Defendant moves for an order deeming the People's Certificate of Compliance invalid pursuant to CPL 245 and dismissing the information pursuant to CPL 30.30. The People oppose.

On May 31, 2022, Defendant was arraigned on charges of Forcible Touching (PL 130.52), Sexual Abuse in the Third Degree (PL 130.55), and Criminal Possession of a Weapon in the Fourth Degree (PL 265.01 [1]). The case was then adjourned to July 14, 2022.

On July 14, 2022, the People were not ready for trial because they had not yet met their discovery obligations. As relevant here, when discovery was initially turned over, the People submitted a discovery advisory form (DAF) that summarized two substantiated disciplinary proceedings against a police officer they intended to call as a trial witness, Officer Johnny Pagan. The People provided no further information for these disciplinary records other than the one-paragraph summaries. Defense counsel asserts she notified the assigned prosecutor that more was required but received no follow up.

On August 16, 2022, the People filed an off-calendar Certificate of Compliance (COC) and Certificate of Readiness for Trial (COR). At the next court date, on August 23, 2022, the [*2]Defendant was not present. The case was adjourned 2 days. On August 25, 2022, the Defendant was present, and the People announced ready for trial. The Defendant requested an adjournment to discuss whether the case could be sent to Misdemeanor Mental Health Court. The case was adjourned to September 12, 2022.

On September 12, 2022, the People once again announced ready for trial. The Defendant requested additional time to assess options for ATI programming. The case was adjourned to October 18, 2022. A supplemental COC was filed on September 19, 2022, with additional discovery. On October 18, 2022, the People once again announced ready. The Defendant requested more time to assess ATI programming and to file the instant motion. The case was adjourned to November 9, 2022. On that date, the instant motion was filed.

The Defendant argues that the COC and supplemental COC filed by the People are invalid because, pursuant to 245.20 (1) (k), the People are required to turn over all documentation relating to Officer Pagan's substantiated disciplinary records. By failing to meet their discovery obligations, the People were unable to validly announce ready for trial. Thus, the speedy trial clock was never stopped, and there are 154 chargeable days.

The People respond that underlying records for disciplinary actions—even for substantiated allegations—are not discoverable as a matter of law because they are not related to the subject matter of the case. Moreover, the People contend that the caselaw interpreting 245.20 (1) (k) is unsettled and point to the handful of lower court decisions that support their interpretation. Thus, the People argue that they acted in good faith by relying on these cases despite failing to disclose any underlying documentation for Pagan's substantiated misconduct records. As a result, the speedy trial clock stopped when the initial COC was filed, and 77 days are chargeable to the People.

Before stating ready for trial, the People must disclose "all" items and information in their actual or constructive possession that "relate to the subject matter of the case." (CPL 245.20 [1], 245.50 [3], 245.50 [1]). The People's "possession" includes discoverable material that is in the possession of the police or is "known to the police" (CPL 245.20 [2], 245.20 [1] [k]). After the People have acted in "good faith" and exercised "due diligence" to make "reasonable inquiries to ascertain the existence of material" subject to discovery, they must file a Certificate of Compliance (COC) and Certificate of Readiness (COR) to proceed to trial (CPL 245.50 [3], 245.20 [2]). A valid COC requires that all discoverable materials must actually be turned over to the defendant, except for materials that are lost, destroyed, unavailable, or subject to a protective order (CPL 245.50 [1], [3]). Additionally, CPL 245.20 (7) provides that "there shall be a presumption in favor of disclosure when interpreting ... subdivision one of section 245.20, of this article."

Contrary to the People's argument, underlying documents relating to substantiated police misconduct allegations are discoverable under CPL 245.20 (1) (k). This interpretation is supported by the clear language of the statute that any information tending "to impeach the credibility of a testifying prosecution witness" is discoverable (emphasis added). Moreover, while there is no appellate authority directly on point in a criminal proceeding, the First Department held in Matter of Jayson C, 200 AD3d 447 (1st Dept 2021) that subdivision (k) "broadly requires disclosure of all impeachment evidence" and that mere summaries of such records are insufficient. Although Matter of Jayson specifically addressed a juvenile delinquency [*3]matter, the Court opined "a similarly situated defendant in a criminal proceeding would be entitled to access to impeachment materials requested by the appellant." Id. at 449.

Thus, even if this Court were to ignore the plethora of lower courts that have held contrary to the People's position here ^[FN1] , the logic of the Matter of Jaysen Court's interpretation is inescapable: if subdivision (k) requires disclosure of underlying documentation in the juvenile delinquency context where a lesser liberty interest is at stake, it must follow that disclosure of same is mandated when that interest is greater.

Where the People have failed to comply with their discovery obligations under CPL 245, the court must also now weigh the prejudice incurred by the defendant as a result of the missing information to determine an appropriate sanction (CPL 245.80 [1], as amended May 9, 2022). It bears mentioning that while the 2022 amendments require the discovery court to weigh prejudice in fashioning a remedy for the People's noncompliance with their discovery obligations, the Legislature did not decouple those obligations from speedy trial time (CPL 245.50 [3]). Thus, only if the People have acted with requisite "due diligence" and in "good faith" in turning over discovery the first instance — or the evidence is lost, destroyed, unavailable - may the Court then consider the prejudicial effect of such belated discovery.

Courts have held that assessing "good faith and "due diligence" requires the People to "demonstrate how due diligence was exercised" (People v Adrovic, 69 Misc 3d 563 [Crim Ct, Kings County 2020]; See also People v Higgins, 75 Misc 3d 1232[A] [City Ct, Yonkers 2022] [COC voided where the prosecutor gave no reason for their delayed disclosure, "good faith was not found"]; People v McKinney, 71 Misc 3d 1221[A] [Crim Ct, Kings County 2021] ["a bare bones assertion" that due diligence was taken does not provide the court with the necessary basis to make a finding on "good faith"]).

In the event that the People face a burden in obtaining discoverable material, the statute provides for multiple scenarios whereby the People may seek relief from the courts. For example, CPL 245.70 (2) allows the People to request the court to modify the discovery time period upon a showing of "good cause." CPL 245.70 (1) allows for the People to apply for a protective order, thus limiting the discovery required to be disclosed. Further still, CPL 245.50 (3) allows the People to declare their readiness absent some discoverable material being disclosed in "special circumstances."

Here, the People have undisputedly made no effort to request the underlying documentation for Officer Pagan's substantiated disciplinary records—even after defense counsel noticed them of the omission. Nor is this a scenario where the People assert a delay or other roadblock in obtaining the documents. And they never moved for a protective order and make no claim for "special circumstances." Rather, the People withhold such material based on an erroneous reading of the law that contradicts the express legislative intent of CPL 245 that there should be a "presumption in favor of disclosure" CPL 245.20 (7). As such, the People's inaction here cannot be deemed "good faith" under the circumstance and, therefore, this Court [*4]vitiates all previously filed COCs in this proceeding.

Accordingly, the speedy trial commences from notice of entry of this decision and order until the People have produced the underlying documentation for Officer Pagan's substantiated disciplinary records. As the most serious charge here is an A misdemeanor, the People were required to be ready for trial within 90 days of the commencement of the action (CPL 30.30 [1] [b]), in this case on May 31, 2022. The speedy trial clock was only paused Defendant failed to appear on August 23, 2022. When the Defendant returned to court on August 25, 2022, the speedy trial clock resumed. The speedy trial clock in this matter has been tolled since October 18, 2022, when Defendant requested an adjournment to have him considered for a treatment part and for during the pendency of this motion (30.30 [4] [b]). Collectively, the period from May 31, 2022 through August 23, 2022 and from August 25, 2022 through October 18, 2022 are chargeable to the People, totaling 94 chargeable days.

Thus, Defendant's motions to invalidate the People's COCs is granted and dismiss the information pursuant to CPL 30.30 is granted.

This constitutes the decision and order of this Court.