By motion filed March 21, 2022, defendant moves for dismissal of the accusatory instrument pursuant to CPL 30.30 (1) (b). The People filed a response on April 22, 2022. The defendant replied on April 25, 2022. On April 29, 2022, the court, after a review of the motion papers, exhibits, and the court file, on the record in open court, granted defendant's motion to dismiss. This Decision and Order provides the court's reasoning.

On November 10, 2021, defendant was arraigned on an accusatory instrument charging him with assault in the third degree (Penal Law § 120.00 [1]) and assault in the third degree (Penal Law § 120.00 [2]), class A misdemeanors, attempted assault in the third degree (Penal Law § 110/120.00 [1])), a class B misdemeanor, and harassment in the second degree (Penal Law § 240.26 [1])), a violation. The case was adjourned to December 13, 2021, for conversion of the criminal complaint to an information.

On December 13, 2021, the complaint was deemed an information, and the case was [*2]adjourned to January 24, 2022, for trial.

The People were not ready for trial on January 24, 2022. The case was adjourned to March 3, 2022, for trial.

On February 4, 2022 — eighty-six days after defendant's arraignment — the People filed a certificate of compliance ("COC"), certificate of readiness ("COR"), automatic discovery form ("ADF"), and list of discovery and Rosario materials, off-calendar. The list of discovery and Rosario materials included Garrett and Giglio disclosures and disclosure advisory forms ("DAF") for three testifying officers, two of which are at issue in this motion. The DAF for Officer Bryan Gray provided that the New York City Police Department ("NYPD") found substantiated misconduct on three occasions and unsubstantiated misconduct on one occasion. The DAF for Officer Frank Contaldi provided that the NYPD found substantiated misconduct on one occasion.

On February 18, 2022, the attorneys had a phone conversation during which defense counsel requested the following: (1) underlying paperwork for both substantiated and unsubstantiated NYPD findings noticed in the DAFs, and (2) notes taken by Officer Contaldi. The People responded that they would not provide the requested NYPD misconduct paperwork because it was their position that this was not discoverable material under CPL 245.20.

On February 25, 2022, the People disclosed the requested police notes, which were in fact Officer Gray's notes, as well as a four-page "health pedigree information" record from the veterans' residence where the alleged incident took place.

At the next scheduled court appearance, on March 3, 2022, defendant requested a motion schedule. On March 21, 2022, defendant filed the instant motion to dismiss pursuant to CPL 30.30 for failure to file a valid COC within the statutory 90-day period.

Defendant is accused of a misdemeanor offense punishable by a sentence of imprisonment of more than three months. Accordingly, the People must be ready for trial within 90 days of the commencement of the criminal action, less any excludable time (CPL 30.30 [1] [b], [4]). Computation for speedy trial purposes commences on the day after arraignment (People v Stiles, 70 NY2d 765 [1987]). Once a defendant has alleged an unexcused delay greater than the statutory allowance, the burden shifts to the People to demonstrate that specific periods of delay should be excluded (People v Santos, 68 NY2d 859 [1986]; People v Berkowitz, 50 NY2d 333 [1980]).

Defendant argues that more than 90 days of includable time have elapsed since the commencement of the criminal action because the People's COCs were invalid. Specifically, defendant contends that the People have not disclosed discoverable NYPD disciplinary records for the two testifying officers, as well as information concerning the complainant's prior bad acts. Defendant argues also that the People did not disclose hand-written police notes and records from the veterans' residence facility until more than 90 days had elapsed after [*3]arraignment.

In response, the People claim that NYPD disciplinary records are not discoverable, as they are "collateral" and would be too difficult to produce. The People argue also that the contents of the police notes were known to the defendant, as they were essentially information contained elsewhere in the provided discovery. The veterans' residence records, the People assert, were prepared by the Veterans House, which is not under the custody and control of the District Attorney's Office. The People did, however, belatedly disclose a copy of these records that had been in NYPD possession since the alleged incident, as well as the originals, which the People later obtained from the veterans' residence. The People did not specifically address defendant's argument concerning complainant's prior bad acts, but stated that they have complied with the requirements of CPL 245.20(1)(k).

Pursuant to CPL 245.20 (1), the People must automatically disclose to defendant "all items and information that relate 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." All information and items "related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency shall be deemed to be in the possession of the prosecution" (CPL 245.20 [2]). CPL 245.20 (2) further directs the People to make a diligent, good faith effort to ascertain the existence of such information, and when it exists, make it available for discovery, even if the material is not within their possession, custody, or control.

Once the People have satisfied their automatic discovery requirements, they must file and serve a COC pursuant to CPL 245.50. The COC shall identify the items provided and shall state that, "after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery, the prosecutor has disclosed and made available all known material and information subject to discovery" (CPL 245.50 [1]). The filing of a COC cannot be deemed complete "until all of the material and information identified in the certificate as subject to discovery . . . was actually produced to the defendant, pursuant to CPL 245.50 (1) and (3)" (People ex rel. Ferro v Brann, 197 AD3d 787, 787 [2d Dept 2021], citing People v Aquino, 72 Misc 3d 518, 523 [Crim Ct, NY County 2021]).

The discovery statute must be read in conjunction with CPL 30.30. The People cannot be deemed ready for trial until a proper COC is filed with the court and served upon the defense (CPL 30.30 [5] ["[a]ny statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of section 245.20"]). Pursuant to CPL 245.50 (3), "the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper certificate pursuant to subdivision one of this section."

At issue are records of substantiated and unsubstantiated allegations of misconduct concerning the People's testifying officers. Rather than disclose those records, the People provided their own DAFs, in which they summarized the allegations against the officers. The DAF for Officer Gray notes three allegations substantiated by the NYPD, and one [*4]unsubstantiated allegation. One of the substantiated allegations against Officer Gray is that he encouraged another NYPD officer to "use a ruse" to get another officer to commit misconduct involving computer use. The substantiated allegation summarized in the DAF concerning Officer Contaldi involves his improper use of the NYPD computer database for purposes unrelated to official business, in particular, to aid another officer who was under investigation — for sale of drugs to a man who overdosed and died — and who subsequently pled guilty to manslaughter and was sentenced to prison.

Defendant argues that the People's failure to disclose the NYPD investigatory paperwork related to substantiated and unsubstantiated allegations against the testifying officers undermined the validity of their purported COCs and CORs.

The People's arguments in opposition are not particular to the facts of this case. Rather, in the same generic fashion as has been offered to this court time and again, the People claim that they need not disclose underlying disciplinary records because: 1) they concern a "collateral issue"; 2) they are not related to the subject matter of the case; and 3) disclosure "would impose an insurmountable burden on police departments, prosecutors, and the criminal justice system." The People argue also that even if their refusal to disclose is deemed a discovery violation, dismissal is not appropriate, as the failure to disclose caused no prejudice.

As in each of the prior cases in which the People have presented the same generic claims, their arguments are unavailing. Indeed, this court has rejected them on several occasions (see People v Soto, 72 Misc 3d 1153 [Crim Ct, NY County 2021]; People v Williams, 72 Misc 3d 1214[A] [Crim Ct, NY County 2021]). Other judges in this courthouse have likewise rejected the same arguments, holding that CPL 245.20 (1)(k)(iv) requires disclosure of records underlying substantiated and unsubstantiated disciplinary allegations of misconduct before a valid COC can be filed (see People v Edwards, 74 Misc 3d 433 [Crim Ct, NY County 2021]; People v Barralaga, 73 Misc 3d 510 [Crim Ct, NY County 2021]; People v Kelly, 71 Misc 3d 1202[A] [Crim Ct, NY County 2021]); People v Ahmed Mohammed, CR-026662-21NY [Crim Ct, NY County, Apr. 28, 2022]; People v Abdul Salaam, CR-019124-21NY [Crim Ct, NY County, Apr. 19, 2022]; People v Eric Morton, CR-003860-21NY [Crim Ct, NY County, Aug. 25, 2021]). Courts of other jurisdictions have handed down the same ruling (People v Perez, 71 Misc 3d 1214[A] [Crim Ct, Bronx County 2021]; People v Herrera, 71 Misc 3d 1205[A] [Dist Ct, Nassau County 2021]; People v Cooper, 71 Misc 3d 559 [County Ct, Erie County 2021]; People v McKinney, 71 Misc 3d 1221[A] [Crim Ct, Kings County 2021]; People v Porter, 71 Misc 3d 187 [Crim Ct, Bronx County 2020]; People v Randolph, 69 Misc 3d 770 [Sup Ct, Suffolk County 2020]; People v Rosario, 70 Misc 3d 753 [County Ct, Albany County 2020]). Significantly, in Matter of Jayson C (200 AD3d 447, 449 [1st Dept 2021]), the First Department held, on Equal Protection grounds, that respondents in juvenile proceedings are entitled to the same impeachment material as defendants in criminal cases, and that a mere summary of substantiated allegations is insufficient to comply with CPL 245.20 (1)(k)(iv), "which broadly requires disclosure of all impeachment evidence."

Criminal Procedure Law § 245.20 (1)(k)(iv) requires the People to disclose:

[a]ll evidence and information, including that which is known to police or other law enforcement agencies acting on the government's behalf in the case, that tends to. . . impeach the credibility of a testifying prosecution witness. . . . Information under this subdivision shall be disclosed whether or not such information is recorded in tangible form.

The plain meaning of "all evidence and information. . . that tends to . . . impeach the credibility of a testifying prosecution witness . . . [w]hether or not . . . in tangible form" encompasses all allegations, as well as the files, records, and other materials on which substantiated and unsubstantiated disciplinary findings against the People's officer witness are based (see People v Kelly; People v Perez; People v Herrera; People v Cooper; People v McKinney; People v Porter; People v Randolph; People v Rosario).

The ability to test — to confront — an adverse witness' credibility through impeachment is a fundamental right. Several courts considering the scope of CPL 245.20 (1)(k) have found that there can be a good faith basis to cross-examine police witnesses about substantiated allegations that are clearly supported by facts — and even as to unsubstantiated allegations when sufficient evidence is available (see People v Kelly, 71 Misc 3d 1202[A]; People v Kayjon Yizar, Ind No. 2105/19 [Crim Ct, Bronx County 2021]; People v Randolph, 69 Misc 3d 770). Indeed, underlying disciplinary records may well be necessary to establish a good faith basis for cross-examination about specific disciplinary matters.

Impeachment evidence and information concerns the credibility of the officer witness — the trustworthiness of the witness, whether the witness is believable or whether the witness' history of behavior and actions undermine that witness' claims. The Court of Appeals has repeatedly made clear that impeachment concerns the characteristics of the witness, not the limited subject matter of the crime charged. In People v Walker (83 NY2d 455 [1994]), for instance, the Court recognized impeachment questioning that "demonstrates an untruthful bent" or "reveals a willingness or disposition . . . voluntarily to place the advancement of individual self-interest ahead of principle or the interests of society." The Court restated that principle in People v Smith (27 NY3d 652, 661 [2016]) and again in People v Rouse (34 NY3d 269 [2019]), where impeachment of a testifying officer was at issue. Limiting CPL article 245 discovery requirements to only evidence and information related to the subject matter — the particular offense charged — of a given case, as the People argue, would undermine that principle.^[FN1]

The incongruity of such a ruling would be particularly striking in this case, where the People's DAFs refer to such egregious conduct by the testifying officers, their own actions, as well as their efforts to lure other officers to commit improper conduct, and efforts to abet another officer engaged in his own criminal conduct that ended with a manslaughter plea and a prison sentence. The evidence of the willingness and disposition of the testifying officers to favor their own self-interests bears directly on their credibility, sincerity, and general honesty. Inquiry into that conduct would certainly "tend to impeach" their credibility and is critical to cross-examination, whatever the subject matter of the case may be. None of that improper conduct, however, is related to the particular crime charged here. It is even conceivable that in no case would evidence and information concerning these officers' misconduct be disclosed, if — as the People argue — discovery requirements were limited to that which is related to the particular crime charged in any given case. Such a constricted reading would critically undermine a defendant's right to impeach the People's witnesses, so consistently articulated by the Court of Appeals, as well as by article 245 (see People v Edwards, 74 Misc 3d at 440-441; contra People v Flores, 74 Misc 3d 1222 [A][Sup Ct, Nassau County 2022]; People v Hutchins, 2022 NY Slip Op 50327 [U], WL 1219631 [Sup Ct, NY County 2022]).^[FN2]

The People claim that disclosure of these disciplinary records would impose an impossible burden on their office given the size of the NYPD and the number of disciplinary complaints and proceedings conducted, and how far back in time they would have to search. These arguments are inapposite in this case, which, like most cases in courts of criminal jurisdiction, involves a limited number of police witnesses (two) and a small number of disciplinary findings (five), all of which occurred in 2020. The People's failure to describe any specific efforts or difficulty in obtaining records in this case evidences the minimal burden that might be caused by disclosing disciplinary records here.^[FN3]

The People's claim that their COC should be deemed valid because their failure to [*5]disclose the underling materials did not cause prejudice to the defendant is also unavailing. Prejudice is not a factor concerning the validity of a COC (People v Adrovic, 69 Misc 3d 563, 574 [Crim Ct, Kings County 2020]). To file a valid COC, the People must be able to state that "after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery, they have disclosed and made available all known material and information subject to discovery" (CPL 245.50 [1]). This is not the case here.

Finally, the People's contention that dismissal would be an extreme and unwarranted sanction misconstrues the law. Dismissal pursuant to CPL 30.30 is not a sanction. Pursuant to CPL 245.50 (3), the prosecution shall not be deemed ready for trial for purposes of CPL 30.30 until a proper COC has been filed (see People v Lobato, 66 Misc 3d 1230[A] [Crim Ct, Kings County 2020] ["discovery compliance is a condition precedent to a valid announcement of readiness for trial, absent 'exceptional circumstances' on a particular case"]). The People have not complied with their discovery obligations. Thus, they have not filed a valid COC, and thus have not properly answered ready for trial. That is, the People did not do what was necessary, pursuant to CPL 245 and CPL 30.30 to stop the speedy trial clock (see People v Quinlan, 71 Misc 3d 266, 272 [Crim Ct, Bronx County 2021] [deeming COC invalid and charging the People with speedy trial time "is not an 'adverse consequence' as contemplated by CPL 245.80"]). Accordingly, the time in which they were required to answer ready expired.

Concerning the disciplinary materials, this is not a circumstance in which the People made good faith efforts to ascertain their existence and disclose them, or one in which the People faced difficulty in meeting their obligation. To the contrary, given the summaries included in the DAFs, it is reasonable to assume that the People are in actual possession of the documents at issue. Thus, the People's refusal to disclose is merely an expression of policy and desire, rather than anything related to the facts of this case. But determining what should be discoverable is not the People's province. Pursuant to article 245, the People's responsibility is solely to disclose "all material and information" that "tends to impeach" the officer witness. They have not done that with regard to the disciplinary materials. Accordingly, the People have not filed a valid certificate of compliance or, in turn, a certificate of readiness.

Defendant argues that the People's purported COC of February 4, 2022, was invalid for failure to disclose handwritten police notes and four pages of veterans' residence documents. That material was in the People's possession from the outset, though none was disclosed prior to February 4, 2022. For that reason as well, the People did not satisfy their initial discovery requirements and thus did not file a valid COC.^[FN4]

The officers' body-worn camera recordings reveal a history between the responding [*6]police officers and the complaining witness. One officer is recorded saying "I get it, we know he [complainant] is a problem" and "if [complainant] attacks you, run away." Another officer states "Calvin [complainant] is a victim? Ok, change of pace." And a third officer asks, "Calvin [complainant], why are we here all the time, bro?" Defendant notes that at least two other officers "express incredulousness that the complainant is not being charged as the aggressor in the instant case" during the body-worn camera recordings. These comments suggest significant contact between the complainant and the police that may be discoverable as evidence and information concerning the complainant's prior bad acts. CPL 245.20 (1)(k)(iii) requires disclosure of "all evidence and information" that "tends to support a potential defense to an offense charged, and (iv) "impeach the credibility of a prosecution witness." It does not appear that the People made any good faith or diligent effort to ascertain or disclose any "evidence and information" concerning the complaining witness' prior bad acts.^[FN5] If the NYPD and prosecution possess such evidence and information, whether or not "in tangible form," it must be disclosed prior to the prosecution filing a valid COC.

The People have not shown any periods of excludable delay pursuant to CPL 30.30 (4). The total includable time between the commencement of the criminal action and March 3, 3022, when the instant motion schedule was set, amounts to 113 days. For those reasons, defendant's motion to dismiss the accusatory instrument pursuant to CPL 30.30 (1) (b) is granted.

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