By Notice of Motion dated January 18, 2023, Defendant Sellie moved this Court for an order pursuant to CPL Art. 245, Art. 255, and CPL § 30.30 dismissing the charges filed against him. In the alternative, Defendant Sellie seeks an order pursuant to CPL § 245.20(1)(f) precluding the testimony of People's expert witness, Dr. Sikirica, as being untimely disclosed. Defendant Sellie also seeks an order of this Court pursuant to CPL § 210.20(1)(b) and Penal Law § 10.00(9) and (10) dismissing Count One of the Indictment as being insufficient as a matter of law. Defendant Sellie's motion is supported by the Affirmation of Andrew R. Safranko, Esq., sworn to on January 18, 2023, with attached exhibits.

By Notice of Motion dated January 25, 2023, Defendant Bruce moved this Court for an Order pursuant to Criminal Procedure Law §210.20(1) and §210.35(1) seeking a dismissal of Counts Three and Four of the Indictment charging the defendants with Official Misconduct in violation of §195.00(2). Here, the defendant asserts that the grand jury proceeding was defective as a result of inadmissible and prejudicial testimony and evidence which allegedly impaired the integrity of the grand jury to the degree that prejudice to the defendant may have resulted. Defendant Bruce also seeks an order of this Court an Order, pursuant to Criminal Procedure Law Article 245, 255, and CPL § 30.30 dismissing the Indictment on the grounds that the original filed Certificate of Compliance and Statement of Readiness by the People illusory and claiming that the prosecution is untimely. Finally, Defendant Bruce also seeks an order of this Court, pursuant to Criminal Procedure Law §245.20(l)(f), precluding the testimony of Dr. Sikirica as [*2]being untimely disclosed. Defendant Bruce's motion is supported by a January 25, 2023, Affirmation of Peter J. Moschetti, Jr., Esq., and supporting exhibits.

Both defendants have joined in the other's respective motion.

The People have responded to the defendants' motions by Affirmation of Assistant District Attorney Amy E. Burock dated February 3, 2023, with attached exhibits. Here, the People assert that the defendants have engaged in dilatory tactics in bringing this motion, and the Court should strike the defendants' motion seeking to invalidate the People's Certificate of Compliance and Statement of Readiness. In the alternative, the People assert that, even if this Court considers the defendants' motion, the motion must be denied because the documents were not in the People's actual or imputed possession, custody, or control, and that they diligently worked to obtain the documents and information, which was disclosed promptly upon obtaining the information and documentation. The People also assert, through a detailed account of their disclosure, that they have made good faith, diligent efforts to obtain and disclose the discoverable evidence, information, and documentation. Defendant Sellie filed a Responsive Affirmation of Andrew R. Safranko, Esq., dated February 6, 2023. With respect to the People's assertion that certain items were not in their actual or imputed possession, custody, or control, Defendant Sellie asserts that "they ignore the letter from December 11, 2020, which proves the government had in its possession discoverable material that was otherwise not provided. See Motion Exhibit C." [Safranko 02/06/23 Responsive Affirmation].

This Court has reviewed and considered the above stated affirmations and attached exhibits and the respective parties' legal arguments contained in the parties' memoranda of law. Neither party has requested oral argument or a hearing on the motions.

On or about November 9, 2020, Defendant Sellie allegedly assaulted John Marrarino while he was in custody of the Schenectady County Sheriff's Department. On or about November 17, 2020, Defendant Eugene Sellie was charged by felony complaint with the crime of Assault in the Second Degree [Penal Law § 120.05(1)] and by Misdemeanor Information on with the crime of Official Misconduct [Penal Law § 195.00(2)]. The defendant was arraigned in the Schenectady City Court on November 17, 2020. [Safranko Affirmation ¶5]. Between November 19 and December 8, 2020, the case was presented to the Schenectady County Grand Jury. On or about January 12, 2021, the Grand Jury returned indictment A-1120-12, charging Defendant Sellie with two (2) counts of Assault in the Second Degree (PL §§ 120.05[1], [2]) and two (2) counts of Official Misconduct (PL §§195.00[2]. Defendant Bruce was charged with two (2) counts of Official Misconduct (PL §§195.00[2].

Defendant Sellie was arraigned on the indictment on or about January 25, 2021. Defendant Bruce was arraigned on the Indictment on April 12, 2021. At the defendants' respective arraignments, the People filed their Certificates of Compliance asserting that they had provide all material possessed by our office defined as discoverable pursuant to CPL Article 245, and asserted their readiness for trial. [Burock Affirmation ¶ 10]. On or about February 24, 2021, the Defendant Sellie made a request for a Bill of Particulars. The People filed a response to the Defendant's Request for a Bill of Particulars on March 8, 2021, and supplemented their response on August 8, 2022. Defendant Sellie filed his omnibus motion on March 12, 2021. In their omnibus motion, Defendant Sellie asserted that the People had never provided a Bill of [*3]Particulars. [Safranko 1/18/23 Affirmation, Ex. 1, ¶ 13].

On April 4, 2021, this Court issued its Decision and Order on the omnibus motion, which scheduled a Huntley Hearing at the defendants' request for May 11, 2021. On June 14, 2021, Defendant Bruce filed his omnibus motion, and the People filed their Response on June 21, 2021. This Court issued its Decision and Order on Defendant Bruce's omnibus motion on June 22, 2021. No hearings were scheduled in response to Defendant Bruce's omnibus motion.

At Defendant Sellie's Huntley hearing, the People and defense counsel stipulated that the People would withdraw their CPL 710.30 Notice with respect to Defendant Sellie's alleged statement found in their CPL 710.30 Notice at paragraph No.1, and Defendant Sellie waived the Huntley hearing with respect to his alleged statements in the People's CPL 710.30 Notice at paragraphs #2 and #3.

On February 24, 2021, Defendant Bruce was arrested and arraigned on the sealed indictment. Defendant Bruce's case was adjourned to May 13, 2021, for an appearance after motions. Defendant Bruce filed his omnibus motions on June 14, 2021, and the People responded to that motion on June 21, 2021. This Court issued its Decision and Order on Defendant Bruce's motions on July 1, 2021. No hearings were requested from or granted to Defendant Bruce.

Due to then pending COVID-19 restrictions, the trial of this action could not be scheduled until June of 2022. On June 14, 2022, the Court scheduled the trial of this action for August 29, 2022, as the Covid restrictions had been lifted. During a pre-trial conference held on August 15, 2022, with the parties and Judge Sypniewski's Law Clerk, Stephanie Hughes, she indicated to the parties that Judge Sypniewski would permit the testimony of Dr. Sikirica at trial. In response to the defendants' objections to the timing of our notice regarding the testimony of Dr. Sikirica, Judge Sypniewski agreed to adjourn the trial until February 21, 2023, to allow the defendants an opportunity to investigate a responsive expert. [Burock 2/3/23 Affirmation ¶ 18, Ex.1]. At the August 15, 2022, pre-trial conference in response to defense counsel's allegations of concerns regarding discovery, this Court directed the defendants to file motions as soon as possible. [Burock 2/3/23 Affirmation ¶ 18, Ex.1].

In their motion, the defendants seek an order holding that the People's January 25, 2021, Certificate of Compliance was illusory. The defendants argue that, if this Court holds that the Certificate of Compliance was illusory, then the People have not filed a proper Statement of Readiness pursuant to CPL 30.30, and the charges must be dismissed on speedy trial grounds. Here, the defendants assert that, from July 22, 2022. to October 31, 2022, the People provided or filed (a) six (6) new purported Certificates of Compliance, (b) nine (9) Supplemental Certificates of Compliance, and (c) eighteen (18) emails with CPL §245 discovery items that had not previously been provided to the defendants. More specifically, the defendants assert that, if this court finds that the Certificate of Compliance was illusory, then the period from the defendant's arraignment on January 25, 2021, to July 25, 2021, would constitute the 180-day time period for the People to announce readiness. Defendant Sellie further asserts that, even assuming, that the entire motion period of January 25, 2021, to April 4, 2021, is chargeable to the defense, then CPL § 30.30 would require proper readiness be declared by September 30, 2021. The defendant asserts that, at no time prior to September 30, 2021, did the People indicate there was any outstanding discovery to be provided. Defense counsel asserts that only after 542 days had passed after the defendant's arraignment did the People provided eighteen (18) emails, six (6) Certificates of Compliance, and nine (9) Supplemental Certificates of Compliance from the dates [*4]of July 22 to October 31, 2022.

In response, the People assert that hat the Court should strike defendants' motion to dismiss due to an allegedly illusory declaration of readiness, as they have engaged in dilatory tactics in bringing this motion on the eve of trial [Burock Affirmation ¶ 4]. The People also assert that they have "acted with nothing but good faith and diligence" and that they have provided the "defendants with notice and materials immediately each time we obtained additional items or ascertained that we intend to call additional witnesses [which] demonstrates our good faith, diligence and actual compliance with the mandates of CPL article 245." [Burock Affirmation ¶ 6]. The People also assert, by reviewing their post January 25, 2021, discovery responses and certificates in detail, that the subsequently disclosed materials "were not in the actual or imputed possession of the People until immediately prior to when we turned them over to defendants." [Burock Affirmation ¶ 13]. With respect to any alleged delayed discovery, the People have detailed how, why and when the materials were obtained and then disclosed to the defendants. [Burock Affirmation ¶ 15-29]. Thus, disclosure of the jail call logs did not concern calls made by the defendants. Instead, the call logs merely show that another inmate was in the area was in the area of the jail at or near the time of the alleged attack because he was making a call around the time of the attack. [Burock Affirmation ¶ 15]. The People disclosed this inmate witness in their initial 1/25/21 (Sellie) and April 12, 2021 (Bruce) Certificate of Compliance.

In defense counsel's Responsive Affirmation, Defendant Sellie asserts that regardless of the People's explanations as to various discovery deficiencies as items that were not in their possession, "they ignore the letter from December 11, 2020, which proves the government had in its possession discoverable material that was otherwise not provided. See Motion Exhibit C." [Safranko 2/6/23 Affirmation in Response ¶ 14]. Exhibit C is a response by the Schenectady County Attorney, representing the Schenectady Sheriff's Office, to a subpoena duces tecum from the U.S. Attorney's Office who was investigating this incident.

On January 1, 2020, Article 245 replaced Article 240 of the Criminal Procedure Law. This change was a part of a package of criminal justice reforms intended to, inter alia, expand discovery in criminal cases. Shortly after these changes became effective, several amendments were made to the new law. (See NY Legis 56 (2020), 2020 Session Law News of NY Ch 56 [S 7506-B] Part HHH [McKinney's].)

Pursuant to CPL § 245.20, prosecutors are required to 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 and control." The statute further provides a non-exhaustive list of materials subject to disclosure under this provision. (CPL § 245.20[1].) CPL § 245.10 sets forth a timeline for these disclosures, requiring the People to comply with this automatic discovery obligation within a certain period of time, except in cases with "exceptionally voluminous" discovery materials, where initial automatic discovery may be stayed for an additional thirty days without the need for a motion.

However, the statutory framework of CPL Art. 245 acknowledges that the People may need additional time for disclosing certain types of discoverable documents, exhibits, materials, or information. By way of example, disclosure of grand jury transcripts must be made as soon as [*5]practicable but not later than 30 calendar days before the first scheduled trial date, unless an order is obtained pursuant to § 245.70. [CPL § 245.20 (1) (b)]. Disclosure of expert opinion evidence must be made as soon as practicable but not later than 60 calendar days before the first scheduled trial date unless an order is obtained pursuant to § 245.70. [CPL § 245.20(1)(f)]. Electronically created or stored information ("ESI") must be disclosed as soon as practicable but not later than 45 calendar days before the first scheduled trial date, unless an order is obtained pursuant to § 245.70." [CPL § 245.20(1)(u)(iv)]. Records of inspection, calibration, repair of instruments used to perform scientific tests in Vehicle and Traffic Law cases must be made as soon as practicable and, in any event, the earlier of 15 days following receipt, or 15 days before the first scheduled trial date. [CPL § 245.20(1)(s)]. Reports, documents, records, and data concerning any physical or mental examinations or scientific tests, experiments or comparisons are required to be disclosed only after the testing, experimentation or comparison has been completed. [CPL § 245.20(1)(j)].

In making the People's disclosures, the statute provides that the prosecutor shall make a diligent, good faith effort to ascertain the existence of material or information discoverable under [ CPL § 245.20(1)] and to cause such material or information to be made available for discovery where it exists but is not within the prosecutor's possession, custody, or control; provided that the prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain. [CPL § 245.20(2)]. Moreover, "all items and information related to the prosecution of a charge in the possession of any New York state or local police, or law enforcement agency shall be deemed to be in the possession of the prosecution." [CPL § 245.20(2)]. This "constructive possession" provision must be read together with CPL § 245.55(1), which directs that the "district attorney and the assistant responsible for the case, ... shall endeavor 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...." [CPL § 245.55(1)]. The statute also explicitly dictates that "[t]here shall be a presumption in favor of disclosure" in interpreting Article 245. [CPL § 245.20(7)].

Prior to announcing ready for trial, the People must file and serve a certificate of compliance which states, "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. It shall also identify the items provided." [CPL § 245.50(1)]. Similarly, CPL §30.30(5) requires the Peoples' statement of trial readiness to be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of CPL §245.20.

In exercising their obligation of good faith and due diligence in obtaining discoverable information, Article 245 " shall not require the prosecutor to ascertain the existence of witnesses not known to the police or another law enforcement agency, or the written or recorded statements thereof, under paragraph [c] or [e] of this section" [CPL § 245.20 (2])]. Furthermore, the prosecutor is not required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain. [CPL § 245.20 (2)].

In accordance with these principles, the People's discovery obligations are ongoing and, as a result, should the prosecution learn of additional material or information that it would have been required to disclose pursuant to CPL § 245.20, then the People "shall expeditiously notify [*6]the other party and disclose the additional material and information as required for initial discovery under this article." [CPL § 245.60]. Thus, the "CPL clearly contemplated situations where not every single item of discovery would be turned over prior to the filing of a certificate of compliance, specifically by enacting CPL 245.60, 245.55, and CPL 245.80. CPL 245.60 provides that in the event the prosecution 'subsequently learns of additional material ... which it would have been under a duty to disclose ... it shall expeditiously notify the other party and disclose the additional material and information as required for initial discovery under this article'." People v Henry, 74 Misc 3d 1230(A) [Sup. Ct., Richmond County, 2022].

Where, as here, the defense is aware of a potential defect or deficiency related to a certificate of compliance, counsel must "notify or alert the opposing party as soon as practicable" of the defect. [CPL § 245.50(4)(b). In the event that the discovery dispute cannot be resolved, then motions challenging the validity of the certificate of compliance shall be made as soon as practicable. CPL § 245.50(4)(c). However, the provisions of CPL § 245.50(4) are not to be construed as a waiver of a parties' right to make further challenges, including CPL § 30.30 motions to dismiss.

Contrary to the defendants' position, even after the People have filed their certificate of compliance, they are permitted to file supplemental certificates pursuant to CPL § 245.50(1), when additional discovery is provided "pursuant to section 245.60." [CPL § 245.50(1)]. Pursuant to CPL §§ 245.50(1) and 245.60, the filing of a supplemental certificate of compliance is appropriate where the prosecution "learns of additional material or information which it would have been under a duty to disclose . . . had it known of it at the time of a previous discovery obligation or discovery order." [CPL § 245.60]. "Nowhere within CPL 245 nor within CPL 30.30(5) is there a requirement that the People disclose every discovery item under CPL 245.20(1) prior to filing a COC." People v Pierna, 74 Misc 3d 1072, 1088 [Crim. Ct., Bronx County 2022], quoting, People v. Bruni, 71 Misc 3d 913, 144 N.Y.S.3d 544. See also, People v. Barralaga, 73 Misc 3d 510, 153 N.Y.S.3d 808; People v. Erby, 68 Misc 3d 625, 128 N.Y.S.3d 418; People v. Gonzalez, 68 Misc 3d 1213(A), 2020 WL 4873901; People v Perez, 72 Misc 3d 171 [NY County Supreme Ct. 2021] ("numerous courts have found that belated disclosures should not invalidate a certificate of compliance that was made in good faith after the exercise of due diligence" and that in the Court's view, "good faith, due diligence, and reasonableness under the circumstances are the touchstones by which a certificate of compliance must be evaluated.").

The mere filing of supplemental certificates of compliance, without proof a lack of good faith and/or a lack of due diligence, does not warrant an order invalidating the People's COC and Statement of Readiness. Instead, the courts have held the sanction of invalidating the People's Certificate of Compliance and Statement of Readiness is an "exceptional" and "drastic" remedy which should be used sparingly. See, People v Bruni, 71 Misc 3d 913, 919-20 [Albany County Ct. 2021]; People v. Nelson, 67 Misc 3d 313, 119 N.Y.S.3d 837 [Franklin Co. Ct. 2020]; People v. Santiago [Albany County, McDonough, J., 2020]). The "drastic remedy of eve-of-trial CPL § 30.30 dismissal for after-the-fact COC invalidity should be the exception, not the rule, and should be imposed only in the case of prosecutorial bad faith or unreasonable inaction." People v Marin, 74 Misc 3d 1037, 1046 [Crim. Ct., Bronx County, 2022]; People v Bruni, 71 Misc 3d 913, 920 [NY Co Ct 2021] (Invalidating a certificate of compliance can have devastating speedy trial consequences to the existence of a pending case and, therefore, the People's COC will be invalidated only when they act in bad faith in their discovery obligations).

In fact, numerous courts have found that belated disclosures should not invalidate a [*7]certificate of compliance, provided that the COC was filed in good faith after the exercise of due diligence in attempting to locate discoverable evidence. See, People v. Bruni, 71 Misc 3d 913, 144 N.Y.S.3d 544, 2021 NY Slip Op. 21076 [Albany County Ct. 2021]; People v. Erby, 68 Misc 3d 625, 633, 128 N.Y.S.3d 418 [Sup. Ct. Bronx County 2020]; People v. Gonzalez, 68 Misc 3d 1213(A), *1, 3, 2020 WL 4873901 [Sup. Ct. Kings County 2020]; People v. Knight, 69 Misc 3d 546, 552, 130 N.Y.S.3d 919 [Sup. Ct. Kings County 2020]; People v. Lustig, 68 Misc 3d 234, 247, 123 N.Y.S.3d 469 [Sup. Ct. Queens County 2020]; People v. Randolph, 69 Misc 3d 770, 770, 132 N.Y.S.3d 726 [Sup. Ct. Suffolk County 2020]; People v. Davis, 70 Misc 3d 467, 134 N.Y.S.3d 620, 2020 NY Slip Op. 20298 [Crim Ct. Bronx County, October 9, 2020].)

As was noted in People v. Erby, 68 Misc 3d 625, 633, 128 N.Y.S.3d 418, "[a]s the legislative history of Article 245 indicates, and as the Article's sanctions and remedies provisions suggest, the new discovery law, designed as it was to be remedial in nature, should not be construed as an inescapable trap for the diligent prosecutor who professionally, assiduously and in good faith attempts to comply with their new and extensive requirements under the discovery statute, but through no fault of his or her own is unable to comply with every aspect of the automatic discovery rules specified in CPL 245.20."

In the present case, the People filed and served their initial Certificate of Compliance and Statement of Readiness was filed on January 25, 2021, at defendant Sellie's arraignment and on April 12, 2021, at Defendant Bruce's arraignment. On February 24, 2021, the People filed an additional Certificate of Compliance and Statement of Readiness, which updated their initial January 25, 2021, discovery responses.

This Court finds that the People have demonstrated that, the prosecution's February 24, 2021, Certificate of Compliance and Statement of Readiness, which amended the People's January 25, 2021 COC, was made in good faith and was filed after utilizing diligent efforts to ascertain the existence of discoverable materials by making reasonable inquiries into the existence of such evidence or information. Thus, as of February 24, 2021, the People validly announced their readiness to proceed to trial. The People's subsequent disclosures, made on and after May 2, 2022, did not invalidate the People's January 25, 2021, certificate of compliance, as amended on February 24, 2021.

More specifically, much of the alleged delayed discovery in this case did not exist when the People filed their January 25 and February 24, 2021, Certificates of Compliance, and could not have been disclosed then. By way of example, the People properly disclosed the then existing medical records from Ellis Hospital for Mr. Mannarino in their January 25, 2021 disclosure [Burock Affirmation ¶ 16]. On May 2, 2022, the People filed a supplemental disclosure which contained updated medical records and photos taken by Mr. Mannarino's family of his injuries. In this May 2, 2022, disclosure, the People notified defense counsel that "Mr. Mannarino continues to require medical follow up and surgeries for his injuries." In July or August of 2022, while preparing for trial, the victim disclosed to ADA Burock that his injuries had required an additional surgery and follow up treatment. The People then obtained the updated records and turned them over to defendants as soon as Ms. Burock received them. [Burock Affirmation ¶ 16]. Similarly, the People had the FBI create a 3D scan of the jail as a demonstrative exhibit created for the trial to assist the jury to understand the layout of the facility. [Burock Affirmation ¶ 17]. In their May 2, 2022 disclosure notice, defense counsel was notified that the People were "seeking a 3-D virtual scan of the portions of the Schenectady County Jail relevant to this incident to be made in conjunction with the FBI. We have made this [*8]request of FBI Agent Peter Kersh. We will provide the name of any and all personnel who participate in creating this scan/illustrative device as soon as we learn their names." With respect to the alleged late disclosure of the testimony of Dr. Michael Sikirica, the People are not required to retain and disclose expert witnesses prior to filing a proper COC and Statement of Readiness. Instead, expert witness disclosure must be made as soon as practicable and not later than 60 calendar days before the first scheduled trial date, unless an order is obtained pursuant to § 245.70. [CPL § 245.20(1)(f)]. Contrary to the defendants' assertion, the People's initial disclosure of Dr. Sikirica as an expert witness was not on July 29, 2022 [Defendant Sellie Motion, Ex. D, August 13, 2022, letter of attorney Safranko, pg. 8, 1st ¶]. The People initially disclosed Dr. Sikirica as an expert witness in their May 2, 2022, discovery notice [May 2, 2022 Discovery Notice ¶ 7]. More importantly, at the August 15, 2022, pre-trial conference, this Court granted the defendants request for an adjournment of the August 29, 2022, trial date to allow the defendants with an opportunity to obtain their own expert witness. [Safranko 02/06/23 Affirmation ¶ 17; Burock Affirmation ¶ 18]. On December 23, 2022, Defendant Sellie filed the defendant's Certificate of Compliance which identifies Joseph A. Felo, D.O., as the defendant's medical expert.

The defendants' motion also complains of delayed disclosure of documents that were not in the actual or imputed possession, custody, or control of the District Attorney's Office or any law enforcement officer or agency [See, Burock Affirmation ¶s 13, 16 (victim's medical records), 21 (extension detail prepared by County IT Department), 22 (Jail Audit Log prepared by Black Creek Company, Alabama), 25 (Schenectady Fire Department and Mohawk Ambulance records), 28 (Defendant Sellie's cell phone records), and 29 (SPE1 Unit History for the Jail prepared by Black Creek Company). As a result, these records were not required discovery materials pursuant to CPL § 245.20(2), and could have been obtained by defense counsel. However, when the People obtained these records, they immediately disclosed them to defense counsel, which supports the People's position that they were acting in good faith to comply with their discovery obligations.

Some of the supplemental certificates of compliance and supplemental discovery notices were apparently disclosing documents, information, and material that had previously been disclosed with the People's January 25 or February 24, 2021 COC. Here, Assistant District Attorney Gray was initially preparing this case for trial, but he was replaced by ADA Burock. Ms. Burock's supplemental disclosure demonstrates that she was disclosing documentation and information that had previously been disclosed by ADA Gray in an "abundance of caution." [Burock Affirmation ¶ 10]. See also, May 2, 2022, Discovery Notice ¶s 2 (cell phone records duplicated), 3 (County Attorney files previously provided were duplicated); August 24, 2022, Supp. COC (cell phone records previously provided were duplicated). In addition, the physical evidence, including the Schenectady County Jail recorded phone calls, were available for defense counsel to review at the District Attorney's Office. See, January 25 and February 24, 2021 COC, and May 2, 2022, Discovery Notice ¶ 4]. In fact, the People mistakenly provided Deputy Matthew Vanwoert's disciplinary record, when he was not involved in this case [Burock Affirmation ¶ 27].

In Mr. Safranko's Responsive Affirmation, Defendant Sellie does not dispute the People's explanation of their subsequent discovery disclosures set forth in Ms. Burock Affirmation at paragraphs 15-29. [Safranko Affirmation ¶ 14]. Instead, defense counsel relies on the Schenectady County Attorney's December 11, 2020 letter responding to the U.S. Attorney's [*9]Office's subpoena to assert that discoverable material within the possession of the Schenectady County Sheriff's Department was not timely disclosed to the defendants. [Safranko Affirmation ¶ 14]. A review of People's filed January 25 and February 24, 2021 COCs demonstrates that the defendant's assertion is in error. By way of example, the People's January 25, 2021, COC as amended on February 24, 2021, did disclosed the following items referred to in the County Attorney's December 11, 2020 letter: any videos from the Jail on November 9, 2020 [People's 2/24/21 COC ¶s (1)(l), (s), (v), (w), (x), (ff)]; booking picture of Mr. Mannarino 2020 [People's 2/24/21 COC ¶ (1)(o)]; interviews of sheriff's department employees: Adair, McClean, Wood, Mosby, Bruce, Pollard, Cronin, Lachansky, Doty, Gatta, Hall, Lastro, Marino, Matthew Cufari, Pollard, Quiman, Steve Redmond, Robert Redmond, Cook, Derochie, Ennis, Pelletier, Sherman, Wood, Longy, Guest, Crowley, and Grippo 2020 [People's 2/24/21 COC ¶ (1)(b)]; disciplinary records for all Schenectady County Jail employees, including the defendants [People's 2/24/21 COC ¶ (1)(y)(z)(aa)]; the Sheriff's Department Incident Reports and all documents relating to their investigation 2020 [People's 2/24/21 COC ¶ (1)(a),(c),(r)]; medical records for Mr. Mannarino [People's 2/24/21 COC ¶ (1)(n), (v0]; booking records for Mr. Mannarino [People's 2/24/21 COC ¶ (1)(o),(v)]; still photos of the jail and Mr. Mannarino [People's 2/24/21 COC ¶ (1)(g), (m), (o), (v), (ee)]. In fact, other than merely alleging that documents contained in the County Attorney's December 11, 2020 letter were not contained in People's January 25 and February 24, 2021 COC, defense counsel has failed to identify what specific documents or records were not disclosed.

In a demonstration of the People's good faith in attempting to produce the discoverable materials to defense counsel, ADA Burock spent hours working with defense counsel, and seeking assistance from the county's computer help desk, to assist counsel to access the People's link to the computerized discovery files. [Burock Affirmation ¶ 9].

Based on the foregoing, this Court finds that the People's January 25, 2021 COC and Statement of Readiness, as amended on February 24, 2021, was filed in good faith after the People made a diligent effort to obtain discoverable materials. The People have given a reasonable explanation for the Defendants' complaints of the alleged fifteen (15) items delayed discovery. The People properly declared their readiness on February 24, 2021, with the filing of a proper Certificate of Compliance and Statement of Readiness. As of that date, the People had made in good faith, a due diligent attempt to locate, obtain, and disclose all CPL 245 discoverable information, documents and materials. Pursuant to CPL § 30.30(1)(a), the People were required to be ready within six (6) months of the commencement of this action. Defendant Sellie was charged and arraigned on these charges on November 17, 2020. As of February 24, 2021, when the People filed and served a proper Certificate of Compliance and made a valid Statement of Readiness, only 97 days were chargeable to the People. The action was commenced against Defendant Bruce when he charged and arraigned on April 12, 2021, under a sealed indictment. The People immediately filed their Certificate of Compliance and Statement of Readiness. Thus, none of the delay concerning Defendant Bruce is chargeable to the People. The balance of any time delay was caused by pandemic protocols prohibiting jury trials for multiple defendants until approximately June of 2022, the time for defendants' respective omnibus motions, the scheduled Huntley Hearing, and the defendants' request and consent to the adjournment of the jury trial to February 21, 2023.

Since the People are chargeable with fewer than the 180 days from the commencement of this action, the defendants' CPL 30.30 motion to dismiss is denied. [CPL § 30.30(1)(a)].

The defendants have moved to preclude the testimony of the People's expert Dr. Michael Sikirica as being untimely disclosed. Understanding there was no formal record or written decision by Judge Sypniewski that he decided to allow the Dr. Sikirica's testimony, there is no disagreement that was his intent. [Safranko Reply Affirmation ¶ 16-17]. Furthermore, a lengthy adjournment of the original trial was granted at the defendants' request to allow the defendants to retain their own expert(s) and otherwise prepare. The defendants have secured their own expert. Given these factors, the Court denies the defendants' motion to strike Dr. Sikirica's testimony.

Defendant Timothy Bruce, by his attorney Peter J. Moschetti, Jr. has moved to dismiss the indictment on the grounds that the Grand Jury panel was prejudiced by the District Attorney presenting it with information related to the defendants termination of employment on November 10, 2021, the day after the alleged offenses.

First, the defendant contends ADA Gray's limiting instruction was "totally useless and inappropriate." [Moschetti Affirmation ¶ 12]. Notwithstanding that characterization, the Affirmation then goes on to quote the limiting instruction at length in the same paragraph and the Grand Jury minutes reflect otherwise. Furthermore, even if the Court were to find the limiting instruction insufficient, the information presented to the Grand Jury does not go to the heart of the matter, i.e., whether the defendants committed the charges presented. The fact that the defendants were fired is not determinative of that key factor. As to the defendant's contention that the limiting instruction was not also given after the prosecutor had Captain Guerin testify to the firing of Defendant Bruce [Moschetti Affirmation ¶ 13], the Court agrees with the People's assertion that there was no need to repeat the instruction as the jurors could recognize the instruction was not specific to one defendant. [Burock Affirmation ¶ 44]. As such, Defendant Bruce's motion to dismiss which was joined by Defendant Sellie is denied.

Defendant Sellie's counsel argues that Count One should be dismissed as legally insufficient on the grounds that the People have failed to allege that the victim suffered a "serious physical injury" as defined in Penal Law § 10(10). Shortly thereafter, the same Memorandum of Law cites to the Bill of Particulars and Amended Bill of Particulars dated March 8, 2021 and August 8, 2022, which seemingly meet the definition of serious physical injury. This court is unfamiliar with any caselaw that suggests a collapsed lung only qualifies as "serious" if the patient requires supplemental oxygen.Moreover, the extent and seriousness of the injuries will be an element of proof for trial. The defendant's motion to dismiss Count One as legally insufficient is denied, but may be renewed at the conclusion of the People's case-in-chief.

The court appreciates the efforts of the attorneys involved in these motion papers but feels compelled to acknowledge several of the comments between counsel. First, as more fully set forth above, the court finds no suggestion of bad faith or lack of diligence on the part of the [*11]People. Second, the defense motion, while delayed, does not strike the court as one wherein the counsel was "lying in wait" as characterized by the People. The court fully appreciates the demands of practice and respects the zealous advocacy put forth by each party. The request for an adjournment is denied. Trial remains scheduled for February 21, 2023.