The defendant is charged under Indictment Number IND-70150-23 with two counts of Criminal Possession of a Controlled Substance in the Third Degree and related charges for an incident alleged to have occurred on December 13, 2022. On June 12, 2023, the People filed a certificate of compliance and an inventory of items that had been provided to the defense and announced ready for trial. By motion dated August 10, 2023, the defendant now moves to dismiss the indictment pursuant to Criminal Procedure Law (CPL) section 30.30. Additionally, the defendant challenges the certificate of compliance filed by the People claiming that it is invalid due to their failure to disclose, pursuant to CPL section 245.20(1), certain discoverable materials. The People oppose the motion in its entirety.

The defendant's motion is denied as untimely. A motion challenging the validity of the People's certificate of compliance constitutes a pre-trial motion and is therefore governed by CPL Articles 255 (People v. Smith, 79 Misc 3d 649, 658-59 [Sup Ct Queens Co 2023]) and 245.

Pursuant to CPL § 255.20[1], all pre-trial motions must be filed within forty-five days of arraignment. Extensions of the forty-five-day rule are permitted where a defendant, with due diligence, could not have previously been aware of the grounds upon which to make such a motion, or upon a showing of "good cause" why the motion could not have been made within the specified time frame (CPL § 255.20[3]). The defendant did not file his motion within forty-five days of the certificate of compliance, which had been filed on June 12, 2023; nor has he shown any cause, let alone "good cause," why he failed to challenge the certificate sooner than fifty-nine days had passed since the original certificate. None is apparent, moreover, from the record.

Indeed, more stringently even than CPL § 255.20, Article 245 specifically requires a defendant to "alert the opposing party as soon as practicable" to any defects in a certificate of [*2]compliance (CPL § 245.50[4][b]) (emphasis added). Rather than observe this requirement, defendant waited until July 19, 2023, thirty-seven days after the certificate of compliance, to identify, via an email to the prosecution, purportedly missing items of discovery (see Defense Aff. ¶ 8). The defendant then filed the instant motion on August 10, 2023, and raised for the first time a few additional missing items. This tardiness disregarded another statutory requirement: that challenges to the sufficiency of a certificate of compliance "be addressed by motion as soon as practicable" (CPL § 245.50[4][c]) (emphasis added). Thus, defendant flouted not only the forty-five-day rule of Article 255 but also the "as soon as practicable" rule of Article 245, which surely mandates an earlier challenge to the certificate of compliance than forty-five days.

However, in considering the defendant's motion, said motion still fails on the merits. The defendant contends that several discoverable items have not been provided, including: activity logs for Officers Guzman, Solomon, Justice, and Verley; aided reports for complainants Michael Mohammed and Gregory Sirico; non-conformity reports for Rebecca Boyea and Karol Alvarez; photo of complainant Gregory Sirico's head, TRI incident report; AVL data; command log for the date of arrest; Miranda card; CPI for each officer; and underlying reports associated with various CCRB, IAB, and other various disclosures for the officers. The defendant claims that the failure to provide these items prior to the serving and filing of the People's certificate of compliance renders it invalid.

The People oppose, contending that their certificate of compliance was filed in good faith and after exercising due diligence. The People claim that the LIMS packet includes the non-conformity reports, which was previously provided to the defendant. Additionally, the People submitted a request to obtain the items the defendant claimed he didn't have the same day the defendant reached out via email. On August 28, 2023, the People provided the defendant with the photograph of the complainant's forehead as well as the activity logs for Officers Guzman and Solomon. On August 29, 2023, the People provided update Giglio materials to the defendant and served and filed a supplemental certificate of compliance. The People maintain that the aided reports are not material as both complainants refused medical treatment and have provided all relevant discovery to the defendant. Nonetheless, the People are awaiting the aided reports as the ones they received were incomplete. The People contend that all Giglio material in the People's possession has been turned over. The People also argue that the defendant has failed to demonstrate how he has been prejudiced by the belated disclosure.

CPL section 245.20(1) provides that the People "shall disclose to the defendant, and permit the defendant to discover, inspect, copy, photograph and test, 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, including but not limited to," the items subject to automatic discovery set forth in CPL section 245.20(1)(a - u). The People must "make a diligent, good faith effort to ascertain the existence of material or information discoverable" and must "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," (CPL § 245.20[2]). CPL section 245.50(1) provides that the People shall file a certificate of compliance after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery under CPL section 245.20(1). The certificate of compliance must include a statement that the People disclosed and made available all known information subject to discovery and must identify the items provided (CPL § 245.50[1]).

If the People provide additional discovery subsequent to the filing of their certificate of compliance in accordance with CPL section 245.60, they must serve and file a supplemental certificate identifying the additional material and information provided (CPL § 245.50[1]). However, "[n]o adverse consequence 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" (id.).

Moreover, "numerous courts have found that belated disclosures should not invalidate a [COC] that was made in good faith after the exercise of due diligence" (People v. Kher, 74 Misc 3d 712, 716 [Sup Ct Westchester County 2022] [internal quotations and citations omitted]; see also People v. Rodriguez, 73 Misc 3d 411, 416 [Sup Ct Queens County 2021]; People v. Randolph, 69 Misc 3d 770, 773 [Sup Ct Suffolk County 2020]; People v. Knight, 69 Misc 3d 546, 552 [Sup Ct Kings County 2020]; People v. Gonzalez, 68 Misc 3d 1213[A] [Sup Ct Kings County 2020]; People v. Erby, 68 Misc 3d 625, 633 [Sup Ct Bronx County 2020]; People v. Lustig, 68 Misc 3d 234, 247-8 [Sup Ct Queens County 2020]). Moreover, CPL Article 245 "should not be construed as an inescapable trap for the diligent prosecutor" (Erby, 68 Misc 3d at 633). Rather, "good faith, due diligence, and reasonableness under the circumstances are the touchstones by which a [COC] must be evaluated" (Rodriguez, 73 Misc 3d at 417).

Here, the People have demonstrated that they acted with due diligence, in good faith, and reasonably under the circumstances. The People's good faith compliance is established by the volume and scope of the discovery materials turned over on or before June 12, 2023, and the inventory of discovery provided demonstrates that the People exercised due diligence and made reasonable inquiries to ascertain the discoverable materials and disclose them to the defendant. Under the particular circumstances of this case, the court finds that the belated disclosures, including additional Giglio materials, do not vitiate the People's diligent, good faith efforts, and that the late disclosures of the additional materials do not support invalidation of the initial certificate of compliance.

To the extent that the defendant contends that he is entitled to additional police disciplinary records, the court notes that the Giglio letters provided by the People are adequate and satisfy the People's automatic discovery burden so long as they provide all substantiated and pending complaints against testifying police officers (see People v. Williams, 73 Misc 3d 1091, 1107 [Sup Ct Kings Count 2021]; Gonzalez, 2020 NY Slip Op 50924[U] at *2). Under CPL § 245.20[1][k], the People need not produce underlying records in addition to Giglio disclosures (see Gonzalez at *2). Nor are the People required to "conduct discplinary inquiries into the general conduct of every officer working the case" (People v. Garrett, 23 NY3d 878, 890 [2014]). In any event, defendant has failed to demonstrate how the purported "underlying" Giglio material, such as the "Central Personnel Index" and IAB case files relate to the subject matter of the case and fall within the ambit of automatic discovery (see People v Johnson, 218 AD3d 1347, 1350 [4th Dept 2023] [court properly denied motion to vacate statement of readiness inasmuch as defendant was not entitled to entirety of a police officer's personnel file as impeachment material under CPL § 245.20[1][k][iv] but rather only to the extent that the information related to the subject matter of the case]).

Furthermore, these materials were provided to the defendant shortly after the People filed their certificate of compliance. The defendant does not allege that he has suffered any prejudice as a result (see CPL § 245.80[1][a] ["When material or information is discoverable under this [*3]article but is disclosed belatedly, the court shall impose an appropriate remedy or sanction if the party entitled to disclosure shows that it was prejudiced" [emphasis added]). The defendant makes no showing that he suffered any prejudice due to the belated disclosure (see People v. Davis, 70 Misc 3d 467, 479 [Sup. Ct., Bronx County 2020]).

An inspection of the People's inventory of discovery reveals that the People have disclosed substantial discovery materials. There is no indication that the People's June 12, 2023 certificate of compliance and statement of readiness was not filed in good faith. Here, the People turned over copious amounts of discovery in connection with their initial certificate, substantially complying with their discovery obligations pursuant to CPL § 245.20 at the time they filed their certificate of compliance. CPL § 245.60 imposes upon the People a continuing duty to disclose discoverable material that comes into their possession (People v. Henry, 74 Misc 3d 1230(A), *2 [Sup Ct Richmond Co 2022]). Indeed, the discovery statute contemplates that additional discovery may be provided after the filing of an initial certificate without any adverse consequences to the prosecution (CPL § 245.50[1]), and "the mere filing of supplemental certificates of compliance, without proof of lack of good faith and/or a lack of due diligence, does not warrant an order invalidating the People's COC or SOR" (People v. Sellie, 77 Misc 3d 1234(A), *6 [Schenectady Co 2023]; CPL § 245.50[1]).

The late disclosure of discoverable items will not invalidate a certificate of compliance that was made in good faith after the exercise of due diligence where the delay resulted from minor or unintentional oversights in the production of material (People v Perez, 73 Misc 3d 171, 176 [Sup Ct Queens Co 2021]; People v Bruni, 71 Misc 3d 913, 917 [County Ct Albany Co 2021]). The discovery statute in fact contemplates that additional discovery may be provided after the filing of an initial certificate without any adverse consequences to the prosecution (CPL § 245.50[1]).

Thus, the absence of some items of discovery from the original certificate in this case is excusable, given that once they realized that certain items were not turned over, the People acted diligently to rectify the situation in a timely fashion (see People v Gonzalez, 68 Misc 3d 1213(A), *3 [Sup Ct Kings Co 2020]; Erby, 68 Misc 3d at 633; People v Rodriguez, 73 Misc 3d 411, 416 [Sup Ct Queens Co 2021]).

Moreover, the most appropriate remedy for the People's belated disclosures here is not dismissal, as defendants claim. By the letter of the recently amended discovery statute, the typical remedy for late disclosures is to afford the affected the party a "reasonable time to prepare and respond to the new material," which defendants have now had (CPL § 245.80[1][a]).

Accordingly, the court finds that any delay in disclosure does not invalidate the People's certificate of compliance and statement of readiness as the filing of the certificate of compliance was in good faith pursuant to CPL § 245.50(1). The speedy-trial argument, premised as it is on the invalidity of the certificate of compliance, must likewise be rejected.

The court directs the parties to diligently confer to resolve any further discovery disputes (CPL § 245.35[1]).

This is the decision and order of the Court.

So Ordered.