The defendant is charged by information with two counts of Driving While Intoxicated (Vehicle and Traffic Law §§ 1192[2] and [3]) and Driving While Ability Impaired (Vehicle and Traffic Law § 1192[1]). The defendant moves to dismiss the information on speedy trial grounds (CPL 170.30[1][e];^[FN1] 30.30). The People opposed this motion. For the reasons stated below, the defendant's motion is granted.

The top charges, Driving While Intoxicated Driving While Intoxicated (Vehicle and Traffic Law §§ 1192[2] and [3]) are unclassified misdemeanors punishable by up to three [*2]hundred sixty-four days in prison (Penal Law § 70.15[3]). Accordingly, a motion to dismiss must be granted when the People are not ready for trial "within 90 days of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony." CPL 30.30(1)(b); 170.30(1)(e). The ninety-day period commences with the filing of the accusatory instrument. CPL 1.20(17); People v Stirrup, 91 NY2d 434, 438 (1998).

The defendant was arraigned on February 16, 2023. On March 22, 2023, the People served some discovery on defense counsel, which included, among other things, body worn camera video for Police Officer Nicholas Gentile, front RMP video, rear RMP video, IDTU dome video 1, IDTU dome video 2 and IDTU video 3. The People again provided partial discovery to defense counsel on March 27, 2023, including, among other things, an Axon Share File List dated February 16, 2023 and memo book entries from Police Officers Camerada and Rugova. On April 14, 2023, the People served and filed an off-calendar Certificate of Trial Readiness ("CTR") and Certificate of Compliance ("COC"), which provided additional discovery. On the following court date of May 15, 2023, the People answered not ready on the record and stated that it would serve a CTR off-calendar. Subsequently, on May 17, 2023, the People served and filed a CTR along with a Supplemental Certificate of Compliance ("SCOC"), which included body worn camera recordings of Officers Camerada, DiPaolo, Meyers and Rugova. However, on the next calendar date on June 22, 2023, the People answered not ready and requested June 27, 2023. On that date, the People answered ready, and defense counsel requested a motion schedule.

The defendant has filed a motion, seeking dismissal of the accusatory instrument on statutory speedy trial grounds (CPL 170.30[1][e];^[FN2] 30.30), asserting, inter alia, that the COC filed by the People on April 14, 2023, was invalid due to the People's failure to turn over the body worn camera recordings of Officers Camerada, DiPaolo, Meyers and Rugova, respectively. The defense argues that the failure to disclose these recordings rendered the People's April 14, 2023 COC illusory. The People respond that despite their failure to turn over these materials, the People's COC was nonetheless filed their COC in good faith because the defendant has not shown that he was "prejudiced" by this discovery issue.

Before answering ready for trial, the People must have "done all that is required of them to bring the case to a point where it may be tried." People v England, 84 NY2d 1, 4 (1994). Once a statement of readiness is filed, the People are only charged for adjournments when the delay is solely and exclusively the fault of the prosecution, and the time cannot otherwise be excluded under CPL 30.30(4). See People v Brown, 28 NY3d 392, 404 (2016); People v Cortes, 80 NY2d 201, 210 (1992). Conversely, "A statement of readiness at a time when the People are not actually ready is illusory and insufficient to stop the running of the speedy trial clock." England, 84 NY2d at 4.

Article 245 of the Criminal Procedure Law requires that the People "actually produce[ ]" automatic discovery to the defense before stating ready for trial. People ex rel. Ferro v Brann, 197 AD3d 787, 787-88 (2d Dept 2021); see CPL 245.20(1), 245.50(1), 245.50(3), 30.30(5). Automatic discovery includes "all" items and information in the People's possession that "relate to the subject matter of the case." CPL 245.20(1). The People's "possession" includes discoverable material that is in their actual possession, (id.), and the possession of the police (CPL 245.20[2]).

Article 245 has tethered the People's discovery obligations to speedy trial by requiring that "automatic discovery" (CPL 245.20) be completed before the People can announce their readiness for trial (CPL 30.30[5]). "The provisions of CPL 245.50 and 30.30 interlace discovery compliance and trial readiness, such that discovery compliance is a condition precedent to a valid announcement of readiness for trial, absent 'exceptional circumstances' on a particular case." People v Lobato, 66 Misc 3d 1230(A), 2020 NY Slip Op 50322(U), at *3 (Crim Ct, Kings County 2020) (quoting CPL 245.50[3]); see also People v Berkowitz, 68 Misc 3d 1222(A), 2020 NY Slip Op 51044(U) (Crim Ct, Kings County 2020). "To interpret CPL 245.50(1) and 30.30 together, in the context of a motion to dismiss on speedy trial grounds, the Court first examines the People's 'actual readiness' (CPL 30.30[5]); that is, whether the prosecution has 'done all that is required of them to bring the case to a point where it may be tried,' including filing a valid COC." People v Winston, 78 Misc 3d 1201(A), 2023 NY Slip Op 50130(U), at*6 (Crim Ct, Bronx County 2023) (quoting England, 84 NY2d at 4 1994).

Upon completion of discovery, the People must serve upon defendant and file with the court a "certificate of compliance" affirming 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). The certificate must also include a list of the discovery materials provided. Id. Thus, after the People have "actually turn[ed] over all known material and information," they must affirm it in a "proper" certificate of discovery compliance. People v Quinlan, 71 Misc 3d 266, 271 (Crim Ct, Bronx County 2021); People v Adrovic, 69 Misc 3d 563, 574 (Crim. Ct., Kings County 2020); see also CPL 245.50(1), (3). A certificate of compliance is "proper" if it is filed "[w]hen the prosecution has provided the discovery required by subdivision one of section 245.20," except for materials that are lost, destroyed, or under a protective order. CPL 245.50(1). However, "What the People may not do is file a Certificate of Compliance in which they claim to have exercised due diligence and turned over "all known material and information," CPL 245.50(1), while at the same time not actually turning over all known material and information, without the express permission of the Court." Adrovic, 69 Misc 3d at 574.

Indeed, that is precisely what the statute directs the People to do in their certificate of compliance: they must certify 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). Alongside this plain text, courts hold that a certificate of compliance "[can]not be deemed complete" until discovery is "actually produced" to the defense. Ferro, 197 AD3d at 787-88; Quinlan, 71 Misc 3d at 271 (requiring that the People file a certificate of compliance only after they "actually turn[ed] over all known material and information"); Adrovic, 69 Misc 3d at 574 (same).

While it is true that "an accidental failure to include a particular disclosure will not necessarily invalidate a Certificate of Compliance, so long as the prosecutor can demonstrate that she acted in good faith[,]" if "the prosecutor has failed to demonstrate diligence and reasonableness in obtaining and disclosing required information and, as a result of that lack of diligence and reasonableness has failed to make a necessary disclosure, then the Certificate of Compliance is invalid." Id. (citing CPL 245.50[1]). In other words, while CPL 245.50(1) provides that a COC filed "in good faith and reasonable under the circumstances" shall result in no adverse consequences to the prosecution, other than a remedy or a sanction, "[G]ood faith is, by itself, inadequate where the People fail to use diligence to comply with their discovery obligations." People v Barralaga, 73 Misc 3d 510, 514 (Crim Ct, New York County 2021).

Additionally, if the People subsequently provide additional discovery, they must serve upon defendant and file with the court a supplemental certificate of compliance identifying the additional material and information provided (CPL 245.50[1]. The statute specifically provides that "[n]o adverse consequences to the prosecution or the prosecutor shall result from the filing of a certificate of compliance in good faith and reasonable under the circumstances; but the court may grant a remedy or sanction for a discovery violation as provided in section 245.80 of this article." CPL 245.50(1). The supplemental certificate of compliance must also "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. The filing of a supplemental certificate of compliance shall not impact the validity of the original certificate of compliance if filed in good faith and after exercising due diligence pursuant to section 245.20 of this article, or if the additional discovery did not exist at the time of the filing of the original certificate of compliance." CPL 245.50(1-a).

"In a challenge to the validity of a certificate of compliance, the court must determine whether the People exercised the requisite level of diligence in obtaining the materials and whether their certification was filed in good faith and was reasonable under the circumstances." People v Hooks, 78 Misc 3d 398, 401 (Crim Ct, Kings County 2023); see also People v Erby, 68 Misc 3d 625 (Sup Ct, Bronx County 2020); People v Knight, 69 Misc 3d 546, 552 (Sup Ct, Kings County 2020); People v McKinney, 71 Misc 3d 1221(A), 2021 NY Slip Op. 50456(U) (Crim Ct, Kings County 2021); Adrovic, 69 Misc 3d 563. "If any known discoverable materials were not exchanged prior to the filing of the COC, the prosecution must demonstrate how due diligence was exercised with regard to those items not exchanged." Winston, 78 Misc 3d 1201(A) at *6 (citing People v Pierna, 74 Misc 3d 1072, 1088 [Crim Ct, Bronx County 2022]). Crucially, "They must detail the reasonable inquiries made to obtain these discoverable materials." Winston, 78 Misc 3d 1201(A) at *6. It is only when the People have failed to produce discovery yet demonstrated their due diligence to fulfill their duty and filed a COC in good faith, may a court then consider sanctions. See id.

In the instant matter, the defense alleges that when the People filed their initial COC on April 14, 2023, the People failed to serve body worn camera recordings of several officers that were actually in their possession months before filing their COC. Campbell Affirmation, ¶¶ 6 — 10; see also Campbell Ex. C — F. In response, the People acknowledge that they indeed failed to turn over these discoverable materials to defense counsel until May 17, 2023; however, their initial COC and CTR are not rendered valid by this failure. O'Connor Affirmation, ¶ 9. Rather, the April 14, 2023 COC and CTR are valid because the defendant has not been prejudiced by their omission as hearings have not started, and, therefore, "no adverse consequence" (CPL [*3]24.50[1]) shall befall them. Id. at ¶ 10. The Court rejects the People's argument.

The People's reliance on the adverse-consequence clause is misplaced because that clause has no application to trial readiness determinations. See People v Vargas, 76 Misc 3d 646, 650 (Crim Ct, Bronx County 2022) (" by the plain terms of the statute, [the adverse-consequence bar] does not apply to the question of whether a COC was sufficient to meet the requirement necessary to stop the speedy-trial clock"); People v Darren, 75 Misc 3d 1208(A), 2022 NY Slip Op 50415(U), at *5 (Crim Ct, NY County 2022) (" the People's contention that dismissal would be an extreme and unwarranted sanction misconstrues the law"); People v Aquino, 72 Misc 3d 518, 526-27 (Crim Ct, Kings County 2021); Quinlan, 71 Misc 3d at 272. Likewise, the People's arguments about CPL 245.80 sanctions are also incorrect. Trial readiness determinations are "not a sanction" pursuant to CPL 245.80. See People v Martinez, 75 Misc 3d 1212(A), 2022 NY Slip Op 50476(U), at *6 (Crim Ct, NY County 2022); Darren, 75 Misc 3d 1208(A) at *5. Where the People do not comply with their automatic discovery obligations, they do not do what is necessary to stop the speedy-trial clock. Moreover, "prejudice," which is a consideration for CPL 245.80 sanctions, is "not a factor" in a 30.30 analysis. Adrovic, 69 Misc 3d at 574. "[T]he People's obligation to provide discovery, and to certify compliance with that obligation, is not relieved by an absence of prejudice to the defendant." Id. "Therefore, while a defendant must show some prejudice in order to obtain a [pre-30.30] sanction against the People under C.P.L. 245.80, the burden is not lifted from the People to comply with their obligation in the first instance." Id.

Stated another way, if a court finds that the COC was not filed in good faith or was not reasonable under the circumstances, the COC shall be deemed invalid and there is no need to consider the sanctions under CPL 245.80, or to consider if the defendant was prejudiced. People v Perez, 75 Misc 3d 1205(A), 2022 NY Slip Op 50387(U), at *3 (Crim Ct, Bronx County 2022); see also People v Georgiopoulos, 71 Misc 3d 1215 (A), 2021 NY Slip Op 50380(U), at *3 (Sup Ct, Queens County 2021); Adrovic, 69 Misc 3d at 574.

Here, the People in their own affirmation admit that it failed to produce the discovery until May 17, 2023, and demonstrated that it failed to review the materials it actually produced to defense counsel against materials already in their possession. It is the prosecution's burden, not that of the defendant, to ascertain the existence of discoverable materials and information and disclose it timely to the defendant. Prejudice does not play a factor in this determination. Accordingly, the Court concludes that the People did not discharge their statutory discovery obligations before filing their COC and stating ready for trial. They have not demonstrated diligent, good-faith efforts to make the entirety of the body worn camera recordings available for discovery, which appears to have been in their actual possession and, at a minimum, was certainly within their constructive possession. Further, the People's "obligation to provide discovery, and to certify compliance with that obligation, is not relieved by an absence of prejudice to the defendant." Adrovic, 69 Misc 3d at 574; see also People v Diaz, 75 Misc 3d 314, 320 (Crim Ct, Bronx County 2022) (prejudice analysis not to be considered when assessing validity of a certificate of discovery compliance).

The only available recourse for the People to have stated ready on their improper COC is if the Court finds special circumstances (CPL 245.50[3]). There are no such special circumstances here nor do the People allege any. Indeed, the People's failure to actually produce all body worn camera recordings do not constitute special circumstances. See People v Guzman, 75 Misc 3d 132(A), 2022 NY Slip Op 50445(U), at *4-*5 (App Term, 2d Dept, 11th & 13th Jud [*4]Dists 2022) (holding that the People's failure to produce a police dashcam video could not support a valid statement of readiness and the "unintentional oversight" did not amount to special circumstances). Likewise, the People neither sought to modify discovery periods for "good cause," (CPL 245.70[2]) nor did they did not seek a protective order to withhold anything (CPL 245.70).

February 16, 2023 to March 28, 2023. The defendant was arraigned on an information on February 16, 2023. The case was adjourned to March 28, 2023 for the People to comply with their discovery obligations and trial. The People are charged 40 days for this adjournment.

March 28, 2023 to April 12, 2023. On March 28, 2023, the People answered not ready and had not yet filed a COC or CTR. The case was adjourned to April 12, 2023 for the People to comply with their discovery obligations and trial. The People are charged 15 days for this adjournment.

April 12, 2023 to May 15, 2023. On April 12, 2023, the People were not ready for trial and had not yet filed a COC or CTR. The case was adjourned to May 15, 2023 for the People to comply with their discovery obligations and trial. On April 14, 2023, the People served a COC and CTR on defense via email and filed the same with the court by uploading the documents to the New York Unified Court System's Electronic Document Delivery System ("EDDS"). As explained above, the People's failure to turn over the body worn camera recordings of Officers Camerada, DiPaolo, Meyers and Rugova rendered the COC invalid. Accordingly, the People are charged 33 days for this adjournment.

May 15, 2023 to June 22, 2023. On May 15, 2023, the People answered not ready for trial and were to serve a CTR when they became ready. Huntley/Ingles/Dunaway/Johnson hearings were granted on consent of the People. On May 17, 2023, ^[FN3] the People served a SCOC and CTR on defense via email and filed the same with the court via EDDS. Even assuming, arguendo, that the SCOC was valid, which defendant opposes, the People are charged a minimum of 2 days for this adjournment.

June 22, 2023 to June 27, 2023. On June 22, 2023, the People answered not ready for hearings and trial and requested June 27, 2023. The People are charged with post-readiness delays when the delay is solely and exclusively the fault of the prosecution, and the time cannot otherwise be excluded under CPL 30.30(4). See also People v Cortes, 80 NY2d 201, 210 (1992); People v Anderson, 66 NY2d 529, 535-536 (1985). The People are charged 5 days for this adjournment.

June 27, 2023 to August 1, 2023. On June 27, 2023, the People answered ready for hearings and trial. The defendant filed the instant motion to dismiss on June 27, 2023. The People are charged 0 days for this adjournment.

The Court's decision will not address the defendant's remaining contentions, as they are rendered moot.

The People had 90 days from commencing this case to validly state ready for trial. CPL 30.30(1)(b). The People commenced this case on February 16, 2023. As explained above, the People's statement of readiness on April 14, 2023, was not valid, as it was not preceded by a proper certificate of discovery compliance (CPL 245.50[3], 30.30[5]). Therefore, it was illusory, and time continued to accrue until a valid COC were filed or other excludable time period is deemed applicable. See CPL 245.50(3); England, 84 NY2d at 4 (1994) ("A statement of readiness at a time when the People are not actually ready is illusory and insufficient to stop the running of the speedy trial clock."). Even if this Court were to find that SCOC valid, there is a total of 95 days chargeable to the People, more than the maximum time allotted by law. CPL 30.30(1)(b). Therefore, the defense's motion to dismiss must be granted.

The foregoing constitutes the order and decision of the court.