Criminal Court of the City of New York, Kings County, January 23, 2023

The Legal Aid Society (Nicholas Raskin of counsel) for defendant.

Eric Gonzalez, District Attorney (Steve Michelen of counsel), for the People.

The defendant, Christopher Hooks, is charged with menacing in the second degree (Penal Law § 120.14 [1]), menacing in the third degree (Penal Law § 120.15), and harassment in the second degree (Penal Law § 240.26 [1]). He now challenges the validity of the People's certificate of compliance and moves for dismissal of the accusatory instrument pursuant to CPL 30.30.

For the reasons set forth below, the defendant's motion is granted.

On April 14, 2022, at approximately 7:25 a.m., the defendant is alleged to have menaced the complainant with an object that{**78 Misc 3d at 400} appeared to be a firearm. While displaying the object, the defendant is alleged to have threatened the complainant by stating that he would get them out of the building "one way or another." As a result, the complainant feared imminent physical injury and became alarmed and annoyed.

This criminal action commenced with the filing of an accusatory instrument at the arraignment held on July 31, 2022, and the defendant was released on his own recognizance. On October 27, 2022, the People served and filed a certificate of compliance and statement of readiness. The People later disclosed additional discovery materials on November 10, 2022, and November 15, 2022, but did not file a supplemental certificate of compliance on either date.^[FN1]

The defendant challenges the validity of the People's certificate of compliance. He argues that despite filing their certificate of compliance pursuant to CPL 245.20 (1), the People failed to turn over certain required discoverable materials, including Giglio material, activity logs, body-worn camera video, and a statement allegedly made by the complainant to law enforcement. These failures, he argues, render the certificate of compliance invalid. The defendant urges this court to find that the People's failure to file a valid certificate of compliance invalidates their statement of readiness. In opposing the motion, the People contend that they are only required to provide the Giglio materials pertaining to testifying witnesses, that they exercised due diligence in obtaining and serving discovery, and that no prejudice has been shown by the defense for any belated disclosures.

CPL 245.20 (1) provides that the People shall disclose to the defendant and permit him to discover 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 their direction or control, including the items subject to automatic discovery listed in CPL 245.20 (1) (a)-(u). The People must "make a diligent, good faith effort to ascertain the existence of material or information discoverable" and must "cause {**78 Misc 3d at 401}such material or information to be made available for discovery where it exists but is not within the prosecutor's possession, custody or control" (CPL 245.20 [2]). When the defendant is not in custody, the People shall perform their initial discovery obligations within 35 days of arraignment on a misdemeanor complaint (CPL 245.10 [1] [a] [ii]). The certificate of compliance must include a statement that the People disclosed and made available all known information subject to discovery and must identify the items provided (CPL 245.50 [1]).

If the People provide additional discovery after filing their certificate of compliance (CPL 245.60), they must serve and file a supplemental certificate identifying the additional material and information provided (CPL 245.50 [1]). Additionally, "[a]ny supplemental certificate of compliance shall detail the basis for the delayed disclosure so that the court may determine whether the delayed disclosure impacts the propriety of the certificate of compliance" (CPL 245.50 [1-a]).

In a challenge to the validity of a certificate of compliance, the court must determine whether the People exercised the requisite level of diligence in obtaining the materials, and whether their certification was filed in good faith and was reasonable under the circumstances (People v Erby, 68 Misc 3d 625 [Sup Ct, Bronx County 2020]; People v Knight, 69 Misc 3d 546, 552 [Sup Ct, Kings County 2020]; People v McKinney, 71 Misc 3d 1221[A], 2021 NY Slip Op 50456[U] [Crim Ct, Kings County 2021]; People v Adrovic, 69 Misc 3d 563 [Crim Ct, Kings County 2020]).

[1] In this case, the defendant was not in custody and the People had 35 days to turn over their initial discovery. It is undisputed that the People belatedly provided the body-worn camera video, activity log, and Giglio materials for Lieutenant Ayala, without filing a supplemental certificate of compliance. It is also undisputed that the People have not provided the following discoverable items: the names and work affiliation for all officers who responded to the locus in quo, body-worn camera videos for all responding officers, activity logs for all responding officers, Axon datasheets for all officers with body-worn cameras, the complainant's statement made to the police for the walk-in report, and the names and relating discovery to the [*2]officers who were involved in taking the complainant's statement. The parties disagree over the completion of the{**78 Misc 3d at 402} required disclosure of Giglio materials for all responding and testifying officers.^[FN2]

The People have not provided an adequate explanation for their delay or their failure to provide the outstanding discoverable items. The People made no effort to ascertain the existence of discoverable materials (CPL 245.20 [2]), until October 22, 2022, which is 83 days after the defendant was arraigned. The People offer no explanation for why they failed to perform their initial discovery obligations within 35 days after the defendant's arraignment (CPL 245.10 [1] [a] [ii]). The People do not explain their failure to provide a supplemental certificate of compliance on November 10, 2022, and November 15, 2022, or the basis for providing late discovery on those dates. The People have failed to comply with their statutory discovery obligations and have not met their burden of showing how their actions were diligent under the circumstances. Accordingly, the People's certificate of compliance was not filed in good faith and is deemed invalid (People v Soto, 72 Misc 3d 1153 [Crim Ct, NY County 2021]; People v Ryklin, 72 Misc 3d 1208[A], 2021 NY Slip Op 50678[U] [Sup Ct, Kings County 2021]; People v McKinney; People v Cooper, 71 Misc 3d 559 [Erie County Ct 2021]; People v Adrovic). Concomitantly, the People's statement of readiness is also deemed invalid (CPL 30.30 [5]).

The defendant moves to dismiss the proceedings pursuant to CPL 30.30 (1) (b) since the certificate of compliance and the statement of readiness have been invalidated and asserts that more than 90 days of pre-readiness time has elapsed since he was arraigned. In response, the People argue that dismissal is an extreme sanction for a discovery violation absent the defendant showing actual prejudice.

A defendant seeking dismissal pursuant to CPL 30.30 meets his initial burden by alleging that the People have failed to declare readiness within the statutorily prescribed period (People{**78 Misc 3d at 403}v Beasley, 16 NY3d 289, 292 [2011]). The statutory period to announce ready on an "A" misdemeanor is within 90 days from the date of arraignment (CPL 30.30 [1] [b]). "[O]nce the defendant has shown the existence of a delay greater than [90 days], the burden of proving that certain periods within that time should be excluded falls upon the People" (People v Berkowitz, 50 NY2d 333, 349 [1980]).

[2] The defendant was arraigned on July 31, 2022, on an "A" misdemeanor. At the arraignment, the defendant requested a hearing pursuant to Matter of Crawford v Ally (197 AD3d 27 [1st Dept 2021]). The matter was adjourned to August 9, 2022, to conduct the hearing. While the People do not argue that this adjournment is excludable, this court is not bound by incorrect legal arguments in its determination of speedy trial time (People v Cook, 30 Misc 3d 134[A], 2011 NY Slip Op 50084[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2011]; People v Fung, 43 Misc 3d 43 [App Term, 2d Dept, 9th & 10th Jud Dists 2014]; see also [*3]People v Porch, 212 AD2d 360, 360 [1st Dept 1995], lv denied 85 NY2d 978 [1995]; People v Ali, 209 AD2d 227, 227 [1st Dept 1994], lv denied 85 NY2d 905 [1995]). There is no controlling appellate authority or guiding trial court decision on the specific issue of the excludability of an adjournment for a Crawford hearing. This court finds, as an issue of first impression, that this pre-readiness adjournment is excludable as a defense requested adjournment (CPL 30.30 [4] [b]; People v Martinez, 186 AD3d 1530, 1531 [2d Dept 2020], lv denied 36 NY3d 974 [2020]; People v Barnes, 160 AD3d 890, 890 [2d Dept 2018], lv denied 31 NY3d 1145 [2018]). Accordingly, no days are charged to the People.

The case was next adjourned from August 9, 2022, to November 2, 2022, for the People to file a certificate of compliance and statement of readiness. Eighty-five days are charged to the People for this pre-readiness adjournment.

The case was adjourned from November 2, 2022, to December 1, 2022, for the People to file a certificate of compliance and statement of readiness. Twenty-nine days are charged to the People for this pre-readiness adjournment.

The case was adjourned from December 1, 2022, to January 26, 2023, for the defense to file the instant motion, which was filed on December 17, 2022. Sixteen days are charged to the People for the period of December 1, 2022, to December 17, 2022. The period from December 17, 2022, to January 26, 2023, is excluded for defense motions (CPL 30.30 [4] [a]). A total of{**78 Misc 3d at 404} 130 days is charged to the People since the defendant's arraignment.

The People's argument that the dismissal of the accusatory instrument is an extreme sanction for invalidating a certificate of compliance is misguided. The invalidation of the certificate of compliance does not result in the dismissal of the complaint as a sanction. Rather, the dismissal arises from the People's failure to be ready for trial within the statutorily prescribed time (People v Guzman, 75 Misc 3d 132[A], 2022 NY Slip Op 50445[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2022]). Accordingly, the accusatory instrument must be dismissed for violating the defendant's right to a speedy trial (CPL 30.30 [1] [b]).

For the foregoing reasons, the defendant's application to invalidate the People's certificate of compliance is granted. Additionally, the People have failed to state their readiness for trial in under 90 days. Accordingly, the defendant's motion to dismiss is granted.