The following papers numbered 1 to 6 were read and considered on defendant's motion to dismiss, pursuant to CPL § 170.30(1)(e)

Papers/Numbered

The People's Certificate of Compliance ("COC") is deemed invalid. However, based on defendant's delay in challenging the COC, the Court finds eighty-eight (88) days are chargeable to the People. As the People have ninety (90) days to declare ready, defendant's motion to dismiss is hereby denied.

Factual Background

On January 19, 2020, defendant was arrested for Driving While Intoxicated ("DWI"). On February 10, 2020, defendant was arraigned and charged with misdemeanor DWI, pursuant to VTL §§ 1192(2); (2-a)(a); (3), as well as VTL infractions. On November 5, 2020, the People filed a COC and declared ready.

On February 16, 2022, defendant filed the instant motion to dismiss alleging an improper COC and speedy trial violations. Defendant asserts the People's COC and statement of readiness was illusory because they failed to provide all calibration records, pursuant to CPL § 245.20(s). Defendant acknowledges receipt of calibration records for the six (6) months prior to defendant's breath test being conducted, however, asserts he is not in receipt of calibration records for the six (6) months after such test was conducted.

The People opposed the motion, arguing the COC was not illusory because, "[a]t the time the certificate of compliance was filed, it was filed in good faith, and the records were not yet provided to the People." People's Memorandum of Law pg. 7. On March 29, 2022, the People filed a supplemental COC and turned over the missing calibration records. In addition, the People assert they are within their 90-day timeframe to announce ready for trial.

Defendant submitted a reply arguing the People failed to demonstrate the steps they took to produce and obtain the required material prior to filing the initial COC.

Validity of the COC

The People shall not be deemed ready for trial for purposes of CPL § 30.30 until they have filed a proper COC. CPL § 245.50(3). In order to find the COC proper, this Court must be satisfied that, " after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery " the People filed the COC in good faith and it was reasonable under the circumstances. CPL § 245.50(1); People v. Perez, 75 Misc 3d. 1205(A) (Bronx County Crim. Ct. 2022); People v. Quinlan, 71 Misc 3d 266 (Bronx County Crim. Ct. 2021) citing People v. Adrovic, 69 Misc 3d 563 (Kings County Crim. Ct. 2020).

The discovery at issue here are calibration records, pursuant to CPL § 245.20(1)(s). The People are required to turn over:

" all records of calibration, certification, inspection, repair or maintenance of machines and instruments utilized to perform any scientific tests and experiments, including not limited to any test of a person's breath, blood, urine or saliva, for the period of six months prior and six months after such test was conducted " CPL § 245.20(s).

There is also a disclosure exception related to calibration records.

The time period required by subdivision one of section 245.10 of this article shall not apply to the disclosure of records created six months after a test was conducted, but such disclosure shall be made as soon as practicable and in any event, the earlier of fifteen days following receipt, or fifteen days before the first scheduled trial date. CPL § 245.20(1)(s).

Defendant's breath test occurred on January 19, 2020. This requires the People to turn over calibration records from July 2019 through July 2020. On November 5, 2020, more than six (6) months after said test, the People filed their COC. The People placed an "X" under "Sent Via Portal" for "S (7) Calibration & Maintenance Records." People's COC dated November 5, 2020, p. 3. However, the People concede in their opposition, at the time the COC was filed, " the [calibration] records [for six months after the test was conducted] were not yet provided to the People." [*2]People's Memorandum of Law pg. 7.

If any known discoverable materials are not exchanged prior to the filing of the COC, the prosecution must demonstrate how due diligence was exercised with regard to those items not exchanged. People v. Perez, 75 Misc 3d. 1205(A) (Bronx County Crim. Ct. 2022). Neither a claim of good faith nor an absence of bad faith, standing alone, can exempt the People from these requirements. Id. Here, the People's opposition fails to demonstrate whether due diligence was exercised, specifically what steps were taken, to obtain the missing calibration records prior to filing the COC. The People merely state " it appears it was never brought up and seems to have been oversight after the appropriate time had passed." People's Memorandum of Law pg. 7. Conclusory assertions of due diligence, without specific details are insufficient. Perez, 75 Misc 3d. 1205(A).

The People also failed to inform defendant and/or the Court, when the COC was filed, there were outstanding discovery materials. The People do not argue the exception to CPL § 245.20(1)(s) applies, in that disclosure was made as soon as practicable or the earlier of fifteen days following receipt, or fifteen days before the first scheduled trial date, as the People fail to state when they received the missing records. CPL § 245.20(1)(s). Even if the People planned on relying on the disclosure exception, the People still had an obligation to alert defendant. CPL § 245.20(1)(s). The People are not relieved of their obligation merely because they are not in physical possession of the records. The People clearly knew about their obligation to disclose calibration records since they turned over records for the six (6) months prior to the test being conducted.

Based on the People's obligation to turn over known material and their failure to do so, this Court finds the COC was not filed in good faith and therefore the People's statement of readiness illusory. People v. Perez, 75 Misc 3d 1205(A).

Timing of Defendant's Motion

Where a defendant fails to object to the People's COC at the time of filing and it is apparent, either from the nature of the material disclosed or otherwise that the People's filing is inadequate under article 245, the defendant must, within a period of time reasonable under the circumstances, communicate to the People that there is missing disclosure material (see CPL § 245.35(1)), and if not satisfied by the People's response, reach out to the court for assistance (see CPL § 245.35(2)), and then [*3]object promptly by motion (see CPL § 245.50(4)). People v. Barralaga, 73 Misc 3d 510 (NY County Crim.Ct. 2021).

As the discovery laws are both newly enacted and therefore vague for interpretation, "within a period of time reasonable under the circumstances," is not specifically defined. However, Courts have held any undue delay by the defendant in seeking relief will not be charged to the People. Id. (finding a two (2) month delay in challenging a COC was unreasonable and not chargeable to the People); CPL § 245.35(4); People v. Florez, 74 Misc 3d 1222(A) (Nassau County Sup. Ct. 2002) (finding a two (2) year delay unreasonable and not chargeable to the People). No delay in raising challenges to a COC should occur, as courts have found the delay operates as a waiver. People v. Randolph, 2021 NY Slip Op 31985(U). Therefore, an invalid COC does not automatically result in all time being charged to the People, rather, it requires the Court to conduct a speedy trial analysis to determine the time chargeable to the People. Florez, 74 Misc 3d 1222(A).

Here, the People turned over partial calibration records. Therefore, defendant knew, or should have known, the calibration records were incomplete. Defendant did not challenge the validity of the COC at the time it was filed, nor did defendant challenge its validity within a reasonable time thereafter. Defendant waited until February 16, 2022, over fifteen (15) months, to file the instant motion. Defendant cannot delay in challenging the COC in order for speedy trial time to be charged to the People. If defendant raised his challenge earlier, the discovery dispute could have been resolved. Based on the speedy trial calculation analyzed below, even if defendant challenged the COC at the time of filing, or within a reasonable time thereafter, the People would have still been within their speedy trial time to disclose the additional calibration records since the discovery laws allow the People to cure any deficiencies. As soon as the People were alerted to discovery that should have been disclosed, they obtained and made the materials available to the defense. People v. Davis, 70 Misc 3d 467, 479 (Bronx County Crim. Ct. 2020).

Therefore, due to defendant's delay in filing the instant motion, over fifteen (15) months are not automatically chargeable to the People.

Speedy Trial Calculation

An analysis of CPL § 30.30 from February 10, 2020 to November [*4]5, 2020 is required. Thereafter, this Court must determine what amount of time, if any, is chargeable to the People based on defendants delay.

CPL § 30.30 "[w]as enacted to serve the narrow purpose of insuring prompt prosecutorial readiness for trial, and its provisions must be interpreted accordingly." People v. Sinistaj, 67 NY2d 236, 239 (1986). The movant bears the burden to demonstrate the "prosecution failed to declare readiness within the statutorily prescribed time period " People v. Luperon, 85 NY2d 71 (1995). Defendants meets his burden as the COC is deemed invalid. The burden then shifts to the People to establish that certain periods within that time should be excluded. Id.

Here, the highest charge is a misdemeanor, therefore the People are required to be ready for trial within ninety (90) days from defendant's arraignment. CPL § 30.30(1)(b); People v. Adrovic, 69 Misc 3d 563 (Kings County Crim. Ct. 2020).

Defendant was arraigned on February 10, 2020. The People concede they requested an adjournment to February 25, 2020 and no exception applies. Defendant concedes he requested additional time to March 16, 2020. Adjournments made at the request of the defendant are excluded under CPL § 30.30(4)(b).

As such, fifteen (15) days are chargeable to the People.

Defendant concedes adjournments made from March 16, 2020 to October 4, 2020 were based on the COVID-19 pandemic. On March 7, 2020, Governor Andrew Cuomo declared a state of emergency because of the effects of the COVID -19 pandemic on the State of New York. On March 20, 2020, Governor Cuomo enacted Executive Order 202.8, tolling "any specific time limit for the commencement, filing or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the criminal procedure law until April 19, 2020." Executive Order 202.8 (9 NYCRR 8.202.8). Executive Orders continued to toll the time until October 4, 2020. See Executive Orders 202.14; 202.28; 202.38; 202.48; 202.55; 202.60 and 202.67. On October 4, 2020, the Executive Order was modified as it pertained to speedy trial time, effectively reinstating the requirements under CPL § 30.30 [*5]for Westchester County. Executive Order 202.55.

As such, this time is excluded from the calculation and not chargeable to the People.

As the speedy trial time was reinstated by Executive Order, the People had not yet filed a COC, and the matter was adjourned for discovery, the Court finds this time is chargeable to the People.

As such, twenty-nine (29) days are chargeable to the People.

As the speedy trial time was reinstated by Executive Order, the People had not yet filed a COC, and the matter was adjourned for discovery, the Court finds this time is chargeable to the People.

As such, three (3) days are chargeable to the People.

On November 5, 2020, the People filed their COC. As discussed above, this Court determined the COC was invalid and statement of readiness illusory. Therefore, the speedy trial clock did not stop as of November 5, 2020.

Defendant argues 468 days, the time from the filing of the improper COC to the filing of defendant's motion, should be chargeable to the People. However, this Court holds defendant cannot use undue delay as a tactic to accrue speedy trial time. On February 16, 2022, defendant filed the instant motion. This is the first time he alerted the People to missing discovery. Upon defendant's challenge to the COC, the People complied with their continuing duty to disclose information, pursuant to CPL § 245.60. On March 29, 2022, the People filed a supplemental COC and turned over the missing calibration records. The People took forty-one (41) days from the filing of defendant's motion to file their supplemental COC and turn over the additional records. Therefore, the Court is charging this time to the People.

As such, forty-one (41) days are chargeable to the People.

Speedy Trial Conclusion

A total of eighty-eight (88) days are chargeable to the People. Therefore, they are within their 90-day timeframe to declare ready for trial.

Conclusion

Although this Court determined the People's COC invalid, the Court was obligated to address defendant's delay in challenging the COC. Based on this Court's calculations, eighty-eight (88) days are chargeable to the People from the time of defendant's February 10, 2020 arraignment through the People's filing of a COC on November 5, 2020 and supplemental COC on March 29, 2022. As the People have ninety (90) days to declare ready, defendant's motion to dismiss is hereby denied.