CPL 170.70 that Sundays would not be included in its time calculation under this section and the legislature added an additional 24 hours in its time calculation under CPL [*4]180.80 if such action occurred on a Saturday, Sunday, or legal holiday. (See CPL 170.70, 180.80.) No such specifications in terms of time calculation were included in CPL 30.30. It is clear that if the legislature intended for CPL 30.30 to be calculated in terms of hours, it would have specified as such in the statute.

In the absence of any specific contravening language, the court is guided by the General Construction Law.^[FN1] The General Construction Law "should be read into every statute subsequently enacted unless the wording of such later statute plainly expresses a contrary intent." (O'Keeffe v Dugan, 185 App Div 53, 54 [2d Dept 1918], affd 225 NY 667 [1919]; see People v Mandela, 142 AD3d 81, 85-86 [3d Dept 2016]; People v Powell, 179 Misc 2d 1047, 1048 [App Term, 2d Dept 1999].) The General Construction Law defines a calendar day as "the time from midnight to midnight." (General Construction Law § 19.) In interpreting General Construction Law § 19, the Court of Appeals has held that absent an express deadline or limitation, this "law does not take notice of a fraction of a day." (Matter of Garelick v Rosen, 274 NY 64, 68 [1937], citing General Construction Law § 19.) The Appellate Division has also held {**77 Misc 3d at 499}that absent an express or specified time for a required action, a calendar day is to be interpreted as "includ[ing] the time from midnight to midnight." (Matter of Hong Wang v New York State Div. of Human Rights, 177 AD3d 1127, 1128 [3d Dept 2019], quoting General Construction Law § 19 [Court held it was "irrational, arbitrary and capricious" for the agency to hold petitioner's response untimely strictly because it was filed after business hours on the required response date].)

Further, since CPL 30.30 did not express a contrary intent, the Court of Appeals has applied the General Construction Law in interpreting time computation under CPL 30.30. In People v Stiles (70 NY2d 765 [1987]), the Court was faced with the issue of whether the first day of the statutory period under CPL 30.30 should be included or excluded in computing speedy trial time calculations. The Court reasoned that since CPL 30.30 did not indicate whether the first day was to be included or excluded in determining time computation, it was appropriate for the court below to apply General Construction Law § 20.^[FN2] (Stiles, 70 NY2d at 767.) In addition, the Court in Stiles noted the difference in its reasoning for its holding in Stiles and People ex rel. Neufeld v McMickens (70 NY2d 763 [1987]).

In McMickens, the issue before the Court was whether the day of the defendant's arraignment should be included in the five-day time computation set forth in CPL 170.70. The Court of Appeals reversed the Appellate Division's decision that General Construction Law § 20 needed to be applied because CPL 170.70 was not clear on its face. (McMickens, 70 NY2d at 765.) Instead, the Court of Appeals held that the language in CPL 170.70 was unambiguous and [*5]clearly required that the first day of the defendant's custody should be counted, unless it preceded the day of arraignment or was a Sunday. (Id.; see CPL 170.70.) In other words, the General Construction Law is not to be applied if the statute is clear on its face. This comparison of the Court of Appeals's interpretation of CPL 30.30 and CPL 170.70 in Stiles and McMickens supports this court's position that General Construction Law § 19 should be applied in its speedy trial time computation under CPL 30.30{**77 Misc 3d at 500} because the statute is not clear on its face. Thus, this court finds that when computing chargeable speedy trial time under CPL 30.30, it is to be counted in terms of days as defined in General Construction Law § 19.

A valid statement of readiness requires two things: (1) communication of readiness by the People which appears in the trial court's record; and (2) that the People are actually ready to proceed to trial when they announce their statement of readiness. (People v Kendzia, 64 NY2d 331, 337 [1985].) It is the first prong of Kendzia that defendant argues the People did not satisfy. (Defendant's mem of law at 2-4.) This first requirement is satisfied when the People announce a statement of readiness in open court "transcribed by a stenographer, or recorded by the clerk or a written notice of readiness sent by the prosecutor to both defense counsel and the appropriate court clerk, to be placed in the original record." (Kendzia, 64 NY2d at 337.) Here, the issue presented is whether the People can validly announce their readiness when they file their SOR via EDDS after business hours, when the court is presumably closed, on the last day of the statutorily required time period under CPL 30.30. To date, there has been no appellate ruling on this issue. Further, trial courts are split on when a document should be deemed filed when delivered via EDDS: whether at the time it is submitted to EDDS by a party (see People v Delprado, Crim Ct, Kings County, June 16, 2022, Ward, J., docket No. CR-001523-22KN; People v Tadd, Crim Ct, Kings County, May 5, 2022, Kitsis, J., docket No. CR-004376-22KN; People v Armoogan, Crim Ct, Kings County, Feb. 1, 2022, Rao, J., docket No. CR-018447-22KN; People v Munoz, Crim Ct, Kings County, Jan. 25, 2022, Rao, J., docket No. CR-021837-22KN) or at the time a court clerk reviews, accepts, and places the document in the court file and emails the party a confirmation that the document was deemed filed with the court. (See People v Kinch, 75 Misc 3d 741 [Crim Ct, Kings County 2022] [although EDDS allows electronic filing of court documents after hours, it remains impossible to commence trial after business hours]; People v Miller, 75 Misc 3d 215 [Crim Ct, Kings County 2022] [trial court held that Kendzia made it clear that COCs and SORs must be filed before close of business for proper filing by the clerk to occur].){**77 Misc 3d at 501}

To properly address this issue, the purpose and operational usage of the EDDS must be [*6]understood.^[FN3], ^[FN4], ^[FN5] The EDDS was established to safely ensure the proper delivery and filing of motions, documents, and notices with the court during the COVID-19 pandemic. Unlike the prior in-person system of filing with the court, this new electronic method does not require in-person filing with the court clerk and, thus, allows for submissions to be filed at any hour. After a review of the EDDS website, this court's understanding of the EDDS filing process is that the sender receives two emails when sending a document for filing via EDDS; the first email confirms that the EDDS system has received the document and the second email confirms that the document was accepted and deemed filed with the court. Both the EDDS user manual and the EDDS notice to the public, which are both linked on the EDDS online home page, indicate that once the court clerk reviews and accepts the document for filing, the clerk's office sends an email to the sender (i.e., the second EDDS email) stating that the document was filed on the specified date. The EDDS online home page also states that a request for filing a document should be treated as "filed" only upon receipt of notice from the court clerk that the document was filed (i.e., the second EDDS email). In the present case, the People sent their COC and SOR via EDDS on June 1, 2022, the 90th day, at 5:10 p.m. The People did not receive their second email confirming that their COC and SOR were deemed filed until June 2, 2022, at 10:22 a.m. (People's exhibit 1.) The body of this second email contained a statement that the People's COC and SOR were deemed filed with the court on June 1, 2022. (Id.)

[3] {**77 Misc 3d at 502}It is significant that on the bottom of the second EDDS email which confirmed the filing of the COC and SOR on June 1, 2022, there is a separate note that states as follows: "NOTE: The sending and/or receipt of any documents through the Electronic Document Delivery System (EDDS) does not constitute service upon any other party, nor does it constitute filing of those documents with the court or County Clerk." The note on the bottom of the second EDDS email is contradictory with the statement in the body of the second EDDS email, which confirmed that the documents were filed with the court on the date specified. Considering the purpose of the EDDS as a delivery system for filing documents with the court (see EDDS home page, user manual, and notice to the public; AO/331/21; 22 NYCRR 202.5-c), it is reasonable for the People to rely on the statement in the body of the second EDDS email that deems the document filed with the court on the date specified, especially when there is an AO that states court documents can be deemed filed via EDDS. (See AO/331/21; 22 NYCRR 202.5-c.) In fact, during the pendency of the instant motion, on October [*7]11, 2022, the EDDS system managers rectified this inconsistency by removing this contradictory note at the bottom of the secondary emails (i.e., EDDS confirmation emails) that informed the party that a document has been deemed filed with the court. Neither party should be responsible for analyzing contradictory notes in the EDDS system. Moreover, the People should not be penalized for the potentially fatal consequences of an erroneous note, now excised from the second EDDS email, which was clearly contradictory to the statement in the body of the same confirmatory email (i.e., the second EDDS email) stating that the document(s) was deemed filed on the specified date.

Further analysis of timely filing confirms that as long as the SOR is properly filed within the statutorily required time period, it is not for the court to speculate when the physical copy of the SOR was placed in the court file, nor should the People be penalized for the length of time it may take the clerk to review and place the SOR in the court file. The court surmises that if the People had filed their SOR at 4:59 p.m. on the 90th day as opposed to 5:10 p.m., as the People did in this case, it is more than likely that a physical copy of the SOR would not have been placed in the physical court file until the next day or longer. The same argument can be made if the People were to file their SOR with the court clerk in-person on the 90th day at{**77 Misc 3d at 503} 4:59 p.m., as that SOR will likely remain in the clerk's bin until the next day awaiting its review and acceptance by the court clerk before it is ultimately placed in the court file. The practical reality of the matter is this—whether an SOR is filed with the court clerk via EDDS or in person, it may take one or more days for the SOR to be reviewed, accepted, and placed in the court file. It would be disingenuous of this court to take a different position. Thus, it is somewhat of a legal and factual stretch to conclude that the filing of an SOR with the court clerk within business hours means that the SOR will be physically placed in the court file the same day by 5:00 p.m. There appears to be no recorded proof that such filing by the clerk occurs within the 5:00 p.m. time frame on the date that documents are filed either in-person or via EDDS.

[4] While it is undisputed that EDDS and its email confirmations are administrative tools that can be used to properly file a court document so that one does not have to file a document in-person with the court clerk, it is also undisputed that both methods require the same document review, acceptance, and placement in the court file. Given the technology and resources available to parties today via EDDS, the concept of having a document filed with the court by 5:00 p.m. is, in essence, an outdated legacy of a prior practice, which may have had more relevance when Kendzia was decided. Thus, if an in-person filing of an SOR can take several days to be reviewed, accepted, and placed in the court file, deemed filed the day it is stamped, then placed in the court clerk's bin and deemed to fulfill the requirements of readiness in Kendzia, therefore, an electronic filing via EDDS should be treated no differently.

In addition, the concept that the courts are only open during business hours (i.e., 9:00 a.m. to 5:00 p.m.) is inaccurate. There are "All Purpose" court parts that often run beyond 5:00 p.m. for various court appearances, both in-person and virtual. Night arraignments are obviously conducted after 5:00 p.m. and continue well into the night hours, generally until 1:00 a.m. the following day.

Further, the fact that the filing of the SOR occurred after business hours, when the courts were theoretically closed, has no legal bearing on the People's actual readiness. (See Kendzia, 64 NY2d at 337 [the People must actually be ready to proceed for trial when they make their statement of readiness].) CPL 30.30 does not entitle defendant to the commencement of trial within the time periods outlined in the statute. It only requires{**77 Misc 3d at 504} the People's announcement and [*8]actual readiness for trial within the statutorily required time period. It is, therefore, unrealistic and unreasonable for any court to presume that if the People filed their SOR on the 90th day at 4:59 p.m. that such filing would ensure the commencement of the defendant's trial at that time.

In conclusion, in the instant case, any elemental prerequisites for trial were satisfied by the People when they filed their SOR on the 90th day. Hence, for the foregoing reasons, the in-person filing of an SOR with the court clerk versus the electronic filing of the same via EDDS is a distinction without a difference. Here, the People have done all that is "required of them to bring the case to a point where it may be tried" (People v England, 84 NY2d 1, 4 [1994]) within the statutorily required time period under CPL 30.30.

Therefore, this court finds that the People's COC and SOR were timely filed with the court on the 90th day. Accordingly, this court finds that the People's COC and SOR are valid and were timely filed with the court within the statutorily required time period of 90 days.

Pursuant to CPL 30.30 (1) (b), an accusatory instrument with a top charge of a class "A" misdemeanor requires that the People be ready for trial within 90 days of arraignment. The court finds that 90 chargeable days have accrued since arraignment of defendant. The chargeable speedy trial time was calculated as follows:

March 3, 2022—April 12, 2022

On March 3, 2022, defendant was arraigned on a misdemeanor complaint where the top count was an "A" misdemeanor. The court released defendant on his own recognizance and adjourned the matter to April 12, 2022, for the People's COC.

40 chargeable days.

April 12, 2022—June 1, 2022

On April 12, 2022, the People had not yet filed their COC, and the matter was adjourned to June 1, 2022.

50 chargeable days.

June 1, 2022—June 2, 2022

On June 1, 2022, at the time of the morning calendar call for this case, the People had not yet filed their COC, and the matter{**77 Misc 3d at 505} was adjourned to June 2, 2022, for a final opportunity for the People to file their COC. On June 1, 2022, at approximately 5:10 p.m., the People filed and served their COC and SOR via EDDS. The court finds the People's COC and SOR valid.

0 chargeable days.

June 2, 2022—August 11, 2022

On June 2, 2022, the court set a motion schedule and the matter was adjourned to August 11, 2022, for the court's decision. Pursuant to CPL 30.30 (4) (a), this adjournment is excludable.

0 chargeable days.

August 11, 2022—September 20, 2022

On August 11, 2022, given the updated motion schedule the court issued to the parties off-calendar after the off-calendar discovery conference, the court adjourned the matter to September 20, 2022, for the court's decision. Pursuant to CPL 30.30 (4) (a), this adjournment is excludable.

0 chargeable days.

September 20, 2022—October 19, 2022

On September 20, 2022, the court needed additional time to issue its decision and the matter was adjourned for decision. Pursuant to CPL 30.30 (4) (a), this adjournment is excludable.

0 chargeable days.

Wherefore, the court finds that the People have accrued 90 chargeable days since defendant's arraignment. Accordingly, defendant's motion to dismiss is denied.

"The GeneralConstruction Law, as enacted by the Legislature, sets forth certain rules for the construction, interpretation, and operation of statutes in general, and it specifies the meaning and scope of certain terminology. The Act provides that it is applicable to every statute unless its general object, or the context of the language construed, or other provisions of law indicate that a different meaning or application was intended from that required to be given by the General Construction Law." (97 NY Jur 2d, Statutes § 100.)