Criminal Court of the City of New York, New York County, April 10, 2023

Joshua White for defendant.

Alvin Bragg, District Attorney (Stephen Millan of counsel), for the People.

Defendant, charged with one count of attempted grand larceny in the fourth degree (Penal Law §§ 110.00, 155.30) and one count of jostling (Penal Law § 165.25 [1]), moves this court to invalidate the People's certificate of compliance (COC), to deem the filing date of the COC and certificate of readiness (COR), filed after 5 p.m., to be the next day, and to dismiss the accusatory instrument pursuant to CPL 30.30.

The People oppose defendant's motion, arguing that the COC was valid because it was made in good faith after exercising due diligence and making reasonable inquiries to find and provide all necessary discovery prior to certifying compliance. Additionally, the People assert that the filing date of the COC/COR should be the same day. Accordingly, the People argue that because their COC was valid and filed on time, they have not exceeded the CPL 30.30 speedy trial time limitations.

For the reasons stated below, defendant's motion is denied.

Defendant was arrested on November 2, 2022, and arraigned on November 3, 2022, on a complaint charging defendant with one count of attempted grand larceny in the fourth degree (Penal Law §§ 110.00, 155.30) and one count of jostling (Penal Law § 165.25 [1]).[*2]

The People filed the COC and COR off-calendar via the Electronic Document Delivery System (EDDS) at 5:25 p.m. and served a copy to defendant at 6:04 p.m. on February 1, 2023. Additionally, the People served defendant an Automatic Discovery Form (ADF), Rosario and Discovery List, and affidavit of service. (Millan aff ¶ 10.) The People announced their {**79 Misc 3d at 420}readiness to defense counsel via email and inquired of the defense's readiness. (White aff, exhibits A, email dated Feb. 1, 2023.)

On February 27, 2023, the People served additional discovery material to defendant, namely, four activity logs, and filed a supplemental COC and COR off-calendar. (Millan aff ¶ 11.)^[FN1] The People also served defendant with updated Rosario and Discovery List. (Id.)

On March 1, 2023, the People announced ready for trial. Defendant filed a motion to dismiss in the morning which was withdrawn by the defendant in court. The court set a schedule for defendant's motion to be refiled and served by March 6, the People's response by March 20, and defendant's reply by March 27, 2023. The case was adjourned until April 10, 2023, for decision on the motion.

Defendant is charged with "at least one . . . misdemeanor punishable by a sentence of imprisonment of more than three months." (CPL 30.30 [1] [b].) Thus, his motion to dismiss must be granted if the People were not ready for trial within 90 chargeable days of the commencement of the action. (Id.)

Defendant argues that the People were not ready on February 1, 2023, and raises two challenges to the People's readiness: first, the timeliness of their COC/COR filing; second, the validity of the COC.

A. Timeliness of Filing

We first turn to the main contention of defendant's motion: the timeliness of the COC filing within the meaning of CPL 30.30. It is undisputed that the People's COC and COR were filed after 5:00 p.m. on February 1, 2023. Defendant argues that filing the COC/COR after 5 p.m. did not stop the speedy trial clock on that day because the People could not have announced ready while the court was allegedly closed for business and unable to conduct a readiness inquiry pursuant to CPL 30.30 (5). Defendant asks the court to deem the filing date of the COC/COR to be February 2, 2023. The People assert that their readiness does not depend on the timing of the court's readiness inquiry pursuant to CPL 30.30 (5) which invariably happens after their COC/COR filing. The People{**79 Misc 3d at 421} maintain that the speedy trial clock stopped when their readiness was communicated at the time of their filing. The People ask the court to deem the filing date of their COC/COR to be February 1, 2023.

Pursuant to CPL 30.30 (1) (b), the People must be ready for trial within 90 days of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at [*3]least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony. (CPL 30.30 [1] [b].)

The court notes that CPL 30.30 (1) (b) specifically counts time in terms of days instead of hours. (Cf. CPL 180.80 [calculating the time of a defendant in custody in terms of hours].) Moreover, the statute does not state when a day begins or when it ends for the purpose of calculating the 90-day period. Like other courts, this court is also unaware of any "specific statutory requirement that a statement of readiness for trial must be made during business hours." (People v Mclean, 77 Misc 3d 492, 497-498 [Crim Ct, Kings County, Oct. 18, 2022].) Absent any specific statutory requirement that a readiness statement must be made during business hours, it is appropriate for the court to apply General Construction Law § 19, which is consistent with prior decisions of the Court of Appeals. (See People v Stiles, 70 NY2d 765, 767 [1987] [applying the provisions of the General Construction Law in calculating time periods under CPL 30.30].)

General Construction Law § 19 provides: "A calendar day includes the time from midnight to midnight. Sunday or any day of the week specifically mentioned means a calendar day." This means that a COC/COR filed after business hours but before midnight should be deemed filed on that day. In other words, the People should have until midnight to file their COC/COR on the ninetieth day pursuant to CPL 30.30 (1) (b).

This interpretation does not contravene the Kendzia two-prong test for readiness. (See CPL 30.30; People v Kendzia, 64 NY2d 331, 337 [1985].) The Kendzia court held that when the People communicate their readiness for trial, they need to make an "affirmative representation for readiness," namely, "in fact ready to proceed." (Id.) However, this does not mean that courts need to conduct the readiness inquiry immediately after the People announced ready. Like the Kendzia court, many courts conducted these inquiries days and even months after the People announced that they were ready. (Id.; People v{**79 Misc 3d at 422} Lavrik, 72 Misc 3d 354 [Crim Ct, NY County, Apr. 22, 2021] [invalidating People's CORs filed in Jan. 2020 and dismissing the case].) After inquiring about the People's actual readiness, courts can retroactively invalidate the People's readiness and dismiss their case. (Id.) Furthermore, actual readiness does not mean the immediate start of the trial. (See People v Dushain, 247 AD2d 234, 236 [1st Dept 1998] ["neither statute nor case law requires that the People have the ability to produce their witnesses instantaneously in order for a statement of readiness to be valid"].) After the implementation of discovery reform in 2020, it is unthinkable that a case will proceed to trial right away after the People announce that they are ready, without providing the defendant some time to review discovery material.

The court is also unpersuaded that for filing purposes, it should deem 5 p.m. as the close of business hour for courts, which presumably is the time when the court clerk leaves the office. (See People v Miller, 75 Misc 3d 215, 218 [Crim Ct, Kings County, Mar. 10, 2022]; People v Silva, 2022 NYLJ LEXIS 550,*5 [Crim Ct, NY County, Apr. 22, 2022].)^[FN2] In their motion, [*4]defendant does not refer to any record that indicates that courts close at 5 p.m. for business.^[FN3] The court notes that there are court parts that are open after 5 p.m. for various court appearances. For instance, in this county, night arraignments are generally open until 1 a.m. the following day.

Furthermore, a midnight filing time is easy to administer as e-filing is gaining wide acceptance. During the COVID-19{**79 Misc 3d at 423} pandemic, the New York State Unified Court System developed and utilized a vast number of technologies to enable courts to conduct business, such as virtual arraignments, virtual conferences, and virtual appearances for calendar, to name a few. To this day, many of these practices remain. While the state court system has not promulgated comprehensive electronic filing rules, our federal counterparts have long developed, established, and implemented local rules for Electronic Case Filing (ECF). For instance, the Southern District of New York's ECF Rules & Instructions § 3.3 provides, "Electronic filing must be completed before midnight local time where the Court is located in order to be considered timely filed that day." (United States District Court, Southern District of New York, Electronic Case Filing Rules & Instructions § 3.3 [Nov. 1, 2022 ed].)

In adopting this construction of CPL 30.30 (1) (b), the court balances both the defendant's rights and the rights of the People, with the ultimate goal of promoting the ends of justice. (People v Rosario, 9 NY2d 286, 292 [1961, Froessel, J., concurring] ["While we should always remember that a defendant's rights must be zealously safeguarded, we should not forget that the rights of the People of the State ought not be whittled away by judicial decision"].)

In view of the foregoing, the court deems that the People filed their COC/COR on February 1, 2023.

B. Validity of the People's Certificate of Compliance

We now turn to defendant's other argument challenging the People's readiness, namely, the validity of the People's COC filed on February 1, 2023, after they served discovery disclosures pursuant to CPL 245.20 (1) and 245.50 (1). Defendant asserts that the February 1, 2023 COC was invalid based on the People's failure to disclose four activity logs which were subsequently turned over to defendant in the People's supplemental COC filed on February 27, 2023. (White aff ¶ 11.)

Under CPL 245.50 (1), the People's COC can be deemed valid if filed "in good faith and [*5]reasonable under the circumstances." The Legislature specifically included "due diligence" and "good faith" in the statutory language in recognition that a COC could be valid even when certain materials had not been disclosed. (See CPL 245.50 [1].) This court has deemed a COC valid when additional discovery items were turned over after the COC had been filed. (People v Nelson, 75 Misc 3d 1203[A], 2022 NY Slip Op 50347[U] [Crim Ct, NY County, May 2, 2022]; see also People v Williams, Crim Ct, NY County, Oct. 18, 2021,{**79 Misc 3d at 424} Thompson, J., docket No. CR-000709-20NY, slip op at 5; People v Ingramminors, Crim Ct, NY County, Apr. 14, 2021, Diaz, J., docket No. CR-020938-20NY, slip op at 6; People v Knight, 69 Misc 3d 546, 552 [Sup Ct, Kings County 2020].)

In Nelson, this court held that the People displayed good faith, due diligence, and intent to disclose in their disclosure of extensive discovery, and good faith in the prompt rectification of the inadvertent nondisclosure alerted to them by the defense. (People v Nelson, 2022 NY Slip Op 50347[U], *3.) The court concluded that the failure to turn over body-worn camera footage when the COC was filed "[did] not warrant invalidating the certificate of compliance." (Id.)

Here, the People disclosed a number of documents on February 1, 2023, including the (1) criminal complaint, (2) supporting deposition, (3) DA datasheet, (4) CJA report, (5) arrest paperwork and checklist, (6) prisoner movement slip, (7) entity summary report, (8) photos, (9) ICAD, (10) prisoner pedigree card, (11) command log, (12) body-worn camera checklist, (13) seven activity logs and disclosure advisory letters for Officer Specht, Officer Smiley, and Officer Hernandez, (14) NYPD Voucher form, (15) typed and scratch complaint reports, (16) typed and scratch arrest reports, (17) radio run and certification, and (18) 11 body-worn camera videos and related metadata. (Millan aff, exhibits A [sic].) The People admitted that they unintentionally failed to disclose activity logs of four officers at that time and rectified disclosure as soon as the activity logs came into their possession. (Millan aff ¶ 36.)

The court finds that the People's inadvertent nondisclosure was not the result of lack of due diligence in acquiring and reviewing the material, nor the result of bad faith. Indeed, the People admitted that their oversight was partially because said activity logs were not in the People's actual possession and control. After they became aware of the missing material on their own volition, the People began their inquiry for said material in a timely manner. (Millan aff, exhibits D [sic], email dated Feb. 3, 2023.) The People exercised due diligence in obtaining the missing material after they filed their original COC, fulfilling their continuing disclosure obligation pursuant to CPL 245.60. After obtaining said material, the People filed the supplemental COC and COR on February 27, 2023, pursuant to CPL 245.50. The issue of missing activity logs was not raised by defendant as defendant had not communicated with the People regarding the discovery or alleged any prejudice{**79 Misc 3d at 425} suffered because of the nondisclosure of said material. Therefore, the February 1, 2023 COC is not to be invalidated because of the inadvertent nondisclosure of the four activity logs.

The Legislature provided for a method of resolving discovery disputes by providing that parties could be ordered to "diligently confer to attempt to reach an accommodation to any dispute concerning discovery prior to seeking a ruling from the court." (CPL 245.35 [1].) The strong preference of the Legislature is that discovery disputes should be resolved as the cases progress to trial—these disputes should not be used by the defense as means for stopping a prosecution entirely. Discussions between the parties regarding ongoing discovery is [*6]contemplated by the CPL's "[f]low of information," "[c]ontinuing duty to disclose," and "[c]ourt-ordered procedures to facilitate compliance" provisions. (See CPL 245.55, 245.60, 245.35.)

The record establishes that the People operated in good faith, with due diligence, and remedied, in a timely manner, the missing material. The court finds that the nondisclosure was an unintentional oversight that does not warrant invalidating the certificate of compliance. (People v Nelson, 75 Misc 3d 1203[A], 2022 NY Slip Op 50347[U].)

C. Speedy Trial Calculations

Finding that the certificate of compliance is valid, the court now turns to speedy trial time calculations. Pursuant to CPL 30.30 (1) (b), the People must be ready for trial within 90 days of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony. (CPL 30.30 [1] [b].)

1. November 3, 2022, to December 14, 2022: 41 Days Chargeable

The People are charged with the 41 days from November 3, 2022, until December 14, 2022. The People concede this time is chargeable.^[FN4]

2. December 15, 2022, to January 25, 2023: 42 Days Chargeable

The People were not ready. The People are charged with 42 days from December 15, 2022, until January 25, 2023. The People concede this time is chargeable.{**79 Misc 3d at 426}

3. January 26, 2023, to February 1, 2023: 7 Days Chargeable

On January 26, 2023, the People announced that they were not ready. The People filed the COC/COR off-calendar on February 1, 2023. The People are charged with seven days from January 26, 2023, until February 1, 2023. The People concede this time is chargeable.

4. February 2, 2023, to February 28, 2023: 0 Days Chargeable

The court deems that the People filed their valid COC and COR on February 1, 2023, which tolled the speedy trial clock. As discussed supra, the People did provide discovery in compliance with CPL article 245, and the COC filed on February 1, 2023, was valid. (People v Nelson, 75 Misc 3d 1203[A], 2022 NY Slip Op 50347[U].)

5. March 1, 2023, to April 9, 2023: 0 Days Chargeable

On March 1, 2023, defendant announced not ready and requested a motion schedule. The case is adjourned to April 10, 2023, for decision on the motion. For this period, zero days are chargeable to the People. (CPL 30.30 [4] [a] ["reasonable period of delay resulting from other proceedings concerning the defendant, including . . . pre-trial motions" is excludable].)[*7]

D. Conclusion:

Defendant's motion to invalidate the People's certificate of compliance and to dismiss the case pursuant to CPL 30.30 is denied. As detailed above, 90 days are chargeable to the People. The People have not exceeded CPL 30.30 time limitations.

"Notwithstanding any provision of law or rule of court to the contrary, throughout the State of New York the sessions of the Supreme Court, Court of Claims, County Court, Surrogate's Court, Family Court, Civil Court of the City of New York, Criminal Court of the City of New York, City Courts and District Courts, for the disposition of business before the court shall commence not later than 9:30 a.m. and conclude not earlier than 5 p.m. Where warranted, the Chief Administrator of the Courts may authorize variances in the opening and closing hours of the courts, but, in such event, daily sessions shall total not less than six hours." (Rules of Chief Judge [22 NYCRR] § 3.1 [emphasis added]; Rules of the Chief Judge, Part 03: Hours Of Court, New York State Unified Court System, https://ww2.nycourts.gov/rules/chiefjudge/03.shtml [last accessed Apr. 9, 2023].)