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. Such a certificate is a prerequisite to the People's readiness. In response, the People admit they filed their certificate without producing an NYPD aided report, police photographs of the complainant's injuries, and "assorted DD5 paperwork."

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]).

What constitutes good faith compliance is straightforward, and the appellate courts are 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 certificate stating [*2]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]). 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."]).

At the risk of stating the obvious, what matters is the People's compliance before filing the certificate of compliance. "That is why the certificate must state that 'after exercising due diligence,' the prosecutor 'has disclosed and made available all known material." (People v. Toussaint, 78 Misc 3d 504, 508 [Crim. Ct., Queens County 2023] [quoting C.P.L. § 245.50[1]]; [*3]see also McKinney, 71 Misc 3d 1221[A], at *7 [noting that what matters is the People's efforts "prior to certifying compliance"]). That the People fixed their errors only after filing their certificate—and only after a defense attorney pointed them out—cannot retroactively cure an improper certificate.

The People here filed a certificate of discovery compliance without disclosing an NYPD aided report, photographs of the complainant's injuries, and what the People call "assorted DD5 paperwork." The People did so even though the existence of the missing material was apparent from other police materials. The photos were referenced on three different police reports—an Omniform Complaint Report, a Domestic Incident Report, and a Complaint Report Worksheet. (See Def. Mot. Ex. E). The body camera footage also depicts the police taking these photos. And three police documents note the existence of the aided report. (See Def. Mot. Ex. F).

There is case law on point. In People v. Guzman, the People filed a certificate of discovery compliance despite failing to first disclose a police dashcam video. (75 Misc 3d 132[A], at *1). Six months later, the defense pointed out that the video was missing. (See id., at *2-*5). The People then filed a supplemental certificate and disclosed the video, claiming their initial failure "was an unintentional oversight." (Id. at *2). The Appellate Term found that the original certificate could not support a valid statement of readiness. (Id. at *3-*4). It did so because "the People were in possession of police documents which indicated the existence of the video" and the People provided "no explanation as to why they did not check the items sent to them . . . against the police reports they sent to the defense." (Id. at *3). The People's "office failure" in making an "oversight" did not "amount to [the] special circumstances" necessary to validate the People's readiness despite their failure. (Id. at *4-*5).

Other courts—including this one—have drawn similar conclusions. In People v. Valentine, a court held that if "defense counsel examines the prosecution's discovery materials and points to clear references that other undisclosed discoverable items exist, the Court cannot find that the prosecution acted reasonably and diligently." (2019BX030896, at *9 [Crim. Ct., Bronx County 2021]). In People v. Ajunwa, this court agreed, holding that the People could not claim to have exercised due diligence where they failed to disclose a police report that was "referenced in an NYPD Omniform System complaint report, a basic case document of which the People were in possession." (76 Misc 3d 1217[A], at *2; see also People v. Trotman, 77 Misc 3d 1210[A], at *5 [Crim. Ct., Queens County 2022] [finding no due diligence where "the People were plainly on notice that the accident and Z-Finest reports existed" because they were on a "police index"]; accord People v. Pierna, 74 Misc 3d 1072, 1092 [Crim. Ct., Bronx County 2022] [finding no due diligence where, "inasmuch as it is alleged in the criminal court complaint that the officer sustained physical injuries, the People were on reasonable notice of the potential existence of the photographs"]).

Like in Guzman, the People here were on notice that the photographs and aided report existed. Also like in Guzman, the People here attribute their noncompliance to an office failure: "the only reason [the material] was not turned over was due to simple error and minor oversight." (Pr. Resp. at 8). Indeed, the People admit they had actual possession of the photographs but failed to disclose them because they "mistakenly had never . . . uploaded [them] to the document sharing system." (Id.). "As for the Aided Worksheet, this document was overlooked when the People reached out to the NYPD to provide what the People believed to be missing prior to certifying the case." (Id.). It is "well settled" that these "office failure[s]" do not constitute the "special circumstances" necessary to validate the People's readiness despite their [*4]noncompliance. (Guzman, 75 Misc 3d 132[A], at *3; see also People v. Carter, 2022-92K CR, at *3 [App. Term, 2d Dep't Aug. 4, 2023] [the People's "possible technological error" did not constitute the necessary "special circumstances"]; Ferro, 197 AD3d at 787-88).

The People make two other arguments, but both misapprehend C.P.L. § 30.30 and Article 245. They argue that the defense has not established any prejudice from their failure to validly state ready for trial. And they argue that the defense "lied in wait" and filed an "untimely" motion, thereby "waiving" automatic discovery. The court rejects each argument.

First, "[c]ontrary to the People's argument, a showing of prejudice is not required to establish that a [certificate of compliance] is improper." (Hamizane, 2023 NY Slip Op. 23233, at *2; see also People v. Hamilton, 46 NY2d 932, 933-34 [1979] ["Finally, it bears emphasis that the right to a speedy trial guaranteed by CPL 30.30, which relates to prosecutorial readiness, is not dependent in any way on whether the defendant . . . can demonstrate prejudice resulting from the delay."]; People v. Adrovic, 69 Misc 3d 563, 574 [Crim. Ct., Kings County 2020] ["[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."]; People v. Darren, 75 Misc 3d 1208[A], at *5 [Crim. Ct., NY County 2022]; People v. Diaz, 75 Misc 3d 314, 320 & n.3 [Crim. Ct., Bronx County 2022]; People v. Pierna, 74 Misc 3d 1072, 1089-90 [Crim. Ct., Bronx County 2022]; People v. Quinlan, 71 Misc 3d 266, 272 [Crim. Ct., Bronx County 2021]; see also Hon. Barry Kamins, Bail and Discovery Reform: The Third Round, N.Y.L.J. [June 6, 2022] ["One must distinguish this discretionary type of dismissal [in C.P.L. § 245.80], however, from a dismissal under C.P.L. § 30.30, which is mandatory when based on a failure of the prosecutor to file a valid certificate of compliance."]).

Second, the defense's motion is not untimely, nor is it conceptually possible for them to "lie in wait" to file a C.P.L. § 30.30 motion. (See People v. Rivera, 78 Misc 3d 1219[A], at *4 [Sup. Ct., Queens County 2023] ["[T]he People incorrectly shift the burden to the defendant in reminding them of their automatic discovery obligations."]; People v. Olah, 79 Misc 3d 1240[A], at *4-*6 [Crim. Ct., Queens County 2023]; People v. Jawad, 79 Misc 3d 1210[A] [Crim. Ct., Queens County 2023]; Spaulding, 75 Misc 3d 1219[A], at *5-*7; see also People v. Rahman, 74 Misc 3d 1214[A], at *3 [Sup. Ct., Queens County 2022], aff'd, 79 Misc 3d 129[A]; People v. Audino, 75 Misc 3d 969, 977 [Crim. Ct., NY County 2022]).

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.).

Thus, whether and when a defense attorney challenges the People's statement of readiness has no effect on whether that prior statement was valid. There is no Schrödinger's cat here—no superposition of readiness and unreadiness that only collapses into one when a defense attorney looks inside the box. The People either filed a proper certificate of compliance and were ready; or they did not and so were not. Here, the People filed a certificate of "compliance" without first complying with their automatic discovery obligations. Consequently, their statement of readiness was "invalid" because it was "accompanied or preceded by" a certificate of compliance "that [was] later determined to be improper, where no special circumstances exist." (Id.).

The People's claim that the defense "waived" the readiness challenge by filing after the C.P.L. § 30.30 period elapsed has no basis in law, either. A C.P.L. § 30.30 motion, by definition, is filed only after the People have exhausted their readiness time. And the defense does not [*5]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]; see also People v. Leubner, 143 AD3d 1244 [4th Dep't 2016] ["Although a defendant may waive his or her rights under CPL 30.30, such a waiver must be explicit, and mere silence is not a waiver."]).

The discovery statute is consistent with these fundamental principles. While it 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." (Rahman, 74 Misc 3d 1214[A], at *3, aff'd, 79 Misc 3d 129[A]; see also Audino, 75 Misc 3d at 977 ["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."]).

Indeed, the only statutory mechanism for the defense to waive the People's duty to file a proper certificate before stating ready is C.P.L. § 245.75. That section 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 reticulated statutory requirements with its own rule that a defense attorney's silence, on its own, waives automatic discovery.

Thus, this court declines the People's invitation to create a rule that the defense must challenge the People's readiness before the § 30.30 period expires. (See Pr. Resp. at 2-3). It is elementary that the People alone bear the burden to validly state ready within that period. And that makes sense—it would overturn the adversarial nature of criminal court to expect a defense attorney to act like a prosecutor's supervisor. In any event, consider what the People's rule would look like in this case. The People here stated ready on the 88th day after arraignments. Their C.P.L. § 30.30 time expired after the 90th day. Under the People's proposed rule, the defense would have been required to review all the discovery, solve the puzzle of what the People did wrong (something the People should have already fixed themselves), and report back to the prosecutor, all within two days. Otherwise, the People would deem this C.P.L. § 30.30 claim "waived." Nothing in statute or reason compels such a rule, and this court will not enact it by judicial fiat.

The People commenced this case on August 11, 2022, and they had 90 days to validly state ready for trial. (See C.P.L. § 30.30[1][b]). The People's statement of readiness on the 88th day was not valid and did not toll the clock. It is now the People's burden to prove that any time "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] exclusion. (See generally Pr. Resp.). However, the defense concedes it asked for a motion schedule on February 8, 2023, thereby tolling the clock. (Def. Mot. at 15; see C.P.L. § 30.30[4][a]). Therefore, the C.P.L. § 30.30 calculation runs from August 11, 2022, to February 8, [*6]2023. That is 181 days, more than the 90 days the People are allowed. The case must therefore be dismissed. (See C.P.L. § 30.30[1][b]).

The foregoing constitutes the order and decision of the court.