The defendant, Kyle Harris, has submitted an omnibus motion, dated December 17, 2021, seeking: request for a bill of particulars; inspection of the Grand Jury minutes and dismissal or reduction of the indictment; suppression of evidence; preclusion of evidence; Brady material; Sandoval relief; certificate of compliance challenge and leave to file further motions. The People's response, dated December 20 and 23, 2021, consents to some of the relief sought and opposes other relief. The court decides the motion as follows.

The defendant's request for a Bill of Particulars is granted to the extent provided by the People pursuant to CPL § 200.95.

Defendant's motion to inspect the grand jury minutes is granted. The minutes reveal that a quorum of the grand jurors was present during the presentation of evidence and at the time the prosecutor instructed the grand jurors on the law. The indictment substantially conforms to the [*2]requirements set forth in CPL § 200.50. The instructions were not defective as a matter of law and the proceedings were proper.

The defendant's motion to release the grand jury minutes is partially moot, because the People certified that they turned over the grand jury testimony in their certificate of compliance of compliance dated October 29, 2021 and in their response to the defendant's omnibus motion dated December 23, 2021. Otherwise, the defendant's motion is denied because release of the remainder of the grand jury minutes is not necessary to assist this court in determining the defendant's motion to reduce or dismiss the indictment.

The defendant has moved to dismiss or reduce count two charging Attempted Assault in the Third Degree (Penal Law §§ 110.00, 120.00[1]) based on the lack of evidence establishing an intent to injure. But the defendant has not moved to dismiss or reduce count three charging Harassment in the Second Degree (Penal Law § 240.26[1]). Instead, he argues that if the evidence presented to the grand jury was insufficient to establish intent to injure to sustain count two, that count should be reduced if the evidence " was legally sufficient to establish his commission of a lesser included offense." (affirmation of defendant's counsel at 11). The defendant by this argument assumes that Harassment in the Second Degree is a lesser included offense of Attempted Assault in the Third Degree. Harassment is, of course, not a lesser included offense of assault. (See People v Moyer, 27 NY2d 252 [1970]).

To be guilty of attempted assault in the third degree requires proof that a defendant "engaged in conduct which tends to effect the commission of assault with intent to cause physical injury to another." (Penal Law §§ 110.00, 120.00[1]).

To be guilty of harassment in the second degree requires proof that a defendant when he or she "with intent to harass, annoy or alarm another [,] strikes , shoves, kicks, or otherwise subjects such other person to physical contact, or attempts or threatens to do the same" (Penal Law § 240.26[1]).

Here, the evidence the People presented in support of both charges of attempted assault in the third degree and harassment in the second degree were based on the same conduct.

The People presented the testimony of Marie Mondesir, who testified in relevant part that on September 28, 2021, she was at home in her second-floor apartment of a private home. Her apartment consisted of the second and third floors. She lived in the apartment with her mother, sister, nephew and son, Kerlin. Her brother, Jerry Tintus, was visiting, was also present and staying in a second floor bedroom. At about 1:30 p.m., she heard someone banging in the front door. She went downstairs and opened the front door. The defendant was at the door alone. He asked to see her son, Kerlin. Ms. Mondesir replied that Kerlin was upstairs on the second floor. The defendant then asked if he could come in. Ms. Mondesir invited him in. But before entering, the defendant raised his arm and made a circular motion with his fingers. With that, two other males, both wearing black ski masks, walked up to the front door and joined the defendant who was still at the front door. The defendant then pushed the front door open further in order to enter together with the two other males. In doing so, Ms. Mondesir, who was standing behind the front door, was pushed into the wall, hitting her back against the wall. All three then went to the attic and, based on Mr. Tintus's testimony, attempted to assault Ms. Mondesir's son.

It is possible that in some cases the proof is sufficient to establish a defendant's intent to injure and an intent to annoy, harass or alarm from the same conduct. This is not one of those cases.

It is well established where there is no direct evidence of intent, "intent may be inferred from the conduct itself and the surrounding circumstances". (See People v Moore, 51 Misc 3d 6 [*3][App Term 2d, 11th & 13th Jud Dists 2015] [quoting People v Johnson, 47 Misc 3d 152[A] [App Term 2d, 11th & 13th Jud Dists 2015].) Here, the gravamen of the attempted assault charge is that the defendant pushed the front door into Ms. Mondesir, thereby pushing her into the hallway wall. The facts presented do not demonstrate that the defendant possessed a purpose of mind — an intent to injure through physical contact. Rather, the most reasonable inference that can be drawn from the evidence is that the defendant was focused entirely on Ms. Mondesir's son and his intent to confront him with his two accomplices. The defendant's act of pushing open the front door to get into the residence, without more, does not establish an intent to injure. (See People v Kramer, 50 Misc 3d 27 [AppTerm 2d, 11th & 13th Jud Dists 2015].)

The evidence also fails to establish that the defendant acted with an intent to annoy, harass or alarm Ms. Mondesir when he pushed open the door into her. While there was physical contact caused by the defendant when he pushed open the front door into Ms. Mondesir, there were no additional words or acts by the defendant from which one could infer an intent to annoy, harass or alarm. Although "[t]he crux of section 240.26(1) is the element of physical contact: actual, attempted or threatened" (People v Bartkow, 96 NY2d 770, 772 [2001]), physical conduct, given this limited proof, does not, by itself, establish an intent to annoy, harass or alarm, nor can one infer such an intent from these attendant circumstances.(see People v Caulkins, 82 AD3d 1506 [3d Dept 2011]).

Therefore, counts two and three are dismissed with leave to re-present before another grand jury.

Count one charges Burglary in the Second Degree (Penal Law § 140.25[2]). To be guilty of Burglary in the Second Degree requires proof that a defendant "knowingly enters or remains unlawfully in a building with the intent to commit a crime therein and when the building is a dwelling."( Penal Law § 140.25[2])

The defendant attacks the sufficiency of count one by raising the claim that Ms.Mondesir's invitation to enter her home constituted a license or privilege for the defendant to enter. (affirmation of defendant's counsel at 9) Nevertheless the court finds that there was sufficient evidence before the grand jury for it to fairly conclude that the defendant unlawfully entered Ms. Mondesir's home by misrepresentation. (See People v Jamieson, 88 AD3d 1298 [4th Dept 2011]; People v Johnson, 190 AD2d 503 [1st Dept 1993].)

When Ms. Mondesir answered her front door she found only the defendant standing at the threshold. Once invited into the house, the defendant then signaled his two accomplices to enter with him. These facts amounted to sufficient evidence that the defendant planned to enter Ms. Mondesir's residence with two accomplices. The defendant's misrepresentation to Ms. Mondesir that he alone sought permission to enter renders her invitation to enter no invitation at all and his license or privilege to enter a nullity. There is also a fair inference to be made that the hand movement the defendant made upon securing permission from Ms. Mondesir to enter the residence was a preplanned signal to his accomplices to enter the residence. This evidence supports the conclusion that the defendant and his accomplices acted together with the shared intent of entering Ms. Mondesir's residence to commit a crime therein. (See People v. Mitchell, 254 AD2d 830 [4h Dept 1998].)

Thus, the defendant's motion to dismiss count 1 for legal insufficiency is denied.

The defendant's motion to suppress statement evidence is granted only to the extent that a Huntley/Dunaway hearing is ordered.

The defendant's motion to suppress identification evidence is granted only to the extent [*4]that a Wade/Dunaway hearing is granted.

The defendant's motion to preclude any unnoticed statement and identification evidence is granted to the extent that the People are precluded from introducing at trial any such evidence for which timely statutory notice was required but not served. (CPL § 710.30[3]; People v Grajales, 8 NY3d 861, 862 [2007]; People v Nolasco, 70 AD3d 972, 973 [2d Dept 2010]). The determination as to whether a statement was properly noticed is left to the sound discretion of the hearing or trial judge.

As to the demand for Brady material, the People are reminded of their continuing duty to provide evidence or information that is favorable to the defendant and are referred to the court's standing Brady order, which appears below.

The defendant's request for a Sandoval hearing is referred to the trial court. Disclosure of prior bad act evidence which the People will seek to introduce at trial shall be made in accordance with the time frame set forth in CPL § 245.10(1)(b).

Alleging that the People have failed to disclose law enforcement disciplinary records, the defendant moves for an order deeming their certificate of compliance invalid. The People oppose the defendant's motion.

On January 1, 2020, Article 245 replaced Article 240 of the Criminal Procedure Law. This change was a part of a package of criminal justice reforms intended to, inter alia, expand discovery in criminal cases. Shortly after these changes became effective, several amendments were made to the new law. (See NY Legis 56 (2020), 2020 Sess Law News of NY Ch 56 [S 7506-B] Part HHH [McKinney's].)

Pursuant to CPL § 245.20, prosecutors are required to disclose "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 and control." The statute further provides a non-exhaustive list of materials subject to disclosure under this provision. (CPL § 245.20[1].) CPL § 245.10 sets forth a timeline for these disclosures, requiring the People to comply with this automatic discovery obligation within a certain period of time, except in cases with "exceptionally voluminous" discovery materials, where initial automatic discovery may be stayed for an additional thirty days without the need for a motion.

In making such disclosures, the statute explains:

The prosecutor shall make a diligent, good faith effort to ascertain the existence of material or information discoverable under [CPL § 245.20(1)] and to cause such material or information to be made available for discovery where it exists but is not within the prosecutor's possession, custody, or control; provided that the prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain.

(CPL § 245.20[2].) And, importantly, "all items and information 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].) Congruent with that provision, CPL § 245.55(1) directs that, "The district attorney and the assistant responsible for the case, . . . shall endeavor to ensure that a flow of information is maintained between the police [*5]and other investigative personnel and his or her office sufficient to place within his or her possession or control all material and information pertinent to the defendant and the offense or offenses charged . . . ." The statute also explicitly dictates that "[t]here shall be a presumption in favor of disclosure" in interpreting Article 245 (CPL § 245.20[7].)

In keeping with this principle, the People's discovery obligations are ongoing. Should the prosecution learn of additional material or information that it would have been required to disclose pursuant to CPL § 245.20, "it shall expeditiously notify the other party and disclose the additional material and information as required for initial discovery under this article." (CPL § 245.60.)

The new discovery law also, for the first time, ties the People's compliance with their discovery obligations to the calculation of speedy trial time pursuant to CPL § 30.30. Now, the People must file a certificate of compliance upon satisfaction of their discovery obligations under CPL § 245.20(1). (CPL § 245.50[1].) Therein, the People must 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." (Id.) In addition to this statement, the certificate must include a list of the discovery materials provided. (Id.) Moreover, if the People provide additional discovery in connection with their ongoing obligations outlined in CPL 245.60, they must file a supplemental certificate "identifying the additional material and information provided." (CPL § 245.50[1].) Notably, the statute also specifies, "No adverse consequence to the prosecutor shall result from the filing of a certificate of compliance in good faith and reasonable under the circumstances; but the court may grant a remedy or sanction for a discovery violation as provided in section 245.80 of this article." (CPL § 245.50[1].)

At the same time, the law makes the certificate of compliance a prerequisite to the People's trial readiness within the meaning of CPL § 30.30. Pursuant to CPL § 245.50(3), "absent an individualized finding of special circumstances in the instant case by the court before which the charge is pending, the prosecution shall not be deemed ready for trial for the purposes of section 30.30 of this chapter until it has filed a proper certificate pursuant to subdivision one of this section." The statute further clarifies that, "[a] court may deem the prosecution ready for trial pursuant to section 30.30 of this chapter where information that might be considered discoverable under this article cannot be disclosed because it has been lost, destroyed, or otherwise unavailable as provided by [CPL § 245.80(b)], despite diligent and good faith efforts, reasonable under the circumstances."^[FN1] And CPL § 30.30 also now reflects this change, stating, "Any statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of section 245.20 . . . ." (CPL § 30.30[5]).

An order deeming a certificate of compliance improper, then, necessarily amounts to a determination that the People's statement of readiness for trial is illusory. (See CPL § 30.30[5]; People v Barnett, 68 Misc 3d 1000, 1002 [Sup Ct NY Co 2020].) And the statute requires that [*6]"[c]hallenges to, or questions related to a certificate of compliance shall be addressed by motion." (CPL § 245.50[4].) However, for the purposes of evaluating a claim concerning the validity of a certificate of compliance, the statutory scheme does not define what constitutes a "proper" certificate, which it makes the prerequisite to an announcement of trial readiness. (CPL § 245.50[3].) Given that the statute specifies that "[n]o adverse consequences" shall adhere to the People based on the filing of a certificate that is filed "in good faith and reasonable under the circumstances," (CPL § 245.50[1]), the most reasonable inference is that such a certificate is "proper" within the meaning of CPL § 245.50[3] and, thus, fulfills that section's prerequisite to any valid statement of readiness by the People.

In this regard, numerous courts have found that belated disclosures should not invalidate a certificate of compliance that was made in good faith after the exercise of due diligence where the delay resulted from, for example, minor oversights in the production of material, delayed discovery of the existence of certain items, or a good faith position that the material in question was not discoverable. (See People v Erby, 68 Misc 3d 625, 633 [Sup Ct Bronx Co 2020]; People v Gonzalez, 68 Misc 3d 1213(A), *1, 3 [Sup Ct Kings Co 2020]; People v Knight, 69 Misc 3d 546, 552 [Sup Ct Kings Co 2020]; People v Lustig, 68 Misc 3d 234, 247 [Sup Ct Queens Co 2020]; People v Randolph, 69 Misc 3d 770, 770 [Sup Ct Suffolk Co 2020]; People v Davis, — NYS3d —, 2020 NY Slip Op 20298, 2020 WL 6576095, at *5-7 [Crim Ct Bronx Co, October 9, 2020].) Indeed, in People v Erby, 68 Misc 3d at 633, a court of coordinate jurisdiction addressing a discovery challenge observed:

As the legislative history of Article 245 indicates, and as the Article's sanctions and remedies provisions suggest, the new discovery law, designed as it was to be remedial in nature, should not be construed as an inescapable trap for the diligent prosecutor who professionally, assiduously and in good faith attempts to comply with their new and extensive requirements under the discovery statute, but through no fault of his or her own is unable to comply with every aspect of the automatic discovery rules specified in CPL 245.20.

Similarly, in People v Knight, another court addressed a situation in which the People had provided "a very few [additional] discovery items" to the defendant after filing their certificate of compliance. (69 Misc 3d at 552.) The court concluded that "[t]heir absence from the original certificate of compliance does not vitiate it," reasoning that, "[b]y any measure it was filed 'in good faith' and 'reasonable under the circumstances'" and, thus, was "valid." (Id.)

In this court's view, good faith and due diligence are the touchstones by which a certificate of compliance must be evaluated. Accordingly, upon a challenge to a certificate of compliance, the People must articulate their efforts to comply with CPL § 245.20(1) with respect to the statutory subsections or specific items of discovery at issue. If the People establish that they exercised due diligence and acted in good faith in filing their certificate, their certificate of compliance shall be deemed valid. This may be accomplished by recounting the steps they took to obtain certain materials or ascertain the existence thereof, explaining the reasons why particular items are outstanding, lost or destroyed, and submitting their good-faith arguments for why certain materials are not discoverable under the statute. On the other hand, where the People fail to set forth their efforts to locate items of discovery or determine that they do not exist, or the efforts they describe do not amount to due diligence, their certificate may be invalidated.

The defendant concedes the People have provided summary letters of disciplinary [*7]matters including CCRB substantiated and unsubstantiated complaints and investigations and civil lawsuits concerning police witnesses but claims that he is entitled to the underlying documentation regarding the CCRB investigations, and the complaints and pleadings of civil lawsuits. He also asserts that he is entitled to the underlying CCRB and any Internal Affairs Bureau (IAB) documentation regarding unsubstantiated, unfounded and exonerated claims. The People contend that such material is not discoverable because the discovery statute requires only that they provide impeachment information, rather than the disclosure of the underlying records. They assert that they have complied with their discovery obligations by providing disclosure letters regarding the allegations against each police witness. The court disagrees and finds the disclosure letters provided to counsel satisfied the People's discovery obligations with respect to each of the items raised in the defendant's challenge. (See People v Perez, 73 Misc 3d 171 [Sup Ct Queens County 2021]).

Accordingly, the defendant's motion challenging the People's certificate of compliance is denied.

This court issues this order as both a reminder and a directive that counsel uphold their constitutional, statutory and ethical responsibilities in the above-captioned proceeding:

To the Prosecutor:

The District Attorney and the Assistant responsible for the case, or, if the matter is not being prosecuted by the District Attorney, the prosecuting agency and its assigned representative, is directed to make timely disclosures of information favorable to the defense as required by Brady v Maryland, 373 US 83 (1963), Giglio v United States, 405 US 150 (1972), People v Geaslen, 54 NY2d 510 (1981), and their progeny under the United States and New York State constitutions, and pursuant to Criminal Procedure Law (CPL) article 245 and Rule 3.8(b) of the New York State Rules of Professional Conduct, as described hereafter.

• The District Attorney and the Assistant responsible for the case have a duty to learn of such favorable information that is known to others acting on the government's behalf in the case, including the police, and should therefore confer with investigative and prosecutorial personnel who acted in this case and review their and their agencies' files directly related to the prosecution or investigation of this case.

• Favorable information could include, but is not limited to:

a) Information that impeaches the credibility of a testifying prosecution witness, including (i) benefits, promises, rewards or inducements, express or tacit, made to a witness by a law enforcement official or law enforcement victim services agency in connection with giving testimony or cooperating in the case; (ii) a witness's prior inconsistent statements, written or oral; (iii) a witness's prior convictions and uncharged criminal conduct; (iv) information that tends to show that a witness has a motive to lie to inculpate the defendant, or a bias against the defendant or in favor of the complainant or the prosecution; and (v) information that tends to show impairment of a witness's ability to perceive, recall, or recount relevant events, including impairment of that ability resulting from mental or physical illness or substance abuse.

b) Information that tends to exculpate, reduce the degree of an offense, or support a potential defense to a charged offense.

c) Information that tends to mitigate the degree of the defendant's culpability as to a charged offense, or to mitigate punishment.

d) Information that tends to undermine evidence of the defendant's identity as a [*8]perpetrator of a charged crime, such as a non-identification of the defendant by a witness to a charged crime or an identification or other evidence implicating another person in a manner that tends to cast doubt on the defendant's guilt.

e) Information that could affect in the defendant's favor the ultimate decision on a suppression motion.

• Favorable information shall be disclosed whether or not it is recorded in tangible form, and irrespective of whether the prosecutor credits the information.

• Favorable information must be timely disclosed in accordance with the United States and New York State constitutional standards, and in accordance with the timing provisions of CPL article 245. The prosecutor is reminded that the obligation to disclose is a continuing one. Prosecutors should strive to determine if favorable information exists. The prosecutor shall disclose the information expeditiously upon its receipt and shall not delay disclosure if it is obtained earlier than the time period for disclosure in CPL 245.10(1).

• A protective order may be issued for good cause pursuant to CPL 245.70 with respect to disclosures required under this order.

• Failures to provide disclosure in accordance with CPL Article 245 are subject to the available remedies and sanctions for nondisclosures pursuant to CPL 245.80.

• Only willful and deliberate conduct will constitute a violation of this order or be eligible to result in personal sanctions against a prosecutor.

To Defense Counsel:

Defense counsel, having filed a notice of appearance in the above captioned case, is obligated under both the New York State and the United States Constitution to provide effective representation of defendant. Although the following list is not meant to be exhaustive, counsel shall remain cognizant of the obligation to:

a) Confer with the client about the case and keep the client informed about all significant developments in the case;

b) Timely communicate to the client any and all guilty plea offers, and provide reasonable advice about the advantages and disadvantages of such guilty plea offers and about the potential sentencing ranges that would apply in the case;

c) When applicable based upon the client's immigration status, ensure that the client receives competent advice regarding the immigration consequences in the case as required under Padilla v Kentucky, 559 US 356 (2010);

d) Perform a reasonable investigation of both the facts and the law pertinent to the case (including as applicable, e.g., visiting the scene, interviewing witnesses, subpoenaing pertinent materials, consulting experts, inspecting exhibits, reviewing all discovery materials obtained from the prosecution, researching legal issues, etc.), or, if appropriate, make a reasonable professional judgment not to investigate a particular matter;

e) Comply with the requirements of the New York State Rules of Professional Conduct regarding conflicts of interest, and when appropriate, timely notify the court of a possible conflict so that an inquiry may be undertaken or a ruling made;

f) Possess or acquire a reasonable knowledge and familiarity with criminal substantive, procedural and evidentiary law to ensure constitutionally effective representation in the case; and

g) When the statutory requirements necessary to trigger required notice from the defense are met (e.g., a demand, intent to introduce particular evidence, etc.), comply with the [*9]statutory notice obligations for the defense as specified in CPL 250.10, 250.20, and 250.30.

The branch of the motion requesting leave to file additional motions is granted to the extent recognized by CPL 255.20(3).

This constitutes the decision and order of the court.

The Clerk of the court is directed to distribute copies of this decision and order to the attorney for the defendant and to the District Attorney.