Defendant moves for an order deeming the Prosecutor's Certificate of Compliance in this case invalid pursuant to CPL 245.50 (1) because documents which were discoverable under CPL 245.20 (1) (j) and (k) were not timely disclosed,^[FN1] and accordingly additionally moves to dismiss the case pursuant to CPL 30.30.

In January of 2020, the legislature repealed CPL art 240 and replaced it with CPL art 245 (L 2019, ch 59, part LLL, § 2, eff. Jan. 1, 2020). CPL 245.20 (1) (j) requires the People to disclose

"All reports, documents, records, data, calculations or writings, including but not limited to preliminary tests and screening results and bench notes and analyses performed or stored electronically, concerning physical or mental examinations, or scientific tests or experiments or comparisons, relating to the criminal action or proceeding which were made by or at the request or direction of a public servant engaged in law enforcement activity" (emphasis added).

CPL 245.50 (1) requires that once the People have complied with their discovery responsibilities, they shall file a Certificate of Compliance which states that they have exercised "due diligence" and made "reasonable inquiries" to live up to their discovery obligations. Such certificate must be filed "in good faith." The People cannot answer ready pursuant to CPL 30.30 [*2]until they have filed a proper certificate of compliance (see CPL 245.50 [1]).

On October 29, 2021, the People filed a Certificate of Compliance and a Statement of Readiness in this case. That certificate stated that there were no reports or documents generated as a result of a physical or mental exam of the complainant related to this criminal action made by or at the direction of law enforcement.

On January 12, 2022, in a conference on the morning trial was to commence, it was established that the complainant walked into the 114th Precinct on August 10, 2021 to complain, inter alia, that the defendant had assaulted her earlier that day. It was further established that law enforcement personnel asked that a FDNY/EMS ambulance respond to the precinct to treat and/or evaluate the complainant and that FDNY/EMS did so and a report of some sort was generated.

It was further established on the record that on December 15, 2021, the People had actually served a subpoena duces tecum on FDNY/EMS seeking the ambulance report from August 10, 2021. December 15, 2021 was 126 days after the defendant was arraigned and 47 days after the People filed a certificate averring that the documents they sought via subpoena did not exist.

At no point in the 47 days between the filing of the Certificate of Compliance and the subpoenaing of the documents did the People file a supplemental or additional certificate seeking to correct the first one. Similarly, at no point during the 28 days between the subpoenaing of the documents and the morning the parties were to start the trial on January 12, 2022, did the People file a supplemental or additional certificate.

In fact, when first asked about the ambulance reports on the morning of trial, the People stated that they had no obligation to produce or disclose the documents in question as said documents were not under their control because the FDNY is a "non-law enforcement agency" and therefore not discoverable (t at 30).

Not every failure to provide a document which the People are obligated to provide under the letter of the statute is necessarily fatal to an assertion of readiness under CPL 30.30. This case and this example of such a failure is not, however, one of those cases. Here, we have a complainant who walked into a precinct the same day she alleges she was assaulted and the police called an ambulance to examine and treat her.^[FN2] It is of no moment that the agency that responded was not a law enforcement agency. Failure to obtain and disclose records of physical treatment and/or examination of a complainant allegedly assaulted on that same day falls far short of the due diligence the statute requires of the People in this context (see generally People v Ryklin, 72 Misc 3d 1208[A], 2021 NY Slip Op 50678 [Sup Ct, Kings County 2021]).

One local Court has written that "to interpret article 245 narrowly is to flout the Legislature's unmistakable intent that it be interpreted broadly, in favor of disclosure" (People v Edwards, — Misc 3d —, 2021 NY Slip Op 21372 [Crim Ct, NY County 2021]). Two years out from January 1, 2020, it would serve the People well to accept that no amount of wishful quibbling or interpretation will change the plan language of the statute or obscure the obvious intent of the legislature. The People must go to trial with the discovery statute they have, not the [*3]discovery statute they might wish to have.

The People have filed a response to the defendant's motion which seeks to shift their burden onto the defendant. The People argue that the defendant's delay in filing their own COC is somehow to blame for the deficiencies in the People's certificate. The People also cite an Administrative Order of the Administrative Judge of the Queens Supreme Court.^[FN3] Judge Zayas' order essentially urges both parties on a case to confer with each other and attempt to solve discovery disputes between themselves before bringing them before a Judge. Nothing about the order changes any of the People's statutory obligations (as indeed it could not). Nothing about the order precludes the defendant from moving for relief (such as dismissal through CPL 30.30) to which they are entitled or requires the defendant to seek the People's permission before seeking such relief.^[FN4]

Nevertheless, it is clear that, in this context, no amount of the sort of conferring that the People appear to champion in their response would have fixed the problem before this Court. The People stood up on the record with the jury panel waiting outside the door and maintained that "their position" was that the documents in question were outside of their responsibility and only acquiesced after the Court read the statute out loud to them on the record. "Diligent conferring" between the parties only works if it is a two-way street and both parties have a good grasp of the rules of the road.

Broad and sweeping changes in the criminal law such as the ones that took effect in January of 2020 are, no doubt, difficult to adjust to, especially given how rarely change of such scope comes around. And, there is no doubt that the legislature has taken a number of things that were once the responsibility of defense counsel in preparing for trial and put them at the feet of the People. However, there comes a point when what was once new and unfamiliar in our law is no longer new and should no longer be unfamiliar.

In conclusion, CPL 245.50 (3) provides that

"[n]otwithstanding the provisions of any other law, absent an individualized finding of special circumstances in the instant case by the court before which the charge is pending, the prosecution shall not be deemed ready for trial for the purposes of [CPL 30.30] until it has filed a proper certificate of compliance pursuant to [CPL 245.50 (1)]."

There are no such special circumstances in this case. The Court finds that the People have not filed a proper certificate of compliance for the reasons stated above and that they therefore have not effectively answered ready. Accordingly, all 159 days between the commencement of the case (August 11, 2021) and the filing of the instant motion (January 17, 2022) are chargeable. Because this exceeds the allowable period of 90 days for a class A misdemeanor, this case is dismissed.