Defendant moves, inter alia, for dismissal of the misdemeanor charges on statutory speedy trial grounds pursuant to Criminal Procedure Law ("CPL") §§ 30.30 and 210.20 (1) (g).^[FN1] Specifically, defendant contests the validity of the People's certificate of compliance ("COC"), first supplemental certificate of compliance ("SCOC") and second supplemental certificate of compliance ("SSCOC") due to the People's failure to comply with their disclosure obligations pursuant to CPL § 245.20 (1) prior to the expiration of their speedy trial time. The People oppose the motion.

Upon review and consideration of the submissions, court file and relevant legal authority, the court finds that the People's COC, first SCOC and second SCOC, filed August 31, 2022, September 6, 2022 and December 20, 2022, respectively, were valid. Accordingly, the People's prosecution pursuant to CPL § 30.30 was not untimely and defendant's motion is denied in part and granted in part.

On June 8, 2022, defendant Anthony Vargas was arrested and charged with three violations of the Vehicle and Traffic Law ("VTL"), § 1192 (3) (driving while intoxicated), §1192 (1) (driving while impaired) and § 1212 (reckless driving).

On June 10, 2022, defendant was arraigned and released on his own recognizance. The People filed their COC and statement of readiness ("SOR") on August 31, 2022, which represented, in relevant part, that the prosecution might present items including body worn camera ("BWC") footage and a report of refusal to submit to chemical test. The People further identified Arresting Officer ("A.O.") R.J., Intoxicated Driver Testing Unit ("IDTU") Officer J.H. [*2]and Lieutenant J.H. as potential witnesses.^[FN2] On September 6, 2022, the People filed their first SCOC, which lists, in pertinent part, IDTU Officer J.H. and Lieutenant J.G. as potential witnesses and restates that the prosecution might produce BWC and a Department of Motor Vehicles ("DMV") refusal report. On December 20, 2022, the People filed a second SCOC wherein they detailed their efforts to locate additional BWC footage and corrected a prior misstatement in their COC that Giglio material had been produced for A.O. R.J., whom the prosecution had decided not to call as a witness. The People further represented that based upon defendant's claim that BWC footage was missing for two officers, they conferred with their BCW unit and subsequently identified and produced missing footage for Sgt. K. and Police Officer ("P.O.") M.

At a conference held on February 22, 2023, defense counsel reported that they had met with the People to review disputed discovery items and that the assigned ADA had confirmed with the precinct that no other BWC footage existed, and advised the court that defendant was still reviewing discovery items.

On March 24, 2023, defendant filed the instant motion challenging the propriety of the People's COC and SCOCs pursuant to CPL § 245.50 (1) and seeking dismissal of the information pursuant to CPL §§ 30.30 and 210.20 (1) (g). Specifically, defendant argues that the People's COC and SCOCs are invalid because they failed to produce certain discoverable items in compliance with CPL § 245.20 (1) and, thus, failed to satisfy their discovery obligations prior to the expiration of their speed trial clock. The People oppose the motion and assert that they made good faith attempts to identify and produce discoverable items, including BWC trails for 22 officers. The prosecution also states that they acted deliberately to address deficiencies in the BWC disclosure once alerted by defense counsel. However, they maintain that the remaining items that serve as a basis for the defense's challenge, namely BWC audit trails, Giglio evidence for a non-testifying witness and DMV refusal hearing documents, are not discoverable. On April 28, 2023, defendant filed a reply to the People's opposition to reiterate his objection to the COC and SCOCs.

Criminal Procedure Law § 245.20 (1) provides, in pertinent part, that the prosecution shall disclose to defendant and permit defendant to "discover, inspect, copy, photograph and test, all items and information that relate to the subject matter of the case and in the possession, custody, or control of the prosecution or persons under the prosecution's direction or control." Including in the enumerated items is "[a]ll evidence and information, including that which is known to police or other law enforcement agencies acting on the government's behalf" (People v Perez, 75 Misc 3d 1205 [A] at *2 [Crim Ct, Bronx County 2022]).

Pursuant to CPL § 245.50 (1), where the prosecution has complied with their disclosure obligations, the People are required to serve a COC on defendant and file it with the court as a condition precedent to announcing their readiness for trial. However, if the prosecution should subsequently provide additional discovery prior to trial pursuant to CPL § 245.60, which mandates a continuing duty to disclose, then "a supplemental certificate shall be served upon the [*3]defendant and filed with the court identifying the additional material and information provided" (CPL § 245.50 [1]). Further, "[a]ny supplemental certificate of compliance shall detail the basis for the delayed disclosure so that the court may determine whether the delayed disclosure impacts the propriety of the certificate of compliance" (CPL § 245.50 [1-a]).

Where defendant alleges that the People's COC is invalid because they have failed to discharge their discovery obligations, the People must establish that they have met their burden. (see e.g., People v Spaulding, 75 Misc 3d 1219 [A], at *2 [Crim Ct, Bronx County 2022] ["They must certify that they have complied- that "the prosecutor has disclosed and made available all known material and information subject to discovery"] citing CPL § 245.50 [1-a]).

Courts have examined the COC for an explanation of the People's efforts to ensure that they have turned over all known discoverable materials. (see Perez, 75 Misc 3d 1205 [A], *3). Additionally, following a challenge to the validity of the COC, courts inquire whether the prosecution has done all that is required of them to bring a case to the point that it could be tried. (see e.g., People v Vargas, 76 Misc 3d 646, 652, 171 NYS 3d 877, 882 [Crim Ct, Bronx County 2022] ["(A) bare-bones assertion does not provide the Court with the necessary factual basis to make a finding or good faith or due diligence"] [internal quotations and citations omitted] but see People v Diaz, 77 Misc 3d 727, 733, 178 NYS 3d 912, 916 [Crim Ct, Bronx County 2022] ["Numerous provisions of article 245 expressly provide that compliance based on due diligence which is reasonable under the circumstances of the case is a sufficient basis upon which to file a COC in good faith even if some items are otherwise unavailable, and that if these conditions exist, a court can deem the COC valid and the People ready for trial"]).

Defendant asserts that BWC footage of Sgt. K. and P.O. J.M. was not disclosed prior to the People's COC and first SCOC filing, and that BCW audit trails, though uploaded to OneDrive on January 27, 2023, were never served on the defense. (Def. Aff. at 8).

Defendant also claims that the following items remain outstanding 1) BWC for "several officers on the scene," 2) BWC audit trails, 3) underlying documentation relating to unsubstantiated and unsubstantiated disciplinary records for A.O. R.J., and 4) DMV refusal hearing documents. (Def. Aff. at 8).

The People counter that they disclosed 22 BWC videos contemporaneously with their COC on August 31, 2022, and that once defendant contacted them on December 13, 2022, to confer over discovery issues, they first became aware that the defense claimed there was missing footage for four officers. The People assert that they immediately began an investigation and determined that BWC video for Sgt. K. and P.O. J.M. had not previously been disclosed. Their investigation also confirmed that BWC footage for Lieutenant G. had already been produced, and the prosecution learned that A.O. R.J. was not wearing a BWC on the date in question. The People contend that their efforts to ascertain the existence of any outstanding BWC materials demonstrate their due diligence to correct an unintentional oversight. (People's Aff. at 7-8).

Next, the People aver that BWC audit trails are not discoverable under CPL § 245.20 (1) and cite to caselaw in support of their contention. The prosecution further notes that until the instant motion, the defense never requested this information. (People's Aff. at 7).

Concerning disclosure of underlying documentation for unsubstantiated and substantiated disciplinary records for A.O. R.J., the People contend that Giglio disclosure is not required for a non-testifying officer and cite to CPL § 245.20 (1) (k)(iv) for the proposition that they need only disclose Giglio material "[to] impeach the credibility of a testifying prosecution witness." [*4](People's Aff. at 9).

Lastly, the People assert that the DMV is not a law enforcement agency and, as such, their statutory obligation pursuant to CPL § 245.20 (1) does not extend to documents concerning a DMV refusal hearing. (People's Aff. at 9-10).

While CPL § 245.50 (1) mandates that the prosecution file a COC after complying with their discovery obligations, CPL § 245.20 unambiguously qualifies the People's duty to disclose information which is in the "possession, custody or control of the prosecution, [or] under the prosecution's direction or control" (CPL § 245.20 [emphasis added]; see also, People v Williams, 2021 NYLJ 1187, *26 [Sup Ct, Kings County 2021] [internal citations omitted] citing People v Lustig, 68 Misc 3d 234, 241-42, 123 NYS 3d 469, 474-475 [Sup Ct, Queens County 2020]).

Additionally, the Legislature codified the parties' continual duty to disclose information if either the People or the defense learn of additional evidence which it would have had an obligation to make previously known. (see CPL § 245.60; People v Rodriguez, 73 Misc 3d 411, 414, 152 NYS 3d 879, 882 [Sup Ct, Queens County 2021]; see also, People v Rahman, 74 Misc 3d 1214 (A), *2 [Sup Ct, Queens County 2022] ["Not every failure to provide a document which the People are obligated to provide under the letter of the statute [CPL § 245.20 (1)] is necessarily fatal to an assertion of readiness under CPL § 30.30"]).

The People have put forth credible evidence of their good faith attempts to locate and produce BWC footage contemporaneously with their COC filing. In fact, of the 24 BWC videos disclosed in toto, only two were served after their COC filing, and BWC footage for Sgt. K. and P.O. M were produced shortly after the defense conferred with the prosecution regarding discovery deficiency issues on December 13, 2022.

There is no reasonable interpretation of CPL § 245.20 (1) that would require the prosecution to produce every iota of discoverable evidence prior to filing their COC where the People fall short despite their best efforts. (see People v Erby, 68 Misc 3d 625, 633, 128 NYS 3d 418, 424 [Sup Ct, Bronx County 2020] ["(T)he 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"]). Here, the court finds that the People have demonstrated their good faith concerning production of BWC footage and their belated disclosure of two BWC videos does not warrant an invalidation of their COC and SCOCs.

As a threshold matter, the People contend that defendant never asked for BWC audit trails in any of their discovery discussions. In any event, the prosecution asserts that audit trails are outside the scope of their CPL § 245.20 automatic discovery obligations. This court concurs with the prosecution's assessment.

BWC audit trails- essentially chain of custody metadata that tracks the creation or revision of a document- has negligible utility for the defense. (see People v Larkin, 2021 NYLJ LEXIS 525, *9 [Sup Ct, Kings County 2021] citing (People v McGee, 49 NY2d 48, 59-60, 424 NYS 2d 157, 162-163 [1979] ["a chain of custody is employed when the evidence itself is not [*5]patently identifiable or is capable of being replaced or altered[.] Tape recordings made by a participant to a conversation do not fall within the category reserved for fungible evidence, such as drugs"] [internal quotations and citations omitted]). By analogy, in the case at bar, the BWC evidence already disclosed to defendant ostensibly speaks for itself as "the BWC footage is self-authenticating, and the defendant has provided no evidence that the audit trails would relate to the defendant or any of the crimes charged" (see People v Williams, 2021 NYLJ LEXIS 1187, *32 [Sup Ct, Kings County 2021]).

The court finds that the audit trails are not discoverable and, thus, not a reason to invalidate the People's COC and SCOCs.

The People argue that they are under no obligation to produce Giglio evidence concerning A.O. R.J. because she is a non-testifying witness. For this contention, the prosecution is laser focused on CPL § 245.20 (1) (k) (iv) which provides, in pertinent part, that evidence used to "impeach the credibility of a testifying prosecution witness" is discoverable. However, CPL § 245.20 (1) (k) is not limited to the impeachment of a testifying witness and this court declines to consider the subsection with such surgical precision as to ignore its other clauses because CPL § 245.20 (1) (k) (iv) is the only one that specifically references "testifying." CPL § 245.20 (1) (k) states, in pertinent part, that the People are to disclose:

"[a]ll 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: (i) negate the defendant's guilt as to a charged offense; (ii) reduce the degree of or mitigate the defendant's culpability as to a charged offense; (iii) support a potential defense to a charged offense; (iv) impeach the credibility of a testifying prosecution witness; (v) undermine evidence of the defendant's identify as a perpetrator of a charged offense; (vi) provide a basis for a motion to suppress evidence; or (vii) mitigate punishment."

The Legislature's usage of the conjunction "or" to separate the final clause of CPL § 245.20 (1) (k) demonstrates that the sections are not intended to be considered, or complied with, in the aggregate. Moreover, CPL § 245.20 (1) (k) (iv) does not specify that disciplinary and/or personnel records are the material to be used to impeach the prosecution's testifying witness. Consequently, the presumption that only Giglio material could be used for impeachment purposes is unfounded. Additionally, the proposition that Giglio evidence could only be of import to impeach a testifying witness blithely ignores the ways in which Giglio material, both substantiated and unsubstantiated, could factor into the defense of the charged offense depending on the nexus between defendant and the police officer for whom disciplinary records were generated. This court rejects a stringent construction which holds that disciplinary records "which do not relate to the subject matter of the case, but are of a general impeachment value" are not subject to automatic disclosure. (see People v Florez, 2022 NYLJ LEXIS 245, *21 [Sup Ct, Nassau County 2022] ["There is simply no language which magically turns general impeachment material into something that it never was before"]).

It is neither magical nor unimaginable that Giglio disclosures could be of significant consequence to negate a defendant's guilt, provide a basis to suppress evidence, or support a potential defense even if the prosecution decided not to call the officer in question as a witness at trial. Rather than attempt to draw a bright line concerning how and where Giglio evidence could be relevant to the defense, this court finds that a more equitable outcome might result from [*6]weighing the circumstances of each case to determine whether disclosure would be required.

As a threshold matter, this court finds that a consideration of whether Giglio evidence for a non-testifying witness is discoverable would necessarily depend on the particular facts presented. As discussed in People v Jackson, 2023 NY Misc LEXIS 1975, *10 [Crim Ct, New York County 2023] ["The inquiry as to whether underlying records are discoverable under CPL 245.20 (1) (k) (i) and (iii) is fact-specific, based on the officer's particular involvement in the case and the nature of the misconduct allegations against him"] [emphasis added]. In Jackson, a non-testifying officer, who responded to the complainant's 911 call, spoke with the defendant and dealt with physical evidence, had several substantiated and unsubstantiated allegations, including the filing of a false statement and improper memo books. (see, Id.). The allegations of misconduct enumerated in Jackson, and the potential utility to the defense, are a far cry from the concern that defense counsel would be permitted to troll through files concerning an officer's divorce proceedings in the hopes of finding exculpatory evidence for her client. (see People v Edwards, 77 Misc 3d 740, 745, 178 NYS 3d 694, **744 [Crim Ct, Bronx County 2022].

This court finds that the involvement or engagement of a non-testifying officer, who conducts the arrest and/or speaks to witnesses and investigates the charge, cannot be hermetically sealed from a Giglio disclosure request just because the People have strategically decided, as is the prosecution's prerogative, not to call them as a witness. In this instance, Giglio disclosure for a non-testifying witness would indeed fly "in the face of the express provision of CPL § 245.20 (1) (k) (iv)," only if the court ignores the section in its entirety. (see, Diaz, 77 Misc 3d at 731, 178 NYS 3d at 915). However, it cannot be credibly argued that misconduct records for a non-testifying officer demonstrated to have played an integral role in the arrest and/or investigation, as opposed to merely responding to the scene, could have no value to support a potential defense. (see People v Jawad, 2023 NY Misc LEXIS 1307, *8 [Crim Ct, Queens County 2023] ["Prior disciplinary matters [for a non-testifying officer], could for instance, negate the accused person's guilt or support a potential defense"] [internal citations omitted]).

The fulcrum of the discovery reforms codified by CPL § 245.20 (1) (k) was to facilitate transparent or "open file" discovery and, as such, restricting discovery of police misconduct records for impeachment purposes only, even where circumstances may demonstrate something more than merely peripheral involvement by the non-testifying officer, contravenes all but one prong of this section of law. (see People v Cartagena, 76 Misc 3d 1214 (A), *5, 175 NYS 3d 198 [Crim Ct, Bronx County 2022] ["One reason an officer's prior misconduct could be favorable is for impeaching the credibility of a testifying prosecution witness, but that does not mean that is the only reason such records may be favorable"] [internal citations omitted]).

There is a balance of equities to consider and to potentially allow the prosecution to cherry-pick around possibly valuable or favorable evidence where "[i]t has long been recognized that the best judge of the value of evidence to a defendant's case is the single-minded devotion of counsel for the accused" seems to afford the prosecution too much discretion as discovery gatekeeper when defendant can demonstrate that the non-testifying officer was more than tangentially involved in the arrest or investigation. (see People v Pennant, 73 Misc 3d 753,761, 156 NYS3d 690, 696 [Dist Ct, Nassau County 2021] citing People v Baghai—Kermani, 84 NY2d 525, 531, 620 NYS 2d 313, 316 [(1994)]; People v Flores, 84 NY2d 184, 187, 615 NYS 2d 662, 664 [(1994)]; People v Banch, 80 NY2d 610, 615, 593 NYS 2d 491, 494 [(1992)]; People v Young, 79 NY2d 365, 371, 582 NYS 2d 977, 981 [(1992)]).

Consequently, this court finds that substantiated and unsubstantiated Giglio material for an arresting officer is subject to automatic disclosure pursuant to CPL § 245.20 (1) subject to the People's showing pursuant to CPL § 245.70 that the material should be subject to a protective order.

The People aver that they were under no obligation to disclose information concerning defendant's DMV refusal hearing because the DMV is not an agency, law enforcement or not, under its direction or control. This is correct.

As discussed by the Court of Appeals in People v Flynn, "[m]aterial in the possession of a State administrative agency, such as the Department of Motor Vehicles, is not within the control of a local prosecutor" 79 NY2d 869, 882, 581 NYS 2d 160, 162 [1992]. Although the defense in Flynn sought disclosure through a Rosario claim, the principal holds that the People's statutory obligation to disclose evidence is reserved for information "in the possession, custody or control of the prosecution or persons under the prosecution's direction or control" (see Flynn, 79 NY2d at 882, 581 NYS 2d at 162; CPL § 245.20 (1); see also, People v Nova, 206 AD2d 132, 136, 618 NYS 2d 645, 647 [1st Dept 1994] citing Flynn [internal quotations and citations omitted]).

Accordingly, records pertaining to defendant's DMV refusal hearing are not discoverable.

Defendant moves the court to order a CPL § 30.30 hearing if his motion is not granted pursuant to CPL § 210.45 (4), and in support of his argument cites to People v Allard, 28 NY3d 41 [2016]. In Allard, the court held that "CPL 210.45 furnishes the general procedure applicable to all motions to dismiss an indictment- including, among others, motions based on defective grand jury proceedings, untimely prosecutions, a defendant's immunity, and CPL 30.30 grounds" (see Allard, 28 NY3d at 45-46 [emphasis added]). However, insofar as defendant is charged with Vehicle and Traffic Law ("VTL"), § 1192 (3) (driving while intoxicated), §1192 (1) (driving while impaired) and § 1212 (reckless driving), all of which constitute misdemeanor charges, CPL § 210.45 (4) does not apply to the facts at bar.

In any event, the court finds that the People's opposition has settled all factual disputes and, thus, there are no unresolved disputes which require a hearing and defendant's request for an Allard hearing is denied.

Criminal Procedure Law § 245.50 (3) provides that "the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper certificate pursuant to subdivision one of this section" (see People v Pierna, 74 Misc 3d 1072, 1087, 163 NYS 3d 897, 908 [Crim Ct, Bronx County 2022] [internal quotation marks omitted]; People v Aquino, 72 Misc 3d 518, 520, 146 NYS 3d 906, 909 [Crim Ct, Kings County 2021]). Courts have determined that a proper COC is one that sets forth the prosecution's efforts to ensure that they have turned over all known discoverable materials. (see People v Adrovic, 69 Misc 3d 563, 574- 575, 130 NYS 3d 614, 624 [Crim Ct, Kings County 2020]; Vargas, 76 Misc 3d at 652).

In a motion to dismiss misdemeanor charges pursuant to CPL § 30.30 (1), defendant has the initial burden to demonstrate that the prosecution failed to declare readiness for trial within the statutorily prescribed time, 90 days. (see CPL § 30.30 (1) [b]); People v Luperon, 85 NY2d 71, 77-78, 623 NYS 2d 735, 739 [1995]). The burden then shifts to the People to identify excludable delays. (see, Id.).

Without appellate guidance to establish what, if anything, constitutes full or even substantial compliance with mandatory discovery obligations as a condition precedent to filing a COC, courts have examined the due diligence of the prosecutor's efforts to obtain outstanding discoverable materials to determine the validity of their COC and SCOC. (compare People v Rodriguez, 73 Misc 3d at 419, 152 NYS 3d at 885 ["Moreover, the People's communications with defense counsel, which they have attached to their opposition papers, demonstrate that they have endeavored with great diligence to ensure that counsel received all documents to which the defendant is entitled"] with People v Figueroa, 76 Misc 3d 888, 893, 173 NYS 3d 907, 912 [Crim Ct, Bronx County 2022] ["(T)he People fail to articulate any efforts whatsoever to ascertain the existence of FDNY reports and make them available for discovery"]).

In the case at bar, the People's 30.30 calculation commenced at defendant's arraignment on June 11, 2022. When the People filed a valid COC on August 31, 2022, they declared their readiness for trial and stopped their speedy-trial clock. The prosecution's detailed explanation for the reasons they filed subsequent SCOCs on September 6, 2022 and December 20, 2022, demonstrates their good faith to review disclosure when apprised of deficiencies with respect to BWC video.

The court declines to find that the People did not act in good faith by withholding Giglio materials for A.O. R.J. based on their understanding that disclosure of disciplinary records was relegated to testifying officers. To the extent that the shared Giglio disclosure did not include defendant's arresting officer, the People are ordered to disclose this supplemental information and serve defendant with a SCOC explaining the reason for the supplemental disclosure and certifying their compliance pursuant to CPL § 245.50 (1).

Therefore, this court finds that the People were ready for trial 81 days after arraignment, within the statutorily allotted time. (see CPL § 30.30 (1) [b]).

Based upon the foregoing, defendant's motion for dismissal of the misdemeanor charges on statutory speedy trial grounds pursuant to CPL § 30.30 is DENIED in part and GRANTED in part, insofar as the People are directed to produce Giglio materials, both substantiated and unsubstantiated, for Arresting Officer R.J.

This constitutes the opinion, decision, and the order of the court.