Supreme Court, Bronx County, January 27, 2023

The Legal Aid Society (Kyla Wells of counsel) for defendant.

Darcel D. Clark, District Attorney (Sara Jacobson of counsel), for the People.

Through the instant motion filed on November 28, 2022, the defendant asks the charges against him to be dismissed pursuant to CPL 30.30 (1) (a). The People oppose.{**78 Misc 3d at 413}

At the heart of the defendant's contention is the court's ruling, made after a discovery hearing on March 3, 2022, that the People would be charged speedy trial time until certain discovery is provided. As relevant to the decision, the court directed the People to ascertain the existence of materials related to the ShotSpotter activation, and make them available to defense counsel if they existed. The People failed to do so until September 21, 2022. The defendant persistently and steadfastly demanded the materials during this period.

For the reasons stated below, the court finds 219 days of chargeable time. Accordingly, the defendant's motion to dismiss is granted.

The defendant was arrested along with codefendant German Rivera on September 5, 2019.

Both defendants were indicted on attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]), assault in the first degree (Penal Law § 120.10 [1]), reckless endangerment in the first degree (Penal Law § 120.25), criminal possession of a weapon in the second degree (Penal Law § 265.03 [1] [b]; [3]), and other related charges. The defendant was arraigned in Supreme Court on October 29, 2019, while the codefendant was arraigned on October 15, 2019.

The People served on defense counsel an automatic disclosure form on January 13, 2020. The prosecution also served a certificate of compliance (COC) and statement of readiness (SOR) on February 24, 2020. Throughout the case, supplemental COCs were filed on July 8, 2020, January 13, 2021, March 23, 2022, and September 21, 2022.

On December 7, 2021, one day before a regularly-scheduled court date, defense counsel filed a motion challenging the prosecution's COCs filed on February 24, July 8, and January 13, alleging that the People have failed to comply with the disclosure requirements contained in [*2]article 245 of the Criminal Procedure Law in a myriad of ways. She claimed that the People failed to turn over, for example, "Photo Array Documents and Reports," "DD5s," "Body Worn Camera Metadata, Audit Trail Logs and Master Log," "Debriefing Documents," "Shot Spotter Audio and Records," "Adequate Contact Information Civilians With Relevant Information," "Roll Call Log," {**78 Misc 3d at 414}"RTRD Reports,"^[FN1] "Domain Awareness System (DAS) Records,"^[FN2] "The Investigation Cards (I-Cards)," "SAFETNet Application," "IAB Referral," "Online Arrest Report Worksheet," "Aided Reports," "Latent Print Section (LPS) Laboratory Information Management System Records (LIMS)," "Co-defendant's Rikers Calls and Call Log," "Underlying documents regarding any CCRB and IAB investigations, police disciplinary records, and any other Brady/Giglio material," and many others (defense mot challenging certificate of compliance under CPL 245.50 [4] at 5-16 [Dec. 7, 2021]).

On December 8, 2021, the prosecutor informed the court that the Assistant District Attorney (ADA) that was handling the matter had left the office and she would be taking over, making her the third ADA to handle the case. She further stated that many of the items listed on the defense's motion filed on December 7 had previously been furnished by the former ADAs who handled the case, but she would resend them to ensure that defense counsel is in possession of the requested materials. Based on this representation, the court directed defense counsel to review the new batch of discovery and submit a "reduced" motion, listing only the items that she is missing. The court also ordered the People to respond to the defendant's motion if both sides are unable to resolve the discovery dispute. The case was adjourned to January 25, 2022.

On January 25, 2022, the ADA requested additional time to file a response as she had limited ability to come into the office due to medical reasons. The application was granted, and the case was adjourned to March 3, 2022. The People never filed a response.

The case was heard for the first time by this court on March 3. Given the People's failure to respond in writing, the court conducted an oral COC hearing on March 3, 2022. Following the hearing, the court rejected the defense's request to find the prosecution's COC to be invalid and found that the People had discharged their discovery obligations, and that they exercised due diligence and good faith until that point in time. However,{**78 Misc 3d at 415} the court directed the People to determine, among others, what, if any, ShotSpotter materials existed and to disclose them to defense counsel. The case was adjourned to April 25, 2022, for hearings and trial.

In between the court dates, the court issued a written decision on March 4, 2022, providing further clarification of its oral decision. The court reiterated that the People's COCs and SORs were valid and that many of the items listed in the defense motion were either non-discoverable or already given to counsel. The court also ruled that the People "need to either file and serve the remaining discovery by close of business on March 10, 2022 or report to defense counsel that it does not exist" (court's decision at 3 [Mar. 4, 2022]). If the People failed to [*3]perform the obligation by March 10, the court held that speedy trial time would run, and the People could be subject to further sanctions (id.).

The People provided additional materials to defense counsel and filed an SOR on March 22, 2022, and a supplemental COC on March 23, 2022. However, as relevant to this decision, they did not provide any ShotSpotter materials.

On April 25, the People answered not ready for trial because necessary witnesses were unavailable and requested May 3, 2022. Defense counsel noted that the People served additional discovery since the last court date, but a few items were still outstanding, including ShotSpotter records. In response, the assigned prosecutor stated,

"ShotSpotter belongs to a private company. So I have not—so the reason why defense counsel does not have paperwork in relation to it is because I do not have that paperwork. They are not in my custody and control. It doesn't appear as if my colleagues have ordered them either" (tr at 7, lines 15-21 [Apr. 25, 2022]).

When the court asked whether ShotSpotter records had been ordered, the ADA stated, "I have not specifically ordered that material yet" (id. at 8, lines 9-12). Once again, the court directed the prosecution to obtain ShotSpotter materials and make them available to defense counsel. The case was adjourned for hearings and trial on June 8, 2022.

On June 8, the People were not ready for trial as the assigned ADA had a pressing 180.80 matter. They requested June 10, 2022. Once again, defense counsel stated on the record that ShotSpotter materials were still outstanding. The case was adjourned to July 19, 2022, for hearings and trial in Part TRP.{**78 Misc 3d at 416}

On July 19, 2022, the case was heard in Part TRP for the first time. The People stated that the codefendant's attorney contacted them the day before and stated that he would not be ready for trial because he was newly assigned to the case on June 8, 2022, and required additional time to review the materials. Based on this information, the case was adjourned to September 14, 2022, for hearings and trial.

On September 14, the People answered not ready and requested September 19, 2022. The assigned prosecutor stated that because the codefendant's counsel indicated that he would not be ready, she did not make a necessary witness available for trial. Defense counsel stated, once again, that she was still missing ShotSpotter and Giglio materials. The People responded by stating, "at the time ShotSpotter was actually handled by a separate agency. It's not in the People's custody and control. We ordered it. I am following up on it. I don't physically have it. It was not part of the police department. It was a separate agency" (tr at 8, lines 3-8 [Sept. 14, 2022]). Relying on the court's written decision from March 4, 2022, Justice Fabrizio asked, "Do you want to tell me anything about when you ordered it, how you ordered it?" The ADA responded, "No, Your Honor. I am not going to—I want to make sure any record I make it accurate. I don't want to—I don't want to be in the position to make this argument at this time" (id. at 9, lines 9-14).

Based on this record, Justice Fabrizio ruled, "The People are charged until they actually comply with the discovery request and I don't have any information about when or how they sought to obtain ShotSpotter before me" (id. at 8, lines 17-20). He further held,

"This is part of the law of this case as I understand it. It was ordered by a judge that the People had to comply with a specific item that is relevant because this is a case where gunshots are fired and I had ShotSpotter arguments before. So you will be charged until you comply." (Id.)

The People stated that they would expedite the request and obtain the materials as soon as possible (id. at 10, lines 7-8). The case was adjourned for hearings and trial on October 6, 2022.

The People provided ShotSpotter materials off-calendar on September 21, 2022, and filed a supplemental COC and SOR on the same day. The ShotSpotter material consisted of a multipage{**78 Misc 3d at 417} document titled "Investigative Lead Summary." The report shows the incident date to be August 23, 2019, while the Report Date is listed as September 20, 2022. The document contains the incident number, longitude and latitude of the alleged shooting including the street address, rounds fired, and incident audio picked up by four different sensors (defense supplemental exhibit 1). The report further indicates that while the sensors only listed one round of gunshot sound, the number of rounds fired was changed to two by the human reviewer (id.).

On October 6, the case could not proceed to trial because the assigned prosecutor was on trial with the codefendant's attorney on an unrelated matter. The case was adjourned for hearings and trial on November 14, 2022.

The People were not ready on November 14 as a necessary police witness was unavailable. This was their sixth consecutive time of answering not ready. Apart from filing COCs and SORs off-calendar, they never announced ready for trial on the record. The People requested November 17, 2022, and the case was adjourned to December 1, 2022, for hearings and trial. The instant motion was filed off-calendar on November 28, 2022.

The People have a duty to bring a case to trial within the authorized speedy trial time, and their failure to do so results in dismissal of the charges (CPL 30.30). In a motion to dismiss for speedy trial violation, the initial burden rests on the defendant to allege that his right to speedy trial has been violated (see People v Luperon, 85 NY2d 71, 77-78 [1995]). Then, the burden shifts to the People to identify "the exclusions on which they intend to rely" (id. at 78). If the defendant disagrees, he "must identify any legal or factual impediments to the use of these exclusions" (id.).

In this case, the defendant is charged with committing various felony offenses and the applicable speedy trial period is six months from the commencement of a criminal action (CPL 30.30 [1] [a]). The instant case commenced with the filing of the felony complaint on September 5, 2019. Hence, the six-month period in which the People must be ready consists of 181 days (People v Cortes, 80 NY2d 201, 208 n 3 [1992]).

The defendant contends that at least 341 days are chargeable. He highlights three separate periods of includable time: (1) September 6, 2019, to September 30, 2019; (2) January{**78 Misc 3d at 418} 8, 2022, to March 3, 2022; and (3) March 10, 2022, to September 21, 2022. The People oppose the motion without specifying how many days they are conceding. The court discusses each period in seriatim.

September 6, 2019—September 30, 2019:

The defendant was arrested on September 5, 2019, and arraigned in criminal court on September 6, 2019. At his arraignment, bail was set, and the case was adjourned for grand jury action pursuant to CPL 180.80 on September 10, 2019. The defendant did not serve cross-grand jury notice. He posted cash bail on the same date of his arraignment.

On September 10, 2019, there was no grand jury action. Cross-grand jury notice was served, and the case was adjourned to October 29, 2019.

In their response to the defendant's dismissal motion, the People claim that they began the grand jury presentation on September 13, 2019, but could not proceed to vote because the date in their CPL 190.50 notice for the defendant to testify was September 25, 2019. They argue that the period from September 13 until September 25 is excludable because the delay was [*5]occasioned by the need to accommodate the defendant's wish to testify in the grand jury. They do not cite any case law for this argument.

On the other hand, the defendant argues that the time is chargeable because he never waived time explicitly or implicitly through his actions. The fact that he served cross-grand jury notice only to withdraw it later does not constitute a waiver of speedy trial time, according to the defendant.

The court agrees with the defendant. Unless the records "adequately demonstrate that defense counsel either explicitly requested or clearly expressed . . . consent to the adjournment, the adjournment . . . must be charged to the People" (People v Waring, 206 AD2d 329, 331 [1st Dept 1994]). Here, the People failed to demonstrate that the defendant explicitly requested or clearly expressed consent to the adjournment. Rather, it appears to the court that the People unilaterally picked September 25 as the date for the defendant to testify. It does not appear to have been based on any discussion with defense counsel. Consequently, the People are charged 24 days from the defendant's arraignment on September 6, 2019, until the filing of the indictment on September 30, 2019.{**78 Misc 3d at 419}

January 8, 2022—March 3, 2022:

The defendant argues that the People's unexplained and inexcusable failure to respond to his motion challenging their COC is chargeable. In their response, the People state that they are awaiting minutes and would file a supplemental response when they become available. No supplemental response has been filed. A review of the court transcript from the proceeding on January 25, 2022, reveals that the ADA requested additional time to file a response as she had limited ability to come into the office due to a medical reason.

The court finds this period to be excludable as a reasonable period of delay resulting from the defendant's filing of pretrial motions under CPL 30.30 (4) (a). Examining the People's supplemental COC from March 23, 2022, shows that they have provided voluminous discovery. Given her medical condition around this time and the fact that she is the third prosecutor to be assigned to the case, the additional time that the prosecutor required to review the file before she could respond to the defense's motion was not unreasonable. The time is excluded.

March 10, 2022—September 21, 2022:

The court's decision from March 4 stated that the People would be charged speedy trial time starting March 10 if they failed to comply with the court's discovery order. The defendant argues that because the People did not furnish ShotSpotter materials, among others, this period is chargeable. In response, the People argue that ShotSpotter materials are generated and maintained by an agency that is not under the Bronx County District Attorney's control, making them not automatically discoverable.

After a close examination of the materials submitted by the parties, the court determines that ShotSpotter materials are automatically discoverable under CPL 245.20. Moreover, while gunshot records are generated and maintained by ShotSpotter, the New York City Police Department (NYPD) has wide access to such records and, as such, they are deemed to be in the prosecutor's custody and control under CPL 245.20 (2). In accordance with this finding, the court further holds that the People's failure to furnish ShotSpotter materials, even in light of the court's direct order to look for and provide such records, constituted a breach of their statutory discovery obligation. The following section further explains the court's reasoning.

i. ShotSpotter materials are automatically discoverable under CPL 245.20.

ShotSpotter is gunshot detection technology that was {**78 Misc 3d at 420}developed by a publicly-traded company by the same name headquartered in California. In compliance with New York City's Public Oversight of Surveillance Technology Act, NYPD issued an impact and use policy statement April 11, 2021 (policy statement), which can be accessed on New York City's official website. The policy statement describes how the technology works:

"When a gun is fired, the sudden expansion of highly pressurized gases creates a loud and sudden sound. Known as a muzzle blast, this sound is a byproduct of a successful gunshot. ShotSpotter sensors 'listen' for gunshot-like sounds, i.e., sounds that are instantaneous, impulsive and sharp.

"When at least three (3) different ShotSpotter sensors detect a gunshot-like sound, the precise time, location, and short audio snippet of the gunfire is immediately transmitted from the sensors to the ShotSpotter Incident Review Center where trained human analysts review all incident data. The analysts can determine whether the sound was gunfire or a similar noise, like fireworks or a car backfiring. The audio snippet consists of audio recorded one (1) second before the gunshot-like sound, the audio of the gunshot-like sound, and one (1) second after the gunshot-like sound.

"In seconds, the NYPD is notified of confirmed gunfire report. A potential gunfire incident is automatically created in the Computer Aided Dispatch (CAD) system and routed to the proper NYPD precinct. The job is then assigned to a patrol unit. ShotSpotter can provide additional relevant information including the number of shots fired, whether the shooter was moving at the time of the incident and, if so, the direction of the shooter's movement." (City of New York Police Department, ShotSpotter: Impact and Use Policy at 3 [Apr. 11, 2021], https://www.nyc.gov/assets/nypd/downloads/pdf/public_information/post-final/shotspotter-nypd-impact-and-use-policy_4.9.21_final.pdf [last accessed Jan. 20, 2023].)

Since its adoption in 2015, ShotSpotter has been in continuous use by the NYPD and has been integral to police activity in cases involving a shooting from a firearm. According to the NYPD, "ShotSpotter enables a much faster response to the incident and the ability to assist victims, gather evidence, solve crimes, and apprehend suspects more quickly" (New York City {**78 Misc 3d at 421}Police Department, NYPD, Technology, ShotSpotter, https://www.nyc.gov/site/nypd/about/about-nypd/equipment-tech/technology.page [last accessed Jan. 20, 2023]). The use of ShotSpotter in generating investigatory leads and establishing probable cause is documented in several published cases (see e.g. People v Pope, 194 AD3d 449, 450 [1st Dept 2021] ["The ShotSpotter report provided corroboration of the presence of criminality, as well as demonstrating the urgency of the situation and the risk to the officer's safety"]; People v Douglas, 200 AD3d 795 [2d Dept 2021]; People v Simmons, 57 Misc 3d 1212[A], 2017 NY Slip Op 51392[U] [Monroe County Ct 2017] [denying the defendant's motion to preclude ShotSpotter evidence]; see also Fola Akinnibi & Sarah Holder, In New York Neighborhood, Police and Tech Company Flout Privacy Policy, Advocates Say, Bloomberg, Dec. 15, 2022 [reporting that ShotSpotter audio captured the gunshot and the victim naming the person who allegedly shot him, and was used as evidence in a murder case in California]).

The NYPD's policy statement highlights that ShotSpotter creates at least several data entries, which are "short audio snippet of the gunfire," a "potential gunfire incident" created in the CAD system, and other additional relevant information including "the number of shots fired, whether the shooter was moving at the time of the incident and, if so, the direction of the shooter's movement" (ShotSpotter: Impact and Use Policy, supra at 3; see also [*7]Akinnibi & Holder, supra [reporting that some high-level NYPD officials may even know the precise locations of the acoustic sensors]). As will be discussed in more detail in the next section, much of this data appears to be accessible to authorized NYPD personnel (id.).

[1] Such records are discoverable as a part of automatic discovery. CPL 245.20 (1) (e) provides that "[a]ll statements, written or recorded or summarized in any writing or recording, made by persons who have evidence or information relevant to any offense charged or to any potential defense thereto, including all police reports, notes of police and other investigators, and law enforcement agency reports," are discoverable (emphasis added). Furthermore, CPL 245.20 (1) (g) states that "[a]ll tapes or other electronic recordings" made in connection with the alleged criminal incident are discoverable. In addition, in New York, where street encounters between the police and private citizens are governed by four levels of suspicion delineated in People v De Bour (40 NY2d 210 [1976]; see also{**78 Misc 3d at 422}People v Hollman, 79 NY2d 181 [1992]), ShotSpotter records are material and germane to determining whether the police intrusion was justified at its inception. Not only is it immaterial whether the prosecutor's office deems the records to be valuable (see generally People v Lustig, 68 Misc 3d 234, 239 [Sup Ct, Queens County 2020] [rejecting the People's argument that the NYPD's Domain Awareness System is not discoverable even if they are of "minimal value" because materials in a police investigative file are related "to the subject matter of the case"]), multiple courts have found that ShotSpotter activation, by itself, does not establish probable cause or reasonable suspicion, highlighting the importance of this material to the defense (People v Ravenell, 175 AD3d 1437 [2d Dept 2019]; People v Yarborough, 64 Misc 3d 1209[A], 2019 NY Slip Op 51089[U] [Sup Ct, Kings County 2019]; see generally Harvey Gee, "Bang!": ShotSpotter Gunshot Detection Technology, Predictive Policing, and Measuring Terry's Reach, 55 Univ Mich J L Reform 767 [2022] [after outlining recent cases from various federal circuit courts, author argues that officers arriving on the scene to investigate a gunshot sound detected through ShotSpotter should not be allowed to use the gunshot sound as the basis of reasonable suspicion]). Therefore, the court concludes that ShotSpotter records constitute items that must be provided to defense counsel as a part of automatic discovery under CPL 245.20 (1) (e) or (g).

ii. ShotSpotter records were within the NYPD's custody and control, and the People failed to demonstrate good faith and due diligence because they did not obtain ShotSpotter records despite the court's order.

When there is a confirmed gunshot incident, ShotSpotter generates records related to the gunshot, such as "short audio snippet of the gunfire," a "potential gunfire incident" created in the CAD system, and other additional relevant information including "the number of shots fired, whether the shooter was moving at the time of the incident and, if so, the direction of the shooter's movement" (ShotSpotter: Impact and Use Policy, supra at 3). The Investigative Lead Summary that the People provided in this case shows the incident date, incident number, longitude and latitude of the alleged shooting including the street address, rounds fired, incident audio picked up by four different sensors, and edits made by the human reviewer (defense supplemental exhibit 1).

According to the policy statement, while NYPD personnel{**78 Misc 3d at 423}cannot access the audio records retained in ShotSpotter sensors, any ShotSpotter data that is relevant to an investigation is stored in "appropriate NYPD computer or case management system" (ShotSpotter: Impact and Use Policy, supra at 5). The policy statement further highlights that "[c]onfirmed gunfire event data is accessible to NYPD personnel through DAS and may be stored in case management systems" (id. at 4).

ShotSpotter data may be accessed by "NYPD personnel in various commands, whose access has been requested by their Commanding Officer, and approved by the NYPD Information Technology Bureau (ITB)" (id.). In addition, access to "[c]onfirmed gunfire event data is limited to NYPD personnel with an articulable need to use the information in furtherance of a lawful duty" (id.). The minimum length of time for retention and disposition of this data is controlled by the Retention and Disposition Schedule for New York Local Government Records (id. at 6; see also Akinnibi & Holder, supra [reporting that ShotSpotter provides police information related to gunshots in accordance with the policy statement]).

[2] While it is true that ShotSpotter is an independent entity, as the People assert, the policy statement makes it abundantly clear that the NYPD has access to a substantial amount of data, if not all of the data, generated and maintained by the company. In fact, the policy statement provides, "If ShotSpotter data is relevant to a criminal case, the NYPD will turn the data over to the prosecutor with jurisdiction over the matter," not the company's discovery compliance unit (id. at 7 [emphasis added]). Thus, for all intents and purposes, most, if not all, of the ShotSpotter data may be deemed to be in possession of the police department. Because CPL 245.20 (2) provides that "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," this means that the People had an obligation to obtain relevant materials and provide them to defense counsel.

[3] In the alternative, even assuming, arguendo, that the NYPD lacked access to ShotSpotter data as the People assert, CPL 245.20 (2) mandates that

"[t]he prosecutor shall make a diligent, good faith effort to ascertain the existence of material or information discoverable under subdivision one of this section and to cause such material or information to be made available for discovery where it exists{**78 Misc 3d at 424} but is not within the prosecutor's possession, custody or control."

In the case at bar, the court specifically ordered the People to investigate whether ShotSpotter materials exist, and if they do, make them available to defense counsel by March 10. They took no action.

That the People were dilatory in complying with the court's clear directive is a matter of record. On April 25, a month and a half after the deadline given by the court to comply with its order, the assigned prosecutor still had not ordered the materials (tr at 7-8 [Apr. 25, 2022]). When they were asked by Justice Fabrizio about the status of the discovery compliance in September, more than six months since the court's deadline, the People still did not provide any answer as to when and how the ShotSpotter materials were ordered (tr at 9, lines 9-14 [Sept. 14, 2022]). Even in their response to the defendant's instant dismissal motion, they have not addressed the question about when ShotSpotter materials were ordered.

While the People claim that ShotSpotter materials are not in their custody and control, they never asked the court for a subpoena. Nor did they identify any obstacles that they faced in trying to ascertain the existence of the records or obtaining them for defense counsel. The People also did not provide any information to defense counsel so that she may make an independent attempt to obtain relevant and material records in a timely fashion. Instead, what appears from the record is that the materials in question were produced and turned over to defense within one week of the People informing Justice Fabrizio that they would expedite the request. Based on the record, without anything to the contrary, the court is led to conclude that the People did not attempt to obtain the records until at least six months after the court's order was issued.

Because the People failed to demonstrate that they have exercised due diligence and good [*9]faith to procure the relevant ShotSpotter information, the court is compelled to find that their SOR from March 22, 2022, and a supplemental COC on March 23, 2022, were illusory and incapable of stopping the speedy trial clock.

This holding does not alter the court's previous ruling from March 3, 2022, deeming the People's COC to be valid. CPL 245.50 (1) provides that "[n]o adverse consequence to the prosecution or the prosecutor shall result from the filing of a certificate of compliance in good faith and reasonable under the circumstances." {**78 Misc 3d at 425}At the time of the decision, there was no guidance regarding ShotSpotter data and whether it was discoverable. Because the People exercised due diligence and good faith to comply with the statutory requirements as they understood them when they served COCs on February 24, July 8, and January 13, the court still finds them to be valid. The same is not true when they disregarded the court's ruling that directed them to search for the materials, and either provide them to defense counsel or report that they did not exist. The prosecutor did neither.

As stated in the court's order from March 4, the People are charged speedy trial time starting March 10. The court charges the People 195 days from March 10 until September 21, 2022, when the ShotSpotter materials were finally provided to defense counsel.

For the reasons stated herein, the court concludes that a total of 219 (24 + 195) days are chargeable to the People. Accordingly, the defendant's motion to dismiss under CPL 30.30 (1) (a) is granted.

All other issues raised by the defendant are denied as moot in light of the court's ruling to dismiss the indictment.