Supreme Court, Appellate Term, Second Department, 9th and 10thJudicial Districts, April 6, 2023

Anne T. Donnelly, District Attorney (Judith R. Sternberg and Sarah S. Rabinowitz of counsel), for appellant.

Brian J. Davis, P.C. (Mark E. Goidell of counsel) for respondent.

Ordered that the order is modified, on the law, by providing that the branch of defendant's motion seeking to dismiss the accusatory instrument on statutory speedy trial grounds is denied; as so modified, the order is affirmed.

Insofar as is relevant to this appeal, defendant was charged in an accusatory instrument with forcible touching (Penal Law § 130.52 [1]) in connection with an incident that occurred on July 25, 2019. On that date, Police Officer Cosby prepared the case narrative and spoke to the complainant, who indicated that she did not wish to pursue criminal charges against defendant{**79 Misc 3d at 10} at that time. The complainant changed her mind in or around August 2020, and defendant was arrested on August 4, 2020.

On January 26, 2021, the matter was adjourned to February 10, 2021, for the People's discovery compliance. The People filed a certificate of compliance (CoC) and a certificate of readiness for trial (CoR) on February 9, 2021. On February 10, 2021, the matter was adjourned to March 29, 2021, with defendant's consent, for defendant's discovery compliance. The matter was advanced to March 26, 2021, then adjourned to April 26, 2021, with defendant's consent, due to defense counsel's engagement on another matter. On April 26th, the matter was adjourned, with defendant's consent, to May 14, 2021, for trial. On May 14th, Police Officer Cosby, who had been included on the People's list of trial witnesses, appeared in court to testify in the event the case proceeded to trial and told the prosecutor that there were four additional law enforcement officers who had been at the scene of the incident but who were not documented in any of the Nassau County Police Department (NCPD) paperwork.

The People submitted a discovery request to NCPD for material related to the four additional officers on May 21, 2021, turned over the material received to defense counsel on May 27 and 28, 2021, and filed a supplemental CoC and a CoR on May 28, 2021. On the same day, defendant moved to strike the People's February 9, 2021 CoC on the ground that the People had not complied with their discovery obligations (see CPL 245.20 [1]) and to dismiss the accusatory instrument on statutory speedy trial grounds (CPL 30.30). The People opposed. By order dated September 22, 2021, the District Court (Colin F. O'Donnell, J.) granted defendant's motion, striking the February 9, 2021 CoC and dismissing the accusatory instrument on statutory speedy trial grounds, upon finding 115 days chargeable, more than the 90 days allotted to the People to be ready for trial (see CPL 30.30 [1] [b]).

CPL 245.20 (1) provides that the People must disclose "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," including "[t]he name and work affiliation of all law enforcement personnel whom the prosecutor knows to have evidence or information relevant to any offense charged or to any potential defense thereto" (CPL 245.20 [1] [d]). Pursuant to CPL 245.20 (2),{**79 Misc 3d at 11}

"[t]he prosecutor shall make a diligent, good faith effort to ascertain the existence of material or information discoverable under [CPL 245.20 (1)] and to cause such material or information to be made available for discovery where it exists but is not within the prosecutor's possession, custody or control . . . . For purposes of [CPL 245.20 (1)], 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."

CPL 245.50 (1) states that, when the People have provided the discovery required by CPL 245.20 (1), they

"shall serve upon the defendant and file with the court a certificate of compliance. The certificate of compliance 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."

[1] In their opposition to defendant's motion, the People cited various steps that they had taken to confirm the names of the officers involved in the case before filing their February 9, 2021 CoC. The People failed to explain, however, why they did not speak to Police Officer Cosby before filing their CoC. Police Officer Cosby was at the scene of the incident, where he prepared the case narrative and spoke to the complainant. The record establishes that the People were aware of Police Officer Cosby's involvement in the case early on. Indeed, the People recognized that Police Officer Cosby had information of importance to the case, as they selected him to be a witness at trial. Despite Police Officer Cosby's relevance to the case, the record is devoid of any evidence that the People spoke to him before May 14, 2021, when he alerted the People to the existence of the four additional law enforcement witnesses. In these circumstances, we find that the People failed to "exercis[e] due diligence" and did not "mak[e] reasonable inquiries to ascertain" the identities of all law enforcement witnesses related to the case (CPL 245.50 [1]), and, thus, the February 9, 2021 CoC was not filed in good faith (see People v Guzman, 75 Misc 3d 132[A], 2022 NY Slip Op 50445[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2022]). Consequently, the District Court correctly struck the February 9, 2021 CoC.{**79 Misc 3d at 12}

The striking of the February 9, 2021 CoC renders the CoR from the same date invalid, as [*3]a CoR "must be accompanied or preceded by" a CoC (CPL 30.30 [5]; see also CPL 245.50 [3]). However, CPL 30.30 (4) exclusions are still available in the pre-readiness context (see People v Barden, 27 NY3d 550, 553 [2016]; People v Cortes, 80 NY2d 201, 208 [1992]; Matter of People ex rel. LaBrew v Vance, 192 AD3d 645, 645 [1st Dept 2021]; People v Cox, 161 AD3d 1100, 1101 [2d Dept 2018]). When a defendant or defense counsel requests or consents to an adjournment, that adjournment is excludable for speedy trial purposes (see CPL 30.30 [4] [b]). On appeal, the People only raise an issue with the District Court's determination that they should be charged with the 80-day period from February 9 to April 30, 2021, contending that these adjournments are excludable on defendant's consent.

The one-day period from February 9 to 10, 2021, during which the matter was adjourned for the People's discovery compliance, was correctly charged to the People in light of the invalidity of their February 9, 2021 CoC (cf. People v Stirrup, 91 NY2d 434, 436, 440 [1998]). With respect to the 79-day period from February 10 to April 30, 2021, defendant concedes that he consented to the February 10th, March 26th, and April 26th adjournments, but argues that his consent was ineffective to exclude this time because it was premised on the People's false representations that they had complied with their discovery obligations and were ready for trial. The District Court accepted defendant's argument and charged this time to the People, relying on People v Sanchez (170 Misc 2d 399 [Sup Ct, Bronx County 1996]) and People v Blue (114 Misc 2d 383 [Sup Ct, Kings County 1982]). In Sanchez, though defense counsel "suggested" a two-month adjournment, the court charged this time to the People, finding that the defendant "did not meaningfully request or consent to" this adjournment because, "if the People had not led the defendant to believe that they knew where [their complaining witness] was and that they could produce her for trial, defense counsel would not have 'suggest[ed]' the adjournment" (170 Misc 2d at 407 & n 2). In Blue, the court held that adjournments purportedly granted on consent were chargeable to the People, reasoning that "both the defendants and the court were either kept ignorant or misinformed of the fact that any trial, let alone a speedy one, was impossible" due to the People's inability to locate key witnesses, and "[c]ontinuous concealment of unreadiness renders the {**79 Misc 3d at 13}delay fatal to the People even if an adjournment is noted as having been on consent" (114 Misc 2d at 387).

[2] It appears that the Sanchez and Blue courts wanted to punish the People for the People's deceptive conduct in answering ready for trial despite knowing that their key witnesses were missing. Here, the record indicates that the People first learned of the four additional witnesses during the prosecutor's conversation with Police Officer Cosby on May 14, 2021. Thus, there is no indication that the People were behaving in an intentionally deceptive manner when they announced ready prior to May 14, 2021. Since the deceptive conduct present in Sanchez and Blue is not evident in this case, the reasoning from those cases does not apply here, and the 79-day period from February 10 to April 30, 2021 is excludable on defendant's consent pursuant to CPL 30.30 (4) (b). Subtracting this period from the 115 days that the District Court charged to the People leaves 36 days, which is well within the 90-day statutory limit.

Accordingly, the order is modified by providing that the branch of defendant's motion seeking to dismiss the accusatory instrument on statutory speedy trial grounds is denied.

Garguilo, P.J., Driscoll and McCormack, JJ., concur.