Criminal Court of the City of New York, Kings County, July 11, 2023

Brooklyn Defender Services, Brooklyn (Michael Gutman of counsel), for defendant.

Eric Gonzalez, District Attorney, Brooklyn (Veniamin Privalov of counsel), for the People.

Defendant Jeanclaude Robinson moves for an order of the court: (i) finding the People's certificate of compliance (COC) to be invalid and the People's statement of readiness (SOR) to be illusory; (ii) dismissing the accusatory instrument due to facial insufficiency and for failure to convert the complaint to an information; and (iii) granting such other relief as this court may deem proper.

While this court finds that the accusatory instrument is facially sufficient, the People did not comply with their discovery obligations under CPL 245.20. As such, the People's COC is invalid, and their SOR is illusory. Because there are at least 172 days charged to the People, defendant's motion to dismiss the accusatory instrument is hereby granted.

Defendant was arraigned on November 17, 2022, on a misdemeanor complaint charging him with: Vehicle and Traffic Law § 511 (1) (a), aggravated unlicensed operation of a motor vehicle in the third degree (an unclassified misdemeanor); Vehicle and Traffic Law § 511 (2) (a) (iv), aggravated unlicensed operation of a motor vehicle in the second degree (an unclassified misdemeanor); Vehicle and Traffic Law § 509 (1), unlicensed operator (a violation); and Vehicle and Traffic Law § 375 (12-a) (b) (2), improper coating on side windows (a violation).{**81 Misc 3d at 306}

At defendant's arraignment, the matter was adjourned to November 28, 2022, for the parties to appear in Part AP2. On that date,^[FN1] the People answered not ready, and the [*2]case was adjourned to January 18, 2023. The People once again answered not ready at the next appearance, and the case was given a final date of February 16, 2023, for the People's discovery compliance. The People served defendant with discovery, their COC, and their SOR off-calendar on February 6, 2023. At the February 16, 2023 appearance, the matter was adjourned to May 8, 2023, on which date defendant filed the instant motion, and the parties requested a motion schedule.

CPL 30.30 (1) (b) provides that, when the defendant is charged with at least one misdemeanor punishable by a sentence of more than three months, the action must be dismissed if the prosecution is not ready for trial within 90 days of its commencement.

In order to declare readiness for trial, the People must, among other things, file a valid COC and convert the complaint to an information (People v Larkins, 76 Misc 3d 133[A], 2022 NY Slip Op 50922[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]). Defendant's motion seeks dismissal of the instant matter pursuant to CPL 170.35 (1) (a) and 100.40 (1) (c) on the bases that the complaint is not facially sufficient and has not been converted to an information. Defendant further seeks dismissal pursuant to CPL 30.30 on the grounds that the People failed to comply with their discovery obligations, rendering their COC improper and SOR illusory.

I. Facial Sufficiency and Conversion of the Accusatory Instrument

Defendant first seeks dismissal on the basis that the violation of Vehicle and Traffic Law § 375 (12-a) (b) (2) charged in the accusatory instrument is not facially sufficient and that the instrument is not properly converted.{**81 Misc 3d at 307}

CPL 170.35 (1) (a) provides that an information or misdemeanor complaint is defective when the document "is not sufficient on its face pursuant to the requirements of section 100.40." CPL 100.40 (1) (c) states that an information is facially sufficient when "[n]on-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof." Although the People bear the burden to establish facial sufficiency, the accusatory instrument must be read in the light most favorable to the People (People v Jones, 9 NY3d 259, 261 [2007]; People v Williams, 84 NY2d 925, 926 [1994]).

To be facially sufficient, a complaint or information alleging improper coating on side windows under Vehicle and Traffic Law § 375 (12-a) (b) (2) must allege facts establishing that (1) defendant operated a motor vehicle on a public highway, road, or street; and (2) "the sidewings or side windows of [the motor vehicle] on either side forward of or adjacent to the operator's seat are composed of, covered by or treated with any material which has a light transmittance of less than seventy percent" (Vehicle and Traffic Law § 375 [12-a] [b] [2]).

Here, the factual portion of the accusatory instrument relevant to this charge states the following:

"THE DEPONENT STATES, THAT AT THE ABOVE TIME AND PLACE, WHICH IS A PUBLIC ROADWAY, DEPONENT OBSERVED DEFENDANT DRIVING A [*3]2006 HONDA CIVIC GEORGIA STATE LICENSE PLATE NO. S1342612 AND OBSERVED THAT THE ABOVE-MENTIONED VEHICLE HAD EXCESSIVELY TINTED SIDE WINDOWS.

"THE DEPONENT FURTHER STATES THAT THE DEPONENT TESTED SAID SIDE WINDOW WITH A TINT METER, AND THE RESULTS OF SAID LIGHT TRANSMITTANCE INDICATED A FIVE (05) PERCENT INTAKE."

The People filed a supporting deposition of the deponent, Officer Philip Kara, in which Officer Kara affirms under penalty of perjury that (1) defendant was driving upon a public highway at Morgan Avenue and Lombardy Street in Kings County, in a 2006 Honda Civic with Georgia license plate No. S1342612; and (2) Officer Kara observed defendant violated "VTL 375 [by]{**81 Misc 3d at 308} driving with excessively tinted FRONT/PASS^[FN2] window which measured 05% light transmittance." The facts alleged are thus sufficient to make out each element of the Vehicle and Traffic Law § 375 (12-a) (b) (2) charge for improper coating on side windows, and the accusatory instrument is facially sufficient in this regard.

Defendant argues that the accusatory instrument has not been converted because the People have not provided a certified tint meter reading result to the court to support the allegation that the tint meter detected 5% light transmittance (defendant's moving mem of law at 22). Defendant analogizes this matter with converting a charge of driving while intoxicated under Vehicle and Traffic Law § 1192 (2), which requires a certified copy of a chemical test showing blood alcohol content. Defendant asks this court to conclude that a certified tint meter reading result is likewise required for converting a charge for violation of Vehicle and Traffic Law § 375 (12-a) (b) (2).

[1] Conversion under the two statutes is not analogous. Vehicle and Traffic Law § 1192 (2) states, in relevant part, that

"[n]o person shall operate a motor vehicle while such person has .08 of one per centum or more by weight of alcohol in the person's blood as shown by chemical analysis of such person's blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article."

Thus, a chemical analysis is an element of the statute. Conversely, a tint meter reading is not an element of Vehicle and Traffic Law § 375 (12-a) (b) (2). Therefore, this court finds that a certified tint meter reading is not required to convert a misdemeanor complaint charging a defendant with Vehicle and Traffic Law § 375 (12-a) (b) (2).

CPL 100.15 (3) requires that the factual part of a misdemeanor complaint or an information "contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges." The accusatory instrument, signed and sworn to by the arresting officer, states that the officer "observed that [defendant's vehicle] had excessively tinted side windows." The officer further submitted a sworn supporting deposition affirming that the front passenger windows measured 5% light transmittance (see defendant's exhibit{**81 Misc 3d at 309} H). Thus, the officer's own observations contained in the sworn documents were sufficient to convert the [*4]accusatory instrument to an information when they were filed on November 16, 2022, as the factual allegations provided support the charge for improper coating of the side windows.

II. Validity of the People's COC

Defendant also seeks dismissal on the basis that the COC was invalid. 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." This subdivision of the statute provides a non-exhaustive list of 21 categories that are included in the types of material required to be disclosed. "The People's 'possession' includes discoverable material that is in the possession of the police" (People v Cartagena, 76 Misc 3d 1214[A], 2022 NY Slip Op 50943[U], *2 [Crim Ct, Bronx County 2022], citing CPL 245.20 [2]).

The statute also requires the People to file a COC that certifies, in good faith, that (1) they have "made available all known material and information subject to discovery" (CPL 245.50 [1]; see also People ex rel. Ferro v Brann, 197 AD3d 787, 787-788 [2d Dept 2021]); and (2) they have exercised "due diligence" and made "reasonable inquiries" to "ascertain the existence" of discoverable material (CPL 245.50 [1]; see also People v Hooks, 78 Misc 3d 398, 400 [Crim Ct, Kings County 2023]).

On a motion to declare a COC invalid, the defendant must first "identify a specific defect with the People's [COC]," then the burden shifts to the People to "demonstrate the propriety of their certification" (People v Brown, 74 Misc 3d 1227[A], 2022 NY Slip Op 50234[U], *2 [Albany City Ct 2022]). The People must explain, in detail, the reasonable inquiries they made to obtain the discoverable materials (People v Winston, 78 Misc 3d 1201[A], 2023 NY Slip Op 50130[U], *7 [Crim Ct, Bronx County 2023]; Brown, 74 Misc 3d 1227[A], 2022 NY Slip Op 50234[U], *2).

CPL 245.10 (1) (a) (ii) states that "[w]hen the defendant is not in custody during the pendency of the criminal case, the prosecution shall perform its initial discovery obligations within thirty-five calendar days after the defendant's arraignment on an indictment, superior court information, prosecutor's information, information, simplified information, misdemeanor complaint or felony complaint." In the event that certain{**81 Misc 3d at 310} discoverable materials are "exceptionally voluminous or, despite diligent, good faith efforts, are otherwise not in the actual possession of the prosecution," the People are permitted up to a total of 65 calendar days to comply with their discovery obligations (CPL 245.10 [1] [a]).

CPL 245.20 (2) specifies 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." To that end, CPL 245.55 (1) directs the prosecutor "to ensure that a flow of information is maintained between the police and other investigative personnel and his or her office sufficient to place within his or her possession or control all material and information pertinent to the defendant and the offense or offenses charged."

A. Impeachment Materials

Defendant argues that the People have not turned over all materials responsive to [*5]CPL 245.20 (1) (k) (iv). Specifically, defendant contends that, in addition to the Giglio disclosure summary^[FN3] for Officer Kara, the People should have also provided the materials for the three IAB (Internal Affairs Bureau) complaints for Officer Kara mentioned in the summary. Defendant also argues that the People improperly redacted a CCRB (Civilian Complaint Review Board) summary for Officer Kara. In opposition, the People argue that the undisclosed materials were not relevant.

[2] CPL 245.20 (1) (k) (iv) directs the People to provide "[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" (emphasis added). Moreover, the People's "obligations to provide discovery under the current statutes are so broad as to virtually constitute 'open file' discovery" (People v Rugerio-Rivera, 77 Misc 3d 1230[A], 2023 NY Slip Op 50069[U],{**81 Misc 3d at 3} *3 [Crim Ct, Queens County 2023], citing William C. Donnino, Prac Commentary, McKinney's Cons Laws of NY, CPL 245.10). Additionally, as noted above, CPL 245.20 (2) provides that the prosecution is deemed to be in possession of all material that is also in the possession of the police. Accordingly, a defendant is entitled to this information,{**81 Misc 3d at 311} which may provide the defendant with the opportunity to "understand the specific nature and degree of the misconduct, determine its relevance to a particular defense, and prepare arguments as to its use on cross-examination at hearing and trial" (People v Castellanos, 72 Misc 3d 371, 375 [Sup Ct, Bronx County 2021]; see also People v Spaulding, 75 Misc 3d 1219[A], 2022 NY Slip Op 50544[U], *3 [Crim Ct, Bronx County 2022]).

This court is persuaded by the principles cited above over contravening cases that limit automatic disclosure to only "relevant" materials which, those cases conclude, does not include material that impeaches the credibility of a witness (People v Florez, 74 Misc 3d 1222[A], 2022 NY Slip Op 50202[U],*12 [Sup Ct, Nassau County 2022]; People v Perez, 73 Misc 3d 171, 182-183 [Sup Ct, Queens County 2021]). These cases draw upon the reasoning of People v Garrett (23 NY3d 878 [2014]), which drew a distinction between impeachment related to the subject matter of the case and impeachment that affects the credibility of a witness. However, Garrett was decided before CPL article 245 was enacted (People v Martinez, 75 Misc 3d 1212[A], 2022 NY Slip Op 50476[U], *5, *6 n 3 [Crim Ct, NY County 2022]). Current case law concerning the People's duties under CPL article 245 does not limit material subject to automatic disclosure to that which the People consider "discoverable" (Cartagena, 76 Misc 3d 1214[A], 2022 NY Slip Op 50953[U],*1; People v Eleazer, 78 Misc 3d 1222[A], 2023 NY Slip Op 50316[U], *2 [Crim Ct, NY County 2023]).

Additionally, this court is not persuaded by the People's argument that they should not be required to produce discoverable material that defendant can obtain on his own. The law should not shift the burden to defendant "to learn the specifics of a misconduct complaint through a subpoena or a FOIL request" (Castellanos, 72 Misc 3d at 376-377 [internal quotation marks omitted]).

Finally, the People argue that collecting and providing this underlying material is prohibitively burdensome. Even assuming this is true, the People are still required to [*6]make a "diligent, good faith effort" to "ascertain the existence" of such material and to "cause" such material "to be made available for discovery" (Hooks, 78 Misc 3d at 400-401). Accordingly, the People's failure to disclose the missing underlying Giglio materials renders their COC invalid.

The analysis applicable to CCRB material, however, is a bit different because the CCRB is not law enforcement. As such,{**81 Misc 3d at 312} the People are not deemed to be in control over this material (People v Carter, 76 Misc 3d 1206[A], 2022 NY Slip Op 50837[U], *6 [Crim Ct, Kings County 2022]). Accordingly, the People must produce such documents as impeachment materials only if they are in the People's possession (Perez, 73 Misc 3d at 183). Otherwise, the People must, pursuant to CPL 245.20 (2), "make a diligent, good faith effort to ascertain the existence of [such] material or information" (People v Sanders, 78 Misc 3d 1209[A], 2023 NY Slip Op 50190[U], *4 [Crim Ct, NY County 2023]; People v Peralta, 79 Misc 3d 945, 956-957 [Crim Ct, Bronx County 2023]).

In this case, the People have elected to produce a CCRB summary letter with redactions but did not provide any explanation of what information was redacted. The People's production of a redacted CCRB summary is insufficient (People v Goggins, 76 Misc 3d 898, 903 [Crim Ct, Bronx County 2022]). The People should have applied for a protective order under CPL 245.70 if they believed certain information contained in the discoverable material should not be available to defendant (People v Best, 76 Misc 3d 1210[A], 2022 NY Slip Op 50859[U], *6 [Crim Ct, Queens County 2022]).

Accordingly, the People's failure to disclose the unredacted CCRB letter and the underlying misconduct and/or disciplinary materials for Officer Kara renders their COC invalid.

B. NYSPIN Report

The People disclosed only a portion of the report generated by the New York Statewide Police Information Network (NYSPIN report) prior to serving and filing their original COC. Defendant notified the People that only the first 2 of 33 pages were turned over. On or about March 15, 2023, the People disclosed a full NYSPIN report and filed and served a supplemental COC.

[3] CPL 245.50 (1) provides that, if the People provide additional discovery after their initial disclosure, "a supplemental certificate shall be served upon the defendant and filed with the court identifying the additional material and information provided." Further, CPL 245.50 (1-a) provides that any such supplemental COC "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" (Hooks, 78 Misc 3d at 401). Here, the People's supplemental COC states that the complete NYSPIN report "did not exist at the time of the filing of the original Certificate of Compliance." {**81 Misc 3d at 313}However, defendant's exhibit F demonstrates that the two pages disclosed to defendant prior to the service of the initial COC are marked "Page 1 of 33" and "Page 2 of 33" respectively and bear a November 16, 2022 date. Thus, it does not appear the supplemental COC accurately represents the basis of the People's delayed disclosure.

In response to defendant's motion, rather than explain the delay, the People argue that the NYSPIN report is not discoverable because it does not relate to the subject matter of the case. This argument contradicts the People's decision to disclose [*7]the entire report on March 15, 2023. Further, the NYSPIN report contains information regarding defendant's alleged license suspensions, which is directly relevant to more than one of the charged offenses (see defendant's exhibit F). As such, the NYSPIN report is discoverable pursuant to CPL 245.20 (1) (j).

Because the People failed to provide an adequate explanation for their delay in disclosure, this court is unable to determine whether the People exercised the requisite diligent and good-faith efforts to disclose the report prior to the service and filing of the original COC. Accordingly, the People's COC is invalid.

C. Body Worn Camera Footage

Defendant argues that the People failed to turn over body worn camera (BWC) footage for one of four officers who were present at the scene. The People argue, however, that their failure to turn over this footage is excusable because "footage capture [sic] by the BWC of officers who neither took a statement from the defendant nor participated in the arrest of the defendant is not relevant" to the case (People's mem of law at 33).

[4] CPL 245.20 (1) (g) requires the People to produce "[a]ll tapes or other electronic recordings" (emphasis added) that relate to the subject matter of the case. " '[I]f something is in the prosecutor's file (or that of the police investigating agency) . . . it should invariably "relate to the subject matter of the case" and will need to be disclosed,' unless it is work-product or subject to a protective order" (People v Cartagena, 76 Misc 3d 1214[A], 2022 NY Slip Op 50943[U], *2 [Crim Ct, Bronx County 2022], citing People v Lustig, 68 Misc 3d 234, 239-240 [Sup Ct, Queens County 2020]). Whether the officer took a statement from defendant or "participated in the arrest" are not threshold questions in determining the discoverability of the officer's{**81 Misc 3d at 314} BWC footage. Because the officer was at the scene of the arrest, the BWC footage should have been disclosed.

Further, as mentioned in the preceding section, if the People believed that the BWC camera footage should not be disclosed, the proper procedure would have been to seek a protective order pursuant to CPL 245.70. Based on the foregoing, the People's failure to turn over the body worn camera footage of an officer present at the arrest absent a protective order renders the People's COC invalid.

D. Tint Meter Information

Defendant also argues that the People's COC is invalid because the People did not disclose "any records or details about the tint-meter used," such as the brand/manufacturer, calibration information, and other maintenance information (Gutman affirmation ¶ 23). This court finds that any calibration or maintenance reports are indisputably automatically discoverable under CPL 245.20 (1) (j), which requires disclosure of the following:

"All reports, documents, records, data, calculations or writings, including but not limited to preliminary tests and screening results and bench notes and analyses performed or stored electronically, concerning physical or mental examinations, or scientific tests or experiments or comparisons, relating to the criminal action or proceeding which were made by or at the request or direction of a public servant engaged in law enforcement activity, or which were made by a person whom the prosecutor intends to call as a witness at trial or a pre-trial hearing, or which the prosecution intends to introduce at trial or a pre-trial hearing."[*8]

In response to the instant motion, however, the People state that they "have assured themselves through both conversations with Police Officer Kara and independent research, that no calibration materials exist for the tint meter in this case" (People's mem of law at 34). As such, the People's inability to provide documents that do exist does not impact the validity of their COC.

While the manufacturer, make, and model of the tint meter utilized in this may be relevant to this case, the People do not state whether such information is included in their or the police's file, and the court does not have ample information to otherwise conclude that such is the case. Thus, the court is not{**81 Misc 3d at 315} sufficiently certain that this information is automatically discoverable under CPL 245.20 (1) and cannot determine that the failure to disclose it renders the COC invalid.

E. Contact Information

Finally, defendant argues that the People should have disclosed contact information for the passenger who was in the car with defendant at the time and place of occurrence. The People state that they do not have such information, as evidenced by the BWC of Officer Kara, with whom the witness interacted (People's opp mem of law at 34). However, the People purposely have not disclosed that camera footage, thereby making it impossible for defendant to verify this assertion. Ordinarily, a hearing might be necessary to resolve the dispute. Such a hearing is not necessary here because of the COC's various other deficiencies.

III. Dismissal of the Action

Because the top charge in this matter is an unclassified misdemeanor, this case must be dismissed when the prosecution is not ready for trial within 90 days of the commencement of a criminal action (CPL 30.30 [1] [b]).

Here, there are at least 172 days charged to the People:

Defendant was arraigned on November 17, 2022. At the following appearance,^[FN4] in Part AP2 on November 28, 2022, the People answered not ready. 11 days charged.

The parties next appeared in Part AP2 on January 18, 2023. The People once again answered not ready. 51 days charged.

The People filed and served their original COC off-calendar on February 6, 2023. 19 days charged.

The court finds that the People's original COC is invalid due to the prosecution's failure to comply with their CPL 245.20 discovery obligations. As a result, the People's SOR is illusory and was not sufficient to stop the CPL 30.30 clock (People v Brown, 214 AD3d 823, 825 [2d Dept 2023]), and all of the days between the People's filing of the original COC on February 6, 2023, and defendant's filing of the instant motion on May 8, 2023, are chargeable to the People. 91 days charged.

172 days charged.

The People have exceeded the 90 days permitted by CPL 30.30 to declare readiness for trial, and the matter must be dismissed.{**81 Misc 3d at 316}

Accordingly, it is hereby ordered that defendant's motion to dismiss the accusatory instrument is [*9]granted. The matter is ordered dismissed and sealed.