Criminal Court of the City of New York, Bronx County, November 17, 2022

The Legal Aid Society, Bronx (Barbara Ho of counsel), for defendant.

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

Defendant Kadeem Edwards moves for dismissal of the charges against him on statutory speedy trial grounds. He argues that the People's certificates of compliance (COCs), and any statements of readiness (SORs), are invalid and illusory. Between April 5, 2022, and September 12, 2022, the People filed five COCs and SORs. After a careful consideration of the defendant's motion, the People's response, documents contained in the court file, and the transcripts from the proceedings, the court finds that a total of 105 days are chargeable to the People and grants the defendant's motion.

Under CPL 30.30, the People satisfy their obligation once they declare their readiness for trial (see People v Giordano, 56{**77 Misc 3d at 742}NY2d 524 [1982]). The People are "ready" for trial when they serve "either a statement of readiness by the prosecutor 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" (People v Chavis, 91 NY2d 500, 505 [1998]). The People must "in fact be ready to proceed at the time they declare readiness" (id.).

A statement of readiness for trial is valid when the People have removed all legal impediments to the commencement of their case (People v England, 84 NY2d 1, 4 [1994]). Any statement of readiness made by the People must be accompanied or preceded by a valid COC that indicates they have complied with their discovery obligations as set forth in CPL 245.20 (CPL 30.30 [5]). Additionally, pursuant to CPL 245.50 (3), the prosecution cannot answer ready for trial "for purposes of section 30.30 . . . until it has filed a proper certificate pursuant to subdivision one of this section."

In a motion to dismiss pursuant to CPL 30.30, the initial burden rests on the defendant to allege that his right to speedy trial has been violated (see People v Luperon, 85 NY2d 71, 77-[*2]78 [1995]). Then, the burden shifts to the People to identify "the exclusions on which they intend to rely" (id. at 78). If the defendant disagrees, he "must identify any legal or factual impediments to the use of these exclusions" (id.).

Here, the defendant was arraigned on charges of reckless endangerment in the second degree (Penal Law § 120.20); criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03); unlawful fleeing a police officer in a motor vehicle in the third degree (Penal Law § 270.25); aggravated unlicensed operation of a motor vehicle (Vehicle and Traffic Law § 511 [2] [a] [iv]; [1] [a]); reckless driving (Vehicle and Traffic Law § 1212); leaving the scene of an incident without reporting (Vehicle and Traffic Law § 600 [1] [a]); limitations on backing (Vehicle and Traffic Law § 1211 [a]); driving on sidewalks (Vehicle and Traffic Law § 1225-a); obstructing governmental administration in the second degree (Penal Law § 195.05); and false personation (Penal Law § 190.23). The defendant's top count is an A misdemeanor, punishable by up to 364 days in prison.

The complaint alleges that at approximately 1:40 a.m. on January 8, 2022, at the corner of East 171st Street and Teller Avenue in the Bronx, the defendant was seated behind the wheel of a white BMW when he attempted to "duck down" {**77 Misc 3d at 743}inside of the vehicle. Two police vehicles then parked in front of and behind the defendant's car with their lights and sirens activated. The defendant suddenly reversed his vehicle and collided with the police vehicle located behind his car as the arresting officer was exiting the vehicle. Then the defendant drove his vehicle onto the sidewalk, in proximity of other officers, and hit another parked car. Upon an inventory search of the car, the arresting officer located the defendant's driver's license which identified him by the name "KADEEM EDWARDS." The arresting officer later searched the Department of Motor Vehicles records and learned that the defendant's license to operate a vehicle in New York State was suspended or revoked for failure to pay a fine, and for insurance lapse. Finally, when the defendant was asked his name, he allegedly told the officers it was "MALIK JOHNSON," but in fingerprinting the defendant, the arresting officer learned the defendant's name to be "KADEEM EDWARDS."

As the defendant is charged with a class A misdemeanor, the People must be ready for trial within 90 days from the commencement of the criminal action (CPL 30.30 [1] [b]). In this case, the defendant asserts that 115 days of includable time have elapsed.

The following constitutes the court's analysis of periods that are chargeable to the People:

January 11, 2022-April 25, 2022

At arraignment on January 11, 2022, the People answered not ready and the case was adjourned to March 1, 2022, for conversion and COC. The People did not file their first COC and SOR until April 5, 2022. On April 25, 2022, a motion schedule was set and the case was adjourned to June 9, 2022, for decision.

The People concede the 84 days from January 11, 2022, through April 5, 2022, should be charged to them. Once the motion schedule was set on April 25, 2022, the time until June 9, 2022, became excludable regardless of the validity of any COC (see CPL 30.30 [4] [a]; People v Freeman, 71 Misc 3d 138[A], 2021 NY Slip Op 50470[U], *1-2 [App Term, 1st Dept 2021], lv withdrawn 37 NY3d 1027 [2021]).

The period from April 5, 2022, to April 25, 2022, is at issue. In the instant motion, the defendant claims that the People did not turn over certain materials prior to filing their COC and SOR on April 5, 2022. Specifically, the defendant argues that{**77 Misc 3d at 744} the People did not disclose police [*3]reports, body worn camera (BWC) footage, material relating to two newly identified officers involved in this arrest and disciplinary records concerning a non-testifying officer until five months after the People first certified compliance on April 5, 2022. Therefore, the defendant argues the People's COCs are invalid and they should be charged with the time between April 5, 2022, and April 25, 2022. The People counter, generally, that their COCs are valid because they exercised due diligence and acted in good faith. This court finds the People's COCs filed prior to September 12, 2022, to be invalid and their accompanying SORs to be illusory.^[FN1]

[1] Defendant first argues that he was entitled to police disciplinary records for Officer Perez, a witness the People did not intend to call at the time they filed their April 5, 2022 COC and SOR. He relies on the recent decision People v Amir (76 Misc 3d 1209[A], 2022 NY Slip Op 50856[U] [Sept. 13, 2022]), which dismissed a case based on the prosecution's failure to examine and turn over disciplinary records for a non-testifying police witness. Tellingly, the defendant relegates this argument to a footnote in his brief, demonstrating even his belief that the reasoning in Amir is a stretch. This court agrees.

We start, as we always must, with the language of the statute. CPL 245.20 (1) (k) (iv) requires the People to disclose favorable information that would "impeach the credibility of a testifying prosecution witness" (emphasis added). Clearly, this language puts the People on notice that they must review—and disclose where appropriate—disciplinary records in their possession pertaining to police witnesses they intend to call at hearing or trial. Had the legislature wished to extend this obligation to all witnesses, and not only testifying ones, they easily could have done so. They chose not to.

The Amir court reasoned, however, that disciplinary records of non-testifying police witnesses could, under certain circumstances, contain Giglio material that the People must disclose. It gave as an example a situation in which the disciplinary file of a non-testifying police witness could contain allegations of{**77 Misc 3d at 745} prior witness coaching by that police officer, which would therefore be relevant and potentially exculpatory in a current case, assuming the officer had had contact with the witness. Accordingly, the court reasoned, the People had the obligation to comb through the disciplinary records of all police officers involved in an incident, whether or not the prosecution intended to call them as witnesses, and their failure to do so should vitiate the COC and SOR and result in case dismissal.

This court respectfully declines to follow the reasoning of Amir. Amir incorrectly conflates the People's obligation—clearly set forth by the legislature—to disclose disciplinary records of testifying police witnesses with an obligation to go on a wild-goose chase for Giglio material that may exist somewhere—or that may not. It is true, of course, that CPL 245.20 (1) (k) requires the People to turn over all information that tends to negate the defendant's guilt or reduce his culpability. But there needs to be some limit on the People's obligation to [*4]search for such information; in order to trigger the People's obligation to look for Giglio material, they need to have some reason to believe such material exists. (See People v Elwell, 2018 NY Slip Op 33620[U], *11 [Rockland County Ct 2018] [no Brady violation where defendant "merely hypothesizes, rather than shows, the existence of any exculpatory evidence"].)

If a non-testifying police officer had gone through a divorce, are the People charged with combing through the files of his divorce proceeding on the off chance he had attempted to coach his friends as to how to testify? Absent any reason to believe the officer had engaged in such activity, the answer there—as here—is clearly no. The defendant here—like the defendant in Amir—advances no specific argument as to how the disciplinary records of Officer Perez—at the time, a non-testifying witness—would be exculpatory. This court would need more than hypothetical reasoning to grant this request.^[FN2]

[2] The defendant's next argument—that the People failed to disclose certain police documents, including the police accident{**77 Misc 3d at 746} report, the A-summons reports, and the vehicle stop report—fares better. These forms were generated in this case in response to the collision between the defendant's car and the NYPD vehicle and were not disclosed to the defendant until September 9, 2022. The defendant also alleges the People failed to turn over the aided report before September 12, 2022. This report was generated in response to Officer Perez requiring medical attention as a result of his participation in the defendant's arrest.

The People argue that even though they did not disclose these documents until September 9, 2022, and September 12, 2022, the court should still find they exercised due diligence and good faith in filing their COCs. This cannot be.

As an initial matter, it is no defense that the People did not have these reports in their actual possession as the law is clear that all documents related to the prosecution of a charge that are possessed by law enforcement are considered in the custody of the People. (CPL 245.20 [2].) Additionally, "[a]ll statements, written or recorded . . . , made by persons who have evidence or information relevant to any offense charged or to any potential defense thereto, including all police reports, notes of police and other investigators, and law enforcement agency reports," are mandatory discovery. (CPL 245.20 [1] [e] [emphasis added].) Therefore, the People were under a strict obligation to inquire into police reports generated as a result of this arrest and then disclose these documents to the defendant.

The court is not persuaded by the People's position that they only discovered these documents after speaking with Officer Perez, who was not the arresting officer and was a late addition to the witness list. As the defendant points out in his reply, these are documents [*5]germane to a case involving a vehicle collision. This is further evidenced by the "Bronx Arrest Checklist and Coversheet" generated by NYPD and filled out by the arresting officer which serves as a "roadmap" of the sorts of documents that are typically created in any given criminal case by NYPD. This document alone would have put the People on notice to inquire about the existence of these reports. Additionally, the People's own complaint in this case specifically describes both a vehicle stop and a vehicle collision, thus putting the People on notice that both vehicle stop and accident reports must exist.{**77 Misc 3d at 747}

The court rejects the People's argument that they properly filed their supplemental COCs in accordance with CPL 245.60. CPL 245.60 allows the People to validly file a supplemental COC when the prosecution "subsequently learns" of additional material to disclose. This statute contemplates a scenario where despite the People's diligent and good faith efforts, new discovery arose that had previously been unknown to the People. (People v Adrovic, 69 Misc 3d 563 [Crim Ct, Kings County 2020].) That is not the case here. These reports were not created subsequent to the People's first COC. These documents were all generated between January 8, 2022, and January 10, 2022. In failing to ascertain their existence by simply asking the arresting officer to inquire about all paper work generated in connection with this arrest—and specifically, paper work that the People should have known existed based on the allegations in the complaint—the People did not meet their burden of establishing due diligence.

To be clear, the court in no way believes the People acted maliciously in their failure to disclose these documents prior to filing their April 5, 2022 COC. Rather, the court agrees with the defendant that it is clear the People were unaware of these documents and were not purposefully withholding their disclosure. Unfortunately, this does not satisfy the People's obligation of due diligence. The People provided no indication of any attempts made to obtain these documents prior to speaking with Officer Perez on September 9, 2022. In fact, the People do not even indicate if they had spoken directly with any officer involved in this case other than Officer Perez prior to September 9, 2022, more than eight months after the arrest in this case occurred. The only information the People provide in attempting to collect discovery is that a generalized request was submitted to the 44th Precinct liaison on February 24, 2022, and a follow-up request on March 2, 2022. A general request for discovery does not due diligence make. (People v Guzman, 75 Misc 3d 132[A], 2022 NY Slip Op 50445[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2022].)

This court understands the substantial obligations that discovery reform has placed on prosecutors' offices. It is also mindful that "good faith, due diligence, and reasonableness under the circumstances are the touchstones by which a certificate of compliance must be evaluated" (People v Perez, 73 Misc 3d 171, 177 [Sup Ct, Queens County 2021]). However, for those words to mean anything, it cannot be that their talismanic{**77 Misc 3d at 748} incantation is sufficient to demonstrate their application in a particular case. The People must recognize that the paragraphs of CPL 245.20 (1) are not mere bins in which to sort the mass of discovery they receive in response to a general request made by them or a paralegal on a given case. Instead, these categories each present an affirmative duty. And here, the ADA should have been alerted that he might need to take more action to meet his duty under CPL 245.20 (1) (e). In a case where an accident so clearly occurred, and the BWC footage disclosed by the ADA indicated an injury occurred, the ADA was on notice that both accident and aided reports likely existed. Failing to actually review the evidence that was disclosed or to speak directly with the officers involved in this case prior to September 9, 2022, leaves the court with no choice but to find the People failed to exercise due diligence in filing their COCs and SORs prior to disclosing [*6]these reports.

Briefly, the court also finds the People's failure to identify or learn the names of Officers Muniz and Rivera and provide their BWC footage and activity logs prior to September 8, 2022, to be problematic. These officers were clearly visible on the BWC footage provided by the People that came from other officers. Nor were these two officers mere bit players in this arrest, as they were responsible for transporting the defendant to the precinct after his arrest. The People offer no reason as to why they were unaware of these officers' identities prior to September 8, 2022. If they had merely watched their own discovery they would have seen the role these officers played in the arrest. The fact that once the People were aware of these officers, they were able to immediately access relevant documents demonstrates that tracking these documents or officers down did not require Herculean efforts. That the defendant did not alert the People to these officers earlier is of no moment. It is not the defendant's burden to manage the People's discovery obligations. (See People v Guzman, 75 Misc 3d 132[A], 2022 NY Slip Op 50445[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2022].)

In finding the People's COCs and accompanying SORs filed before September 12, 2022, to be invalid, the court finds the People's speedy trial time was not tolled and is chargeable to the People. (People v Adrovic, 69 Misc 3d 563 [Crim Ct, Kings County 2020].) Charging the People with time for what amounts to an invalid statement of readiness is not an adverse consequence requiring the defendant to show prejudice. (Id. at{**77 Misc 3d at 749}574 ["Prejudice to the defendant is not a factor in this analysis; the People's obligation to provide discovery, and to certify compliance with that obligation, is not relieved by an absence of prejudice to the defendant"]; see also People v Quinlan, 71 Misc 3d 266 [Crim Ct, Bronx County 2021].) In fact, it is not a novel concept for a court to find the People's speedy trial clock is not tolled when their SOR is found invalid and illusory. (People v Sibblies, 22 NY3d 1174 [2014]; People v Brown, 28 NY3d 392, 406 [2016] ["If the court determines that the off-calendar statement of readiness was illusory, it should calculate any delay chargeable to the People as required by statute as if the illusory statement of readiness was never made"]; see People v Aquino, 72 Misc 3d 518, 526 [Crim Ct, Kings County 2021] ["To read the 'no adverse consequence' language from section 245.50 in the manner suggested by the People would insulate the People from a finding that their failure to comply with the discovery mandate invalidated their statement of readiness"].)

Accordingly, the court finds the People's COC and SOR filed on April 5, 2022, to be invalid. Therefore, it did not serve to stop the speedy trial clock, and the People will be charged with this entire adjournment for a total of 104 days.

April 25, 2022-September 1, 2022

On April 25, 2022, a motion schedule was set, and the case was adjourned for decision until August 17, 2022. On that date, the court denied the defendant's motion to dismiss but granted hearings in the case, and the case was adjourned to September 1, 2022, for hearings and trial. The People are entitled to a reasonable adjournment to prepare for hearings after the court renders a decision (People v Wells, 16 AD3d 174 [1st Dept 2005]; see also People v Green, 90 AD2d 705 [1982]). This adjournment is excludable pursuant to CPL 30.30 (4) (a).

September 1, 2022-September 12, 2022

On September 1, 2022, the People answered ready for trial but subsequently their arresting officer witness was unavailable due to a family emergency. The People were able to identify a different police witness to testify, Officer Perez, and the case was adjourned to September 2, 2022, for that purpose. The People filed a supplemental COC and SOR on [*7]September 1, 2022. As stated earlier, the court finds the People's COCs and SORs filed prior to September 12, 2022, to be invalid. Therefore, the People could not be ready for hearings and trial on September 1, 2022. The People will be charged one day for this adjournment.{**77 Misc 3d at 750}

On September 2, 2022, the People dismissed the counts of criminal possession of a controlled substance (Penal Law § 220.03). The case was adjourned to September 12, 2022, for trial. During this period, the People filed three more supplemental COCs and SORs as they disclosed additional police documents to the defendant. However, for the reasons stated above, the court finds the People's COCs and SORs filed prior to September 12, 2022, to be invalid. Nonetheless, according to the court's notes the defendant refused to appear. This adjournment is excludable pursuant to CPL 30.30 (4) (c) (i).

September 12, 2022-Present

On September 12, 2022, the defendant filed the instant motion and the case was adjourned to November 17, 2022, for decision. This adjournment is excludable pursuant to CPL 30.30 (4) (a).

Based on the foregoing reasons, the court finds that 105 days of includable time have lapsed. Accordingly, the defendant's motion to dismiss pursuant to CPL 30.30 (1) (b) is granted.