It is human nature to presume a disconnect between what is said and what is meant. In fact, we are often stunned when we discover that a person meant exactly what they said. This case turns on whether the Legislature, in crafting a prosecutor's discovery obligations, meant what they said. As it turns out, a court does not have the luxury of presuming otherwise.

On August 26, 2021, the defendant was arraigned in Cohoes City Court on the charge of Driving While Ability Impaired by Drugs (Vehicle and Traffic Law (VTL) §1192[4]) and related driving offenses. Part of the People's proof relied on evidence of the defendant's failure to execute standardized field sobriety tests (SFSTs) as well as his participation in a drug recognition evaluation, each of which may have been captured on police videos. Disclosure of the videos was delayed, however, even though the police "discovery sheets" clearly alluded to the existence of the videos. Nevertheless, on October 14, 2021, the People filed their certificate of compliance (CofC) with the discovery requirements of CPL §245.20(1), as well as their corresponding Statement of Readiness (SOR) pursuant to CPL §30.30.^[FN1] The Court conducted an inquiry pursuant CPL §30.30(5), deeming the People ready for trial. The defendant reserved objections pending a written submission (CPL §245.50[4]) and now seeks to invalidate the CofC and SOR on the basis of the People's failure to timely disclose police video from the dashboard ("dashcam") and the booking room.

CPL §245.50(3) and CPL §30.30(5) require the People to file a CofC with discovery as a precursor to speedy trial readiness (CPL §245.50[3]; CPL §30.30[5]). The CofC must affirm that the prosecutor has complied with their discovery obligations under CPL §245.20. (CPL §245.50[1]). Failing to do so can have two distinct consequences. First, it may nullify the People's statement of speedy trial readiness under CPL §30.30. Second, it can result in the imposition of sanctions pursuant to CPL §245.80.

In this case, the defendant claims that the People failed to provide the dashcam and booking room videos prior to certifying —both clear discovery violations (see CPL §245.20[1][g]). The People concede the lapse but insist that the recording was not in their possession at the time that they uploaded the discovery to their electronic discovery system on or before October 14, 2021.

The Court does not doubt the veracity of the People's assertions. However, CPL §245.20(2) makes it clear that the People are charged with the possession of any disclosable item that is in the possession of "any New York state or local police or law enforcement agency". For purposes of CPL §245.20(1), what's possessed by the police is possessed by the People (see also CPL §245.55 (police and prosecutors required to maintain "flow of information"). Thus, the People are deemed to be in possession of the relevant videos possessed by the Cohoes Police and, having failed to disclose them, are in violation of CPL §245.20(1)(g).

That said, the issue is not simply whether a discovery violation occurred. The issue is whether the violation undermined the People's CofC. In that regard, compliance need not be perfect. Rather, under CPL §245.50, the People may file a CofC if they can verify that, "after exercising due diligence and making reasonable inquires to ascertain the existence of material and information subject to discovery, they have provided all known" discovery to the defendant. CPL §245.50(1)(emphasis supplied). In other words, while execution of their discovery obligations need not be meticulously honed, the People must at least have exercised "due diligence" before affirming that they have discharged their obligation. Due diligence is one of the hallmarks of discovery compliance.

CPL §245.50(1) also alludes to a second hallmark —the requirement of "good faith" (see [*2]also CPL §245.50[3]). Notably, the concept of "good faith" is also conspicuously reiterated in the statutory speedy trial statute (see CPL §30.30[5]), which makes it tempting to elevate "good faith" at the expense of "due diligence" —making the latter subordinate to, or at least interchangeable with, the former. But doing so subverts the plain meaning of the statute. It "impute[s] to the lawmakers a futile and frivolous intent" for singling out the requirement of "due diligence" in the first place. Matter of Rouss, 221 NY 81, 90 [1917](Cardozo, J.)]. Courts cannot do that. In addressing the 2019 criminal justice reforms at issue here, the Court of Appeals was clear: "[t]he primary consideration of courts in interpreting a statute is to 'ascertain and give effect to the intention of the Legislature'" (People v. Galindo, — NY3d —, 2022 WL 2162623 [2022] qtg. Riley v. County of Broome, 95 NY2d 455, 463 [1995]) and "not ignore the obvious significance of the legislature's chosen language and [thereby] violate a core principle of statutory construction that 'effect and meaning must, if possible, be given to the entire statute and every part and word thereof" (id., qtg. McKinney's Cons Laws of NY, Book 1, Statutes §98[a](emphasis supplied)).

Thus understood, it is clear that "good faith" does not always mean good enough. (See People v. Diaz, 75 Misc 3d 314, 321 [Bronx Co Crim Ct 2022]; People v. Aquino, 72 Misc 3d 518 [Kings Co Crim Ct 2021]). There must also be "due diligence". Further, while the concepts of "good faith" and "due diligence" are easy to conflate, each speaks to distinct aspects of the People's obligation. On the one hand, "good faith" refers to a prosecutor's motives in discharging their duties. It pertains to the prosecutor's "honest belief, the absence of malice and the absence of a design to defraud or to seek an unconscionable advantage." Adler v. 720 Park Ave. Corp, 87 AD2d 514, 515 [1st Dep't 1982] qtg. Doyle v. Gordon, 158 NYS2d 248, 259 [1954]; see also Wells Fargo Bank, N.A. v. Wallace, 48 Misc 3d 1204[A] [Kings Co. Sup. Ct. 2015]). "Due diligence", on the other hand, means "'[t]he diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal obligation'". People v. Surgick, 73 Misc 3d 1212(A) [Alb. City Ct. 2021] qtg. Black's Law Dictionary [11th ed. 2019]). The terms are not interchangeable. A prosecutor can be diligent but act in bad faith by thoroughly searching for discoverable items and then suppressing the results. Similarly, a well-meaning prosecutor can unwittingly fail to disclose information and thereby not exercise due diligence. Perhaps an imprecise, but helpful way to appreciate the distinction is that "due diligence" refers to the amount of effort required to satisfy the People's discovery obligations, while "good faith" speaks to the integrity of that effort.

In this case, the People's good faith in not in question. However, in determining whether the People have complied with their discovery obligations, the first inquiry must always be whether the People have exercised due diligence in obtaining the requested materials. Here, the People supplemented their CofC with the standing affirmation of the Albany County Chief Assistant District Attorney detailing the steps that the District Attorney's Office had taken to ensure compliance with CPL §245.20, including coordinating with law enforcement to ensure the receipt of evidence related to the case and its disclosure to the defense. In many cases, the steps outlined in the standing affirmation will ensure prompt and full disclosure. That does not mean that some items may slip through the cracks. But that is not the issue. The issue is whether the People exercised due diligence and made reasonable inquiries. Thus, if the People have done a reasonable investigation into the existence of discovery and shared the results with the defense, they may announce ready for trial even if some discoverable information has eluded their grasp (see, e.g., People v. Bruni, 71 Misc 3d 913 [Alb. Co. Ct. 2021]).

Yet the People's generalized assurances of "due diligence", while providing helpful background information, is not always dispositive. That is because what constitutes "due diligence" will vary from case to case. Diligence that is "due" in one case may be deficient in another. And in this case, it is inescapable that the People did not disclose the videos because, under the circumstances, they did not exercise due diligence. At the time that the People certified their compliance with CPL §245.20, they had clear access to the videos in question. They were also on notice as to their existence. All that was required was a simple check of the Cohoes Police department "discovery sheets", which referenced the specific videos in question. Further, the videos presumably recorded the defendant's performance of standardized field sobriety tests (dash camera video) and drug recognition evaluation (booking video) —both highly probative in a DWI case. This was not a de minimis oversight. Nor, under the circumstances, can overlooking this simple check be characterized as consistent with "due diligence". If it were, then discovery and speedy trial reforms, and the unmistakable legislative intent behind them, would be meaningless —a dead letter. Given these undeniable facts, the Court must strike the People's October 14th certificate of compliance.

That leaves the speedy trial issue. On a speedy trial motion, the defendant bears the initial burden of alleging that the People were not ready for trial within the statutorily prescribed time frame. If the defendant does so, the People must then show their eligibility for any statutory exclusions —or, in the nomenclature of the state speedy trial law, "excludable" time. (People v. Barden, 27 NY3d 550 [2016]; People v. Luperon, 85 NY2d 71, 81 [1995]).

Here, the defense has met its burden of alleging that the People were not ready for trial within the statutorily prescribed time frame.^[FN2] Specifically, the defense has alleged that the People's CofC and corresponding SOR was invalid and that, therefore, the People exceeded their time to be ready for trial (see CPL §30.30[5]). The People have challenged the defendant's claim regarding the invalidation of the CofC but did not identify any periods of excludable delay. The People's failure to so controvert the speedy trial issue as it relates to "excludable time" requires that the defendant's motion be granted. "Where a defendant moves to dismiss an indictment on the grounds specified in CPL 30.30 and includes in the moving papers sworn allegations that there has been unexcused delay in excess of the statutory maximum, the motion must be granted summarily unless the People controvert the factual basis for the motion". People v. Santos, 68 NY2d 859, 861 [1986](emphasis supplied)).

None of this is intended to impugn the motives of the prosecutor in this case. On the contrary, all too often, the application of CPL §245.50 has turned discovery into a game of "gotcha" which can often lead to the dismissal of cases for the unwary, but well-intentioned, prosecutor. That may have ended with the 2022 amendment to CPL §245.50(4), which now requires the defense to raise discovery issues "as soon as practicable".^[FN3] Indeed, if the 2022 amendment had been in effect at the time of the People's certification, the result in this case may well have been different. However, the Court need not address that issue, as the amendment was [*3]not in effect in October 2021, and is not the sort of amendment amenable to retroactive application, especially in light of the Court of Appeals recent decision denying retroactive application to other parts of the 2019 criminal justice reforms (see Galindo, supra). As such, dealing with the law as it is and not how it could be, the Court is compelled to grant the defendant's motion for dismissal pursuant to CPL §30.30 and 170.30(1)(e).

The foregoing constitutes the Decision and Order of the Court.