The defendant moves to invalidate the People's certificate of discovery compliance (CPL 245.50 [1]) and to dismiss on speedy trial grounds (CPL 170.30 [1] [e]; 30.30). At issue is whether the People have provided all evidence and information required pursuant to CPL 245.20 (1) (k).

CPL Article 240 was repealed effective January 1, 2020 and replaced by CPL Article 245 (see L 2019, ch 59, part KKK, § 1). For the first time, New York tied speedy trial and discovery together. The newly enacted CPL Article 245 requires that "automatic discovery" (CPL 245.20) be completed before the People can announce their readiness for trial (CPL 245.50 [3]; 30.30 [5]). CPL 245.20 (1) provides a non-exhaustive list of the items the People must disclose (People v Soto, 72 Misc 3d 1153, 1155 [Crim Ct, NY County 2021]; People v Pennant, 73 Misc 3d 753 [Nassau Dist Ct 2021]). At issue here is the People's statement of readiness based on a COC alleging they have turned over all discoverable material, yet only supplying defense with summary letters for police disciplinary records.

Under the automatic discovery statute (CPL 245.20 [1]), the term "summary" is only mentioned twice: (1) under expert opinion evidence, the People are required to disclose "a written statement of the facts and opinions to which the expert is expected to testify and a [*2]summary of the grounds for each opinion" (CPL 245.20 [1] [f]) (emphasis added); and (2) the People are required to disclose "[a] summary of all promises, rewards and inducements made to, or in favor of, persons who may be called as witnesses, as well as requests for consideration by persons who may be called as witnesses and copies of all documents relevant to a promise, reward or inducement" (CPL 245.20 [1] [i]) (emphasis added).

CPL 245.20 (1) (k) does not mention the term "summary" but states clearly and unequivocally "[a]ll evidence and information." If the legislature intended police department disciplinary records to be turned over by the prosecution as summaries, this language would have been used but such language was expressly left out. In other words, the legislature clearly intended "all evidence and information" to mean exactly what it says. "As the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof" (People v Roberts, 31 NY3d 406, 418 [2018]; People v Golo, 26 NY3d 358, 361 [2015]; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998]; see also People v Ryan, 82 NY2d 497, 502 [1993]).

CPL article 245 was enacted to expedite and simplify the discovery process. It is a statute of openness and undoubtedly disclosure. It was designed to set a standard of uniform discovery across different jurisdictions and remove the discretion of the parties in determining what types of items to disclose. The statute also provides a statutory mechanism by way of a protective order when a party wishes to withhold discovery. Through these reforms, discovery was deemed "automatic," meaning the parties are required to turn over the information without application (formerly a demand) or motion from the other party.

The only appellate courts specifically applying CPL 245.20 (1) (k) (iv) are Matter of Jayson C (200 AD3d 447, 449 [1st Dept 2021]) and now People v Rodriguez (Misc 3d, 2022 NY Slip Op 22393 [App Term, 1st Dept 2022]), and both decisions incorporate the same presumption of openness. In Matter of Jayson C, the First Department held that in juvenile delinquency proceedings, the use of "disclosure letters" pertaining to NYPD disciplinary records violated the equal protection clause and, applying CPL 245.20 (1) (k) (iv), that respondent was entitled "all impeachment evidence" — the same impeachment material as defendants in criminal cases (id.). In other words, Matter of Jayson C holds that the plain text meaning of CPL 245.20 (1) (k) (iv) requires the People to disclose all underlying information relating to the misconduct of their police witnesses; mere summaries are not sufficient (People v Spaulding, 75 Misc 3d 1219[A], 2022 NY Slip Op 50544[U], *2 [Crim Ct, Bronx County 2022]; People v Polanco-Chavararria, 74 Misc 3d 120[A], 2021 NY Slip Op 51297[U] [Rockland County Ct 2021]; see also People v Alvia, 76 Misc 3d 704 [Crim Ct, Bronx County 2022]).

In People v Rodriguez, the People filed a COC and statement of readiness off-calendar without disclosing impeachment evidence required by CPL 245.20 (1) (k) (Misc 3d, 2022 NY Slip Op 22393 [App Term, 1st Dept 2022]). Subsequently, after defense objection to their readiness, the People disclosed civil lawsuits against testifying officers. The court invalidated the COC because "the People failed to provide relevant records to defendant, including underlying impeachment materials pursuant to CPL 245.20 (1) (k)" citing to Matter of Jayson C. Both appellate decisions apply CPL 245.20 (k) through a lens of open disclosure and mandate that underlying impeachment material is discoverable. In kind, published criminal court decisions have shown an inclination to require the disclosure of all underlying documents, not mere [*3]summaries written by the prosecution.^[FN1]

The People argue that CPL 245.20 (1) (k) is a developing area of caselaw, and they rely in good faith on court decisions that limit their discovery obligations to disciplinary record summaries. The trial-level decisions that support withholding underlying records do nothing to negate that the legislature codified a presumption of openness (CPL 245.20 [7]): "There shall be a presumption in favor of disclosure when interpreting sections 245.10 and 245.25, and subdivision one of section 245.20, of this article" (see People v Porter, 71 Misc 3d 187 [Crim Ct, Bronx County 2020]; People v Georgiopoulos, 71 Misc 3d 1215[A], 2021 NY Slip Op 50380[U] [Sup Ct, Queens County 2021]). Whenever there is any debate about turning over a piece of material, the legislature explicitly instructed the People to presume the material is discoverable. The People continue to ignore that presumption as a matter of policy, despite routinely having discoverable items in their actual and constructive possession.

"[T]he prosecutor's obligations to provide discovery under the current statutes are so broad as to virtually constitute 'open file' discovery, or at least make 'open file' discovery the far better course of action to assure compliance. Thus, a prosecutor who fails to engage in 'open file' discovery (except for 'work product' and information subject to a protective mandate of a statute or court order) may do so at his or her professional peril while also jeopardizing the viability of a prosecution" (William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, CPL 245.10; see also Sozoranga-Palacios, 2021 NY Slip Op 51036[U]; Williams, 2021 NY Slip Op 50743[U]; Soto, 72 Misc 3d at 1153).

It is well settled that "[t]he prudent prosecutor will resolve doubtful questions in favor of disclosure" (United States v Agurs, 427 US 97, 108 [1976], quoting Kyles, 514 US at 419; People v Portillo, 73 Misc 3d 216 [Sup Ct, Suffolk County 2021]). The Kyles Court went on to state:

"Such disclosure will serve to justify trust in the prosecutor as 'the representative ... of a sovereignty ... whose interest ... in a criminal prosecution is not that it shall win a case, but that justice shall be done.' And it will tend to preserve the criminal trial, as distinct from the prosecutor's private deliberations, as the chosen forum for ascertaining the truth about criminal accusations. The prudence of the careful prosecutor should not therefore be discouraged" (514 US at 439-440) (internal citations omitted).

Whether something is potential impeachment material is not for the People, the NYPD or the CCRB to determine, but rather for defense counsel:

"As the Court of Appeals has long recognized, the best judge of the impeachment value of evidence is the 'single-minded counsel for the accused' (People v Rosario, 9 NY2d [*4]286, 290, cert denied 368 US 866 [1961] . . . . To permit the single-minded counsel for the accused to be permitted only to see filtered allegations of misconduct impinges on counsel's ability to represent the accused. That is not what the Legislature intended" (People v Edwards, 74 Misc 3d 433, 443-444 [Crim Ct, NY County 2021]) (citations omitted).

Applying this logic, it bears no consequence on the People's discovery obligation whether a disciplinary record is substantiated, unsubstantiated, or exonerated. Disciplinary records listed in LEOW summary letters are created after NYPD investigates the alleged misconduct of its own officers, or after the Civilian Complaint Review Board (CCRB) conducts an investigation. The results of the NYPD or CCRB investigations in-and-of-themselves are not the final determination on whether the underlying records "tend to impeach" a witness. The "single-minded counsel for the accused" must review the material and prepare whatever impeachment argument available based on the individual records, and the admissibility of impeachment is ultimately decided by a trial court; "to hold otherwise conflates discovery with admissibility at hearing or trial" (People v. Pennant, 73 Misc 3d 753 [Nassau Dist Ct 2021]).

The court will not be bound by civilian terms of art such as "unfounded, substantiated, or unsubstantiated" nor give those labels full legal weight to withhold underlying records from the discovery process. Likewise, the legislature did not enact CPL 245.20(1)(k) with the proviso that only founded or substantiated claims of police misconduct, as determined by a civilian agency or the NYPD, should be discoverable. The statute is clear and unambiguous: "tends to impeach" is the only requirement for CPL 245.20(1)(k) material; categorically, disciplinary records of testifying witnesses "tend to impeach", and whether the individual records ultimately do or do not impeach is for litigation outside the discovery statute.

Providing mere summaries of police disciplinary records — that is, omitting the actual records themselves — cannot satisfy the requirements of CPL 245.20 (1) (k). The underlying records may consist of testimonial evidence, exhibits, reports by investigative agencies and other types of material necessary for defendant to properly prepare their cross-examination and impeachment of the People's witness. Whether substantiated or unsubstantiated, all disciplinary records must be turned over to the defense and the People are without authority to determine unilaterally, by themselves, what "tends to" or does not tend to go towards the impeachment of a witness. Disclosure of such records must be automatic, absolute and without redaction, adulteration, or censorship by the People, except as allowed in CPL 245.20 (6)^[FN2] . Anything short of full disclosure without a protective order would amount to a subjective determination by the parties as to what should be turned over. This is contrary to the automatic disclosure requirements and the purpose of the reformed discovery statute.

The "filing of the certificate of compliance pursuant to CPL 30.30 (5)" cannot "be deemed complete until all of the material and information identified in the certificate as subject to discovery and electronically shared with the defendant was actually produced to the defendant, pursuant to CPL 245.50 (1) and (3)" (People ex rel Ferro v Brann, 197 AD3d 787, 788 [2d Dept 2021], lv denied 38 NY3d 909 [2022]) (emphasis added).

The People maintain their reliance on trial level case-law stating that underlying police disciplinary records are not included in CPL 245.20 (1) (k), and do not address the appellate decisions from Matter of Jayson C and Rodriguez. In the People's COC filed on September 29, 2022, the People certified that they were aware of eleven officers who participated in the defendant's arrest, and yet only turned over disciplinary record summaries for two officers. The People were silent in their COC as to whether disciplinary records existed for the remaining officers. In response to a defense inquiry into the other officers' records, the People emailed a paralegal requesting additional LEOW letters, which then produced the missing additional summaries.

This single email, without any other supporting efforts or reasoning, is not proof of "due diligence" to obtain even a summary of police disciplinary records. The People only state that the disciplinary summaries for the two officers in the September 29th COC were "all the material the People had in their actual possession." There is no indication as to where the outstanding information came from, how it was eventually obtained, and why there was a delay. An account of what steps the People took, if any, to obtain the material is exactly the subject matter the legislature intended to leave to a court's individual discretion when determining "due diligence." Without such information, there is no basis for the court to draw a conclusion of "due diligence" based on a single email sent after the COC was already filed.

The court is aware of the extensive discovery obligations in the new statutory framework and how these demands create new challenges for the People when trying to fulfill their duties. Nevertheless, it is not the courts' role to set aside the direct language of CPL 245.20 (1) (k) and apply an artificially restrictive reading just to avoid potentially cumbersome discovery challenges for the People. The courts cannot apply the discovery statue in a limiting way simply because the People may not yet possess the experience, manpower or resources required to meet their lawful discovery obligations. The Constitutional and statutory rights of a defendant (and his or her capabilities to defend themselves in a criminal prosecution) cannot be arbitrarily limited or diminished simply because the prosecution has logistical challenges when fulfilling the requirements of the discovery process.

The court must give full effect to the statute as it is written, especially when the legislature has already considered the potentially burdensome effect of discovery and has built in a specific framework for any instance when a prosecutor requires more time to comply with their obligations. Whenever the People have conducted diligent and reasonable inquiries to obtain discoverable material, and yet for whatever reason have not actually acquired them within their 35-day and additional 30-day deadline, they may apply to the court for a good cause extension pursuant to CPL 245.70 (2). "By following the prescribed procedure and upon the granting of the motion the People would get additional time to disclose these hard-to-obtain items without penalty" (People v Adrovic, 69 Misc 3d 563, 130 NYS 3d 614 [Crim Ct Kings County 2020]).

The People state that they disclosed "all the material the People had in their actual possession" despite other material being outstanding. If, for whatever reason, the additional disciplinary material was more difficult to get, the People had the opportunity to request more time pursuant to CPL 245.70 (2), but instead chose to unilaterally withhold the material and maintain categorically that underlying records are not discoverable.

Disciplinary records are kept by NYPD on all officers. CPL 245.20 (2) states that what [*5]the police possess, the District Attorney possesses.^[FN3] Further, CPL 245.55 requires the "district attorney and the assistant responsible for the case":

"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, including, but not limited to, any evidence or information discoverable under paragraph (k) of subdivision one of section 245.20 of this article."

The logistics of when a prosecutor physically receives the disciplinary records from the NYPD is not considered by the discovery statute. The legislature made certain to codify the exact opposite inference: that a prosecutor's office and law enforcement are to be considered as one for any discovery material. Given the reality that production of these documents depends on the sharing of information between two law enforcement agencies, the legislature allowed the People to request more time to fulfill their obligations, as long as they proactively request additional time from the court, after establishing good cause (CPL 245.70 [2]).

This is not a case where the People were awaiting discovery, reviewing recently received discovery or mistakenly withheld information in good faith; nor is this a situation of inadvertent failure to disclose discovery. Rather, here, the People had a list of officers participating in the defendant's arrest and knowingly failed to disclose discoverable impeachment material in their constructive possession without leave of the court or a protective order, demonstrating a blatant disregard for the disclosure requirements of the statute.

This Court holds that when the People have actual possession or are statutorily presumed to be in possession of police officer disciplinary records, including the underlying documentation, and they willfully elect not to disclose that information then they cannot be deemed in compliance with their discovery obligations and any corresponding certificate of compliance must be invalidated. Accordingly, defendant's motion to invalidate the certificate of compliance filed in this case is granted.

The defendant moves to dismiss pursuant to CPL 170.30 (1) (e) on the ground that he has been denied his right to a speedy trial (CPL 30.30). The top count the defendant is charged with is an unclassified misdemeanor therefore, the People have 90 days from the commencement of the criminal action to be ready for trial (CPL 30.30 [1] [b]; People v Cooper, 98 NY2d 541, 543 [2002]; People v Cook, 30 Misc 3d 134[A], 2011 NY Slip Op 50084[U] [App Term, 9th & 10th Jud Dists 2011]).

The criminal action commenced on July 17, 2022 with the filing of the accusatory instrument, not arraignment (CPL 1.20 [17]; 100.05; People v Cooper, 98 NY2d at 543; People v Abdullah, 133 AD3d 925 [3d Dept 2015], lv denied 27 NY3d 990 [2016]).

"[O]nce a defendant has shown the existence of an unexcused delay greater than [90 days], the burden of showing that time should be excluded falls upon the People" (People v Barden, 27 NY3d 550 [2016], quoting People v Santos, 68 NY2d 859, 861 [1986]; see People v Santana, 80 NY2d 92, 105 [1992]):

"Generally, the burden is on the People to establish their entitlement to exclude any pre-readiness delays from the calculation under a CPL 30.30 motion and the burden is on a defendant to prove that any post-readiness delays that directly implicate the People's ability to proceed with trial are chargeable to the People, unless the People failed to satisfy their burden to ensure that the record is sufficiently clear as to who is chargeable for an adjournment" (People v Robinson, 67 AD3d 1042 [3d Dept 2009], citing People v Cortes, 80 NY2d 201, 210, 215-216 [1992]).

The People cannot be deemed ready for trial without a valid certificate of compliance (CPL 245.50 [3]). Until the People have fully complied with their discovery obligations, any certificate or statement of readiness is invalid. The COC and statement of readiness filed on September 29, 2022 are invalid for the aforementioned reasons. Without a proper COC on file, the speedy trial clock continued to run until defense filed their motion to dismiss on December 1, 2022.

The court finds 137 days included in speedy trial calculations which exceed the 90-day limit pursuant to CPL 30.30 (1) (b). Accordingly, the defendant's motion to dismiss is granted.

IT IS SO ORDERED. The clerk is directed to enter this order.