Defendant moves to challenge the two certificates of compliance filed by the prosecutor and to dismiss the indictment pursuant to CPL 30.30 on the ground that the prosecution's statements of readiness for trial were not preceded by a proper certificate of good faith compliance with CPL 245.20. For the reasons stated below, this court grants the motion to challenge the first certificate of compliance, filed on November 19, 2021, but denies the remainder of defendant's motion, finding that the supplemental certificate of compliance, filed on December 29, 2021, is proper and that the number of days chargeable to the prosecution is fewer than the 181 days that the prosecution has to be ready for trial.

The prosecutor filed a certificate of compliance and statement of readiness for trial on November 19, 2021. The discovery material provided to defendant by that date did not include a 911 call, a 911 event chronology, a 911 Certification, and a radio run. Defendant's motion adequately establishes that this material is discoverable, and the prosecutor does not contend otherwise. Nevertheless, the prosecutor did not disclose this material until forty-eight days later on December 29, 2021. Defendant argues that the belated disclosure of the 911 call and other material related to the call means that the November 19, 2021 certificate of compliance is improper.

The discovery statute does not define what makes a certificate of compliance proper, but it stands to reason that a certificate of compliance cannot be proper unless the prosecutor has disclosed to defendant all known material subject to discovery after having exercised due diligence and made reasonable inquiries to find out what discovery existed (see CPL 245.50 [1]; People v Diaz, 2022 NY Slip Op 22083, *3 [Crim Court, Bronx County 2022] ["certificate of discovery compliance is proper when 'all known' discoverable materials have been disclosed after the prosecutor has exercised due diligence and made reasonable inquiries"]).

When a defendant challenges a certificate of compliance on the ground that discoverable material was provided after the certificate of compliance was filed, the prosecutor must account for the belated disclosure and provide the court with sworn allegations of fact that allow the court to determine whether the prosecutor exercised due diligence and made reasonable inquires to provide the defendant with all known discovery material (see People v Perez, 73 Misc 3d 171, 177 [Sup Ct, Queens County 2021] ["upon a challenge to a certificate of compliance, the People must articulate their efforts to comply with CPL 245.20 (1) with respect to the statutory subsections or specific items of discovery at issue"]).

In this case, the prosecutor provided no information that would permit this court to determine whether the prosecutor exercised due diligence and made reasonable inquiries to locate the 911 call and related material before filing the certificate of compliance on November 19, 2021. The prosecutor did not explain the reason for the belated disclosure of that material or state what efforts, if any, had been made to acquire it before the certificate of compliance was filed. The prosecutor answered only that the discovery statute permits supplemental discovery and permits a prosecutor to file a supplemental certificate of compliance when additional discovery is later provided (see CPL 245.50 [1]). But the statute permits supplemental discovery only when the prosecutor "subsequently learns" that additional discovery material exists but has not been disclosed (see CPL 245.60). Here, the prosecutor did not allege that he learned about the 911 call and related material after he had filed the certificate of compliance on November 19, 2021. In the absence of any information to explain the belated disclosure of this material and the efforts made to locate it, this court has no basis to find that the prosecutor exercised due diligence to find this material and learned about it only after he had filed the certificate of compliance.

The prosecution argues to uphold the certificate of compliance on the ground 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" (CPL 245.50 [1]; see People v Diaz, 2022 NY Slip Op 22083 at *3 ["a certificate of discovery compliance may also be deemed proper when a court determines that it was filed in good faith and reasonable under the circumstances"). However, this court cannot make that finding on this record. As noted already, the prosecutor's affirmation does not explain why the 911 call and related material were not disclosed or what efforts, if any, were made to obtain that material. Due diligence and good faith will not be presumed from an empty record. This court therefore finds the certificate of compliance filed on November 19, 2021, to be improper.

This court, however, finds that the supplemental certificate of compliance filed on December 29, 2021, is proper. Defendant challenges the supplemental certificate of compliance on the ground that several items of alleged discovery remain outstanding. None of these [*2]challenges have merit.

Defendant alleges the nondisclosure of disciplinary records of police officers who are expected to testify at a hearing or trial. The prosecution has disclosed to defendant a summary list of pending and substantial allegations of misconduct committed by police witnesses. Defendant argues that this summary list is inadequate and that CPL 245.20 (1) (k) (iv) mandates the disclosure of all records underlying those allegations and allegations determined to be unsubstantiated. This argument, however, violates the provision that governs the discovery of impeachment material for potential witnesses.

The core principle of defendant's argument is that the discovery requirement for impeachment material applies, one way or another, to information about complaints of police misconduct committed in cases that are unrelated to the subject matter of the case against the defendant (see e.g. People v Montgomery, 74 Misc 3d 551, 553 [Sup Ct, New York County 2022]; People v Castellanos, 72 Misc 3d 371, 374—375 [Sup Ct, Bronx County 2021]). This argument derives from the language in CPL 245.20 (1) (k) (iv) that requires disclosure of "[a]ll evidence and information that tends to impeach the credibility of a testifying prosecution witness." But this argument overlooks that paragraph (k) is part of subdivision (1) of CPL 245.20, which limits discovery in the first instance to evidence and information that "relate to the subject matter of the case." This statutory limitation modifies paragraph (k) and thus restricts it to impeachment material that is related to the subject matter of the case. In other words, the broad language of paragraph (k)—"[a]ll evidence and information"—does not override the more specific, limiting language in subdivision (1) and expand the universe of discoverable material to include impeachment material unrelated to the subject matter of the case. Other courts have reached the same conclusion (see People v Florez, 74 Misc 3d 1222[A], *7 [Sup Ct, Nassau County 2022]; People v Knight, 69 Misc 3d 546, 550—551 [Sup Ct, Kings County 2020]).

This interpretation of CPL 245.20 (1) (k) (iv) is based on the rule of statutory construction which states that "[w]henever there is a general and a particular provision in the same statute, the general does not overrule the particular but applies only where the particular enactment is inapplicable" (McKinney's Cons. Laws of NY, Book 1, Statutes 238). This court therefore does not agree with defendant's argument that CPL 245.20 (1) (k) (iv) creates "an exception to the general rule that § 245.20 (1) covers only materials that 'relate to the subject matter of the case'—insofar as it requires disclosure of a witness's possible prior bad acts in factually unrelated cases" (Perlin Aff in Supp at ¶ 45 [emphasis in original]). This argument gets the applicable rule of statutory construction backwards. Thus, in the absence of any claim that defendant seeks impeachment material for misconduct related to the subject matter of this case, this allegation provides no basis to find that the supplemental certificate of compliance is improper.

Defendant's next allegation is the nondisclosure of three Domain Awareness System reports. Her motion does not allege what this system does, how it works, or why any of its reports are discoverable. For those reasons, this allegation provides no basis to find that the supplemental certificate of compliance is improper.

Defendant also alleges that two DNA reports have not been disclosed, but the prosecutor states that those reports were contained in material that was disclosed to defendant on February 26, 2021. Defendant does not dispute that statement, and she no longer refers to those reports as outstanding discovery. This allegation provides no basis for declaring the supplemental certificate of compliance to be improper.

Lastly, defendant alleges the nondisclosure of the identity of an unidentified police officer "at the scene," as well as this officer's body camera video and activity log. This complaint apparently refers to one of eight police officers allegedly "involved in the arrest" (Perlin Reply in Supp at 3). However, the mere fact that an officer was present at the arrest does not establish that the officer possesses evidence or information that is relevant to the charges or a potential defense to those charges (see CPL 245.20 [1] [c], [d]). This allegation does not support defendant's contention that the identity of this officer and the other requested material "are clearly part of the required discovery" (Perlin Aff in Supp at ¶ 39). The parties are ordered to diligently confer to resolve any questions about whether this information and material is subject to automatic discovery.

For starters, this court does not agree with how the parties have measured the number of days in the six-month period within which the prosecution must be ready for trial. They measured the six-month period from the date in May 2021 when the Governor rescinded the Executive Order that tolled the speedy trial time for unindicted felonies during the Covid-19 pandemic. But the six-month period within which the prosecution must be ready for trial is measured from the date of the commencement of the criminal action (see CPL 30.30 [1] [a]). The Executive Order merely stopped the speedy trial clock from starting on day one; it did not move the clock forward to a different start date (see People v Aquino, 2022 NY Slip Op 22079, * 1 [Sup Ct, New York County 2022] [measuring applicable six-month period from commencement of criminal action rather than recission date of the Executive Order]). In this case, the criminal action commenced with the filing of the felony compliant on February 26, 2021, and the number of days within the six-month period from that date is 181 days.

The speedy trial calculations begin with the delay between the filing of the felony complaint on February 26, 2021, and the Supreme Court arraignment on the indictment on October 18, 2021. The prosecution correctly contends that the period of delay covered by the tolling provision is excludable, but the parties mistakenly believe that this provision was rescinded on May 23, 2021. The tolling provision remained in effect through that date, and the speedy trial clock restarted on May 24, 2021 (see id. at *2 n 2, citing Executive Order [A. Cuomo] No. 202.106 [9 NYCRR 8.202.106]). The delay from February 26, 2021, through May 23, 2021, is therefore excluded. The prosecution does not contend that any of the remaining delay is excludable (see People v Luperon, 85 NY2d 71, 78 [1995] ["the People must ordinarily identify the exclusions on which they intend to rely"]). The prosecution is thus charged with the 148 days of prearraignment delay from May 24, 2021, to October 18, 2021 (see People v Cortes, 80 NY2d 201, 212—213 [1992]).

The prosecution is not charged with any other periods of delay in this case. The remainder of the post-arraignment delay is due to defense motion practice. On October 18, 2021, this court adjourned the case to December 10, 2021, for discovery compliance and for a decision on defendant's request for inspection of the grand jury minutes. On December 10, 2021, this court set a motion schedule for deciding defense motions and adjourned the case to March 4, 2022, for a decision on those motions. Defendant thereafter filed an omnibus motion on January 27, 2022, and the present speedy trial motion on February 2, 2022. The adjournments granted due to resolve defense motions are excludable under CPL 30.30 (4) (a) (see People v Brown, 99 NY2d 488, 491—492 [2003]). Because the number of chargeable days is fewer than 181, the motion to dismiss is denied.

For the reasons stated above, this court finds the certificate of compliance filed on November 19, 2021, to be improper; this court finds the supplemental certificate of compliance filed on December 29, 2021, to be proper; and this court denies the motion to dismiss pursuant to CPL 30.30 on the ground that only 148 days are chargeable to the prosecution.

This court also orders the parties to diligently confer to resolve any discovery disputes about the unidentified police officer present at the scene of the arrest.