This Court has observed a pattern of practice in Bronx Criminal Court. The People, without permission from anyone, completely disregard their discovery deadline, which is usually 35 days after arraignments.^[FN1] Then, mere days before the 90-day speedy-trial deadline for the entire case, they serve incomplete discovery, file a certificate of discovery "compliance," and state ready for trial. This allows them to stop the "speedy-trial clock." On the very next court date, if not sooner, the defense objects to the purported certification. They argue that it is false and note that discovery is incomplete. But because the People "certified" their discovery perilously close to the speedy-trial deadline, that next court date is invariably after the speedy-trial period would have otherwise expired if the People had not stopped the clock. The People then accuse the defense of "lying in wait" to object—even when that objection comes within a few weeks or on the next court date. And then they argue that because the defense objected only after the People's speedy-trial deadline, it is the defense's fault that the People did not timely produce the People's own discovery from the People's possession or control.

This is yet another case that follows the pattern. Here, the People did not, as the law requires, serve discovery and file their certificate of compliance ("COC") within 35 days of arraignments. Instead, they violated that deadline more than twice over, serving discovery and filing their COC on the 89th day after arraignments—only one day away from the speedy-trial deadline. But, when they filed their COC, they had not actually discharged their statutory discovery duties. They had not turned over an NYPD police report, and they had made no efforts at all to cause the complainant's medical records or ambulance call report to be made available for discovery. The defense attorney then objected by email (in this case, even before the first subsequent court date). And now the People complain that this objection was too late because it [*2]was not within the one day they chose to leave remaining on the speedy-trial clock.

The Court follows what the discovery and speedy-trial statutes say it must when faced with this situation. The defense's motion to dismiss is GRANTED. The case is dismissed.

The discovery statute—Article 245 of the Criminal Procedure Law—was meant to change criminal litigation in New York. Before its passage, "defendants routinely received limited information, which was turned over so late" that the defense could not investigate the case, obtain exculpatory evidence, weigh plea offers, or develop trial strategy.^[FN2] As a result, the People's obligations under Article 245 are, like in many other states,^[FN3] "so broad as to virtually constitute 'open file' discovery, or at least make 'open file' discovery the far better course of action to assure compliance." Hon. William C. Donnino, Practice Commentaries, C.P.L. § 245.10. "Thus, a prosecutor who fails to engage in 'open file' discovery . . . may do so at his or her professional peril while also jeopardizing the viability of a prosecution." Id. Accordingly, the statute imposes at least some obligation on the People regarding any material that "relate[s] to the subject matter of the case." See C.P.L. §§ 245.20(1), (2); 245.50(1).

First, the People must make a diligent effort to ascertain the existence of items and information subject to discovery. C.P.L. §§ 245.50(1), 245.20(2). The statute breaks this effort into two categories. For "all known material and information subject to discovery" in the possession, custody, or control of the People or law enforcement, the People must "disclose[]" and make that material "available" to the defense, except where it is lost or destroyed. C.P.L. §§ 245.50(1), 245.20(2). For items that are not within the People's possession, custody, or control, the People must "make a diligent, good faith effort to ascertain the existence of material or information" subject to discovery and "cause such material or information to be made available for discovery." C.P.L. § 245.50(2). However, the People are "not required to obtain" this second group of material by subpoena duces tecum if the defense could do the same. C.P.L. § 245.20(2).

Second, the People must file and serve a proper certificate of compliance. A proper certificate of compliance must truthfully affirm 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." C.P.L. § 245.50(1).

Finally, the People cannot validly state ready for trial until they file and serve a COC meeting these requirements. C.P.L. §§ 30.30(5); 245.50(3). The only exception is if a court [*3]makes an individualized finding of special circumstances. Id. The People are presumptively required to complete the first and second steps here within 35 days of arraignment if the accused person is not incarcerated (and within 20 days if they are incarcerated). C.P.L. § 245.10(1)(a).

These are all workable standards. Indeed, the statute is not inflexible. Instead, it provides numerous opportunities for the People to seek relief from their discovery obligations if such relief is justified. They may apply for a modification of discovery periods for "good cause." C.P.L. § 245.70(2). They may apply for a protective order to withhold certain materials. C.P.L. § 245.70. And they may even apply to a court to state ready for trial upon an improper COC by establishing "special circumstances." C.P.L. § 245.50(3).

In this case, the People did not file their certificate of discovery compliance within 35 days of arraignment. They did not seek permission from any court to modify the discovery periods. They did not seek a protective order to withhold any documents. And they did not allege "special circumstances" to state ready upon an improper COC.

Instead, the People filed a COC on the 89th day after arraignments—with one day remaining on their speedy-trial clock—and they did so without first discharging their discovery duties. When the People filed their COC, they had made no efforts at all, let alone good-faith and diligent ones, to make the complainant's medical records or the FDNY ambulance call report available. In addition, they had inexplicably failed to disclose an NYPD police report called the "Dangerous Animal/Bite Report" from their actual or constructive possession. As discussed below, these failures rendered the People's COC invalid.

A. Before filing their COC, the People did not make a diligent, good-faith effort to cause the complainant's medical records to be made available for discovery.

The complainant in this case was taken to Jacobi Hospital from the scene of the incident to receive medical treatment for scratches. The People affirm that the associated medical records are not in the People's possession, custody, or control. As a result, the People were only required to "make a diligent, good faith effort" to "cause" these records to be made available for discovery. C.P.L. § 245.20(2). Here, however, they failed to establish that they made any such efforts before filing their COC.

The People allege that they "made several attempts to acquire the medical records" by serving several subpoenas on Jacobi Hospital. Pr. Resp. at 5. If done before filing a COC, this could have shown a diligent, good-faith effort to cause the records to become available. Of course, it is true that the People are not required to file subpoenas for medical records. Where materials are not in the People's actual or constructive possession, the People are "not required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain." C.P.L. § 245.20(2). What they are required to do, however, is "make a diligent, good faith effort" to "cause" the records to be made available for discovery. Id. The statute does not bar the People from serving a subpoena to demonstrate their diligent, good-faith efforts to make discoverable materials available. In sum, the People may, but are not required, to subpoena discoverable materials that are not in their possession, but other diligent, good-faith efforts would also suffice to discharge their duties.

Here, however, all of the People's efforts were made only months after they had already filed their COC. The People filed their COC on December 20, 2021. But by the People's own admission, their first attempt to acquire these medical records occurred on February 8, 2022. The People have made no showing that they did absolutely anything—let alone made diligent, good-faith efforts—to obtain these medical records until February 8, 2022, months after their COC.

The Court notes that although one of the subpoenas annexed to the People's response is dated "09/21/2021," that date cannot possibly be true. Pr. Resp. Ex. 2b. First, the prosecutor who signed that subpoena, ADA Garrett Tracey, was not assigned to this case until January 14, 2022. Pr. Resp. at 2. Second, the subpoena is returnable on March 28, 2022, a court date that had only been set on February 7, 2022. Third, it appears that a HIPAA release was likely attached to that subpoena, and that HIPAA release is signed "March 14, 2022." As a result, the Court concludes that the "09/21/2021" date on the subpoena cannot be accurate. The Court strongly cautions the People against submitting documents for consideration that may mislead a tribunal, especially without noting to a court that a material date is incorrect. If done knowingly, such conduct would violate ethical rules. See NY R. Prof. Conduct §§ 3.3(a)(1); 3.3(a)(3), 4.1; 8.4(c).

In addition, it is also arguable whether the People's efforts on February 8, 2022, were, in fact, diligent. To their response, the People have attached the subpoena that they purportedly faxed to the hospital on February 8. But attached to this subpoena is a "transmission verification report" that says the status of the fax was "busy/no response." Pr. Resp. Ex. 2. However, even if the People had been diligent on February 8, that would have been over one month after the People had already filed their COC. The Court concludes that the People failed their obligations here.

When the complainant was at the scene of the incident, emergency medical responders attended to her. Pr. Resp. at 4. This resulted in an "ambulance call report," which the defense notes was "referenced" in a disclosed police report. Def. Mot. ¶ 17. The People do not dispute this. They concede that they know that such a document is "generated when any emergency medical technician (EMT) treats and transports a patient to a hospital." Pr. Resp. at 4. The People affirm that the ambulance call report is not in their actual or constructive possession but is instead with the FDNY.^[FN4] As a result, the People were required to make a "diligent, good faith effort" to "cause" this record to be made available for discovery before filing their COC. C.P.L. § 245.20(2). Here again, the People fail to establish any such efforts.

Indeed, the People do not proffer any efforts whatsoever to cause this document to become available until March 25, 2022. Instead, the People argue that they were not required to make any such efforts because "the defendant may request" the ambulance call report from the [*4]FDNY "using their subpoena power and a request form that is shared with the public." Pr. Resp. at 4. The People have attached this form as an exhibit to their response. The Court notes that this form would, on its face, require an "original notarized letter from" the complainant. Pr. Resp. Ex. 1. Putting that aside, however, the People are wrong that they had no obligations at all regarding this document. Under the statute, the People plainly had to "make a diligent, good faith effort" to "cause" it to become available for discovery. The People offer no information that they did anything whatsoever to make this document available for discovery before filing their COC, let alone that they made a diligent, good-faith effort. In fact, they appear to admit that the first time they ever even attempted to acquire this record was on March 25, 2022, over three months after they filed their COC. See Pr. Surreply Ex. 5. Here again, the People failed their obligations.

When the People filed their COC, they did not disclose an NYPD police report associated with this case, titled the "Dangerous Animal/Bite Report." This document is a police report about this case in the possession of the People or law enforcement, and so it is clearly covered under C.P.L. §§ 245.20(1) and (2). However, across both their response and their surreply, the People do not offer any explanation whatsoever as to why they failed to disclose the report. Pr. Resp. at 5-6; Pr. Surreply at 4-6.^[FN5]

In defense of non-disclosure, the People only argue that the "information contained in the animal bite report is duplicative of the information contained" in a complaint report that had been properly disclosed. Pr. Resp. at 6. The People submit the two police reports for comparison as exhibits to their response. Pr. Resp. Exs. 3, 4. They argue that "[t]he only difference with respect to the defendant's complaint report and the animal bite report is the title of the document." Pr. Resp. at 6.

In reviewing the two reports, that Court finds that this is wholly untrue. The Dangerous Animal/Bite Report is an entirely different report than the Omniform System Complaint Report. The first report contains several boxes and fields that are specific to bites—"animal type," "type of wound/condition," "name of department of health employee notified," and more—that are not boxes or fields on the second. This is not a situation where, for instance, one report was merely a photocopy of another. These two reports are entirely different documents.

If the People's argument is that the information written into the first report just so happened, in this case, to be reflected in the second, the Court rejects that argument. It is not the People's decision to look at two entirely different police reports and decide that they believe one contains information "duplicative" of the other and so will not be disclosed. "That is not the People's determination to make." People v. Williams, 72 Misc 3d 1214(A), at *5 (NY Cty. Crim. Ct. 2021). As a result, the Court rejects the People's justification for withholding this NYPD report.

The Court concludes that the People did not discharge their statutory discovery obligations before filing their COC and stating ready for trial. They have not demonstrated diligent, good-faith efforts to make the complainant's medical records or the ambulance call report available for discovery. And they did not disclose an NYPD police report relating to this case that was in their actual or constructive possession. The People did not seek to modify discovery periods for "good cause." They did not seek a protective order to withhold anything. And they did not establish special circumstances to justify stating ready upon an improper COC.

The People's complaints about defense counsel "waiting" to object to the COC until the first court date after the People filed their COC are rejected for the reasons this Court stated in People v. Spaulding, 2022 NY Slip Op. 50544(U), at *5-*8 (Bronx Cty. Crim. Ct. 2022). It is not the defense attorney's job to help the People meet their own discovery obligations before the expiration of the People's own C.P.L. § 30.30 deadline. This is especially true when the People file on the 89th day after arraignments. The world the People envision—where defense attorneys rush to notify them within one day of their discovery production and somehow correctly guess that there are undisclosed files somewhere in the People's office or with the NYPD—is not a world that Article 245 requires. To the contrary, that is the world that Article 245 sought to change.

The People's statement of readiness on December 20, 2021, was therefore illusory. Under C.P.L. § 30.30, time accrued from arraignment on September 22, 2021, to the date the defense requested a motion schedule, February 7, 2021. That is 138 days, well in excess of the 90-day time limit. C.P.L. § 30.30(1)(b).

The defense's motion to dismiss is GRANTED.

The defense's remaining motions are moot.

The foregoing constitutes the Decision and Order of the Court.