County Court, Cortland County, March 14, 2022

Keith Dayton, Public Defender (Kayla Hardesty of counsel), for appellant.

Patrick A. Perfetti, District Attorney (Christopher I. Simser, Sr. of counsel), for respondent.

[*2]The appellant having filed a notice of appeal from his conviction and sentence, and the court having received appellant's brief, the People's reply brief, and the City Court's return; the appellant having been represented by the Public Defender's Office and the respondent having been represented by Christopher Simser, Esq., Cortland County District Attorney's Office; now, having reviewed the record, briefs and arguments of counsel, the court finds as follows:

Defendant appeals from an August 2, 2021 judgment of conviction of the violation, harassment in the second degree,{**79 Misc 3d at 173} which was entered following a nonjury trial, and further appeals from a sentence entered the same date, in the City Court, City of Cortland, sentencing defendant to time served and entering an order of protection, and a $120.00 surcharge.

The defendant was arraigned with counsel on April 22, 2021.^[FN1] Following his application for assigned counsel, the Public Defender's Office was assigned to represent the defendant on April 26, 2021. The defendant next appeared on April 28, 2021, and the matter was adjourned for further proceedings.

The People provided the defense with an initial discovery return on April 29, 2021, and again on May 2, 2021. In compliance with their statutory obligations, the People filed a certificate of compliance and statement of readiness on May 4, 2021.^[FN2] The record is devoid of proof that the defendant ever complied with his statutory discovery obligations. The defendant also declined to comply with his CPL article 245 obligation to serve and file a certificate of compliance.

On May 26, 2021, a judicial inquiry was conducted with regard to the People's filing. The People asserted that all discovery had been provided to the defendant, reaffirmed their readiness for trial, and disclosed the name of their sole fact witness.^[FN3] The defense claimed to be missing discovery items including: the police report and 911 call. The People contended that because the defendant is charged with a violation level offense, the defendant would not have been arrested. Thus, a police report would not necessarily exist. The People believed that this incident was reported by the complainant after the incident occurred; thus there was no 911 recording in their file. The court deemed the People ready for trial.

The court issued trial notices on June 4, 2021, scheduling the matter for a nonjury trial to be conducted on July 6, 2021, at 1:00 p.m.

On June 9, 2021, the defendant was arrested, and bail was set on additional charges. Nominal bail was set on this docket at the defendant's request. The defendant was released on June 11, 2021, under the supervision of Alternatives to Incarceration.{**79 Misc 3d at 174}

The court held a conference on June 29, 2021, at which time the defendant did not raise [*3]any issues concerning discovery.^[FN4] The next day, defense counsel contacted the People to inquire about additional discovery. That is when it first came to the attention of both attorneys that a domestic incident report and police report existed. Those documents were immediately obtained and disclosed by the People, and the People agreed to make another inquiry about whether a 911 call was made in this case.^[FN5] It was discovered that a 911 recording did exist, and the recording was disclosed to the defense.

On July 1, 2021, the defendant filed a motion requesting the court find the People's May 2, 2021 certificate of compliance illusory and dismiss the accusatory instrument based upon a violation of CPL 30.30. The defense unilaterally scheduled the return date on that motion for 9:00 a.m. on the morning of the previously scheduled nonjury trial (Tuesday, July 6, 2021). The defendant contended that the late disclosure of these items rendered the People's certificate of compliance illusory thereby giving rise to a statutory speedy trial claim which obligated the court to dismiss the accusatory instrument.

On July 3, 2021, the defendant was again arrested on a third set of charges, he was arraigned and bail was set. At that point in the proceedings, the defendant was facing three separate sets of criminal charges.

After confusion about the time of the motion return on July 6, 2021, a hearing on the motion was held in the afternoon.^[FN6] Defense counsel acknowledged receipt of the 911 recording a week earlier, but nonetheless moved for dismissal claiming an illusory statement of readiness by the People. To the contrary, the People asserted their readiness was genuine and explained that based upon the defendant being charged with a violation{**79 Misc 3d at 175} level offense and counsel's experience, the proof necessary to present the People's case consisted only of testimony from the complainant. Defense counsel acknowledged that there was nothing on the 911 recording which affected counsel's ability to defend the case. Defense counsel also acknowledged that the statute does permit the court to consider sanctions in lieu of the relief requested.

Following the hearing, the court orally ruled on the motion sanctioning the People by ordering the 911 recording precluded from use as evidence at trial and otherwise denying the [*4]relief requested by defense counsel. As a result of the filing of the defendant's motion, the People called off their trial witnesses. Following the court's ruling on the defendant's motion, the court ordered the defendant to undergo a psychological examination pursuant to CPL article 730.^[FN7] Despite the defendant's motion practice being the cause for the People's decision to call off their trial witnesses, the defendant now asserts that doing so rendered the People "not ready" for trial on that date. Curiously omitted from the defendant's brief is the fact that on July 6, 2021, the court ordered the defendant to undergo a psychological evaluation pursuant to CPL article 730. Trial was rescheduled to August 2, 2021. The defendant was convicted.

With respect to the statutory claim, a motion for dismissal on speedy trial grounds must be granted "where the people are not ready for trial within: (d) thirty days of the commencement of a criminal action wherein the defendant is accused of one or more offenses, at least one of which is a violation and none of which is a crime" (CPL 30.30 [1] [d]). A criminal action is commenced by "the filing of an accusatory instrument against a defendant in a criminal court, and, if more than one accusatory instrument is filed in the course of the action, it commences when the first of such instruments is filed" (CPL 1.20 [17]). Accordingly, this criminal action was commenced upon the filing of the information on April 22, 2021, when the defendant was arrested and arraigned. The actual day the action was commenced is excluded from this calculation (People v Stiles, 70 NY2d 765 [1987]).{**79 Misc 3d at 176}

When calculating time for speedy trial purposes, certain periods of time are excluded by statute. Any time the defendant is without counsel is not chargeable to the People for speedy trial purposes (CPL 30.30 [4] [f]; People v Aubin, 245 AD2d 805 [3d Dept 1997]). The time periods during which a defendant has requested or consented to an adjournment are also excludable by statute (CPL 30.30 [4] [b]). Delay caused by court congestion may not be attributable to the People (People v Barden, 27 NY3d 550 [2016]). Delay caused so a determination of the defendant's competency can be made is not chargeable to the People (CPL 30.30 [4] [a]). Delay caused by requests for discovery and defense's pretrial motions is not chargeable to the People (CPL 30.30 [4] [a]).

The defendant was without counsel from April 22, 2021, until April 26, 2021. That time shall be excluded. The People served and filed discovery on the defendant on April 29, 2021, and again on May 2, 2021. On May 4, 2021, the People filed and served a certificate of compliance and statement of readiness. An announcement of readiness communicates the People's present readiness to actually proceed to trial (People v Cole, 73 NY2d 957 [1989]). Therefore, the speedy trial clock in this case commenced on April 27, 2021, and stopped eight days later on May 4, 2021.

An announcement of readiness for trial is an indicator that the People are presently ready to actually try the case (People v Cole, 73 NY2d 957 [1989]). In the instant case, other than the defendant's allegations there is nothing to suggest that the People's statement of readiness was made in bad faith or did not accurately reflect the People's position (People v [*5]McCann, 149 AD2d 814 [3d Dept 1989]). The People asserted that they intended to call the complainant as their sole trial witness and did just that. The complainant was available to the People at all times for purposes of trial.

The enactment of CPL article 245 imposed discovery requirements on the People before they could announce ready for trial (CPL 245.50). Specifically, the People are to exercise due diligence and disclose and make available all known material and information subject to discovery (CPL 245.20, 245.50). The People are not deemed ready for trial for purposes of CPL 30.30 until a proper certificate of compliance is filed (CPL 245.50 [3]). Thus, the defendant seeks a ruling that the People cannot be ready for trial until the People have provided every item of discovery. Therefore, defense counsel takes the position that{**79 Misc 3d at 177} any time supplemental discovery is provided, any prior statement of readiness by the People is illusory. That position is not supported by any reading of article 245.

The legislature provided for the situation where additional discovery may be subsequently provided prior to trial and imposes a continuing duty of disclosure (CPL 245.50 [1]; 245.60, 245.50 [3]). The statutes further establish 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" (CPL 245.50 [1]; see also 245.50 [3]).

The court held a judicial inquiry on May 26, 2021, and deemed the People ready for trial. It is conceded that three items of discovery were produced after the filing of the certificate of compliance and statement of readiness. On this record it is clear that the People were unaware of the three items of discovery and when made aware of their existence, the items were obtained and disclosed to the defendant within less than one day. None of these items impacted the People's ability to present their case-in-chief. The defense acknowledged receipt of these additional items in advance of the trial date. The defense did not seek additional time to review these items of discovery before trial. The three items of discovery were not utilized by either the People or defendant in presenting their cases. Defense counsel conceded that there was nothing in the 911 recording which affected her ability to defend the case.^[FN8] Defense counsel also had additional time between July 6, 2021, and August 2, 2021, to review the additional items of discovery and prepare for trial while her client underwent a 730 exam. The defense failed to articulate any prejudice, actual or perceived, to the defendant as a result of receiving late discovery.

If this court were to adopt defense counsel's argument that the People's statement of readiness is automatically deemed illusory as the result of any supplemental discovery disclosure under article 245, then it places the determinations of discovery compliance in the hands of the defense, rather than the court, where those determinations properly belong. Such a result further creates a next to impossible standard for the People to meet and results in form being prioritized over substance.{**79 Misc 3d at 178} Finally, it invites the possibility of discovery disclosure violations in bad faith on the part of the People in order to not run afoul of a defense-controlled process. In terms of justice, the result is nothing short of draconian.

The defendant takes issue with the People's failure to file a written reply to the motion. There is no requirement that the People's reply be typewritten (CPL 30.30, 210.45). The notice of motion drafted, filed, and served by the defendant did not provide for such on its face; the defendant failed to give the People sufficient notice and time to reply as required by statute (CPLR 2214).^[FN9] The prosecutor was served with the motion papers in the afternoon on Thursday, July 1, 2021, when the prosecutor was on his way to the hospital. The prosecutor was out of the office the next day, presumably for medical reasons. The courts were closed on Monday, July 5, 2021, in observation of the July 4th federal holiday. County offices were also closed, including the District Attorney's Office. On these facts, the People's oral reply to this motion on the return date is not tantamount to a concession of the defendant's assertion.

The lower court did not find that failure to turn over the three discoverable items before the issuance of the certificate of compliance operates to invalidate the certificate in this instance and this court concurs (People v Turner, 71 Misc 3d 1219[A], 2021 NY Slip Op 50412[U] [Sup Ct, Monroe County 2021]). The statute permits the court to impose sanctions as a remedy for a discovery violation (CPL 245.50 [3]; 245.80). After careful consideration of the above, the lower court denied the defendant's demand for dismissal of the accusatory instrument and instead precluded the People from utilizing the recording of the 911 call as evidence at trial pursuant to CPL 245.80. On this record the court finds that the People acted in good faith with respect to their discovery obligations under CPL article 245 as well as their diligence in unearthing and disclosing additional discoverable items the same day the defense requested them. The record reflects diligence, good faith and actual readiness{**79 Misc 3d at 179} on the part of the People. The sanctions imposed by the lower court were proper.

The appellant's appeal from the judgment of conviction from the Cortland City Court is denied. The conviction is affirmed.