Defendant Rafael Santos is charged by information with Reckless Endangerment in the Second Degree (Penal Law § 120.20), a class A misdemeanor; Criminal Possession of a Forged Instrument in the Third Degree (Penal Law § 170.20), a class A misdemeanor; Endangering the Welfare of a Child (Penal Law § 260.10(1)), a class A misdemeanor; and other charges.

By motion dated May 8, 2023, defendant moves for an order finding the People's Certificate of Compliance ("COC"), filed on April 14, 2023, invalid. Defendant also moves to dismiss the accusatory instrument on the ground that he has been denied a speedy trial pursuant to CPL § 30.30 and granting such other relief as this Court may deem proper. Specifically, defendant asserts that, because the People failed to provide to the defense all known discovery materials in their possession prior to filing the COC as required by CPL § 245.20, the COC was invalid. Therefore, defendant argues, the People's accompanying Statement of Readiness ("SOR"), filed on the 90th day following defendant's arraignment, could not have stopped the speedy trial clock. In opposing the motion, the People argue that they filed and served a valid COC and SOR within the permissible speedy trial period.

For the reasons explained below, defendant's motion to dismiss the accusatory instrument is GRANTED.

Defendant was arraigned on a criminal court complaint January 14, 2023, and the case was adjourned to February 8, 2023 for the People to file a supporting deposition and for the People to certify compliance with discovery. At the calendar call on February 8, 2023, the People had not yet filed a supporting deposition or a COC, and the case was adjourned to March 22, 2023. On March 10, 2023, the People filed with the Court and served on defense counsel via the Electronic Document Delivery System ("EDDS") a supporting deposition off calendar. At [*2]the March 22, 2023 calendar call, the criminal court complaint was deemed an information, but the People had not yet certified compliance with discovery. The case was adjourned to April 24, 2023 for the People to file a COC.

On Friday, April 14, 2023, the 90th day following Defendant's arraignment, the People filed with the Court and served on defense counsel via EDDS a COC along with a SOR. In their COC, the People listed the following material as "unavailable" under CPL § 245.50(3):

i. Prisoner Movement Slip

ii. Activity Log Report of PO Christopher Riccio

iii. Activity Log Report of PO Ferdinando Olivo

The COC documented the efforts the People had made to obtain the aforementioned materials, as follows:

The People originally requested the abovementioned material from the 46 precinct on February 8, 2023. The People then followed up via email on March 31, 2023, and April 4, 2023. On April 4, 2023, the People called the 46 precinct discovery liaison and was told to send another request . The People again sent a follow up e-mail on April 6, 2023. On April 7, 2023, the People received a response from the discovery liaison stating that a discovery liaison will assist . On April 10, 2023, the People once again followed up on their discovery request. On April 11, 2023, and April 13, 2023, a Trial Prep Assistant from the Bronx District Attorney's Office sent an e-mail to the 46 precinct discovery liaison following up on the People's discovery request. On April 14, 2023, the People again sent an e-mail to the discovery liaison at the 46 precinct urgently requesting the abovementioned documents. Additionally, on April 14, 2023, the People called the 46 precinct and spoke with Officer Ferdinando Olivo who said he would send the abovementioned activity report for the date of the incident and the People followed up with an e-mail thereafter. Furthermore, on April 14, 2023, the People also called Officer Christopher Riccio, left him a voicemail, and sent him an e-mail requesting his activity log report for the date of incident. To date, the abovementioned documents have been unavailable. As soon as the people (sic) receive said documents, the People will disclose it (sic) in a timely manner.

On the next business day, Monday, April 17, 2023, the People filed with the Court and served on defense counsel via EDDS a Supplemental COC ("SCOC") and another SOR. The SCOC listed materials that the People had provided to the defense "since the Certificate of Compliance filed on April 14, 2023," and included the three items that the People had, just one business day earlier in their original COC, characterized as "unavailable," i.e., the activity log reports of PO Riccio and PO Olivo, and the prisoner movement slip. The SCOC also listed several additional items of discovery that had been disclosed to the defense since the filing of the original COC. These included "ICAD ^[FN1] , Scars Marks, and Tattoos report, Person Intelligence [*3]report, Mugshot Pedigree, Image report and Full body report."

On April 24, 2023, at the calendar call, defense counsel challenged the validity of the People's COC and the Court set a motion schedule. Defendant thereafter moved to dismiss the accusatory instrument under CPL § 30.30(1) and CPL § 210.20(1)(g), claiming the People's COC was invalid and therefore the People could not have been ready for trial on April 14, 2023 when they stated their readiness for trial. The People submitted an affirmation in opposition to the motion, arguing that their April 14, 2023 COC was valid and that the accompanying SOR stopped the speedy trial clock. As such, the People maintain that they remain within the statutory time limits for bringing this case to trial.

Although Defendant's motion is based on his statutory right to a speedy trial, as explained below its resolution turns on whether the People's April 14, 2023 COC was valid. This is because if the COC, which was filed on the 90th and final day of the speedy trial clock, is invalid, then the People's speedy trial time has elapsed and the accusatory instrument must be dismissed.

The People must be ready for trial within 90 days of the commencement of a criminal action if, as here, the most serious offense is a class A misdemeanor punishable by a sentence of imprisonment of more than three months. CPL § 30.30 (1)(b). Although a criminal action commences with the filing of an accusatory instrument, computation for speedy trial purposes commences on the next day. People v. Stiles, 70 NY2d 765 (1987).

In determining whether the People have satisfied their obligation to be ready for trial under CPL § 30.30, the court must calculate the time between the filing of the first accusatory instrument and the People's declaration of readiness, then subtract any statutorily excludable periods of delay, and finally add any periods of post-readiness delay that are attributable to the People for which no statutory exclusions apply. People v. Cortes, 80 NY2d 201 (1992). The People bear the burden of proving the excludability of an adjournment. People v. Berkowitz, 50 NY2d 333, 349 (1980).

Following significant revisions to New York's discovery laws that took effect in 2020, prosecutors are now required to disclose, within specified timeframes, "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." CPL § 245.20(1). The statute further provides an extensive and non-exhaustive list of materials subject to disclosure under this provision. Id.

Highly relevant to the instant case, "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). Moreover, the statute mandates 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).

New York's discovery laws tie the People's readiness for trial to their compliance with their discovery obligations. Criminal Procedure Law § 30.30(5) provides that "[a]ny statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of section 245.20." This dovetails with Article 245, which states that "absent an individualized finding of special circumstances in the instant case by the court before which the charge is pending, the prosecution shall not be deemed ready for trial for the purposes of section 30.30 . . . until it has filed a proper certificate." CPL § 245.50(3).

Nevertheless, under CPL § 245.50(3) "[a] court may deem the prosecution ready for trial . . . where information that might be considered discoverable . . . cannot be disclosed because it has been lost, destroyed, or otherwise unavailable as provided by paragraph (b) of subdivision one of section 245.80 of this article, despite diligent and good faith efforts, reasonable under the circumstances " Id.

In this case, it is undisputed that the People certified compliance on the 90th day of the speedy trial clock despite having not turned over to the defense several items of discovery, including the activity logs of two police officers, a prisoner movement slip, ICAD, and other material. As such, according to defendant, the People could not validly state ready for trial, rendering their April 14, 2023 SOR illusory. Further, defendant argues that even if the missing materials were "unavailable" within the meaning of CPL § 245.50(3), as the People contend, the court should not deem the People's SOR valid because they failed to exercise due diligence in attempting to obtain the materials.

The People counter that their COC was filed in good faith and was reasonable under the circumstances. They point to efforts they made to try to obtain the activity logs, ICAD, and prisoner movement slip, including repeated emails and calls to the 46th precinct and to PO Olivo and PO Riccio. Moreover, with respect to other materials referenced in the SCOC—the "Scars Marks, and Tattoos report, Person Intelligence report, Mugshot Pedigree, Image report and Full body report"—the People aver that they first learned of the existence of these items when the NYPD provided them to the District Attorney's Office on April 16, 2023, in response to the People's requests for the missing activity logs and prisoner movement slip.

In arguing that a COC may be valid even without full compliance with CPL § 245.20(1), the People cite to People v. Erby, 68 Misc 3d 625 (Sup. Ct., Bronx Co. 2020). In Erby, the Court opined that "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." Id. at 633. In that vein, some courts have declined to invalidate COCs due to inadvertent errors or omissions that were found to have been made in good faith after the exercise of due diligence and were expeditiously corrected. See, e.g., People v Pondexter, 76 Misc 3d 349 (Crim. Ct, NY Co. 2022]); People v. Middleton, 79 Misc 3d 418 (Crim. Ct. NY Co. 2023); People v. Leonardo, 75 Misc 3d 1237[A] (Crim. Ct. Queens Co. 2022).

A common thread running through the above-cited cases is that the failure to disclose was the result of a good-faith mistake or oversight. For example, in Pondexter, the Court declined to invalidate a COC where the People had inadvertently neglected to turn over a [*4]prisoner movement slip but, once alerted to the oversight by defense counsel, promptly corrected their mistake. Pondexter, 76 Misc 3d at 354. In Middleton, the Court found that an inadvertent nondisclosure of four activity logs was not the result of lack of due diligence or bad faith. Middleton, 79 Misc 3d at 424. And in Leonardo, the Court would not invalidate a COC where the assigned ADA was originally told that 911 recordings could not be located but, due to her "extraordinary effort", eventually found them and disclosed them belatedly. Leonardo, 75 Misc 3d at 1237[A].

In contrast to the above cases, here the People were apparently aware all along of the missing activities logs, prisoner movement slip, and ICAD, but, facing the imminent expiration of their 30.30 clock, proceeded to file a COC. Indeed, in certifying compliance the People expressly advised defendant as to the existence of the missing activity logs and prisoner movement slip (but not the missing ICAD). The People have attempted to justify their non-disclosure by characterizing the missing materials as "unavailable" within the meaning of CPL § 245.50(3). But under CPL § 245.20(2), all items and information in the NYPD's possession that "relate to the prosecution of a charge" are deemed to be in the possession of the prosecution. For this reason, the People were not relieved of their obligation to disclose to the defense the activity logs and prisoner movement slip simply because they were not in actual possession of those items. See People v Georgiopoulos, 71 Misc 3d 1215[A] (Sup. Ct., Queens Co. 2021) ("[T]he assertion that known discovery materials are not in [the People's] physical possession does not in any way excuse their failure to provide them."); People v. Edwards, 77 Misc 3d 740, 746 (Crim. Ct., Bronx Co. 2022) ("[I]t is no defense that the People did not have these reports in their actual possession as the law is clear that all documents related to the prosecution of a charge that are possessed by law enforcement are considered in the custody of the People.").

Given that police materials are deemed to be in the prosecution's possession, in this Court's view it should rarely, if ever, be the case that the People may file a valid COC without having first disclosed to the defense all known discoverable materials in the NYPD's possession. See People ex. rel. Ferro v. Brann, 197 AD3d 787, 788 (2d Dept. 2021). But assuming that such circumstances may exist, this case is not one of them. According to the People, they "requested the Activity Log Reports for PO Christopher Riccio, and PO Ferdinando Olivo, the ICAD, Prisoner Movement Slip, and 'any documents . . . in the possession and control of the NYPD for the above mentioned case from the NYPD on February 8, 2023." People's Aff. at 6. The People do not specify how, or to whom, this seemingly generalized discovery request was communicated. The People aver that they next "followed up via e-mail on March 31, 2023 and April 4, 2023." Thus, according to the People's own recitation of the facts, the first time they followed up on the outstanding material was more than seven weeks after their initial request, and just 14 days before their 30.30 time was due to expire. Under the circumstances, even assuming that presumably routine police paperwork could qualify as "otherwise unavailable" within the meaning of CPL § 245.50(3), this Court cannot conclude that the People made reasonable, diligent efforts to obtain it.

Notably, under Article 245 the People are required to perform their initial discovery obligations within 35 days of the defendant's arraignment on a misdemeanor complaint where, as here, the defendant is not in custody. CPL § 245.10(1)(a)(ii). That period may be stayed without the need for a motion by up to an additional 30 days where the discoverable materials are "exceptionally voluminous or, despite diligent, good faith efforts, are otherwise not in the actual possession of the prosecution." CPL § 245.10(1)(a)). Here, according to the People, they first [*5]requested discovery in this case from the NYPD on February 8, 2023, and next followed up some 51 days later in a March 31, 2023 email. At that point, 76 days had passed since defendant's arraignment, exceeding the 65 days the People would have had by law to fulfill their initial discovery obligations even assuming they qualified for an automatic extension under CPL § 245.10(1)(a).

This delay, standing alone, weighs against a finding of due diligence. That is, the People's efforts can hardly be described as "diligent" and "reasonable" when, outside of a single, generalized request, they made no additional efforts to get from the NYPD discoverable material within the time in which they were statutorily required to complete their initial discovery obligations. See People v. Diallo, 78 Misc 3d 1218[A] (Crim. Ct., Bronx Co. 2023) ("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 84 ½ % of their 90-day statutory speedy trial 'clock.'"); see also People v. Hooks, 78 Misc 3d 398 (Crim, Ct., Kings Co. 2023) (invalidating COC where People made no efforts to ascertain existence of discoverable material until 83 days after defendant was arraigned). See also Edwards, 77 Misc 3d at 701 ("The only information the People provide in attempting to collect discovery is that a generalized request was submitted to the 44th precinct liaison on February 24, 2022 and a follow up request on March 2, 2022. A general request for discovery does not due diligence make.") (citing People v. Guzman, 75 Misc 3d 132[A] (App. Term, 2d Dept. 2022)).

What followed after March 31, 2023, as described in the People's affirmation, was a more concentrated effort to obtain the outstanding materials from NYPD during the last two weeks of the 30.30 clock, culminating in the People "urgently" requesting the material from the 46th Precinct on the 90th and final day. When the NYPD finally provided the requested material two days later—along with an "ICAD, Prisoner Movement Slip, Scars, Marks, and Tattoos report, Person Intelligence report, Mugshot Pedigree, Image report, and Full body report," the People promptly filed their SCOC and another SOR on April 17, 2023. But by that point it was too late. The 30.30 clock had run out. Unfortunately for the People, an "urgent" request made at the end of the 30.30 clock and after the People's deadline for completing automatic discovery does not in this case equate to diligent, good faith efforts that were reasonable under the circumstances.

The People offer no explanation as to why the NYPD delayed in responding to their requests or why there may have otherwise been impediments to the flow of information in this case between the NYPD and the District Attorney's Office. If there had been some legitimate obstacle to obtaining and disclosing the items in timely fashion, or if there were other discovery-related challenges unique to this case that made timely compliance with discovery unduly burdensome, the better and proper course would have been to seek a ruling from the Court in advance. See Diallo, 78 Misc 3d at 1218[A] (noting the People could have, but did not, seek an alteration of discovery deadlines under CPL 245.70(2) and declining "to entertain what is effectively an untimely application for a deadline extension or alteration pursuant to Article 245, nunc pro tunc "); see also Erby, 68 Misc 3d at 635-36 (notwithstanding the prosecution's "vigorous" efforts in pursuing discovery, it "should have, in accordance with CPL 245.70(2), sought an alteration of the article's time periods for discovery or made an application for an exceptional circumstance exclusion to the court.").

Moreover, while the People recount in some detail their eleventh-hour efforts to obtain the missing activity logs and prisoner movement slip, it appears they made no efforts to obtain the Scars, Marks, and Tattoos Report, Person Intelligence Report, Mugshot Pedigree, Image [*6]Report, or Full Body Report. The People explain that this is because they were unaware of the existence of these items until April 16, 2023, when the NYPD provided them for the first time in response to the People's request for the activity logs and prisoner movement slip. They do not explain, however, why they would not have known of the existence of these additional materials in the first place so as to justify their failure to request them from the NYPD and disclose them to defendant.^[FN2]

Further, as noted above, the People apparently were aware of the existence of the ICAD, as they claim in their affirmation to have specifically requested this item from the NYPD as part of their February 8, 2023 discovery request. But while the original COC listed the prisoner movement slip and activity logs as "unavailable," it made no reference whatsoever to the ICAD. The People's affirmation is at best ambiguous as to what efforts, if any, were specifically made to get the ICAD from NYPD beyond the February 8, 2023 request.

Significantly, the People do not dispute that the materials at issue relate to the subject matter of the instant case and are otherwise discoverable. Moreover, defendant is not required to show prejudice in order to prevail on his motion. See Diallo, 78 Misc 3d at 1218[A] (charging the People with CPL § 30.30 time for failure to file a valid COC is separate and distinct from sanctions for discovery violations under CPL § 245.80; while the latter may require a showing of prejudice, the former does not); Edwards, 75 Misc 3d at 748-49 ("Charging the People with time for what amounts to an invalid statement of readiness is not an adverse consequence requiring the defendant to show prejudice."). Inasmuch as CPL § 245.50(1) provides that "no adverse consequence to the prosecution shall result from the filing of a certificate of compliance in good faith and reasonable under the circumstances," this Court does not interpret that provision as applying to the running of the 30.30 clock when the People have filed an invalid COC. See People v. Aquino, 72 Misc 3d 518, 526 (Crim. Ct., Kings Co. 2021). Moreover, as noted above, this Court cannot conclude that the filing of the April 14, 2023 COC in this case was reasonable under the circumstances. Thus, even if the legislature had intended "adverse consequences" under CPL § 245.50(1) to include the expiration of the 30.30 clock, dismissal would still be warranted in this case.

The People's April 14, 2023 COC was invalid because the People failed to disclose to the defense known discoverable material in their constructive possession prior to filing the COC. Absent a valid COC, the 30.30 clock continued to run until at least the 93rd day, when the People [*7]filed their SCOC. As such, more than 90 days of speedy trial time has elapsed and defendant's motion must be granted. See CPL § 30.30(1).

Accordingly, Defendant's motion to dismiss the accusatory instrument is GRANTED.

The foregoing constitutes the opinion, decision, and order of the Court.