In this case, when the People purported to certify their discovery compliance, they had not actually produced at least five police reports and the body-worn camera footage for four police officers. As a result, their certificate of compliance was not proper and did not meet the requirements necessary to stop the speedy-trial clock. The defense attorney notified the People of the missing discovery, but the People did not actually produce it until three months later—over 140 days after arraignments.

The defense has now moved to dismiss the case. They argue the People's failure to properly certify discovery compliance meant the People failed to validly state ready for trial within 90 days of arraignments. The People oppose, arguing they demonstrated "good faith" and "substantial compliance" with their automatic discovery obligations.

The defense's motion is GRANTED.

The statute's plain text is clear. A "proper" certificate of compliance ("COC") is necessary to stop the speedy-trial clock. (C.P.L. § 245.50[3]). The statute defines a "proper" COC in "subdivision one" of C.P.L. § 245.50. (Id.). Specifically, it defines a proper COC as one that is filed "[w]hen the prosecution has provided the discovery required by subdivision one of section 245.20," except for materials that are lost, destroyed, or under a protective order. (C.P.L. § 245.50[1] [emphasis added]). Indeed, that is also what the statute directs the People to do in their certificate of compliance. They must certify that they have complied—that "the prosecutor has disclosed and made available all known material and information subject to discovery." (Id. [emphases added]). It is only after filing this proper COC that the People may validly state ready for trial. (C.P.L. § 245.50[3]). Alongside this plain text, the Appellate Division has held that a COC "[can]not be deemed complete" for speedy-trial purposes until discovery identified in the COC is "actually produced" to the defense. (People ex rel. Ferro v. [*2]Brann, 197 AD3d 787, 787-88 [2d Dep't 2021]).

Here, the People filed a certificate of compliance even though they had not, in fact, provided the discovery required by C.P.L. § 245.20[1]. When they filed their COC, they had not provided:

• Body-worn camera footage for police officer Abo Niang;

• Body-worn camera footage for police officer Joaquin Cruz;

• Body-worn camera footage for police officer Julio Alvarez;

• Body-worn camera footage for police officer Joseph Cordones;

• A police "roll call" report;

• A police report entitled the "Prisoner Movement Slip";

• A police arrest photo;

• A police report entitled "Warrant Inquiry Search Results"; and

• Police property vouchers.

All these documents were clearly "discovery required by subdivision one of section 245.20." (See C.P.L. § 245.50[1]). They were all police materials created for this case, and so they were in the People's control and related to the subject matter of the case. (See C.P.L. § 245.20[1], [2] [deeming documents with police to be in the possession, custody, or control of the People]).

The People concede that they did not disclose all the various missing police reports (of which there were at least five) when they filed their COC. (Pr. Resp. at 6-8). That alone means their COC was not proper. The People filed it even though they had not provided the discovery required by subdivision one of section 245.20. (See C.P.L. §§ 245.50[3], [1] [defining a proper COC as one filed "[w]hen the prosecution has provided the discovery required by subdivision one of section 245.20"] [emphasis added]). A COC that is not proper cannot support a valid statement of readiness. (Id.).

The body-worn camera footage requires some further discussion. The People assert that they disclosed the body-worn camera footage with their COC. The defense asserts they did not receive the missing videos. The People's COC lists "Body-worn camera footage." (Def. Mot. Ex. A). However, the People provide no evidence—like the body-worn camera audit log—to substantiate their claim that they actually produced the missing videos with their COC.

This issue falls squarely within the Appellate Division's decision in Ferro. (197 AD3d at 787-88; see also People v. Francis, 2022 NY Slip Op. 50655[U], at *2-*4 [Crim. Ct., Bronx County 2022] [analyzing Ferro]). In Ferro, the People sent and resent over 900 files of discoverable material after defense "counsel claimed that she had not originally received that material." (Pr. Mem. of Law at 22, People ex rel. Ferro v. Brann, A.D. Docket No. 2021-05850 [Aug. 18, 2021]). The Appellate Division held that the COC "could not be deemed complete until all of the material and information identified in the certificate as subject to discovery and electronically shared with the defendant was actually produced to the defendant." (Ferro, 197 AD3d at 787-88). This Court follows Ferro and concludes that the People's failure to actually produce the body-camera videos here was yet another reason the COC was not proper.

The Court notes that the discovery statute's requirements are not inflexible. If the People ever face logistical hurdles in meeting their statutory mandates, the discovery law provides them numerous opportunities to petition a court for relief. For instance, they may ask a court to [*3]modify the discovery periods for "good cause." (C.P.L. § 245.70[2]). Or they may ask a court for permission to state ready on an improper COC because of "special circumstances." (C.P.L. § 245.50[3]). But here, out of all the statute's numerous opportunities, the People sought none.

In their responses, the People make various standardized arguments that this Court and many others around the city have rejected on several occasions. (See generally People v. Vargas, 2022 NY Slip Op. 22227 [Crim. Ct., Bronx County 2022] [collecting cases]).

First, the People disregard the discovery statute's plain text and argue that it only requires them to "substantially" and in "good faith" comply with automatic discovery. "Substantial compliance" is not the statute's standard. To the contrary, C.P.L. § 245.50[1] requires that the People file a COC "[w]hen the prosecution has provided the discovery required by subdivision one of section 245.20." Moreover, "a 'good faith' certification of 'due diligence' does not make a COC proper if another necessary condition is not met—like if the People failed to 'provide[] the discovery required by subdivision one of section 245.20.'" (Vargas, 2022 NY Slip Op. 22227, at *2-*3 [quoting C.P.L. § 245.50[1]]; see Ferro, 197 AD3d at 788 [noting that a COC was not proper, despite the People's contention of "good faith," because discoverable items in the People's control were not "actually produced" to the defense]).

Second, the People conflate C.P.L. § 245.80 discovery sanctions with an analysis about their trial readiness under C.P.L. § 30.30. "Dismissal pursuant to C.P.L. § 30.30 is not a sanction" pursuant to C.P.L. § 245.80. (People v. Martinez, 75 Misc 3d 1212[A], at *6 [Crim. Ct., NY County 2022); People v. Darren, 75 Misc 3d 1208[A], at *5 [Crim. Ct., NY County 2022] [same]). Where the People do not comply with their discovery obligations, they do not do what is necessary to stop the speedy-trial clock. "Prejudice," which is a consideration for § 245.80 sanctions, "is not a factor" in a § 30.30 analysis. (People v. Adrovic, 69 Misc 3d 563, 574 [Crim. Ct., Kings County 2020]). "[T]he People's obligation to provide discovery, and to certify compliance with that obligation, is not relieved by an absence of prejudice to the defendant." (Id.). "Therefore, while a defendant must show some prejudice in order to obtain a [pre-30.30] sanction against the People under C.P.L. 245.80, the burden is not lifted from the People to comply with their obligation in the first instance." (Id.; see also Hon. Barry Kamins, Bail and Discovery Reform: The Third Round, N.Y.L.J. [June 6, 2022] ["One must distinguish this discretionary type of dismissal [in C.P.L. § 245.80], however, from a dismissal under C.P.L. § 30.30, which is mandatory when based on a failure of the prosecutor to file a valid certificate of compliance."]).

Third, the People misread the adverse-consequence bar as applying to speedy-trial determinations. The question here is whether a COC was "proper" as that term is defined by C.P.L. § 245.50[3]—i.e., whether it properly constituted what was necessary to stop the speedy-trial clock. Critically, that section says that it operates "[n]otwithstanding the provisions of any other law." (C.P.L. § 245.50[3]). The adverse-consequence bar is plainly a provision of another law. (See People v. Formicola, 74 Misc 3d 559, 564-65 [Just Ct, Monroe County 2022] ["The key phrase in said statute is 'Notwithstanding the provisions of any other law.'"]). Therefore, this bar does not apply to the question of whether a COC was sufficient to meet the requirement [*4]necessary to stop the speedy-trial clock. (See also Darren, 75 Misc 3d 1208[A], at *6 [finding COC and readiness invalid "is not an 'adverse consequence'" as contemplated by statute]; People v. Aquino, 72 Misc 3d 518, 526-27 [Crim. Ct., Kings County 2021] [same]; People v. Quinlan, 71 Misc 3d 266, 272 [Crim. Ct., Bronx County 2021] [same]).

Notably, earlier this year, the Legislature rejected amendments to the discovery statute that would have incorporated the exact interpretations that the People advance here. (See Gov. Kathy Hochul, Public Safety Package [2022]).^[FN1] One amendment would have changed the requirement that a COC only be filed "[w]hen the prosecution has provided the discovery required by subdivision one of section 245.20" to a requirement that a COC only be filed "[w]hen the prosecution has substantially complied with their discovery obligations." (Id.). Another amendment would have added a clause into the adverse-consequence bar, reading: "and a certificate of compliance filed in good faith and reasonable under the circumstances shall not be an impediment to filing a statement of readiness pursuant to subdivision three of section 245.50." (Id.).

The Legislature rejected these amendments, which affirms that the current construction urged by the People is incorrect. (See, e.g., Amer. Airlines, Inc. v. State Comm. for Human Rights, 29 AD2d 178 [1st Dep't 1968] ["In addition, the rejection by the Legislature of the amendments . . . sought by the Commission . . . is significant circumstance against the construction sought by [them]."]). The Court will not now override the Legislature by misreading those rejected amendments into the statute.

Even if the Court applied the People's standard and simply analyzed their efforts for "good faith" or "due diligence," it would not find them here. The defense notified the People of their missing discovery—including the missing body-worn camera footage—by email in November of 2021. (Def. Reply Ex. A). The People did not produce it until February of 2022, three months later. (Pr. Resp. at 6-8).

The People provide three sentences describing their purported "diligent, good-faith efforts" to obtain and disclose discovery in this case. (See Pr. Resp. at 10). It is reproduced in full and verbatim below:

A. Diligent, Good Faith Efforts

In order to obtain all discoverable material in this case, the People: called and emailed the arresting officer. The people emailed the precinct discovery liaison , as well as, the Giglio Unit/Law Department within The Bronx DA's Office. The People maintain they [*5]have made diligent good faith efforts to obtain any-and-all paperwork throughout the course of this case.

The People do not explain, for instance: when they made these communications; how many times they communicated with each party; whether they ever reviewed their files to identify missing materials; or whether and when they followed up about missing materials. In fact, the People do not explain at all why they failed to produce any of the police reports or videos for three months after the defense attorney's notification. The People also do not explain why they never petitioned a court for any of the numerous opportunities for relief that the discovery statute provides. "Where the People do not seek any of [the statute's] numerous opportunities for relief, they cannot be said to have exercised due diligence before filing their COC." (People v. Spaulding, 75 Misc 3d 1219[A], at *3 [Crim. Ct., Bronx County 2022]).

In sum, the People failed to provide the Court with "the necessary factual basis" to make a finding of "good faith" or "due diligence." (People v. McKinney, 71 Misc 3d 1221[A] [Crim. Ct., Kings County 2021]). Accordingly, the Court does not find that they made such efforts here. Indeed, the People did precisely the opposite of what their COC claimed to certify. They "file[d] a certificate of compliance in which they claim[ed] to have exercised due diligence and turned over all known material and information, while at the same time not actually" exercising due diligence or turning over "all known material and information." (See Quinlan, 71 Misc 3d at 271; see also Adrovic, 69 Misc 3d at 574 [noting the same]).

The Court holds that the People's COC and statement of readiness were not valid. As a result, the C.P.L. § 30.30 clock ran from arraignments on September 22, 2021, to when the defense requested this motion schedule on January 6, 2022. That is 106 days, more than the 90-day speedy-trial limit. (C.P.L. § 30.30[1][b]). Accordingly, the defense's C.P.L. § 30.30 motion to dismiss is GRANTED.

The defense's remaining arguments are moot.

The foregoing constitutes the Decision and Order of the Court.