Defendant Marcus Sanders moves to challenge the validity of the People's certificates of compliance and supplemental certificates of compliance. For the reasons that follow, Defendant's motion is GRANTED.

Mr. Sanders was arrested on August 1, 2022, and charged with two counts of Forcible Touching [PL 130.52(1)] and two counts of Sexual Abuse in the Third Degree [PL 130.55] in relation to two incidents occurring that evening inside of 4 South Street, where he is alleged to have grabbed the buttocks of two separate complainants over their clothing without their consent. The case was arraigned on August 2, 2022, bail was set, and the case was adjourned to August 5, 2022, for conversion.

On August 5, 2022, the People filed and served one supporting deposition satisfying their CPL 170.70 obligation. The case was adjourned to August 25, 2022, for the filing of the second supporting deposition.

On August 25, 2022, the People had not yet filed their second supporting deposition and the case was adjourned to September 29, 2022, for a supporting deposition.

On September 29, 2022, the Court adjourned the case to October 20, 2022, for a supporting deposition.

On October 20, 2022, once again the case was adjourned to November 18, 2022, for conversion.

On October 31, 2022, the People filed their first certificate of compliance (COC) and certificate of readiness (COR), automatic disclosure form (ADF), and a superseding information (SSI) off-calendar.

On November 18, 2022, the People answered ready for trial. The Defense challenged the People's COC on the record and requested a CPL 730 examination. The Defendant was not present and was not arraigned on the SSI. The case was adjourned for CPL 730 examination [*2]results and for the Defendant to be arraigned on December 9, 2022.

On November 30, 2022, the People filed a supplemental certificate of compliance (SCOC).

On December 9, 2022, the 730 examination was not completed by the clinic and the matter was adjourned, as per the clinic's request, to January 20, 2023, for results and report.

On December 9, 2022, the Defense filed an CPL 30.30 motion off-calendar.^[FN1]

On December 15, 2022, the case was advanced for a motion schedule and decision date. The case was adjourned to January 26, 2023, for decision.

On January 3, 2023, and off calendar, the People filed a second SCOC.

On January 5, 2023, the People filed their response to Defendant's CPL 30.30 motion, off calendar.

On January 12, 2023, Defense replied to the People's motion response, off calendar.

On January 17, 2023, the Court having partially granted Defendant's motion, advanced the matter, and ordered Defendant's release on his own recognizance pursuant to CPL 30.30(2)(b). The case was then adjourned to March 15, 2023, for decision on the remaining issues.

Mr. Sanders challenges the validity of the People's COC's, contending that the People have failed to disclose certain discoverable materials pursuant to CPL 245.20(1). Namely, all substantiated and unsubstantiated police misconduct allegations, their underlying documentation, and Garrett information prior to filing their COC dated October 31, 2022.

Mr. Sanders further contends that, the People's SSI and COR filed on the same day as the People's initial COC, are invalid as Mr. Sanders was never arraigned on the SSI prior to the filing of the People's COR. As the People's initial COC was prematurely filed, the issue as to whether the People's SSI and COR were valid is purely academic and will not be part of the Court's analysis.

At issue here is whether the People complied with CPL 245.20(1)(k) discovery disclosures relating to evidence and information regarding potential impeachment material when they sent an email request for said items on the same date as the filing of the ADF, initial COC, and SOR. Additionally, the Court must decide whether the People's subsequent filing of a SCOC after sharing a Garret letter with Defense counsel fulfills the discovery requirements of CPL 245.20(1)(k).

The People contend that they acted diligently and in good faith each time they certified their compliance, in accordance with CPL 245.20 and CPL 245.50(1).

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 [*3]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 " [discovery] " where it exists but is not within the prosecutor's possession, custody or control;" and this include all items and information in the possession of any New York State or local police or law enforcement agency. CPL 245.20(2)

Once the People have met all their discovery obligation, they "shall serve upon the defendant and file with the court a certificate of compliance." CPL 245.50(1). If, after the initial COC is filed, additionally material is turned over by the People, pursuant to CPL 245.60 a supplemental certificate of compliance must be filed. "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 ." Id.

At the outset, the Court reminds Defense that since 2020, the People meet their discovery obligation when they provide the names and adequate contact information via WITCOM.^[FN2] Additionally, in 2020, the Legislature carved out exceptions for victims of sexual crimes and Defendant is not entitled to that information. CPL 245.20(1)(c) Notwithstanding, in this case, the People listed their law enforcement witnesses in their Addendum to Automatic Discovery Form, filed on October 31, 2022, identifying these witnesses by their full name and tax numbers.

However, the Court finds that the People did not meet their discovery obligations under 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,^[FN3] this Court stands by its prior findings that all underlying documents relating to substantiated police misconduct allegations, and accompanying disciplinary records must be disclosed, see, People v. Guzman, 77 Misc 3d 1223(A) (Crim. Ct NY Co., January 6, 2023)., People v. Baly, CR-008684-22NY, (Crim. Ct. NY Co. November 29, 2022) (Maldonado-Cruz, 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.). 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.

The People concede that 90 days are chargeable from the defendant's arraignment to the [*4]filing of their initial COC and COR on October 31, 2022. Simultaneously, the People also filed an Addendum to their ADF where they listed the testifying officer's Garrett and Brady/Giglio/Geaslen information as "pending" with the NYPD.^[FN4] In the People's response, they attached their emailed request, dated October 31, 2022 at 5:18 p.m., for this potential impeachment material as People's Exhibit 5.^[FN5] This Court notes that this request was sent exactly one minute before the filing of their ADF, COC, and COR on the same date. The Court also notes that while CCRB materials have been deemed outside of the People's custody and control^[FN6] , potential impeachment materials such as substantiated and unsubstantiated misconduct allegations and lawsuits involving a testifying witness must be turned over as automatic discovery under CPL 245.20(1)(k). Absent a showing of a diligent, good faith effort to ascertain the existence of these materials, Courts have previously deemed similarly situated COCs invalid. See People v. Javier Rodriguez, 77 Misc 3d. 23, 25 (2022), People v. Guzman, 77 Misc 3d 1223(A) (Crim. Ct NY Co., January 6, 2023). People v. Critten, 77 Misc 3d 1219(A), 3 (Crim Ct. NY Co., December 12, 2022), People v. Toussaint, 2023 NY Slip Op. 23025 (Crim. Ct. Queens Co. 2023) (Licitra, J.), People v. Darren, 75 Misc. 1208(A) (Crim. Ct. NY Co. May 19, 2022).

It is this Court's finding that submitting a request for automatic discovery under CPL 245 on the final day of chargeable time, a minute before filing an ADF, COC, and COR, without providing said items to Defense is disingenuous. In determining whether the People acted in "good faith" and with "due diligence," the People must demonstrate how they exercised their due diligence. People v. Critten, 77 Misc 3d 1219(A), 3 (Crim Ct. NY Co., December 12, 2022). Here, the People provided discovery on four different dates, August 3, 2022, October 21, 2022, October 24, 2022, and October 31, 2022. As such, the People had plenty of time and opportunity to request and receive these items at any point prior to filing their initial and subsequent COCs. Lastly, the People failed to list any attempts or efforts to obtain these items prior to their October 31, 2022, email.

Further, the People's SCOC dated November 30, 2022, was also prematurely filed as the People had still failed to comply with CPL 245.20(1)(k) and disclose the existence, or lack of, substantiated or unsubstantiated misconduct allegations for their police officer witness at the time it was filed. The People did not disclose this information to Defense until the filing of their second SCOC on January 3, 2023, when they provided Giglio materials for their testifying police officer witness.^[FN7] Therefore, this Court finds the People's COC dated October 31, 2022, and SCOC dated November 30, 2022, are invalid. Since a COC is a pre-requisite, any COR filing or subsequent certificates of readiness on those same dates are hereby invalid.

Mr. Sanders 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 [*5]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 more than 129 chargeable days have elapsed since the commencement of the case. The People contend that only 90 chargeable days have elapsed.

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

The case was arraigned, bail was set, and the case was adjourned for the People to meet their CPL 170.70 obligations. Both sides agree this period is chargeable. 3 days charged.

The People were not fully converted or ready for trial and the case was adjourned again for supporting deposition.

The People were not fully converted, nor ready for trial and the case was adjourned again for supporting deposition. Both sides agree this period is chargeable. 35 days are charged.

The People were not fully converted, nor ready for trial and the case was adjourned again for supporting deposition. Both sides agree this period is chargeable. 21 days are charged.

The People were not fully converted, nor ready for trial and the matter was adjourned once more for supporting deposition. The People's COC and COR filed on October 31, 2022, is invalidated in accordance with this decision. Accordingly, it did not toll the speedy trial clock. 29 days are charged.

On November 18, 2022, Defense counsel requested a CPL 730 examination. On December 9, 2022, Defense counsel filed a motion to dismiss. 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 to January 26, 2023. Both sides agree this period is excludable. CPL 30.30(4)(a). 0 days are charged.

This case was advanced for the Court's decision pursuant to CPL 30.30(2)(b).

The COC challenge motion was still under consideration by the Court. The Court adjourned the matter for its decision to March 15, 2023. These periods are excludable. CPL 30.30(4)(a). 0 days are charged.

For the reasons stated herein, this Court finds that 108 days have elapse since the commencement of the case, exceeding the allowable time for the People to be ready for trial pursuant to CPL 30.30(1)(b). Therefore, Defense motion is GRANTED, and the information is [*6]dismissed.

This opinion constitutes the decision and Order of the Court.