Defendant Amaury Guzman, charged with two counts of Operating a Motor Vehicle While Intoxicated [V.T.L. §§ 1192(2) and (3)] and one count of Criminal Possession of a Controlled Substance in the Seventh Degree [P.L. § 220.03], and related charges moves to dismiss the accusatory instrument pursuant to CPL 30.30(1)(b) and 170.30(1)(e) contending that the prosecution's certificate of compliance and statement of readiness dated August 19, 2022 were invalid. For the reasons that follow, Defendant's motion is GRANTED.

Mr. Guzman was arrested on May 27, 2022 for Operating a Motor Vehicle while Intoxicated. It was also alleged that he possessed cocaine in his wallet. The case was arraigned on May 28, 2022, the complaint deemed an information, and adjourned to July 13, 2022 for trial.

On July 13, 2022, the People were not ready for trial and the case was adjourned for trial to August 18, 2022.

On August 18, 2022, The People were not ready for trial and the case was adjourned for trial to September 13, 2022.

On August 19, 2022, off-calendar, the People filed a certificate of compliance (COC) and certificate of readiness (COR).

On September 11, 2022, Defendant filed an omnibus motion off-calendar.

On September 13, 2022, the matter was adjourned for the People to file a response to defense motions and for the Court's decision to September 28, 2022.

On September 23, 2022, off-calendar, Defendant filed the instant motion to deem the People's COC invalid and dismiss the information pursuant to CPL 30.30.

On September 28, 2022, the Court set a schedule for the People to respond to defense motions and Defendant to reply, and adjourned the case for decision to November 16, 2022. On October 13, 2022, off-calendar, the People filed a response. On October 26, 2022, off-calendar, Defendant filed a reply.

On November 16, 2022, the Court adjourned the matter for decision to December 5, 2022. On December 5, 2022, the Court adjourned the matter for decision to January 11, 2023.

Mr. Guzman argues that the People's COC dated August 19, 2022 is invalid because the People have failed to disclose the underlying records relating to substantiated and unsubstantiated allegations of police misconduct for their two testifying police officers, and only disclosed this information in summary form, contained within a Disclosure Advisory Form, or "DAF." He also objects to the People's use of abbreviated terms in the DAF which are not accompanied by any explanation of these terms, depriving Defendant of the ability to make use of this information.

The People contend that they have acted reasonably and complied in good faith in making the discovery disclosures they believed they were obligated to make. They argue that CPL 245.20(1)(k) does not require the People to disclose all underlying police misconduct records, and that the production of these records would be far too onerous and burdensome for the People, and impose an "insurmountable burden on police departments, prosecutors and the criminal justice system" rendering criminal prosecution "utterly impossible for the hundreds of thousands of criminal acts committed in New York state each year."^[FN1]

Pursuant to CPL 245.20(1), 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..." CPL 245.20(1). The statute also requires the prosecutor to "make a diligent, good faith effort to ascertain the existence of material or information discoverable under subdivision one of this section 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;" CPL 245.20(2).^[FN2]

Pertinent to the instant case, CPL 245.20(1)(k) requires that the prosecution disclose: "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; (2) 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 a 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 recorded in tangible form and irrespective of whether the prosecutor credits the information." CPL 245.20(1)(k) (emphasis added).

Once the prosecution has provided discovery, they "shall serve upon the defendant and file with the court a certificate of compliance" which "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 [*2]information subject to discovery." CPL 245.50(1).^[FN3]

CPL 245 also addresses situations where a party claims that certain materials are not discoverable. Pursuant to CPL 245.10(1)(a): "Portions of materials claimed to be nondiscoverable may be withheld pending a determination and ruling of the court under section 245.70 of this article; but the defendant shall be notified in writing that information has not been disclosed under a particular subdivision of such section, and the discoverable portions of such materials shall be disclosed to the extent practicable."^[FN4]

In this case, the dispositive issue for this Court is whether the People's discovery disclosures relating to evidence and information tending to impeach prosecution witnesses are in compliance with CPL 245.20(1)(k). At the heart of this inquiry is whether or not the People's Disclosure Advisory Form, or "DAF" satisfies the People's disclosure mandate.

In this case, the Court finds that the People are not in compliance with their obligation under CPL 245.20(1)(k) to provide evidence and information that tends to impeach their testifying witnesses. The People disclosed to the Defense two DAF's containing summarized information for both substantiated and unsubstantiated misconduct allegations for their two testifying police officers.^[FN5] The DAF also contained information labeled "redacted by DANY." No underlying records accompany the People's disclosures.

This Court has previously held ^[FN6] and holds that the DAF does not satisfy the statutory requirement. The DAF is a District Attorney-generated document containing the Assistant District Attorney's summary of its own review of misconduct materials relating to its testifying police officer witnesses. The People have not provided any underlying records or materials that relate to allegations of misconduct for the two testifying police officers in this case, whether for substantiated or unsubstantiated allegations. This Court does not believe such a skeletal disclosure is what the legislature intended when it enacted CPL 245.20(1)(k).

Although decisional law on this issue is still unsettled, and the Court acknowledges very little appellate authority on this issue,^[FN7] this Court agrees with recent decisions holding that the People must disclose all underlying documents relating to substantiated police misconduct [*3]allegations, and accompanying disciplinary records, see, People v. Randolph, 69 Misc 3d 770 (Sup. Ct. Suffolk Co., Sept.15, 2020); People v. Porter, 71 Misc 3d 187 (Crim. Ct. Bx. Co., November 4, 2020); People v. Ozzie Williams, 2021 NY Slip. Op. 50743 (U) (Crim. Ct. NY Co., July 30, 2021, Rosenthal, J.), as well as unsubstantiated misconduct allegations, see, People v. Kelly, 71 Misc 3d 1202(A) (Crim. Ct. NY Co. Mar.19, 2021, Gaffey, J.); People v. Perez, 71 Misc 3d 1214(A) (Crim. Ct. Bx. Co., April 8, 2021); People v. Castellanos, 72 Misc 3d 371 (Sup. Ct. Bx. Co., April 30, 2021); People v. Edwards, 74 Misc 3d 433 (Crim. Ct. NY Co., October 8, 2021, Weiner, J.); People v. Darren, 75 Misc 3d 1208(A) (Crim. Ct. NY Co. May 19, 2022, Rosenthal, J.) and not just a summary of misconduct allegations. This school of thought is based on the premise that whether police misconduct allegations are substantiated, or unsubstantiated due to a lack of evidence, such information would tend to impeach the credibility of a testifying police witness. Since the credibility of a testifying witness always relates to the subject matter of a case, this Court is of the opinion that the information is discoverable.

Yet what is contained in the DAF filed by the People is a short summary, with no underlying documents or records. It also contains several abbreviated terms and does not provide any guidance for interpreting these terms, making it difficult for the Defense to use the information. Since the actual underlying records are not disclosed, the limited information provided in the DAF is essentially being filtered through the prosecutor's lens. As this Court ^[FN8] and other recent courts have held, this disclosure is insufficient and does not comply with the statute. See also, People v. Goggins, 76 Misc 3d 898 (Crim. Ct. Bx. Co., September 6, 2022); People v. Best, 76 Misc 3d 1210(A) (Crim. Ct. Queens Co., September 13, 2022).

The People are not the final arbiters of what is discoverable. Rather, the People are required to automatically disclose evidence and information and where there is uncertainty, there is a presumption in favor of disclosure.^[FN9] In the alternative, the People may move for a protective order or otherwise seek a court ruling following a court's in camera review of any materials for which they believe there exists good cause to redact or withhold. However, the People, yet again, did not avail themselves of the tools provided by statute.

Although the People are free to take a position as to what they believe they are required to disclose, a decision on their part to withhold or redact potentially discoverable materials is made at their peril, and is not without potential consequences, including dismissal. See, Best, supra at *7 (Information dismissed as court holds that People's unilateral redacting of law enforcement information without leave of court and selective withholding of disciplinary records they deem irrelevant to impeachment are not proper determinations for the People to make).

Moreover, the Court notes that although the legislature has provided a framework for the issuing of sanctions for discovery violations, such sanctions are intended for belated disclosures and not for a complete failure to disclose information.^[FN10] Accordingly, there is no need to analyze whether Defendant was prejudiced, and no sanctions are warranted in this case where [*4]the People did not merely belatedly disclose impeachment materials, but failed to disclose these materials at all.

For the reasons stated herein, the People's COC dated August 19, 2022 is invalid. Since the People must file a valid COC prior to validly stating ready for trial, their statement of readiness on that same date must also be invalidated.

Mr. Guzman is accused of a class A misdemeanor. Accordingly, the People are required to be ready for trial within 90 days from the commencement of the criminal action, less any excludable time. CPL 30.30(1)(b).

Although commencement of a criminal action begins at the arraignment, computation for speedy trial purposes begins on the next day. People v. Stiles, 70 NY2d 765 (1987). Once a defendant has alleged that an excess of the allowable time has elapsed, the burden shifts to the People to demonstrate whether any periods are to be excluded from the calculation, such that the allowable time has not elapsed. People v. Santos, 68 NY2d 859 (1986); People v. Berkowitz, 50 NY2d 333 (1980).

Defendant argues that at least 105 chargeable days have elapsed since the commencement of the case. The People contend that only 83 chargeable days have elapsed.

The Court makes the following calculations with respect to each adjournment:

The case was arraigned, and the accusatory instrument deemed an information. The matter was adjourned for trial. Both sides agree this period is chargeable. 46 days charged.

The People were not ready for trial and the case was adjourned again for trial. Both sides agree this period is chargeable. 36 days are charged.

The People were not ready for trial and the matter was adjourned once more for trial. The People's COR filed on August 19, 2022 is invalidated in accordance with this decision. Accordingly, it did not toll the speedy trial clock. On September 11, 2022, Defendant filed an omnibus motion, which tolled the speedy trial clock as of that date, pursuant to CPL 30.30(4)(a). Thus, during this period, 23 days are charged.

The case was adjourned for the People's response to Defense motions and for the Court's decision. On September 23, 2022, Defendant filed a motion to dismiss the information. This period is excludable. CPL 30.30(4)(a). 0 days are charged.

The Court set a schedule for the People to respond to defense motions and for Defendant to reply. The matter was adjourned for decision. Both sides agree this period is excludable. CPL 30.30(4)(a). 0 days are charged.

The motions were still under consideration by the Court. The Court adjourned the matter for its decision. These periods are excludable. CPL 30.30(4)(a). 0 days are charged.

The Court finds that a total of 105 chargeable days have elapsed since the commencement of the case, which exceeds the allowable time for the People to be ready for trial pursuant to CPL 30.30(1)(b). Defendant's motion is therefore granted and the information is [*5]dismissed.

This opinion constitutes the decision and Order of the Court.