Recitation, as required by CPLR 2219[a], of the papers considered in the review of this motion

By Omnibus motion dated February 23, 2022, defendant moves for the following: (1) Inspection and release of the Grand Jury minutes; (2) Dismissal of the Indictment as defective; (3) Dismissal of the Indictment, or alternatively, reduction of the counts as legally insufficient; (4) Finding Good Cause to allow the filing of this motion; (5) Dismissing the accusatory instrument pursuant to CPL §§ 30.30 and 210.20(l)(g); 6) Suppression of Identification Evidence (Dunaway/Wade); (7) Pre-trial voluntariness hearing for Un-noticed Statements; (8) Preclusion of Un-Noticed Statement and Identification Evidence; (9) Sandoval Hearing; (10) Severance (CPL § 200.40); (11) Reservation of Rights.

Defendant's motion to inspect the Grand Jury minutes is granted. Upon inspection, defendant's motion for release of the Grand Jury minutes is denied since the defendant has failed to demonstrate any compelling need for such action and the Court is able to determine the motion without assistance (see CPL § 210.30[3]). However, the People are reminded of their obligation to disclose all transcript(s) of person(s) who testified before the Grand Jury, unless [*2]subject to a protective order, pursuant to CPL § 245.20(l)(b).

Defendant's motion to dismiss the indictment, or alternatively, to reduce the counts therein, is denied since the evidence adduced before the Grand Jury was legally sufficient to sustain the indictment. Moreover, the district attorney properly instructed the Grand Jury on the relevant law (see People v. Calbud, Inc., 49 NY2d 389 [1980]). Lastly, the presentation of the case to the Grand Jury was not defective as a matter of law. The minutes reveal that a quorum of the Grand Jurors was present during the submission of evidence and at the time that the district attorney instructed the Grand Jury on the law. No unauthorized person within the meaning of CPL § 190.25 was present at any time during the proceedings (see People v. Sayavong, 83 NY2d 702 [1994]). Additionally, no irregularity that would impair the integrity of the Grand Jury occurred (see People v. Adessa, 89 NY2d 677 [1997]; People v Huston, 88 NY2d 400 [1996]).

The prosecutor and defense counsel (hereafter the parties) are reminded of their continuing duty to diligently confer with each other pertaining to any and all outstanding discovery issues/disputes, excluding protective orders under CPL § 245.70.

Pursuant to the Administrative Order of the Chief Administrative Judge and in furtherance of the fair administration of justice, the parties are hereby reminded and directed to uphold their constitutional, statutory, and ethical responsibilities in the above-captioned proceedings as indicated in the attached Order to Counsel in Criminal Cases.

Additionally, the People are ordered to comply with their initial automatic discovery obligations outlined in CPL §§ 245.10 and 245.20; their continuing discovery obligations as set forth in CPL § 245.60; and their continuing obligation to provide all Brady material. Finally, defendant and/or defense counsel are ordered to comply with their reciprocal discovery obligations pursuant to CPL §§ 245.20(4) and 245.60.

The instant motion was filed in-excess of the forty-five (45) days allotted for this purpose pursuant to CPL § 255.20. Defense counsel maintains that the delay was caused by COVID-19, her medical condition, and her engagement on other cases. Accordingly, this Court, in its discretion, finds good cause for the late filing pursuant to CPL § 250.20(3).

Defendant moves to dismiss the instant indictment pursuant to CPL § 30.30(l)(a) and CPL § 210.20(l)(g) on ground that the People's Statement of Readiness, filed on November 16, 2021, was illusory due to the People's failure to file a valid Certificate of Compliance with the requisite disclosure mandates pursuant to CPL § 245.20; namely, the grand jury minutes.

Defendant was arraigned on the felony complaint on May 12, 2021, during the Governor's suspension of the speedy trial statute as referenced herein. The case was adjourned to June 14, 2021, for Grand Jury action. Following two (2) more adjournments for Grand Jury Action, on June 14th and September 16, 2021, the People obtained an indictment against defendant on November 15, 2021. Immediately thereafter, on November 16, 2021, the People filed the indictment, Certificate of Compliance (hereafter COC), and a Statement of Readiness (hereafter SOR) for trial. Notably, the People represented in the COC that the Grand Jury minutes were not yet available to them.

The case was first scheduled on the Supreme Court calendar for defendant's arraignment [*3]on the indictment on December 3, 2021. Defendant did not appear due to his hospitalization. The court stayed a bench warrant and adjourned the case to December 8, 2021, for defendant's arraignment on the indictment. Meanwhile, on the same date, the People served the Grand Jury minutes on defendant via email (People's Response, pg 2).

On December 8, 2021, defendant was arraigned on the indictment. The People affirmed its readiness based on the previous off-calendar filing of the COC and SOR; and the court set a motion schedule. The case was adjourned to February 16, 2022, for decision on Omnibus motions. In the interim, off-calendar on February 8, 2022, the People filed a Supplemental COC and SOR which included its disclosure of the Grand Jury minutes to defendant. In the Supplemental COC, the People represented that it had "obtained material or information that was not in existence/created when the People previously certified compliance." (People's COC filed 2/8/2022, pg 1).

The defendant contends that the People failed to meet its automatic discovery obligations pursuant to CPL § 245.20 (1) which rendered the SOR filed on November 16, 2021, invalid. CPL § 245.20 (1) provides that,

The Prosecution shall disclose to the defendant all items and information that relates to the subject matter of the case and are in the possession, custody, or control of the prosecution or persons under the prosecution's direction or control.

CPL § 245.20 (7) directs this Court to apply a presumption in favor of disclosure when interpreting the statutory text of CPL §§ 245.10, 245.25, and 245.20. All items and information related to the prosecution of a charge in the possession of any New York State or local police department or law enforcement agency are explicitly deemed to be in the prosecutor's possession, custody, or control (CPL § 245.20 [2]). The statute further imposes an automatic and affirmative duty upon the prosecutor to make diligent, good-faith efforts to determine the existence of material and/or information to be available for discovery where it exists but is not (emphasis added) within the prosecutor's possession, custody, or control (CPL § 245.20 [7]). Where, despite diligent, good faith efforts and reasonable inquiry, the People are unable to secure and disclose mandated discoverable material within the statutorily allotted time periods, the law prescribes that the People make an application to the court to enlarge the time to comply with its disclosure requirements (CPL § 245.70 [2]).

The statute goes on to enumerate a non-exhaustive list of materials subject to the prosecution's automatic disclosure mandate (Id.); and specifically includes Grand Jury minutes within the mandate of automatic discovery (CPL § 245.20 [l] [b]). The statute further provides,

If in the exercise of reasonable diligence and due to the limited availability of transcription resources, a transcript is unavailable for disclosure within the time period specified in subdivision one of section 245.10 such time period may be stayed by up to an additional thirty calendar days without need for a motion pursuant to subdivision two of section 245.70 of this article; except that such disclosure shall be made as soon as practicable and not later than thirty calendar days before the first scheduled trial date, unless an order is obtained pursuant to section 245.70 of this article

The new discovery statute imposes an affirmative and ongoing duty for the People to obtain and disclose additional material and information that is subject to automatic mandatory discovery pursuant to CPL § 245.20 (see CPL § 245.60). Moreover, the new law now directly links the People's compliance with its automatic discovery obligations, as a condition precedent, [*4]to the validity of its Statement of Readiness (SOR) and speedy trial calculations.

To be sure, notwithstanding the provisions of any other law, CPL § 245.50(3) provides that absent an individualized finding of special circumstances by the court before which a charge is pending, the prosecution shall not be deemed ready for trial pursuant to CPL § 30.30 until it has filed a proper Certificate of Compliance pursuant to CPL § 245.50(1). Similarly, CPL § 30.30(5) requires that any statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of CPL § 245.20.

In order for the People to file a valid SOR, the People must first: (1) file a COC upon satisfaction of its discovery obligations under CPL § 245.20(1), except for discovery that is lost or destroyed, or any items or information that are the subject of a protective order pursuant to CPL § 245.70; (2) affirm that it has disclosed and made available all known material and information subject to discovery after having exercised due diligence and making reasonable inquiries to ascertain the existence of such material and information; and (3) must include a list identifying the discovery materials provided (CPL § 245.50[1]). If additional discovery is subsequently provided or required prior to trial, the statute provides for a supplemental certificate which shall be served upon the defendant and filed with the court identifying the additional material and information provided (CPL § 245.60). No 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 CPL § 245.80.

Clearly, Grand Jury minutes are automatically discoverable pursuant to CPL § 245.20(1)(b); and the People were required to disclose such materials to the defendant in order to satisfy its obligations under CPL § 245.20(1). Despite the clear mandate of the statute, the People filed a COC on November 16, 2021, wherein the People affirm that it had disclosed . . . all existing known material and information subject to discovery [emphasis added], except . . . items or information subject to a protective order under section 245.70 of the Criminal Procedure Law (People's COC filed 11/16/2021, pg 1). The People further posit that the Grand Jury minutes, which they knew to exist at the conclusion of the grand jury presentment, were not yet available to them (Id.). The People's COC averments are flawed in this regard. First, unlike a lab test or DNA analysis that had yet to be conducted or completed at the time of a COC filing, the minutes of a Grand Jury proceeding are recorded in real time and exist upon the conclusion of the presentment. That the grand jury minutes had not yet been transcribed does not negate the veracity of its existence. Second, unlike a test or report conducted by an entity outside of the People's control, as in the Office of the Chief Medical Examiner for example, Grand Jury stenographers throughout New York City are employed by the prosecutor's office (see Judiciary Law § 321).^[FN1] Hence, the grand jury minutes and the transcription of said grand jury minutes are directly under the prosecutor's custody and control.

In promulgating the new discovery statute, the legislature anticipated a circumstance [*5]where the prosecutor may be deemed ready for trial, despite non-compliance with its automatic discovery obligations; and recognized that unavoidable delays may prevent a diligent prosecutor from attaining full compliance despite its best efforts to obtain all relevant material in a timely manner (People v. Aquino, 72 Misc 3d 518, 146 NYS3d 906 [ NY Crim Ct. 2021]; People v. Adrovic, 69 Misc 3d 563, 130 NYS.3d 614 [NY Cty Crim Ct. 2020]; People v. Diaz, — NYS.3d —, 2022 NY Slip Op. 22083, [Bx Cty Crim Ct. 2022]; People v. Henry, 74 Misc 3d 1230[A], 2022 NY Slip Op 50265[U] [Richmond Cty Sup Ct. 2022] [the only purpose of a certificate of compliance is to serve as a necessary prerequisite to a valid statement of readiness for purposed of CPL § 30.30]). In such case, amongst the available statutory options, the People may seek a judicial ruling authorizing its filing of a SOR based on an individualized finding of special circumstances pursuant to CPL § 245.50(3) (Id.).

In this case, the People failed to move the court for "an individualized finding of special circumstances" to file a SOR despite their awareness of the existence of grand jury minutes; nor have they demonstrated any impediments or obstacles to having the grand jury minutes transcribed for disclosure that might constitute an exceptional circumstance under CPL § 30.30[4][g]. The People do not allege that the grand jury minutes were either lost or destroyed, or that such information was the subject of a protective order pursuant to CPL § 245.70. In fact, the People have failed to put forth any argument in support of a statutory exception that would authorize its filing of a SOR under the circumstances presented here.

Instead, in an apparent effort to stop the speedy trial clock, given the almost six (6) month delay in securing an indictment, the People filed a COC and SOR erroneously affirming that "all known materials and information subject to discovery" had, in fact, been "disclosed." To accept the People's SOR under these circumstances, would, in effect, vitiate the underlying legislative intent of the statute which mandates full compliance with discovery as a prerequisite to the People's declaration of readiness for trial (see Androvic, supra [the People can't file a Certificate of Compliance claiming they have disclosed all known discovery if they have not actually done so without the express permission of the court]; People v. Quinlan, 71 Misc 3d 266, 142 NYS3d 305 [NY Crim Ct. 2021]; see also People ex rel. Ferro v. Brann, 197 AD3d 787 [2d Dept. 2021] [the People's filing of a certificate of compliance pursuant to CPL § 30.30(5) cannot be complete until all material and information subject to discovery was actually disclosed to defendant pursuant to CPL § 245.50(1)]).

Accordingly, whereas here, the People cannot point to a statutory exception exempting non-disclosure of the grand jury minutes or authorizing a declaration of readiness for trial in spite of such missing discovery, I find that the SOR filed on November 16, 2021, was neither accompanied and/or preceded by the requisite good faith certification of compliance with the disclosure requirements of CPL § 245.20 (See CPL § 245.50[3] and 30.30[5]); and is therefore illusory.

Since the defendant was charged with one or more offenses, at least one of which is a felony, the People must announce ready for trial within six (6) calendar months from the date of commencement, absent a showing of excludable time (CPL § 30.30[1][b]). Defendants were arraigned on the felony complaints on May 12, 2021, thereby commencing the action. Hence, the six-month speedy trial clock expires on November 12, 2021, absent excludable time. In this case, the six (6) month period is the equivalent of one hundred and eighty-four (184) days.

In determining whether the People have satisfied their obligation to be ready for trial [*6]under Criminal Procedure Law § 30.30, this Court must calculate the time between the filing of the first accusatory instrument and the People's declaration of readiness, then subtract any statutorily excludable periods of delay, and finally add any periods of post-readiness delay that are attributable to the People for which statutory exclusions apply (see People v. Cortes, 80 NY2d 201 [1992). Once the defendant has shown the existence of a delay greater than the statutory period, the burden rests on the people to show any pre-readiness exclusions, and on the defendant to show any post-readiness inclusions (People v. Chavis, 91 NY2d 500, 504-505 ([1998]). The People also bear the burden of producing a record of the proceedings sufficient for the court to reach "an informed decision" regarding what time may be excludable (People v. Stirrup, 91 NY2d 424 [1998]; People v. Cortes, supra, at 215 [1992]).

The prosecution accurately concedes that it had accrued a total of 176 days of chargeable delay from commencement of the criminal action to the date it filed the aforementioned SOR.

As is relevant here, beginning March 20, 2020, New York State's Governor issued an Executive Order suspending and tolling speedy trial calculations pursuant to the Criminal Procedure Law as a result of a global pandemic (See Governor's Executive Order 202.8 effective 3/20/20). Thereafter, the Governor issued multiple successive Executive Orders which continued to extend the suspension and tolling of speedy trial time under the Criminal Procedure Law through and including May 23, 2021, for unindicted felonies (See Executive Orders 202.67, 202.87, and 202.106). On May 24, 2021, the speedy trial limitations of CPL § 30.30 resumed for all pending felony matters (See Executive Order 202.106).

Defendant argues that this time period is chargeable to the People because the Governor's Executive Order No. 202.87, issued on December 30, 2020, tolled CPL §§ 30.30 and 190.80 " to the extent necessary [emphasis added] to toll any time periods contained therein for the period during which the criminal action is proceeding on the basis of a felony complaint through arraignment on the indictment or on a superior court information and thereafter shall not be tolled." The defendant avers that because grand juries were operating at the time, the People must establish that they were unable to indict the case due to a condition caused by the global pandemic in order toll speedy trial accruals during this time. To that end, the People contend that while grand juries convened during this period, grand jurors were being quarantined; only a limited number of grand juries were sitting at a time; and given such limitations, the prosecutor prioritized indicting cases of incarcerated defendants over defendants at liberty pending prosecution (People's Response, pg. 2). Notably, defendant was at liberty pending prosecution of these charges (Court file). Under the circumstances, I find that the People's ability to present defendant's case to a grand jury during this time period was impacted by the ongoing COVID-19 Global Pandemic. As such, the eleven (11) day period from May 12th to May 23rd is excluded. {Total of 0 days of delay chargeable to the People}

On May 24, 2021, the speedy trial provisions of CPL § 30.30 resumed again for all pending felony matters (see Executive Order 202.106). Between May 24th and November 15, 2021, the case remained in pending grand jury action status on the felony complaint. On November 16, 2021, the People served and filed the instant indictment; Certificate of Compliance pursuant to CPL § 245.20; and Statement of Readiness for trial pursuant to CPL § 30.30. Thus, the People accrued one hundred and seventy-six (176) days of delay from May 24th to November 15, 2021. {Total of 176 days of delay chargeable to the People}

As decided herein, the Court finds the People's SOR filed on November 16, 2021, to be [*7]illusory and therefore invalid to stop the speedy trial clock. The People filed a Supplemental Certificate of Compliance and Statement of Readiness on February 8, 2022. The People's Supplemental COC affirmed that the People had met its discovery obligations by disclosing the outstanding grand jury minutes to defendant in compliance with CPL § 245.20.^[FN2] Therefore, I find that the People's Supplemental COC to be proper; and Statement of Readiness filed on February 8, 2022, to be valid. Hence, the People accrued eighty-four (84) days of delay from November 16, 2021, to February 7, 2022. {Total of 260 days of delay chargeable to the People}

For the aforementioned reasons, this Court calculates that as of February 8, 2022, the People have accrued a total of two hundred and sixty (260) chargeable days of delay since commencement of this action. Accordingly, defendants' motion to dismiss on ground of a statutory speedy trial violation is GRANTED in its entirety.

In light of the above ruling, the remaining branches of defendant's Omnibus Motion are rendered moot.

The foregoing constitutes the opinion, decision, and order of the court.