"Whenever" the People state ready for trial, the court must "make inquiry on the record as to their actual readiness." (C.P.L. § 30.30[5]). As part of this inquiry, the court must examine whether the People have complied with their automatic discovery obligations. (Id.; see also People ex rel. Ferro v. Brann, 197 AD3d 787, 787-88 [2d Dep't 2021]; C.P.L. §§ 245.20[1], 245.20[2]; 245.50[1], 245.50[3]).

On November 14, 2022, the parties in this case appeared regarding such a dispute over the People's readiness. There, this court orally ruled that the People were not actually ready for trial. That was because, after hearing arguments from both sides, the court concluded that the People had not yet met their automatic discovery obligations.

The court concluded the People were not actually ready for three reasons. First, the People had not disclosed simulator-solution gas chromatography records for the six months prior to the chemical test in this case. (C.P.L. § 245.20[1][s]). Second, the People had not disclosed calibration records created within six months prior to the portable breath test in this case. (Id.). And third, the People had not disclosed unredacted disciplinary records for the police officers involved in this case. (C.P.L. § 245.20[1][k]).

On November 21, 2022, the People requested leave to reargue these issues. The defense responded on November 29, 2022. For the reasons stated below, the People's request for leave to reargue is denied.

The Criminal Procedure Law generally does not provide for leave to reargue, but the Civil Practice Law and Rules does. (See C.P.L.R. § 2221). As a result, criminal courts often apply the rules of C.P.L.R. § 2221 to motions for leave to reargue. (E.g., People v. Benitez, 75 Misc 3d 1204[A], at *2 [Dist. Ct., Suffolk County 2022]; People v. Roberts, 76 Misc 3d 448, 452 [Crim. Ct., NY County 2022]; People v. Manzueta, 62 Misc 3d 187, 189 [Crim. Ct., Queens County 2018]; People v. Wilson, 50 Misc 3d 1224[A], at *1-*3 [Crim. Ct., Bronx County 2016]; [*2]People v. Merly, 51 Misc 3d 858, 859-60 [Sup. Ct., Bronx County 2016]; People v. Williams, 48 Misc 3d 1217[A] [Crim. Ct., Bronx County 2015]; People v. Garraway, 47 Misc 3d 1227[A], at *1-*3 [Crim. Ct., Bronx County 2015]; People v. Ramrup, 47 Misc 3d 1223[A], at *1-*3 [Sup. Ct., Bronx County 2015]; but see People v. DeFreitas, 48 Misc 3d 569 [Crim. Ct., NY County 2015]).

As explained by the Second Department, "to warrant reargument, the moving party must demonstrate that the court overlooked or misapprehended the relevant facts or misapplied a controlling principle of law." (Cioffi v. S.M. Foods, Inc., 129 AD3d 888, 891-92 [2d Dep't 2015] [emphasis added]; see also Frenchman v. Lynch, 97 AD3d 632, 633 [2d Dep't 2012] ["The plaintiffs failed to demonstrate that the Supreme Court overlooked or misapprehended the relevant facts or misapplied any controlling principle of law."]; Haque v. Daddazio, 84 AD3d 940, 942 [2d Dep't 2011] ["[T]he plaintiff failed to show that the Supreme Court overlooked or misapprehended the relevant facts or misapplied any controlling principle of law."]).

Here, the court finds no reason to grant leave to reargue. The People fail to establish that the court overlooked or misapprehended the relevant facts or misapplied a controlling principle of law. The court takes each of the People's claims in turn.

First, the People argue that their request should be granted because "ruling against the People based solely on the reading of the statute was a misapprehension of the law." (Pr. Mot. at 4). At issue is C.P.L. § 245.20[1][s] and whether it requires the People to disclose gas chromatography records for simulator solutions used for calibration six months prior to a chemical test. That statute requires that the People disclose:

In any prosecution alleging a violation of the vehicle and traffic law, where the defendant is charged by indictment, superior court information, prosecutor's information, information, or simplified information, all records of calibration, certification, inspection, repair or maintenance of machines and instruments utilized to perform any scientific tests and experiments, including but 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, including the records of gas chromatography related to the certification of all reference standards and the certification certificate, if any, held by the operator of the machine or instrument. (C.P.L. § 245.20[1][s] [emphases added]).

Ignoring the statute as controlling authority, the People only point, as they did in their original argument, to a trial-court case to claim otherwise. That case, People v. Alvarez, properly noted that the only gas chromatography records required are those that "relate to the subject matter of the case." (71 Misc 3d 1206[A], at *7 [Sup. Ct., Queens County 2021]). But in the Alvarez court's view, gas chromatography records for simulator solutions used for calibration six months prior to the chemical test do not relate to the case. Therefore, it reasoned, they are not discoverable. (Id.).

Although the Alvarez court and the People may believe that these records do not relate to the case, the Legislature clearly thinks otherwise. It requires that the People disclose "all records of calibration . . . for the period of six months prior and six months after [the] test was conducted, including the records of gas chromatography related to the certification of all reference standards." (C.P.L. § 245.20[1][s] [emphases added]). The "reference standard" is "commonly known" as a "simulator solution." (Gerstenzang & Sills, Handling the DWI Case in New York § 29:11 [2022]).

Plainly read, the statute requires the People to disclose all "records of gas [*3]chromatography" related to the simulator solutions used "for the period of six months prior and six months after" the chemical test in this case. (C.P.L. § 245.20[1][s]; see also People v. Blackwell, CR-006929-22NY [Crim. Ct., NY County Oct. 20, 2022] [Lewis, J.] [concluding the same]). In other words, the Legislature has explicitly "includ[ed]" these records in its non-exhaustive list of what it believes "relate to the subject matter of the case." (C.P.L. § 245.20[1]). This court will not supplant the Legislature's explicit command, nor can it ignore the statute as controlling authority on the matter.

Second, the People reiterate their mistaken belief that they may unilaterally redact the underlying disciplinary records for police witnesses without permission from any court. This court has rejected that belief on many occasions as having no basis in the discovery statute. (E.g., People v. Spaulding, 75 Misc 3d 1219[A] [Crim. Ct., Bronx County 2022]). Other courts in this borough have as well. (E.g., People v. Bravo, CR-002662-22QN [Crim. Ct., Queens County Aug. 17, 2022]; People v. Best, 76 Misc 3d 1210[A] [Crim. Ct., Queens County 2022] [Gershuny, J.]). As Judge Denise Johnson aptly reasoned in People v. Bravo:

C.P.L. 245.20 does not request partial compliance it mandates full compliance. The People do not have the discretion to determine which materials are necessary for the Defendant to appropriately defend against the charges and the People cannot be selective on which portions of the [disciplinary] records are to be produced. The statute requires the production of ALL the material.

(CR-002662-22QN, at *7-*8). Judge Jeffrey Gershuny held similarly in People v. Best: the People do not have discretion to "unilaterally redact[ ] law enforcement information without leave of court" or "selectively withhold[ ] disciplinary records that they themselves deem non-discoverable." (76 Misc 3d 1210[A], at *7). The police do not have that discretion, either. (People v. Goggins, 76 Misc 3d 898, 903 [Crim. Ct., Bronx County 2022] ["Whether IAB logs are redacted by the NYPD or by the People is of no consequence."]). Indeed, the statute was "designed to remove the discretion of the parties in determining what and how much discovery to turn over." (Best, 76 Misc 3d 1210[A], at *5). Unless and until the People produce all the underlying disciplinary records in their possession and the police's possession—or unless and until they seek and are granted a protective order—the People will remain non-compliant with discovery.

Finally, the People state that "People's [sic] should have never been deemed not ready because even if more things needed to be turned over, it does not mean that the People's original statement of readiness was illusory." (Pr. Mot. at 6). In support of this claim, the People cite two First Department cases: People v. Zale, 137 AD3d 634 [1st Dep't 2016]; and People v. Wright, 50 AD3d 429 [1st Dep't 2008]. The People highlight that Zale found no problem with the People's statement of readiness where they did not "produce a calibration report" to the defense "until the day of trial." (137 AD3d at 635).

The People again misapprehend controlling law. The 2020 discovery and speedy-trial reforms sought to abrogate caselaw like Zale and Wright. They eliminated the "trial by ambush" regime in which the defense could be provided discovery "minutes before trial was to begin." (People v. McMillian, 71 Misc 3d 374, 380 [Crim. Ct., Bronx County 2021]). The reforms did so by tying "discovery compliance to trial readiness." (People v. Mashiyach, 70 Misc 3d 456, 462 [Crim. Ct., Kings County 2020]).

Under current law, a proper certificate of discovery compliance is a prerequisite to a statement of readiness. (C.P.L. §§ 245.50[3], [1], 30.30[5]; Ferro, 197 AD3d at 788; People v. [*4]Guzman, 75 Misc 3d 132[A], at *3 [App. Term, 2d Dep't 2022]). The only exception in the statute is for "special circumstances." (C.P.L. § 245.50[3]; see also Guzman, 75 Misc 3d 132[A], at *3). That means, absent special circumstances, the People will be deemed "not ready" if "more things needed to be turned over." (Cf. Pr. Mot. at 6).

The People fail to establish that the court overlooked or misapprehended the relevant facts or misapplied a controlling principle of law. As such, the request for leave to reargue is denied.