Summary

Defendant, Mamaudou Diallo, stands charged in an information with one count each of resisting arrest (Penal Law § 205.30), obstructing governmental administration (Penal Law § 195.05), attempted escape in the third degree (Penal Law §§ 110.00, 205.05) and harassment in the second degree (Penal Law § 240.26 [1]), and with two counts of disorderly conduct (Penal Law § 240.20 [1], [3]). The People filed and served a certificate of compliance (CoC) and statement of readiness (SoR) for the first time on April 19, 2022, and served defendant with additional discovery on each of June 30, August 25, September 30 and October 4, 2022. On December 9, 2022, the People filed a supplemental CoC and SoR. Defendant now moves this court to dismiss the information on discovery compliance and statutory speedy trial grounds, asserting that the People failed to satisfy their disclosure obligations prior to the expiration of the statutory speedy trial "clock."

The People concede that "relevant discovery was not provided until after the requisite statutory timeframe," but they argue that the CoC dated April 19, 2022, should not be invalidated, as they exercised due diligence both in obtaining and turning over to the defense as much discoverable material as possible before filing the CoC and in continuing thereafter to obtain and turn over additional discoverable material. Delay was inevitable, the People contend, due in large part to the "extraordinarily[] voluminous amount of discovery to be reviewed and turned over to Defense, including forty-one (41) Body Worn Cameras and forty-one (41) memo books." Against these odds, the People "made diligent efforts to obtain the discovery that was provided after April 19, 2022," which, by the People's account, consisted solely of sending emails to their own Giglio Unit on April 6, 11 and 21, 2022, and to the NYPD Discovery Liaison on April 6 and 11, and August 22, 2022.

Yet, the People do not apprise the court, in their response to defendant's dismissal motion, of what, if any, actions they undertook between the commencement of this matter on January 20, 2022, and April 6, 2022 (the date of the People's first email queries concerning discovery), as part of their claimed "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]). This 76-day delay is more than twice the 35-day statutory time limit for "the prosecution [to] perform its initial discovery obligations" (CPL 245.10 [1] [a] [i]), and it exhausted about 84½% of their 90-day statutory speedy trial "clock" (see CPL 30.30 [1] [b]; People v Hooks, — Misc 3d —, 2023 NY Slip Op 23019, *2 [Crim Ct, Kings County 2023] [The court invalidated the People's initial CoC as the "People made no effort to ascertain the existence of discoverable materials until . . . eighty-three days after the defendant was arraigned. The People offer no explanation for why they failed to perform their initial discovery obligations within thirty-five days after the defendant's arraignment"] [internal citations omitted]). The People also do not delineate in their response their self-described "diligent efforts," if any, to obtain discoverable material between May and December of 2022, beyond a solitary email sent in August. Thus, by the People's own accounting, their efforts were, at best, passive and fell short of their Article 245 obligations.^[FN1]

Assuming that the discoverable material in this matter is as voluminous as the People recount, and did strain the People's ability to comply with statutory time constraints, Article 245 [*2]provides relief of which the People inexplicably did not avail themselves. The People neither requested a time extension because "the discoverable materials are exceptionally voluminous" (CPL 245.10 [1] [a] [iv] [B]) nor asked "the court [to] alter the time periods for discovery imposed by this article upon a showing of good cause" (CPL 245.70 [2]; see People v Rugerio-Rivera, 77 Misc 3d 1230[A], 2023 NY Slip Op 50069[U], *5 [Crim Ct, Queens County 2023] ["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"]). This court will therefore not entertain at this late hour what is effectively an untimely application for a deadline extension or alteration pursuant to Article 245, nunc pro tunc to April 19, 2022.

The People's application in the alternative, that this court mete an "appropriate sanction to address the prejudice suffered by defense," rather than what they characterize as the more "drastic remedy" of deeming their April 19, 2022, CoC invalid, is based upon a misconception about which the People have been alerted previously. It "conflates their trial-readiness obligations under C.P.L. § 30.30 with the discovery-sanction statute, C.P.L. § 245.80" (People v Cartagena, 76 Misc 3d 1214[A], 2022 NY Slip Op 50950[U], *3 [Crim Ct, Bronx County 2022]; see People v Quinlan, 71 Misc 3d 266, 272 [Crim Ct, Bronx County 2021] ["this Court holds that deeming the People's [CoC] to be invalid, even one filed in good faith, and charging the People with any related 30.30 time is not an 'adverse consequence' as contemplated by CPL 245.80"]; see also Hooks, 2023 NY Slip Op 23019, *3 ["The People's argument that the dismissal of the accusatory instrument is an extreme sanction for invalidating a [CoC] is misguided. The invalidation of the [CoC] does not result in the dismissal of the complaint as a sanction. Rather, the dismissal arises from the People's failure to be ready for trial within the statutorily prescribed time"]). Accordingly, as the People did not exercise the due diligence demanded under Article 245, resulting in their admitted failure to turn over discoverable material in a timely manner, defendant's motion to deem the April 19, 2022, CoC invalid is GRANTED.

The New York State Legislature crafted a compulsory interplay between the discovery and speedy trial statutes whereby the People must first verify that they have fulfilled their obligations in satisfaction of the former (via a valid CoC) before they may declare themselves ready to proceed to trial pursuant to the latter (via a valid SoR). The Legislature memorialized this mandatory sequentiality in both section 30.30 and section 245.50 of the Criminal Procedure Law (see CPL 30.30 [5] ["Any statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of section 245.20 of this chapter"] [emphasis added]; CPL 245.50 [3] ["the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper [CoC]"] [emphasis added]). "The obligation is inflexible. No trial ready statement is valid unless the People file a CoC that truthfully asserts that the People have exercised due diligence and made reasonable inquiries to ascertain the existence of material and information subject to discovery" (People v Surgick, 73 Misc 3d 1212[A], 2021 NY Slip Op 51007[U], *4 [Albany City Ct 2021] [internal quotation marks omitted]; see People v Rodriguez, 77 Misc 3d 23, 25 [App Term, 1st Dept 2022] ["Criminal Court properly held that the . . . COC was not valid and therefore did not stop the speedy trial clock"]). As the People's April 19, 2022, CoC is invalid, defendant's motion to deem invalid the SoR filed and served on the same date must also be GRANTED.

The court now turns its attention to ascertaining the amount of time chargeable to the People in this matter. As the top charge of the information is a class-A misdemeanor, the People must be "ready for trial within[] ninety days of the commencement of [the] criminal action" (CPL 30.30 [1] [b]). A defendant has the initial burden of asserting that the People's "clock" has expired, and dismissal "must be granted summarily unless the People controvert the factual basis for the motion," i.e., "once a defendant has shown the existence of an unexcused delay greater than [the statutory time limit], the burden of showing that time should be excluded falls upon the People" (People v Santos, 68 NY2d 859, 861 [1986]).

This case commenced with defendant's arraignment on January 20, 2022. The matter was adjourned to January 27th for the People to submit a necessary supporting deposition, CoC and SoR. Off-calendar, on January 25th, the People filed and served the supporting deposition, but no CoC or SoR, rendering the six days from January 21st through January 26th chargeable to the People.^[FN2]

No CoC or SoR was filed during this time period, and no statutory exclusions appear to apply to this time period (see CPL 30.30 [4]). Consequently, all time from January 27th through March 8th is chargeable to the People.

Defendant was voluntarily absent from successively scheduled March 9 and May 4, 2022, court appearances. The court (Valentina M. Morales, J.) excused defendant's appearance on March 9th; the court (Seth Steed, J.) then stayed a bench warrant on May 4th. The People filed and served an SoR off-calendar, on April 19, 2022, but, as it is invalid (see ante), it is of no moment to the statutory speedy trial analysis.

Section 30.30 (4) (c) (i) of the Criminal Procedure Law does not serve as a basis for excluding any time during this period, as the People's delay in submitting a CoC and SoR during this period did not "result[] from the absence or unavailability of the defendant" (id.). Further, as the court on March 9th did not issue a "bench warrant pursuant to section 530.70 of the Criminal Procedure Law" (CPL 30.30 [4] [c] [ii]), the 55-day time period from March 9 through May 3, 2022 is chargeable to the People.

However, the May 4 — 13, 2022, portion of this period must be "excluded . . . because defendant failed to appear and a bench warrant was issued and stayed against him" (People v Benjamin, 292 AD2d 191, 192 [2002]; see People v Alexander, 67 Misc 3d 126[A], 2020 NY Slip Op 50373[U], *1 [App Term, 1st Dept 2020] ["the period . . . was excludable, since the time during which a defendant is absent and a bench warrant is stayed is excludable pursuant to CPL 30.30 (4) (c)"]).

A minimum of 102 days were chargeable against the People's 90-day statutory speedy trial "clock" as of May 13, 2022. Determining the number of additional chargeable days is academic; this court declines to do so. Accordingly, defendant's motion to dismiss the information on statutory speedy trial grounds is GRANTED.

The court STAYS SEALING of this matter for 30 days from the date of this decision and order (see CPL 160.50 [1]).

THIS CONSTITUTES THE DECISION AND ORDER OF THIS COURT.