Criminal Court of the City of New York, New York County, April 27, 2023

Neighborhood Defender Service of Harlem (Anjuli Branz of counsel) for defendant.

Alvin Bragg, District Attorney (John Babcock of counsel), for the People.

By motion of March 8, 2023, defendant moves for an order deeming invalid the People's certificate of compliance (COC) and dismissing the accusatory instrument pursuant to Criminal Procedure Law § 30.30 (1) (b). The People responded on March 22, 2023. Defendant replied on March 27, 2023. After a review of the motion papers, exhibits, and the court file, defendant's motion is granted.

On November 2, 2022, defendant was arraigned on an accusatory instrument charging him with criminal mischief in the fourth degree (Penal Law § 145.00), a class A misdemeanor, and related charges.

On January 31, 2023, the 90th day after arraignment, the People filed and served a certificate of compliance (COC), a certificate of readiness, and an automatic discovery form (ADF). The ADF included disclosure advisory forms (DAF) for two testifying New York City Police Department (NYPD) witnesses, and one non-testifying NYPD witness.

On February 8, 2023, the People announced ready for trial. Defendant asked for an omnibus motion schedule.

On March 8, 2023, defendant filed the instant motion, arguing that DAFs and central personnel indexes (CPIs) are insufficient to comply with the People's CPL 245.20 (1) (k) discovery obligations.{**79 Misc 3d at 835}

On March 22, 2023, the People filed and served a supplemental COC, disclosing underlying records of allegations of police misconduct for the two testifying officers.

Defendant is accused of a misdemeanor offense punishable by a sentence of imprisonment of more than three months. Accordingly, the People must be ready for trial within 90 days of the commencement of the criminal action, less any excludable time (CPL 30.30 [1] [b]; [4]). Computation for speedy trial purposes begins on the day after the commencement [*2]of the criminal action (see CPL 30.30 [1] [b]; People v Stiles, 70 NY2d 765 [1987]). Once a defendant has alleged an unexcused delay greater than the statutory allowance, the burden shifts to the People to demonstrate that specific periods of delay should be excluded (People v Santos, 68 NY2d 859 [1986]; People v Berkowitz, 50 NY2d 333 [1980]).

Pursuant to CPL 245.20 (1), the People must automatically disclose to defendant "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 the prosecution's direction or control." "[A]ll 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" (CPL 245.20 [2]). And the People must make a diligent, good-faith effort to ascertain the existence of such information and, when it exists, make it available for discovery, even if the material is not within their possession, custody, or control, provided that the prosecutor shall not be required to obtain by subpoena duces tecum material which the defendant may thereby obtain (CPL 245.20 [2]).

Once the People have satisfied their automatic discovery requirements, they must file and serve a COC pursuant to CPL 245.50. The COC shall identify the items provided and shall state that, "after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery, the prosecutor has disclosed and made available all known material and information subject to discovery" (CPL 245.50 [1]). The filing of a COC cannot be deemed complete "until all of the material and information identified in the certificate as subject to discovery . . . was actually produced to the defendant, pursuant to{**79 Misc 3d at 836} CPL 245.50 (1) and (3)" (People ex rel. Ferro v Brann, 197 AD3d 787, 787 [2d Dept 2021], citing People v Aquino, 72 Misc 3d 518, 523 [Crim Ct, NY County 2021]).

The People cannot be deemed ready for trial until a proper COC is filed with the court and served upon the defense (CPL 30.30 [5]). And, "the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper certificate pursuant to subdivision one of this section" (CPL 245.50 [3]).

Underlying Disciplinary Records

Pursuant to CPL 245.20 (1) (k) (iv), the People must disclose: "[a]ll evidence and information, including that which is known to police or other law enforcement agencies acting on the government's behalf in the case, that tends to . . . impeach the credibility of a testifying prosecution witness."

In Matter of Jayson C., the First Department held that summaries of police misconduct are insufficient to comply with this statute (see 200 AD3d 447, 449 [1st Dept 2021] [statute "broadly requires disclosure of all impeachment evidence"]). And, in People v Rodriguez, the Appellate Term, First Department affirmed that the People's COC was invalid for failure to disclose underlying impeachment materials (77 Misc 3d 23 [App Term, 1st Dept 2022]). Trial courts throughout the city and state have held the same.^[FN1]

Testifying Officers

[1] In this case, the People's initial discovery disclosures included two disclosure advisory forms (DAF) and NYPD{**79 Misc 3d at 837} central personnel index (CPI) logs with entries for two testifying officers. Both the DAFs and CPI logs contain brief summaries of allegations, filled with acronyms, and without details of the incidents. The DAF for one testifying officer revealed one unsubstantiated allegation: "fail to take police action—on other incident." The CPI log for a second testifying officer revealed several unsubstantiated allegations: (1) additional information prior log, (2) other dept rules/procedures violation—laughed at C/V, (3) retaliation (not MOS to MOS)—for an IAB complaint, (4) fail to prepare report—complaint report, (5) FADO abuse of [*4]authority—retaliation—for an IAB complaint,^[FN2] and (6) fail to take police action—on other incident. Absent underlying records, meaningful description of these allegations, or even argument to the contrary, the court finds that these allegations may tend to impeach these officers. Thus, the People were required to provide those records for their testifying officers, pursuant to CPL 245.20 (1) (k) (iv), prior to filing their initial COC. They did not. Therefore, the People's original COC was not valid, and they had not properly answered ready for trial.

Though they did not disclose the testifying officers' disciplinary records before filing a purported COC, the People argue that their discovery obligation was satisfied because they disclosed a significant amount of discovery and disciplinary records{**79 Misc 3d at 838} were "requested from NYPD" prior to filing their purported COC. For several reasons, those arguments are unavailing.

First, volume is not a measure of discovery compliance. Without disclosing records underlying substantiated and unsubstantiated disciplinary findings that may be used to impeach a testifying witness, the People cannot file a valid COC (see list of cases, supra).

[2] Second, the People did not attempt to file a COC until 90 days of chargeable time had elapsed. A statement that materials were requested from the NYPD is insufficient to demonstrate the diligence required to meet their discovery obligation. The People have not provided information concerning when that request was made, in what form, the NYPD response (if any), or any effort to pursue the required materials in a timely fashion. Thus, the People have not offered anything on which the court could base a finding that the People exercised the diligence necessary to ascertain the existence of the discoverable material and make it available to the defense, as is required to satisfy their discovery obligations and file a valid COC.

[3] Third, CPL 245.55 places a shared discovery obligation on the prosecutor and police. CPL 245.55 (1) directs the prosecutor to ensure "a flow of information" sufficient to place within the prosecutor's possession and control evidence discoverable under CPL 245.20 (1) (k). And, CPL 245.55 (2) requires the NYPD to comply with requests from the prosecution and to "make available to the prosecution a complete copy of its complete records and files related to the investigation of the case or the prosecution of the defendant for compliance with this article." Pursuant to CPL 245.20 (2), "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," which includes the underlying disciplinary records at issue here. That authority notwithstanding, the People urge the court to excuse their failure to make CPL 245.20 (1) (k) disclosures because the police did not comply with their CPL 245.55 (2) obligation to provide the material and information to be disclosed. The court declines to effectively amend the statute. Whether it was NYPD design or the result of administrative inability to compile, assemble, keep track of, or transmit the materials to the prosecutor, it is not for the court to excuse the NYPD's failure to satisfy its obligations by diminishing,{**79 Misc 3d at 839} diluting, or altering the statutory requirements. Rather, it is for the prosecutor and the NYPD to improve their policies and procedures to comply with the law. The People's failure to disclose material expressly deemed to be in their possession undermined their ability[*5] to file a valid COC.^[FN3]

The People also argue that this matter should not be dismissed on speedy trial grounds because defendant was not prejudiced by the delayed disclosure. That argument fails. The question to be determined pursuant to a CPL 30.30 motion is whether the People are ready within the prescribed time period (90 days, in this case). Where they are not, a motion to dismiss must be granted. Prejudice to the defendant's case is not a factor to be considered (People v Gaskin, 214 AD3d 1353 [4th Dept 2023], citing People v Adrovic, 69 Misc 3d 563, 574 [Crim Ct, Kings County 2020];^[FN4] see also People v Martinez, 75 Misc 3d 1212[A], 2022 NY Slip Op 50476[U], *5 [Crim Ct, NY County 2022]).

Finally, dismissal pursuant to CPL 30.30 is not a sanction. Pursuant to CPL 245.50 (3), the prosecution shall not be deemed ready for trial for purposes of CPL 30.30 until a proper COC has been filed (see People v Lobato, 66 Misc 3d 1230[A], 2020 NY Slip Op 50322[U], *4-5 [Crim Ct, Kings County 2020] ["discovery compliance is a condition precedent to a valid announcement of readiness for trial, absent 'exceptional circumstances' on a particular case"]). The People's original purported COC was insufficient to stop the speedy trial clock (see People v Quinlan, 71 Misc 3d 266, 272 [Crim Ct, Bronx County 2021] [deeming COC invalid and charging the People with speedy trial time "is not an 'adverse consequence' as contemplated by CPL 245.80"]). Thus, the speedy trial period elapsed and dismissal is required.{**79 Misc 3d at 840}

Non-Testifying Officer

Pursuant to CPL 245.20 (1) (k) (i), the People are required to disclose "[a]ll evidence and information . . . that tends to . . . negate the defendant's guilt as to a charged offense." And, pursuant to CPL 245.20 (1) (k) (iii), the People must disclose "[a]ll evidence and information . . . that tends to . . . support a potential defense to a charged offense."

[4] Here, a supervising lieutenant played a significant role in this case—he responded to the complainant's 911 call, spoke extensively with defendant and the complainant, dealt with physical evidence, and directed other officers. For that lieutenant, the People provided a DAF and CPI logs revealing several substantiated and unsubstantiated allegations related to misuse of NYPD resources for personal reasons, filing a false statement when seeking a promotion, and improper memo books. The inquiry as to whether underlying records are discoverable under CPL 245.20 (1) (k) (i) and (iii) is fact-specific, based on the officer's particular involvement in the case and the nature of the misconduct allegations against him. Here, the lieutenant was integral to the investigation and arrest of defendant, and the DAF includes serious allegations that could [*6]bear on the lieutenant's conduct in defendant's arrest and the overall investigation of this case. Accordingly, underlying records concerning the lieutenant's misconduct could tend to negate defendant's guilt or support a potential defense. Thus, the People must disclose the underlying records associated with the DAF and CPI logs to comply with CPL 245.20 (1) (k) (i) and (iii).^[FN5] The People's failure to do so also renders their original COC invalid.

The People's initial COC of January 31, 2023, filed on the 90th day after arraignment, was not valid for failure to provide underlying disciplinary records to defendant. As of February 8, 2023, when defendant stopped the clock by filing an omnibus motion, the People still had not filed a valid COC (see CPL 30.30 [4] [a]). Thus, 99 days of chargeable time elapsed between the commencement of the action on November 2, 2022, through February 8, 2023. Accordingly, defendant's motion to{**79 Misc 3d at 841} dismiss the accusatory instrument pursuant to CPL 30.30 (1) (b) is granted.