Defendant Ian Eleazer, charged with one count of Forcible Touching [P.L. § 130.52(1)] and one count of Sexual Abuse in the Third Degree [P.L. § 130.55], and moves for an order: 1) finding the People's certificate of compliance (COC) and certificate of readiness (COR) dated January 27, 2023 were invalid; 2) dismissing the accusatory instrument pursuant to CPL § 30.30; 3) suppressing statements, or granting a Huntley/Dunaway hearing; 4) granting a pre-trial "voluntariness" hearing for statements to be used on cross-examination; 5) precluding evidence under CPL § 710.30; 6) granting a hearing pursuant to People v. Sandoval and People v. Ventimiglia; and 7) granting other relief the Court deems proper. For the reasons that follow, Defendant's motion to dismiss is GRANTED and remaining motions are therefore moot.

Mr. Eleazer was arrested on November 4, 2022 for Forcible Touching. The case was arraigned on November 5, 2022, and adjourned to December 19, 2022 for conversion.

On December 19, 2022, the People filed a supporting deposition, the complaint was deemed an information, and the case was adjourned for trial to January 25, 2023.

On January 25, 2023, the People were not ready for trial and the case was adjourned for trial to February 27, 2023.

On January 27, 2023, off-calendar, the People filed a COC and COR.

On February 8, 2023, off-calendar, the People filed a SCOC.

On February 17, 2023, Defendant filed the instant the instant motion to deem the People's COC invalid, dismiss the information pursuant to CPL 30.30, and grant suppression hearings.

On February 27, 2023, the Court set a motion schedule, and adjourned the case for decision to April 10, 2023.

On March 13, 2023, off-calendar, the People filed a response.

On March 20, 2023, off-calendar, Defendant filed a reply.

Mr. Eleazer challenges the validity of the People's COC dated January 27, 2023, contending that the People have failed to disclose certain discoverable materials pursuant to Criminal Procedure Law (CPL) § 245.20(1). Namely, Defendant argues that the People's Disclosure Advisory Form (DAF) summaries, shared prior to the filing of the People's initial COC, were not sufficient to comply with the People's discovery obligations under CPL § 245.20(1)(k). The Defendant further argues that he did not receive the underlying logs for all substantiated and unsubstantiated police misconduct allegations.

Mr. Eleazer also contends that the People failed to disclose complete and final unredacted activity logs for all responding officers and improperly redacted disclosed IAB and CCRB materials.

In response, the People contend that they have acted reasonably and complied in good faith in making the discovery disclosures 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, that CPL § 245.20(1)(k) does not specifically mention the disclosure of police personnel or disciplinary records, and that CPL § 245.20(1)(k) only requires the People to disclose "information that relates to the 'subject matter of the case.' "^[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 . . . ." This 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, among other things, 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 "impeach the credibility of a testifying prosecution witness. . . [i]nformation 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 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]

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 initially only shared Disclosure Advisory Forms, or "DAFs," for the two officers listed as potential testifying witnesses at the time they filed their ADF, initial COC, and COR. Additionally, the Court must decide whether the People's subsequent filing of a SCOC after sharing underlying unsubstantiated investigation materials with Defense counsel for one of the potential testifying witnesses fulfills the discovery requirements of CPL § 245.20(1)(k). In this case, the Court finds that it did not.

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] 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. Prior to the filing of the People's initial COC, the People had not provided any underlying records or materials that relate to allegations of misconduct for the two testifying police officers in this case. This Court is of the opinion that such a skeletal disclosure is not what the legislature intended when it enacted CPL § 245.20(1)(k). The People failed to completely comply with CPL § 245.20(1)(k) by failing to disclose underlying logs for Police Officer Ramey Fernandez.^[FN7]

Although decisional law on this issue is still unsettled, and the Court acknowledges very little appellate authority on this issue,^[FN8] 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.), People v. Sanders, 2023 NY Slip Op 50190 [U] (Crim. Ct. NY Co. 2023), 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. Accordingly, this Court rejects the People's contention that the People were not required to disclose underlying materials for Officer Fernandez's unsubstantiated allegations of a "disputed summons" and "failure to search a department holding pen wherein a knife/razor was found" because these allegations do not relate to the subject matter of the instant case.^[FN9]

Information contained in the DAF filed by the People is a short summary, with no underlying documents or records. Since the actual underlying records for either officer were not initially disclosed, the limited information provided in the DAF is essentially being filtered through the prosecutor's lens. As this Court ^[FN10] 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.^[FN11] 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.

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.^[FN12] Accordingly, there is no need to analyze whether Defendant was prejudiced, and no sanctions are warranted in this case where the People did not merely belatedly disclose impeachment materials, but failed to disclose these materials at all for Police Officer Ramey Fernandez.

The People contend that should the Court require the disclosure of underlying materials for unsubstantiated IAB allegations, their COC and SCOC should not be deemed invalid as Officer Fernandez is not an essential witness.^[FN13] While the People are free to decide who they wish to call as witnesses in a case, choosing to not call an officer as a witness to avoid the invalidation of a COC, after indicating that said officer would be a testifying witness, is contrary to the intent of CPL § 245. It is this Court's decision that a litigating party cannot, and should not, after filing an ADF, COC, and COR, choose to not call a witness at trial solely to avoid their discovery obligations under CPL § 245. Here, it is evident that the People, when filing their initial ADF, COC, COR, and Rosario lists, intended to call both Sergeant Schlobohm and Officer Fernandez as potential witnesses. The People's Rosario List, filed with their initial COC and SCOC, both list Giglio materials as "Officer Disclosures" for Sergeant Schlobohm and Officer Fernandez. In fact, the People explicitly state in their motion response "[f]inally, although the People intend to call Sergeant Schlobohm and Officer Fernandez to testify, neither officer is an essential witness. Therefore, if the Court were to rule, or be inclined to rule, that the COC here and the People's statement of readiness were invalid because of the disclosures made with respect to each or either officer, the People would not call the officers as witness."^[FN14] As such, the People had an obligation to disclose underlying materials for unsubstantiated allegations for both Sergeant Schlobohm and Officer Fernandez when their filed their ADF, COC, and COR on January 27, 2023, and their SCOC on February 8, 2023. Because the People failed to provide underlying materials for both officers on the aforementioned dates, the People were not truly ready at the time they filed their COR, causing their COR filed on January 27, 2023 to be invalid. As the People's initial COC was prematurely filed, the issue as to whether the redactions of the responding officers' activity logs and disclosed IAB and CCRB materials were improper is purely academic and will not be part of the Court's analysis.

Therefore, this Court finds the People's COC dated January 27, 2023, and SCOC dated February 8, 2023, 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. Eleazer 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 [*3]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 103 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 case was adjourned for conversion. Both sides agree this period is chargeable. 43 days charged.

The People filed a supporting deposition, but were not ready for trial and the case was adjourned for trial. Both sides agree this period is chargeable. 37 days are charged.

The People filed their initial ADF, COC, and SOR on January 27, 2023. The People's COR filed on January 27, 2023 is invalidated in accordance with this decision. The People filed their SCOC on February 8, 2023. The People's SCOC, filed on February 8, 2023, is invalidated in accordance with this decision. Accordingly, the People's COC and SCOC did not toll the speedy trial clock. On February 16, 2023, 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, 22 days are charged.

The case was adjourned for the People's response to Defense motions, Defense's reply and for the Court's decision. On March 13, 2023, the People filed their Response to Defense's motion. On March 20, 2023, Defendant filed a reply to the People's motion response. This period is excludable. CPL 30.30(4)(a). 0 days are charged.

The Court finds that a total of 102 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 to dismiss is therefore granted and the information is dismissed. The defendant's remaining motions are therefore rendered moot.

This opinion constitutes the decision and Order of the Court.