Criminal Court of the City of New York, Bronx County, October 30, 2023

The Bronx Defenders (Alexandra Katz of counsel) for defendant.

Darcel D. Clark, District Attorney (Sierra Fischer of counsel), for the People.

Defendant Juan Palacios Pardo is charged by information with menacing in the second degree (Penal Law § 120.14, a class A misdemeanor), assault in the third degree (Penal Law § 120.00 [1], a class A misdemeanor), and harassment in the second degree (Penal Law § 240.26 [1], a violation).

The defense moves to: deem the certificate of compliance (COC) invalid and the People not ready for trial pursuant to CPL 245.50 (3) and 30.30 (5); dismiss the information pursuant to CPL 30.30 (1) (b) and 170.30 (1) (e); suppress any and all evidence and testimony relating to identifications made of defendant for which the prosecution served proper notice under CPL 710.30, or in the alternative, grant a hearing for findings of fact and conclusions of law (Wade/Crews); preclude the introduction at trial of any evidence of defendant's prior convictions or bad acts (Sandoval/Ventimiglia); and such additional relief as the court deems just and proper.

Defendant asserts that the People's COC dated March 31, 2023, is invalid or illusory because the NYPD Internal Affairs Bureau (IAB) logs for NYPD Officers Steven Duch and Daniel Castillo were produced in heavily redacted form and the People never sought a protective order.

The People contend that they need only disclose impeachment information that "relates to the subject matter of the case"; they may do so through Giglio summary letters, without producing any underlying materials such as IAB logs; and the redactions were made by NYPD, not the prosecution, in accordance with FOIL laws.

I. General CPL 30.30/Article 245 Standard

Where, as here, the highest charge is a misdemeanor punishable by a sentence of imprisonment of more than three{**81 Misc 3d at 860} months, the People are required to be ready for trial within 90 days from the commencement of the criminal action (see CPL 30.30 [1] [b]).

Under CPL 30.30 (5), "[a]ny statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of section 245.20." CPL 245.20 (2) echoes that the "prosecutor shall make a diligent, good faith effort to ascertain the existence of material or information discoverable under [CPL 245.20 (1)]." CPL 245.50 (3) relatedly adds that, "absent an individualized finding of special circumstances in the instant case by the court before which the charge is pending, the prosecution shall not be deemed ready for trial for purposes of section 30.30 . . . until it has filed a proper certificate pursuant to subdivision one of this section." That referenced section, CPL 245.50 (1), provides:

"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. . . . If additional discovery is subsequently provided prior to trial pursuant to section 245.60 of this article, a supplemental certificate shall be served upon the defendant and filed with the court identifying the additional material and information provided. No 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; but the court may grant a remedy or sanction for a discovery violation as provided in section 245.80 of this article."

Turning to CPL 245.80 (1) (a):

"When material or information is discoverable under this article but is disclosed belatedly, the court shall impose a remedy or sanction that is appropriate and proportionate to the prejudice suffered by the party entitled to disclosure. Regardless of a showing of prejudice the party entitled to disclosure shall be given reasonable time to prepare and respond to the new material."

The available remedies or sanctions listed under CPL 245.80 (2) are that{**81 Misc 3d at 861}

"the court may make a further order for discovery, grant a continuance, order that a hearing be reopened, order that a witness be called or recalled, instruct the jury that it may draw an adverse inference regarding the non-compliance, preclude or strike a witness's testimony or a portion of a witness's testimony, admit or exclude evidence, order a mistrial, order the dismissal of all or some of the charges provided that, after considering all other remedies, dismissal is appropriate and proportionate to the prejudice suffered by the party entitled to disclosure, or make such other order as it deems just under the circumstances."

Article 245 is demanding in the breadth of discovery the People must produce (see CPL 245.20), the tight timelines (see CPL 245.10), and the potential CPL 30.30 consequences (see CPL 245.50), but it is not inflexible. Most notably, CPL 245.50 (1) expressly states that "[n]o adverse consequence to the prosecution or the prosecutor shall result from the filing of a [*3]certificate of compliance in good faith and reasonable under the circumstances," and CPL 245.50 (3) allows the court, upon "an individualized finding of special circumstances," to deem the prosecution "ready for trial for purposes of [CPL 30.30]" despite the lack of a proper certificate of compliance.

As other courts have indicated,

"belated disclosures should not [always] invalidate a certificate of compliance that was made in good faith after the exercise of due diligence where the delay resulted from, for example, minor oversights in the production of material, delayed discovery of the existence of certain items, or a good faith position that the material in question was not discoverable" (People v Georgiopoulos, 71 Misc 3d 1215[A], 2021 NY Slip Op 50380[U], *2 [Sup Ct, Queens County 2021]).

A reading of CPL 30.30 and article 245, and their intersections, indicates that "good faith, due diligence, and reasonableness under the circumstances are the touchstones by which a certificate of compliance must be evaluated" (People v Rodriguez, 73 Misc 3d 411, 417 [Sup Ct, Queens County 2021]; see People v Gaskin, 214 AD3d 1353, 1355 [4th Dept 2023]; People v Pierna, 74 Misc 3d 1072, 1088 [Crim Ct, Bronx County 2022]).

A COC is filed in good faith and is reasonable under the circumstances when, as the court articulated in People v Guzman{**81 Misc 3d at 862}(75 Misc 3d 132[A], 2022 NY Slip Op 50445[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2022]), the People exercise "due diligence and mak[e] reasonable inquiries to ascertain the existence of material and information subject to discovery" (CPL 245.50 [1]). To establish due diligence and good faith, the People should recount the steps they took to obtain or ascertain the existence of the disputed materials (see Rodriguez, 73 Misc 3d at 417).

II. Impeachment Material

The parties dispute the scope of discoverable impeachment material under CPL 245.20 (1) (k) (iv). The prosecution, relying on People v Johnson (218 AD3d 1347 [4th Dept 2023]) and various trial level cases, asserts that they only have to produce impeachment material that relates to the subject matter of the case. The defense, citing Matter of Jayson C. (200 AD3d 447 [1st Dept 2021]); People v Rodriguez (77 Misc 3d 23 [App Term, 1st Dept 2022]); People v Hamizane (80 Misc 3d 7 [App Term, 2d Dept, 9th & 10th Jud Dists 2023]); and trial level cases, contends that required impeachment information is not so limited. The People take the position that the First Department in Jayson C. did not directly rule on the issue and in any event that its statements on the matter are dicta, and that the Fourth Department's holding in Johnson is squarely on point, leaving it the only Appellate Division Department with an authoritative decision. Under those circumstances, the People maintain that Johnson is binding on all trial level courts in the state, including this one, unless (or until) the First Department or Court of Appeals issues a contrary decision (see People v Turner, 5 NY3d 476 [2005]; Mountain View Coach Lines v Storms, 102 AD2d 663 [2d Dept 1984]).

Upon review of the briefs in Johnson, however, it is not clear that its limited commentary on impeachment material under CPL 245.20 (1) (k) was a necessary ruling, and the parties submitted without oral argument to elucidate their positions; thus, Johnson does not appear to be binding on the subject (see Matter of Buehler v Board of Supervisors of Rensselaer County, 260 NY 268 [1932]; see also People v Suber, 19 NY3d 247, 253-254 [2012]), and this court can engage in its independent analysis.

The Fourth Department in Johnson (218 AD3d at 1350) stated that the "defendant was not automatically entitled to the entirety of a police officer's personnel file as impeaching material under CPL 245.20 (1) (k) (iv), but rather only to the{**81 Misc 3d at 863} extent that the information 'relate[d] to the subject matter of the case' (CPL 245.20 [1])," for which it relied on People v Lewis (78 [*4]Misc 3d 877, 879-880 [Sup Ct, Kings County 2023]). The Lewis court reached its conclusion based on its view that the plain language of the opening paragraph of CPL 245.20 (1), requiring disclosure of "all items and information that relate to the subject matter of the case," restricts the scope of every ensuing paragraph; thus, the "evidence and information . . . that tends to . . . impeach the credibility of a testifying prosecution witness," specified in CPL 245.20 (1) (k) (iv) as automatically discoverable, must "relate to the subject matter of the case." The court in Lewis found that such evidence was lacking in the case before it because the defendant did "not, for example, allege that any of the misconduct occurred during the investigation of this case or that any of the misconduct relates to the charges against him or to any potential defense he might assert" (id. at 880).^[FN1]

This court disagrees with the interpretation advanced by Lewis and the People here, because it: (1) is grammatically incorrect; (2) renders some portions of the statute superfluous and other portions meaningless, or at least creates ambiguity; and (3) runs contrary to the very purpose of the statute.

A. Grammar: The Comma Has Meaning

CPL 245.20 (1) begins:

"The prosecution shall disclose to the defendant, and permit the defendant to discover, inspect, copy, photograph and test, 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 but not limited to [the following 21 categories (a)-(u)]."

The excerpt necessary to our discussion is: "The prosecution shall disclose to the defendant . . . all items and information that relate to the subject matter of the case and are in the possession . . . of the prosecution . . . , including but not limited to" the ensuing 21 categories.

Essentially, the Lewis line of cases would reverse the clauses to state that the prosecution must disclose the 21 categories{**81 Misc 3d at 864} (and possibly other categories) if they consist of items and information that relate to the subject matter of the case and are in the possession of the prosecution. But that is not what the plain language says. The comma preceding "including but not limited to" is another way of saying: "which includes the following." The provision thus means: "The prosecution shall disclose to the defendant . . . all items and information that relate to the subject matter of the case and are in the possession . . . of the prosecution . . . , which includes the following 21 categories." By that language, the legislature was stating that the 21 specified categories are items and information that relate to the subject matter of the case; the itemized categories are illustrative of information that relates to the subject matter of the case (see People v Robbins, 206 AD3d 1069, 1071 [3d Dept 2022] ["CPL 245.20 (1) directs a prosecutor to automatically 'disclose to the defendant, and permit the defendant to discover, inspect, copy, photograph and test, 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,' then goes on to give specific examples of information and [*5]evidence that must be disclosed" (emphasis added)], lv denied 39 NY3d 942 [2022]).

Insofar as the above review of commas and clauses might be overly pedantic, and the reading propounded by Lewis could be deemed one reasonable interpretation, that is not enough to declare that it is compelled by the plain language of the statute. The reading posited here is also at least a reasonable one, which would create some ambiguity (cf. People v Floyd J., 61 NY2d 895, 896 [1984] ["When the language of a statute is clear and unambiguous, the court is constrained to give effect to the plain meaning of the statute's words," citing McKinney's Cons Laws of NY, Book 1, Statutes § 76]). The only leg propping up the restricted reading of the statute espoused by the People is the doctrine of plain language, which is untenable here. The problems become more evident upon examining CPL 245.20 (1) in its entirety.

B. Superfluous, Meaningless, or Ambiguous: Take Your Pick

As a backdrop before delving into the issue, the language at the center of the case at bar is: "The prosecution shall disclose to the defendant . . . all items and information that relate to the subject matter of the case . . . , including but not limited to . . . (k) [a]ll evidence and information . . . that tends to {**81 Misc 3d at 865}. . . (iv) impeach the credibility of a testifying prosecution witness" (CPL 245.20 [1]). The People construe that provision as only requiring them to disclose impeachment material that relates to the subject matter of the case. If the clause "relate to the subject matter of the case" does in fact qualify paragraph (k) (iv), on the theory that it governs all ensuing paragraphs, then that reading must be applied consistently. Doing so, however, renders some of the language of the statute superfluous, which is a construction to be avoided (People v Galindo, 38 NY3d 199, 205-206 [2022]).

The phrase "relate to the subject matter of the case" in CPL 245.20 (1) appears again in three of the ensuing paragraphs: (h), (o), and (u). Taking the last one first, paragraph (u) states, in relevant part:

"(u) (i) A copy of all electronically created or stored information seized or obtained by or on behalf of law enforcement from: (A) the defendant as described in subparagraph (ii) of this paragraph; or (B) a source other than the defendant which relates to the subject matter of the case" (emphasis added).^[FN2]{**81 Misc 3d at 866}

If the phrase "relate to the subject matter of the case" in the opening paragraph of CPL 245.20 (1) must be read into every following paragraph in the manner argued by the People, then what need is there to repeat it in (u) (i) (B)? It would be enough to just state: "(B) a source other than the defendant." And why is it omitted from the immediately preceding (u) (i)(A)?

Similarly, paragraph (o) requires automatic disclosure of: "(o) All tangible property that relates to the subject matter of the case, along with a designation of which items the prosecution intends to introduce in its case-in-chief at trial or a pre-trial hearing" (emphasis added). ^[FN3]Again, under the interpretation put forth by the People, the language "relate[s] to the subject matter of the case" from the prefatory paragraph of CPL 245.20 (1) must already inviolably be read into (o), so why is it repeated in that paragraph, and not, for example, paragraph (b): "All transcripts of the testimony of a person who has testified before a grand jury, including but not limited to the defendant or a co-defendant"?^[FN4] Did the legislature think the readers{**81 Misc 3d at 867} needed a [*6]reminder by the time they reached paragraph (o), as well as (h) and (u)? If so, wouldn't they have explicitly stated that, or at least spaced the reminders out evenly?Now to address paragraph (h), which directs disclosure of: "All photographs and drawings made or completed by 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 relate to the subject matter of the case" (emphasis added). To put it in context, the plain language, with the introductory phrase from CPL 245.20 (1), is:

"The prosecution shall disclose to the defendant . . . all items and information that relate to the subject matter of the case . . . , including but not limited to . . . (h) All photographs and drawings made or completed by 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 relate to the subject matter of the case" (emphasis added).

The disjunctive "or" denotes that the clause following it differs from the preceding one; thus, photographs and drawings "which relate to the subject matter of the case" must somehow differ from photographs and drawings "made or completed by a public servant engaged in law enforcement activity" or "made by a person whom the prosecutor intends to call as a witness at trial or a pre-trial hearing."

Applying the People's interpretation of the so-called qualifying phrase of the introductory paragraph of CPL 245.20 (1), the provision would read:

"The prosecution shall disclose to the defendant . . . (h) All photographs and drawings made or completed by a public servant engaged in law enforcement activity [if they relate to the subject matter of the case], or which were made by a person whom the prosecutor intends to call as a witness at trial or a pre-trial hearing [if they relate to the subject matter of the case], or which relate to the subject matter of the case [if they relate to the subject matter of the case]" (effect of the People's reading in brackets).

Perhaps the legislature was emphasizing the need to produce{**81 Misc 3d at 868} items that really, really relate to the subject matter of the case. If not gibberish, which is the statutory construction least favored (see Galindo, 38 NY3d at 205-206), most likely something is missing, such as the word "otherwise" after the final "or which." But that saving insertion is only further evidence that the language of the statute is not clear and unambiguous, and thus the People's reliance on plain language is misplaced; indeed, it does not end there.

The strict construction argued by the People renders multiple provisions of CPL 245.20 (1) meaningless. Two will be examined for discussion purposes:

"(p) A complete record of judgments of conviction for all defendants and all persons designated as potential prosecution witnesses pursuant to paragraph (c) of this subdivision, other than those witnesses who are experts.^[FN5]

"(q) When it is known to the prosecution, the existence of any pending criminal action against all persons designated as potential prosecution witnesses pursuant to paragraph (c) of this subdivision."

If the People's reading of the statute is uniformly applied, then the information in paragraphs (p) and (q) need only be disclosed if it "relate[s] to the subject matter of the case." As an (explicit) reminder, the People argue here that the plain language of the statute only requires them to disclose impeachment material that relates to the subject matter of the case. Consistently applying that interpretation to paragraphs (p) and (q), the People would only have to disclose if any defendants or potential prosecution witnesses have been convicted based on the same subject matter the defendant is currently on trial for, or if there is a case based on the same subject matter pending against a potential prosecution witness. The individual defendant would not even be entitled to his or her own complete record of judgments of convictions, but only records of judgments of convictions implicating double jeopardy. That seems an absurd limitation. Rather, a more logical interpretation is that the legislature must have deemed defendants and potential prosecution witnesses, and their records of convictions, to inherently relate to the subject matter of the case. The People have not explained why the same commonsense treatment{**81 Misc 3d at 869} should not be accorded to impeachment material under (k) (iv).^[FN6]

C. History and Purpose: Never to be Ignored

Putting the People's strict construction argument to the side, and continuing with a more logical line of interpretation, paragraph (k) comes into sharper focus. Paragraph (k) provides that the People must turn over:

"All 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: (i) negate the defendant's guilt as to a charged offense; (ii) reduce the degree of or mitigate the defendant's culpability as to a charged offense; (iii) support a potential defense to a charged offense; (iv) impeach the credibility of a testifying prosecution witness; (v) undermine evidence of the defendant's identity as a perpetrator of a charged offense; (vi) provide a basis for a motion to suppress evidence; or (vii) mitigate punishment. Information under this subdivision shall be disclosed whether or not such information is [*7]recorded in tangible form and irrespective of whether the prosecutor credits the information. The prosecutor shall disclose the information expeditiously upon its receipt and shall not delay disclosure if it is obtained earlier than the time period for disclosure in subdivision one of section 245.10 of this article" (emphasis added).

Subparagraphs (i), (ii), (iii), and (v) all add to their topic the qualifying language "a charged offense," in contrast to {**81 Misc 3d at 870}subparagraph (iv), which they surround. Subparagraph (iv) does not say information that tends to "impeach the credibility of a testifying prosecution witness as to a charged offense." The People extrapolate that the absence of any qualifying language in (iv) somehow makes it more limited than the surrounding subparagraphs. If the language "relate to the subject matter of the case" from the opening section of CPL 245.20 (1) governs in the manner advanced by the People, then the "a charged offense" language in (k) (i), (ii), (iii), and (v) is superfluous; if it was added purposefully, then its absence from (k) (iv) must also be deemed significant.

If there is any doubt as to whether impeachment material in (k) (iv) should be interpreted as highly limited or unrestricted, one does not have to search far for clues; CPL 245.20 (7) directs that "[t]here shall be a presumption in favor of disclosure when interpreting . . . subdivision one of section 245.20." Accordingly, the reading that impeachment material is not limited to the subject matter of the case should be favored. That conclusion is only reinforced when considering how impeachment material has long been viewed by the Court of Appeals (see Galindo, 38 NY3d at 205 [the legislature is presumed to be aware of the decisional law in existence at the time of enacting a statute]) and the fundamental purpose of article 245 (see People v Wallace, 31 NY3d 503, 507 [2018] ["(w)hen presented with a question of statutory interpretation, our primary consideration is to ascertain and give effect to the intention of the Legislature. Generally, inquiry must be made of the spirit and purpose of the legislation, which requires examination of the statutory context of the provision as well as its legislative history" (internal quotation marks and citations omitted)]).

The Court of Appeals in People v Walker (83 NY2d 455, 461 [1994]) has noted:

"we begin with the elementary premise that impeachment is a particular form of cross-examination whose purpose is, in part, to discredit the witness and to persuade the fact finder that the witness is not being truthful (see generally, Fisch, New York Evidence § 447 [2d ed]). One traditional method of accomplishing these ends is to demonstrate through questioning that the witness has been guilty of prior immoral, vicious or criminal conduct bearing on credibility (id., § 455; see, e.g., People v Schwartzman, 24 NY2d 241, 244, cert denied 396 US 846; People v Webster, 139 NY 73). Such cross-{**81 Misc 3d at 871}examination is not limited to questions about prior crimes or like misconduct. Rather, even where the proof 'fall[s] outside the conventional category of immoral, vicious or criminal acts,' it may be a proper subject for impeachment questioning where it demonstrates an untruthful bent or ' "significantly reveal[s] a willingness or disposition on the part of the particular defendant voluntarily to place the advancement of his individual self-interest ahead of principle or of the interests of society" ' (People v Coleman, 56 NY2d 269, 273, quoting People v Sandoval, [34 NY2d 371,] 377)."

In fact, "[i]mpeachment evidence has never been restricted to material related only to the particular case" (People v Castellanos, 72 Misc 3d 371, 377 [Sup Ct, Bronx County 2021]). [*8]Specifically relevant to the case at hand, "law enforcement witnesses should be treated in the same manner as any other witness for purposes of cross-examination" (People v Smith, 27 NY3d 652, 661-662 [2016]; see also People v Rouse, 34 NY3d 269 [2019]).

Cases hewing to the interpretation of CPL 245.20 (1) as an unflinching limiting provision concede that broad impeachment information is constitutionally required to be disclosed, but believe that the remedy lies in defendants subpoenaing the material (see Lewis, 78 Misc 3d at 880-881; People v Florez, 74 Misc 3d 1222[A], 2022 NY Slip Op 50202[U], *9 [Sup Ct, Nassau County 2022] [acknowledging that the result of its reading is that defendants will receive less under CPL article 245 than they had previously]). As aptly noted in People v Edwards (74 Misc 3d 433, 440-441 [Crim Ct, NY County 2021]):

"Such a narrow reading would mean that, in a wholly new discovery article that in all other respects expanded the People's disclosure obligations from the prior law, the legislature narrowed the disclosure requirements with respect to impeachment material. That certainly was not the legislature's intent (see People v Portillo, 73 Misc 3d 216, 225-228 [Sup Ct, Suffolk County 2021]; [People v] Cooper, 71 Misc 3d [559,] 566 [Erie County Ct 2021]). Indeed, the legislature considered disclosure of impeachment material so important that it expressly emphasized its early disclosure. In CPL 245.20 (1) (k) itself, the legislature directed that impeachment material be turned over as soon as possible, even before the general discovery deadlines: 'The prosecutor shall disclose the information {**81 Misc 3d at 872}expeditiously upon its receipt and shall not delay disclosure if it is obtained earlier than the time period for disclosure in [CPL 245.10 (1)]' (CPL 245.20 [1] [k])."

Moreover, doubts are to be resolved in favor of disclosure (CPL 245.20 [7]). The legislative history of article 245 confirms that position. The Senate Introducer's Memorandum in Support of 2019 NY Senate Bill S1716 announces the purpose as:

"To modernize and make more fair New York State's discovery rules in the criminal courts, which are currently set forth in Criminal Procedure Law Article 240. This bill would repeal Article 240 and enact a comprehensive new statute for the pre-trial exchange of information and evidence in criminal cases. This new Article 245 draws on and supplements discovery rules and practices from other states. It would eliminate the unfairness and inefficiencies of current discovery practice, and facilitate the prompt and accurate disposition of criminal cases."

The Assembly Memorandum in Support of 2017 NY Assembly Bill A4360A somewhat more harshly phrases the purpose as:

"To modernize and make New York State's criminal discovery rules fairer. This bill calls for the repeal our current flawed discovery rules (Article 240 of the Criminal Procedure Laws) and offers a better, comprehensive statute; Article 245. This bill eliminates the unfairness and inefficiencies of the present system and, if enacted, would facilitates [sic] swift, efficient, and just disposition of criminal cases."

Regarding the specific issue here, the simplest reading of the statute, and the one that comports with its overall purpose, is that impeachment material as to a testifying witness necessarily relates to the subject matter of the case, but is not limited to the subject matter of the case (Edwards, 74 Misc 3d at 440; see People v Eleazer, 78 Misc 3d 1222[A], 2023 NY Slip Op 50316[U], *2 [Crim Ct, NY County 2023]; People v Portillo, 73 Misc 3d 216, 238 [Sup Ct, Suffolk County 2021]; [*9]People v Pennant, 73 Misc 3d 753, 759 [Nassau Dist Ct, 1st Dist 2021]; People v Castellanos, 72 Misc 3d 371, 377-379 [Sup Ct, Bronx County 2021]; People v Soto, 72 Misc 3d 1153, 1159 [Crim Ct, NY County 2021]).

There is nothing in the language or stated purpose of article 245 to indicate that the legislature intended to render the scope{**81 Misc 3d at 873} of discovery more circumscribed, either in general or with regard to impeachment material specifically. In fact, everything points in the opposite direction. This court declines the People's invitation to ignore an at least viable reading of the statutory language, alter the long-standing definition of impeachment material, and apply the statute in direct contravention of its stated purpose. Nevertheless, the People had a good-faith basis for their interpretation of the law, and the COC will not be invalidated to the extent they might have withheld information they deemed not related to the subject matter of the case (see Rodriguez, 73 Misc 3d at 416).

D. Remaining Impeachment Issues

This court agrees with the well-reasoned opinions finding that the People must turn over impeachment material relating to both substantiated and unsubstantiated complaints of police misconduct, which tend to impeach the credibility of testifying witnesses, but not exonerated or unfounded ones, which do not (see People v Montgomery, 74 Misc 3d 551 [Sup Ct, NY County 2022]; People v Randolph, 69 Misc 3d 770 [Sup Ct, Suffolk County 2020]; Castellanos, 72 Misc 3d at 374; Edwards, 74 Misc 3d 433; People v Barralaga, 73 Misc 3d 510 [Crim Ct, NY County 2021]; People v McKinney, 71 Misc 3d 1221[A], 2021 NY Slip Op 50456[U] [Crim Ct, Kings County 2021]).^[FN7]

Insofar as the People argue that Giglio disclosure letters, summarizing disciplinary matters, would alone satisfy their obligations under article 245 (see e.g. People v Akhlaq, 71 Misc 3d 823 [Sup Ct, Kings County 2021]), this court finds that they must turn over the underlying documents, unfiltered through the prosecutor's eyes (see Matter of Jayson C., 200 AD3d at 449; Rodriguez, 77 Misc 3d at 25; Hamizane, 80 Misc 3d 7; People v Guzman, 77 Misc 3d 1223[A], 2023 NY Slip Op 50023[U] [Crim Ct, NY County 2023]).

As to the redactions in the materials turned over, those that are small and clear from the surrounding context that they are information such as police officers' cell phone numbers or email{**81 Misc 3d at 874} addresses, or the names of other officers or victims, they are undoubtedly protected or at least properly withheld (see People v Winston, 78 Misc 3d 1201[A], 2023 NY Slip Op 50130[U], *8-9 [Crim Ct, Bronx County 2023]; CPL 245.20 [6]; Public Officers Law § 89 [2-b], [2-c]). The complete subject matter of the large redacted blocks, however, cannot be readily discerned. The People might have relied in good faith on the NYPD's redactions, but they cannot be a sieve through which those edits pass; at the very least, the People must examine the information themselves to determine whether it was appropriately blacked out, and proceed from there by way of disclosure or application to the court. Because the People held a good-faith position that the material was not discoverable, though, the COC should not be invalidated (see Rodriguez, 73 Misc 3d at 416).

For the foregoing reasons, the COC dated March 31, 2023, is deemed valid.

[*10]III. Final Issues

Defendant was arraigned on January 2, 2023. The case was adjourned to January 11, 2023, for a supporting deposition and COC. The People are charged nine days.

On January 11, 2023, the People filed and served a supporting deposition, the complaint was deemed an information, and the case was adjourned to February 22, 2023, for COC. The People are charged 42 days for that adjournment, for a total of 51 days.

On February 22, 2023, defendant was absent, a bench warrant was stayed, and the case was adjourned to March 8, 2023. No time is charged to the People for that adjournment.

On March 8, 2023, the case was adjourned to May 17, 2023, for COC. The People filed and served a COC and statement of readiness off calendar on March 31, 2023, which tolled their time. The People are charged 23 days for the period from March 8 to 31, 2023, for a total of 74 days.

On May 17, 2023, the court set a motion schedule and the case was adjourned for decision to July 24, 2023, as subsequently rescheduled to October 31, 2023. The People are charged zero days for those adjournments.

Based on the foregoing, the People are charged with 74 days of delay, which is within the statutory period under CPL 30.30. Accordingly, defendant's motion to dismiss the accusatory instrument pursuant to CPL 30.30 is denied.{**81 Misc 3d at 875}

The branch of defendant's motion for a Wade/Crews hearing is granted.

The branch of defendant's motion to preclude the introduction at trial of any evidence of his prior convictions or bad acts under Sandoval/Ventimiglia is referred to the trial court.

"(ii) If the electronically created or stored information originates from a device, account, or other electronically stored source that the prosecution believes the defendant owned, maintained, or had lawful access to and is within the possession, custody or control of the prosecution or persons under the prosecution's direction or control, the prosecution shall provide a complete copy of the electronically created or stored information from the device or account or other source.

"(iii) If possession of such electronically created or stored information would be a crime under New York state or federal law, the prosecution shall make those portions of the electronically created or stored information that are not criminal to possess available as specified under this paragraph and shall afford counsel for the defendant access to inspect contraband portions at a supervised location that provides regular and reasonable hours for such access, such as a prosecutor's office, police station, or court.

(iv) This paragraph shall not be construed to alter or in any way affect the right to be free from unreasonable searches and seizures or such other rights a suspect or defendant may derive from the state constitution or the United States constitution. If in the exercise of reasonable diligence the information under this paragraph is not available for disclosure within the time period required by subdivision one of section 245.10 of this article, that period shall be stayed without need for a motion pursuant to subdivision two of section 245.70 of this article, except that the prosecution shall notify the defendant in writing that such information has not been disclosed, and such disclosure shall be made as soon as practicable and not later than forty-five calendar days before the first scheduled trial date, unless an order is obtained pursuant to section 245.70 of this article."

"If in the exercise of reasonable diligence the prosecutor has not formed an intention within the time period specified in subdivision one of section 245.10 of this article that an item under this subdivision will be introduced at trial or a pre-trial hearing, the prosecution shall notify the defendant in writing, and the time period in which to designate items as exhibits shall be stayed without need for a motion pursuant to subdivision two of section 245.70 of this article; but the disclosure shall be made as soon as practicable and subject to the continuing duty to disclose in section 245.60 of this article."

"If in the exercise of reasonable diligence, and due to the limited availability of transcription resources, a transcript is unavailable for disclosure within the time period specified in subdivision one of section 245.10 of this article, such time period may be stayed by up to an additional thirty calendar days without need for a motion pursuant to subdivision two of section 245.70 of this article; except that such disclosure shall be made as soon as practicable and not later than thirty calendar days before the first scheduled trial date, unless an order is obtained pursuant to section 245.70 of this article. When the court is required to review grand jury transcripts, the prosecution shall disclose such transcripts to the court expeditiously upon receipt by the prosecutor, notwithstanding the otherwise-applicable time periods for disclosure in this article."