The defense has filed a C.P.L. § 30.30 motion to dismiss alleging that the People's statement of readiness was illusory. They argue that it was illusory because the People did not first file a proper, good-faith certificate of automatic discovery compliance—a mandatory prerequisite to readiness. Upon review of the parties' submissions, the motion is granted.

"[A]bsent an individualized finding of special circumstances," a proper, good-faith certificate of automatic discovery compliance is a "prerequisite to the People being ready for trial." (People v. Hamizane, 2023 NY Slip Op. 23233, at *2 [App. Term, 2d Dep't 2023] [citing C.P.L. §§ 30.30[5], 245.20[1], 245.50[3]]). "Consequently," a statement of readiness "is invalid if it is accompanied or preceded by" a certificate of compliance "that is later determined to be improper, where no special circumstances exist." (Id.).

Criminal Procedure Law § 245.50[1] defines a proper, good-faith certificate of compliance, and it requires the People to certify two things. First, that the People have exercised "due diligence" and made "reasonable inquiries" to "ascertain the existence" of discoverable material. (C.P.L. § 245.50[1]). And second, that they "made available all known material and information subject to discovery." (C.P.L. § 245.50[1]). Absent special circumstances, a proper, good-faith certificate of compliance with these two requirements is necessary for a valid statement of readiness. (C.P.L. §§ 245.50[3]; 30.30[5]).

Consequently, what constitutes good faith compliance is straightforward, and the Second Department is consistently clear about it. Where the People do not, in fact, exercise due diligence or make reasonable inquiries to ascertain the existence of discoverable material, their [*2]certificate stating otherwise is not made in "good faith." (E.g., Hamizane, 2023 NY Slip Op. 23233, at *3 [certificate not in "good faith" because "none of the People's submissions . . . showed that the People had attempted to obtain any police disciplinary records, or attempted to find out whether any such records existed"]; People v. Rahman, 79 Misc 3d 129[A], at *2 [App. Term, 2d Dep't 2023] [certificate "not filed in good faith" because the People, in fact, "failed to exercise due diligence and make reasonable inquiries to ascertain the existence of FDNY/EMS records"]; People v. LaClair, 188 N.Y.S.3d 850, 853 [App. Term, 2d Dep't 2023] [certificate was "not filed in good faith" because the People, in fact, "failed to exercise due diligence and did not make reasonable inquiries to ascertain the identities of all law enforcement witnesses related to the case"]; People v. Guzman, 75 Misc 3d 132[A], at *3 [App. Term, 2d Dep't 2022] [certificate "was not filed in good faith" because the People, in fact, "failed to exercise due diligence and did not make reasonable inquiries to obtain [a dashcam] video"]).

Moreover, a certificate is not complete until the People "actually produce[]" the discovery listed on it to the defense. (People ex rel. Ferro v. Brann, 197 AD3d 787, 787-88 [2d Dep't 2021]). In other words, the People cannot be said to have filed a good-faith certificate where they claimed they had "turned over 'all known material and information,' while at the same time not actually turning over all known material and information." (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] [same]). Even a "possible technological error" in producing discovery does not excuse this obligation. (People v. Carter, 2022-92K CR, at *3 [App. Term, 2d Dep't Aug. 4, 2023]; see also Ferro, 197 AD3d at 787-78 [also involving a possible technological error]; People v. Francis, 75 Misc 3d 1224[A], at *2 [Crim. Ct., Bronx County 2022] [explaining Ferro]).

Where the defense alleges that the People improperly certified compliance with discovery, "the People must establish that they have met their burden." (E.g., People v. Vargas, 78 Misc 3d 1235[A], at *2 [Crim. Ct., Bronx County 2023]; see also Hamizane, 2023 NY Slip Op. 23233, at *3 [none of the "People's submissions" established the certificate was proper]; People v. Hooks, 78 Misc 3d 398, 402 [Crim. Ct., Kings County 2023] ["The People have . . . not met their burden of showing how their actions were diligent."]; People v. Critten, 77 Misc 3d 1219[A], at *3 [Crim. Ct., NY County 2022] [assessing "due diligence requires the People to demonstrate how due diligence was exercised"]; People v. McKinney, 71 Misc 3d 1221[A], at *7 [Crim. Ct., Kings County 2021] [the People must produce a "factual basis" for the court to find "due diligence"]).

That is because the People are the party who best know about what efforts they made. (See People v. Spaulding, 75 Misc 3d 1219[A], at *4 [Crim. Ct., Bronx County 2022] ["The party in possession of information should bear the burden of producing it."]; see also Campbell v. United States, 365 U.S. 85, 86 [1961] ["[T]he ordinary rule . . . does not place the burden upon a litigant of establishing facts peculiarly within the knowledge of his adversary."]; National Communications Ass'n v. AT & T Corp., 238 F.3d 124, 130 [2d Cir. 2001] ["[A]ll else being equal, the burden is better placed on the party with easier access to relevant information."]; 9 J. Wigmore, Evidence § 2486 [J. Chadbourn rev. ed. 1981] ["[T]he burden of proving a fact is said to be put on the party who presumably has a peculiar means of knowledge."]).

The Second Department's Appellate Term has explained that automatic discovery includes police misconduct records. (Hamizane, 2023 NY Slip Op. 23233). Before filing a certificate of compliance, the People must, "with respect to every listed potential police witness, . . . disclose whether or not disciplinary records exist" and "provide the defense with copies of any existing records." (Id. at *3). That is because "CPL 245.20[1][k] encompasses 'All evidence and information' which 'tends to . . . (iv) impeach the credibility of a testifying prosecution witness." (Id. [quoting C.P.L. § 245.20[1][k][iv]]). "Clearly, the disciplinary records of a potential police witness which were created in relation to a difference case" go to "the weight of the credibility of the witness and can be used for impeachment purposes." (Id.). As a result, in response to a motion alleging that their readiness was illusory, the People must establish that they exercised due diligence to ascertain the existence of police disciplinary records and then made them available. (See id.).

Here, however, while the People disclosed some police misconduct records that they deemed to be "relevant," "[a]ny underlying documents that are missing were deemed irrelevant to the case at hand by the Queens DA's LEOW office." (Pr. Resp. at 8). In support of this practice, the People cite C.P.L. § 245.10[1][a] as saying that "portions of materials claimed to be 'non-discoverable' may be withheld [pursuant to] 245.70." (Id.). (The People also claim that "a mere LEOW letter is a sufficient disclosure with regard to testifying police officers," a claim that so many different courts have rejected that this court will push them to a footnote to not to clutter this decision).^[FN1]

But the People's reliance on C.P.L. § 245.10[1][a] as a source for a supposed unilateral authority to censor is misguided. That full provision says that "[p]ortions of materials claimed to be non-discoverable may be withheld pending a determination and ruling of the court under section 245.70." (C.P.L. § 245.10[1][a] [emphasis added]). In their quotation of that section, the [*3]People omit that critical language. If the People want to withhold some of a police witness's misconduct material, the statute's process requires them to seek "court" approval first. (People v. Best, 76 Misc 3d 1210[A], at *6 [Crim. Ct., Queens County 2022]). They can only withhold material "pending" that "ruling of the court." (C.P.L. § 245.10[1][a]). Here, however, the People never moved for such a court order and do not claim to have ever intended to do so.

Thus, the discovery statute does not empower the People's "LEOW office" to unilaterally "deem[]" some police misconduct records relating to their potential witnesses to be "irrelevant." (E.g., Best, 76 Misc 3d 1210[A], at *6 ["The People are without authority to determine unilaterally, by themselves, what 'tends to' or does not tend to go towards the impeachment of a witness. . . . These are determinations that are not for the People to decide."]; People v. Figueroa, 78 Misc 3d 1203[A], at *4 [Crim. Ct., Queens County 2023] ["[T]he statute does not even allow the People to make a unilateral 'good faith' determination that misconduct files do not fall under it."]). "[T]he disclosure of such records must be automatic, absolute and without redaction, adulteration, or censorship by the People, except as allowed in CPL 245.20[6]." (Best, 76 Misc 3d 1210[A], at *6).

Furthermore, the People make no representations about any efforts to ascertain the existence of misconduct records from the police department. Instead, all the People's stated efforts relate to the prosecutor's communications with the "Queens DA's" own "LEOW office." But the discovery statute does not simply require the People to ask themselves whether they possess misconduct records. They must also ascertain the existence of such records held by the police department and disclose those. (See C.P.L. § 245.20[2] ["For the purposes of [automatic discovery], 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."]; see also Hamizane, 2023 NY Slip Op. 23233, at *2 ["[T]he People now have a statutory duty to disclose all evidence and information—including that which is 'known to police'—that tends to impeach the credibility of a testifying prosecution witness."]; People v. Edwards, 74 Misc 3d 433, 441 [Crim. Ct., NY County 2023] [Weiner, J.] ["Impeachment evidence is 'related to the prosecution of a charge' for the same reason that impeachment evidence relates 'to the subject matter of the case': it directly relates to whether the factfinder should believe the witness's testimony."]; see generally Figueroa, 78 Misc 3d 1203[A] [explaining the same]).

But there is also another problem with the People's defense of their certificate of compliance. According to the People, this case involves an altercation to which FDNY's Emergency Medical Services "respond[ed]" and "render[ed] assistance to the complainant." (Pr. Resp. at 5). As a result, from the beginning of this case, it was plain to the People that FDNY was substantively involved. Under C.P.L. § 245.20[2]—the subdivision entitled "[d]uties of the prosecution"—the People must "make a diligent, good faith effort to ascertain the existence of [discoverable] material or information" 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." (C.P.L. § 245.20[2]; see also Rahman, 79 Misc 3d 129[A], at *2 ["Moreover, the People were required to make a diligent, good faith effort to ascertain the existence of the FDNY/EMS records and to cause the records to be made available for discovery even if the records were not in the People's possession, custody, or control."] [citing People v. Ajunwa, 75 Misc 3d 1220[A] [Crim. Ct., Bronx County 2022]]).

Here, however, the People only state that they "attempted to ask the officers who were at [*4]the scene of the crime if they took down the names and contact information for ambulance responders at the scene," and "unfortunately the officers did not maintain their information." (Pr. Resp. at 6). The People inexplicably never contacted FDNY, which would presumably know which of its own personnel responded to the scene. (See Pr. Resp. at 4-6). "Where FDNY records related to a case are reasonably likely to exist, the People must make a 'diligent, good faith effort' to ascertain their existence and 'cause' them to be made available for discovery before filing their COC." (People v. Figueroa, 76 Misc 3d 888, 893-95 [Crim. Ct., Bronx County 2022] [quoting C.P.L. § 245.20[2]]). Merely contacting the police, rather than the FDNY itself, about FDNY records is not a "diligent, good faith effort" to ascertain that information.

Accordingly, the People have failed to establish that their certificate of discovery compliance was proper. This was their burden to do. But throughout the People's submission, they intimate that they did not turn over all the disciplinary records relating to their police witnesses. (See, e.g., Pr. Resp. at 8 [saying that the People "turned over all relevant underlying documents" but that "[a]ny underlying documents that are missing were deemed irrelevant to the case at hand by the Queens DA's LEOW office"]; id. at 9 ["[T]he People's good faith position that [documents underlying the LEOW letters] was not discoverable or not in their possession at the time of certification should not affect the certification."]). "The People could not claim to have turned over 'all known material and information' while at the same time making unilateral policy or value judgments to withhold material." (People v. Trotman, 77 Misc 3d 1210[A], at *1 [Crim. Ct., Queens County 2022]). Moreover, their submissions do not establish any efforts "to obtain any police disciplinary records" from the police department rather than merely their own office. (See Hamizane, 2023 NY Slip Op. 23233, at *3). Further, the People fail to establish that they made diligent, good faith efforts to ascertain the existence of FDNY records that were reasonably likely to exist, given the circumstances of this case. (See Rahman, 79 Misc 3d 129[A]; Figueroa, 76 Misc 3d 888; Ajunwa, 75 Misc 3d 1220[A]).

Finally, the People argue that even if their certificate of compliance was not proper, the court should not decide this C.P.L. § 30.30 motion on the merits because it is "untimely." (See Pr. Resp. at 2-4). They point to C.P.L. § 245.50[4], which says that "[c]hallenges related to the sufficiency of a certificate of compliance . . . shall be addressed by motion as soon as practicable." They also argue that "in the interest of fairness," defense attorneys must bring motions alleging illusory readiness, based on improper certificates of discovery compliance, before the People's readiness period expires. (Id. at 2). "In the case at hand," the People argue, "defense strategically waited until the People had no time to even evaluate their COC." (Id. at 4). The "defendant cannot lie in wait," they say. (Id.).

This court has rejected various forms of this argument before, (see generally People v. Jawad, 79 Misc 3d 1210[A] [Crim. Ct., Queens County 2023]; People v. Spaulding, 75 Misc 3d 1219[A], at *5-*7 [Crim. Ct., Bronx County 2022]), and does so here again.

As an initial matter, the People's argument misapprehends C.P.L. § 30.30 and Article 245. Automatic discovery is a "prerequisite" of the People's readiness. (Hamizane, 2023 NY Slip Op. 23233, at *2). "Consequently," a statement of readiness "is invalid if it is accompanied or preceded by" a certificate of compliance "that is later determined to be improper, where no special circumstances exist." (Id.). A C.P.L. § 30.30 motion, by definition, is filed only after the [*5]People have exhausted their readiness time. The defense does not waive a C.P.L. § 30.30 claim except when it does so through some express consent or conduct. "Mere silence is not a waiver." (People v. Dickinson, 18 NY3d 835, 836 [2011]).

On this motion, the question is whether the People brought "the case to a point where it may be tried" when they stated ready. (People v. England, 84 NY2d 1, 4 [1994]). That is the essence of C.P.L. § 30.30—it is only about the People's readiness. "The People" must validly state ready for trial within the prescribed time periods after commencing a criminal action. (C.P.L. § 30.30[1] [emphasis added]). "The inquiry is whether the People have done all that is required of them to bring the case to a point where it may be tried." (People v. Brown, 28 NY3d 392, 403 [2016] [emphasis added]). "CPL 30.30 . . . was specifically intended 'to address delays occasioned by prosecutorial inaction.'" (People v. Clarke, 28 NY3d 48, 52 [2016] [quoting People v. McKenna, 76 NY2d 59, 63 [1990] [emphasis added]]).

Thus, the question before the court is whether the People met their prerequisite burden to file a proper, good-faith certificate of discovery compliance before stating ready. Like any other legal impediment to readiness, that burden lies "squarely upon the shoulders of the District Attorney." (See People v. N.S., 58 Misc 3d 613, 616 [Crim. Ct., Queens County 2018] [making a parallel conclusion in the facial-sufficiency context], aff'd 71 Misc 3d 140[A] [App. Term, 2d Dep't 2021] ["The People's obligation—that they alone possess—[is] to be ready for trial before the expiration of their '30.30 clock.'"]). It is "the prosecution" that must certify compliance with its own automatic discovery obligations. (C.P.L. § 245.50[1]). Specifically, "the prosecutor" must certify in good faith that "after exercising the existence of material and information subject to discovery, the prosecutor has disclosed and made available all known material and information subject to discovery." (Id. ["By the prosecution."]). Plainly, prosecutors are responsible for filing their own proper certificate; defense attorneys are charged with filing theirs. (See C.P.L. § 245.50[2] ["By the defendant."]).

The "as soon as practicable" language in C.P.L. § 245.50[4] does not disrupt this standard analysis. Filing a proper prosecution certificate of compliance is the People's own responsibility before stating ready. And it is a document that purports to certify compliance with automatic discovery. It does not certify that the People have delivered a riddle to the defense to solve what material they have withheld. Consistent with § 30.30 principles, while the discovery statute asks that parties make challenges to certificates of compliance "as soon as practicable," (C.P.L § 245.50[4][c]), nowhere does it state that failure to do so retroactively waives a proper certificate as a prerequisite of the People's readiness. To the contrary, the rest of the "as soon as practicable" sentence says that "nothing in this section shall be construed to waive a party's right to make further challenges, including but not limited to a motion pursuant to C.P.L. section 30.30." (Id.). Thus, it is still true that "[n]othing . . . precludes the defendant from moving for relief (such as dismissal through CPL 30.30) to which they are entitled or requires the defendant to seek the People's permission before seeking such relief." (People v. Rahman, 74 Misc 3d 1214[A], at *3 [Sup. Ct., Queens County 2022], aff'd, 79 Misc 3d 129[A]; see also People v. Audino, 75 Misc 3d 969, 977 [Crim. Ct., NY County 2022] ["Any argument from the prosecution that [the defense] had an obligation to confer with it in a way that would impact the accrual of speedy trial time is nowhere to be found in the statute."]).

The only way the People's argument would fit within this established framework is if the defense could be said to have retroactively waived a proper certificate of compliance through its silence. But the defense can only waive the People's duty to file a proper certificate under the [*6]strictures of C.P.L. § 245.75. That subsection is entitled "Waiver of discovery by defendant." (C.P.L. § 245.75). There, the Legislature required that any such waiver "be in writing, signed for the individual case by the counsel for the defendant and filed with the court." (Id.). Then, the court must "inquire of the defendant on the record to ensure that the defendant understands his or her right to discovery and right to waive discovery." (Id.). A court may not supplant these explicit statutory requirements with its own rule that a defense attorney's silence, on its own, waives automatic discovery.

In arguing that this statutory structure is "unfair," the People misunderstand the adversarial structure of criminal court. Defense attorneys are under no obligation to help prosecutors successfully prosecute their case. "[A]ny requirement that defense counsel assist the People in rooting out deficiencies" in their own certificate of discovery compliance—"and do so in time to preserve the continued prosecution of their client"—would have the "untenable effect of forcing defense attorneys to potentially harm the defendant." (See N.S., 58 Misc 3d at 616 [citing R. of Prof. Conduct §§ 1.7[a][1]; 1.8[b]]). That a defense attorney would "lie in wait" to seek the dismissal of the prosecution against his client is what any person should expect from their attorney. No one should expect a defense attorney to act like a second prosecutor.

Even setting all of this aside, however, the People's "lying in wait" complaint is irrelevant to the circumstances here. The reason why "lying in wait" is generally associated with unfairness is because it heaps surprise on another party. But one cannot surprise the People by informing them of actions they themselves deliberately took. Nor can one surprise the People with the text of the criminal procedure law. In this case, despite the statutory mandate to seek court permission first, the People's "LEOW Unit" apparently "deemed" some misconduct records to be "irrelevant." The fact that the People did so is no surprise to them. Nor is it a surprise to the People that, despite the mandate of C.P.L. § 245.20[2], they never even contacted FDNY before filing their certificate. These are choices that the People made themselves, knowingly and intentionally. It is not a surprise to inform someone of that which they already know.

Consequently, this court finds no requirement that the defense notify the People that their readiness was illusory before the C.P.L. § 30.30 clock expires. It is the People's burden to bring the case to the point where it may be tried within that period—not that of the defense.

The People commenced this case on October 23, 2022, and they had 90 days to validly state ready for trial. (See C.P.L. § 30.30[1][b]). Before stating ready for trial, it was their responsibility to review the criminal procedure law, disclose misconduct records from the police department, seek court permission to withhold any as irrelevant, and contact the FDNY. The People failed to prove that they did any of that, and so they fail to establish their certificate of compliance was proper or filed in good faith. Therefore, their statement of readiness was illusory.

It is now the People's burden to prove that any of the time between October 23, 2022, and today "should be excluded" and to provide the necessary evidence to substantiate their claims. (E.g., People v. Wearen, 98 AD3d 535, 537 [2d Dep't 2012]; People v. Reinhardt, 193 AD2d 1122, 1122 [4th Dep't 1993]). Here, the People do not claim even a single C.P.L. § 30.30[4] [*7]exclusion. (See generally Pr. Resp.). However, it is plain on the papers that the defense filed a motion on May 25, 2023. (Def. Mot. at 1; see C.P.L. § 30.30[4][a]).

Therefore, the C.P.L. § 30.30 calculation runs from October 23, 2022, to May 25, 2023. That is 214 days, more than the 90 days the People are allowed. The case must therefore be dismissed. (See C.P.L. § 30.30[1][b]).

But it did not have to be this way. The discovery statute was enacted over three years ago. It is high time the People acceded to its commands. Automatic discovery requires the People to disclose "All evidence and information, including that which is known to police . . . that tends to . . . impeach the credibility of a testifying prosecution witness." (C.P.L. § 245.20[1][k][iv] [emphasis added]; see also Hamizane, 2023 NY Slip Op. 23233 [same]). It requires the People to obtain court permission before withholding their officer witnesses' misconduct material as "irrelevant." (C.P.L. § 245.10[1][a] [requiring a determination of the court]; see also Best, 76 Misc 3d 1210[A], at *6 [same]). And it requires the People to make a "diligent, good faith effort" to "ascertain the existence" of discoverable material and "cause" it to "be made available" where it "exists but is not within the prosecutor's possession, custody or control." (C.P.L. § 245.20[2]; see also Rahman, 79 Misc 3d 129[A], at *2 [same] [quoting Ajunwa, 75 Misc 3d 1220[A] [same]]). The discovery statute provides the People with numerous tools to facilitate their compliance with these mandates. (See C.P.L. §§ 245.70[2] [allowing courts to modify discovery periods for "good cause"]; 245.70 [providing for protective orders]; 245.50[3] [allowing the People to state ready without a proper certificate upon "special circumstances"]). They used none here. Instead, the People opted to simply file a certificate of "compliance" without actually complying with the statute. That renders their readiness illusory. And where the People do not carry out their own responsibility of filing a proper certificate within their own readiness period, they alone carry the blame for exhausting § 30.30.

The foregoing constitutes the order and decision of the court.