By joint 30.30 and omnibus motion dated August 7, 2023, defendant moves, inter alia, for dismissal of the accusatory instrument pursuant to Criminal Procedure Law ("CPL") §§ 30.30 (1) (b) and 170.30 (1) (c).^[FN1] Specifically, defendant contests the validity of the People's CoC due to the People's purported failure to comply with their disclosure obligations pursuant to CPL § 245.20 (1) (k) prior to the expiration of their speedy trial time. The People's opposition and defendant's reply were filed on September 12, 2023 and September 26, 2023, respectively.

Upon review and consideration of the submissions, court file and relevant legal authority, the Court finds that the People's CoC filed April 25, 2023, was valid. Accordingly, the prosecution was not untimely and defendant's motion to dismiss pursuant to CPL §§ 30.30 (1) (b) and 170.30(1) (c) is DENIED. Additionally, the Court:

DENIES defendant's request to conduct a hearing on the underlying facts;

DENIES defendant's request for an order suppressing evidence but GRANTS defendant's request for pre-trial hearings pursuant to Ingle/Johnson/Atkins/Mapp/Dunaway, Mapp/Dunaway/Ingle and Huntley/Dunaway;

REFERS the issue of preclusion pursuant to CPL § 710.30 and Sandoval/Ventimiglia to the trial court; and

DIRECTS the People to comply with their continuing discovery obligations pursuant to CPL § 245, including Brady disclosures.

On December 24, 2022, defendant Lorenzo Thomas was arrested and charged with Penal Law ("PL") § 220.03 (criminal possession of a controlled substance in the seventh degree), Vehicle & Traffic Law ("VTL") §§ 1192 (3) (driving while intoxicated), 1192 (2) (driving while intoxicated; per se), 1192 (1) (driving while ability impaired) and 509 (1) (operating without a license). On December 25, 2022, defendant was arraigned and released on his own recognizance. On December 28, 2022, the People filed a Superseding Information which added the charge of VTL § 1192 (2-a) (2) (aggravated driving while intoxicated; per se).

The People filed their CoC, statement of readiness ("SoR") and Automatic Disclosure Form ("ADF") on April 25, 2023. On June 13, 2023, after defense counsel inquired about missing discovery, the People filed a supplemental CoC ("SCoC"), which advised that calibration reports, a Department of Health Intoxilyzer 9000 Affidavit, gas chromatography reports and simulator solutions which they believed had already been disclosed when they shared their OneDrive folder with defense counsel on March 6, 2023, had not been uploaded due to a technological error.^[FN2] The People also filed a second SoR ("SSoR") with their belated disclosures. On July 5, 2023, the People filed a second SCoC to which they appended documents which were previously uploaded but not accessible to defense counsel, previously disclosed laboratory testing reports and the newly disclosed Labcase AGB discovery.^[FN3]

At a discovery conference held on July 7, 2023, the Court noted that defense counsel had sent an email to the People (and the AP2 clerk) on Thursday, July 6, 2023, at 6:05 P.M. in which she enumerated just four items which remained outstanding:

1. Records relating to a cross contamination in testing done by the NYPD lab for this case. This cross contamination is referenced in a statement made by a lab technician, and this statement also references an additional report.

2. Relatedly, any bench notes, calibration records, or any other quality control documentation in relation to instruments/equipment/simulator solutions used by the NYPD lab in relation to this case.

3. IAB log attachments for testifying Officer Roberts, who has substantiated allegations.

4. Information about a pending lawsuit against Officer Rodriguez. This information would be in the NYPD's possession, and therefore the People's possession by statute. Defense does not have the attachments for IAB logs for this officer as well.

After a lengthy discussion, the Court held that the People had already substantially complied with their disclosure obligations concerning quality control documentation, calibration reports or notes concerning the controlled substance seized from defendant (Exhibit 1, pg. 23, annexed to the affirmation in support of the People's opposition). Additionally, the Court held that information concerning civilian lawsuits against law enforcement personnel is not deemed to be within the People's custody and control (Id. at 28). Accordingly, in response to defense counsel's request for a motion schedule, the Court advised the parties that the only issue to brief concerned whether the prosecution was required to disclose attachments to IAB logs concerning [*3]the police officer witnesses referenced in counsel's discovery email (Id. at 31).

Where defendant alleges that the People's CoC is invalid because they failed to discharge their discovery obligations, the People must establish that they have met their burden (see e.g. People v Figueroa, 76 Misc 3d 888, 892 [Crim Ct, Bronx County 2022] citing People v Payne, 75 Misc 3d 1224 [A], 2022 NY Slip Op 50656 [U], *2 [Crim Ct, Bronx County 2022]; see also People v Spaulding, 75 Misc 3d 1219 [A], 2022 NY Slip Op 50544 [U], *2 [Crim Ct, Bronx County 2022] ["They must certify that they have complied- that "the prosecutor has disclosed and made available all known material and information subject to discovery"] citing CPL § 245.50 [1-a]).

Courts have examined the CoC for an explanation of the People's efforts to ensure that they have turned over all known discoverable materials (see Perez at *3). Additionally, following a challenge to the validity of the CoC, courts inquire whether the prosecution has done all that is required of them to bring a case to the point that it could be tried (see e.g. People v Rodriguez, 77 Misc 3d 23, 25 [1st Dept 2022] but see People v Diaz, 77 Misc 3d 727, 733 [Crim Ct, Bronx County 2022].

Defendant avers that the People cannot comply with their discovery obligations unless the attachments to the IAB logs concerning allegations against POs Roberts and Rodriguez are disclosed (affirmation of defendant's counsel at 9).

Defense counsel states that the People's reliance on this Court's holding in People v Nichols, 79 Misc 3d 1211(A), 2023 NY Slip Op 50591 (U), *4-5 [Crim Ct, Bronx County 2023] is misplaced and argues that this Court should reject the premise that IAB logs are categorically exempt from disclosure (affirmation of defendant's counsel at 10). Defendant further argues that the People have failed to provide any disciplinary history for non-testifying officer PO Oliva, who questioned defendant while he was in handcuffs (affirmation of defendant's counsel at 10).

Counsel maintains that the People's failure to provide outstanding discovery pursuant to CPL § 245.20 (1) (k) renders their CoC illusory and, thus, if the prosecution is charged for the period of their non-compliance, from the day following arraignment to the start of motion practice, the case must be dismissed because the prosecution was untimely (affirmation of defendant's counsel at 9). Defendant also requests: an opportunity to file a reply brief; an order suppressing evidence of his chemical breath test, police observations, physical evidence and statements; and an order precluding evidence of prior bad acts or, alternatively, hearings to determine findings of fact and conclusions of law (affirmation of defendant's counsel at 13-15).

Defense counsel's reply brief avers that this Court is bound by the Appellate Term, First Department, decision People v Rodriguez, 77 Misc 3d 23, 25 (App Term, 1st Dept 2022), for the proposition that the People's failure to provide underlying IAB materials renders their CoC invalid (reply memorandum of defendant's counsel at 5). Counsel also maintains that this Court's holding in People v Vargas, 78 Misc 3d 1235 (A), 2023 NY Slip Op 50425 (U), *5-6 [Crim Ct, Bronx County 2023] establishes that Giglio material for a non-testifying witness could be relevant to the facts at bar where PO Oliva questioned defendant when he was already in handcuffs (reply memorandum of defendant's counsel at 10). Lastly, defendant denies that he [*4]must demonstrate prejudice for the People's CoC to be found invalid (Id.).

The People's opposition asserts that they have met their discovery obligations by disclosing a Giglio letter, and by producing IAB logs for the testifying police witnesses (affirmation in support of People's opposition at 5, 6). Next, the People argue that the Fourth Department's holding in Johnson is binding upon the Court as it expressly states that the People have no duty to disclose the entire personnel file for impeachment purposes (affirmation in support of People's opposition at 6).

The prosecution avers that insofar as the People supplemented their Giglio letter with a subsequent disclosure of IAB logs, defense counsel is essentially now asking for underlying documents to the underlying documents without articulating a nexus between the IAB attachments to the officers' involvement in the defendant's arrest (affirmation in support of People's opposition at 9).

The People maintain that attachments to IAB logs are not discoverable and suggest that this Court's holding in People v Peralta, 79 Misc 3d 945, 953 [Crim Ct, Bronx County 2023], along with Johnson, should inform our analysis of whether defendant has established a substantial nexus between the police officer and the arrest and/or investigation, which the People submit that counsel has failed to do where the record demonstrates, even as recited by the defense, that PO Oliva merely spoke to defendant (affirmation in support of People's opposition at 10).

The People argue that defense counsel is seeking to litigate an issue that was not raised at the July 7, 2023 discovery conference, namely the disclosure of underlying logs for a non-testifying officer (affirmation in support of People's opposition at 24), and they assert that a total of 71 days are chargeable to the People, within the statutory time allotted to declare their readiness for trial (affirmation in support of People's opposition at 30-34).

At the parties' July 7, 2023 discovery conference before this Court, defense counsel was instructed to limit the scope of her motion to the issue of whether CPL § 245.20 (1) (k) compelled the disclosure of underlying documents to IAB logs for testifying witnesses, POs Roberts and Rodriguez.^[FN4] At no time during the conference, nor in her email to the People from the night before, did defense counsel raise the issue of IAB records pertaining to PO Oliva. The Court's statements were unambiguous and counsel's attempt to wedge a new argument into this motion clearly contravenes the Court's directive.

To the extent that counsel now asserts the right to disciplinary disclosure for a non-testifying police officer, we find that the facts at bar do not demonstrate a substantial nexus between PO Oliva and defendant's arrest and/or investigation sufficient to premise an argument for Giglio disclosure.

In the case at bar, counsel speculates that the issue of whether PO Oliva had a history of misconduct is relevant and should trigger Giglio disclosure because the People intend to use statements defendant made to the officer at trial. However, counsel's reliance on the Peralta and Vargas holdings is misplaced where she has alleged no more than cursory involvement by PO [*5]Oliva to defendant's arrest and/or the investigation of the alleged misconduct. To contrast, in Peralta supra at 954, the Court found:

As described by defendant, and not denied by the People, [ ] was specifically called to the scene because he had his personal PBT device, and this formed the basis for the police action wherein defendant was arrested and removed to the precinct where he refused to submit to an official breathalyzer test. It strains credulity to speculate that defendant's initial refusal to submit to a PBT administered by [ ] was not a factor in the decision to arrest him; and it should be noted that defendant claims he was administered the PBT only after he was in handcuffs. [ ] As also described by defendant, and not refuted by the prosecution, [], aided by [ ], who acted as his Spanish-language translator, participated in the interrogation of defendant, and they were both observed by [ ], who acted as the supervising officer. [ ] could not have facilitated his PBT, nor conduct his interrogation without the assistance of [ ], and defendant's arrest had to have been approved by [ ]. The demonstrated involvement of [ ], [ ] and [ ] in defendant's interrogation and arrest was hardly fleeting or tangential and their disciplinary records should not be inscrutable just because the People have strategically decided, as is the prosecution's prerogative, not to call them as witnesses.

Similarly, in Vargas, this Court held that insofar as the non-testifying witness was the arresting officer, that witness had more than incidental involvement in the arrest and, thus, applying the criteria set forth in Peralta, disclosure of disciplinary records was required pursuant to CPL § 245.20 (1)(k) (see Vargas at *6 ["This court finds that the involvement or engagement of a non-testifying officer, who conducts the arrest and/or speaks to witnesses and investigates the charge, cannot be hermetically sealed from a Giglio disclosure request"]).

The Peralta and Vargas holdings emphasize the need for a fact-specific analysis of a non-testifying officer's involvement in a defendant's case to assess whether to compel, subject to a protective order, Giglio material for a witness whom the People do not intend to call at trial. Here, defense counsel merely asserts that PO Oliva spoke to defendant absent any further allegation that he was integrally involved in defendant's arrest. This Court finds that the facts, as recited by defense counsel, do not trigger Giglio disclosure for PO Oliva because he was peripherally involved with defendant.

Initially, both cases cited by the parties for and against disclosure, Rodriguez and Johnson, respectively, are distinguishable from the facts presented.

Unlike the People in Rodriguez, whom the Appellate Term, First Department, noted were entirely derelict in complying with their CPL § 245.20 (1) (k) obligations, here, the prosecution has exercised due diligence by exchanging Giglio disclosure letters and IAB logs for the testifying witnesses (see Rodriguez at 24-25). Where the People's non-compliance in Rodriguez was a basis to affirm the lower court's invalidation of their CoC, there is no comparison because the People have already disclosed documents responsive to defendant's Giglio requests.

Concerning Johnson, defense counsel has not asserted any statutory claim to the entirety of a police officer's personnel file as impeachment material (see Johnson at 1350 [emphasis added]). Further, we respectfully disagree with the Fourth Department's holding that automatic disclosure of personnel records pursuant to CPL § 245.20 (1) (k) is contingent upon them being related "to [*6]the subject matter of the case" (see Id.). The Fourth Department focused on the qualifying language "relate to subject matter" which appears in CPL § 245.20 (1) to reach this conclusion. A review of CPL § 245.20 demonstrates that the qualifying language, "subject matter," appears in the following subsections:

(g) All tapes or other electronic recordings, including all electronic recordings of 911 telephone calls made or received in connection with the alleged criminal incident, and a designation by the prosecutor as to which of the recordings under this paragraph the prosecution intends to introduce at trial or a pre-trial hearing. If the discoverable materials under this paragraph exceed ten hours in total length, the prosecution may disclose only the recordings that it intends to introduce at trial or a pre-trial hearing, along with a list of the source and approximate quantity of other recordings and their general subject matter if known, and the defendant shall have the right upon request to obtain recordings not previously disclosed. The prosecution shall disclose the requested materials as soon as practicable and not less than fifteen calendar days after the defendant's request, unless an order is obtained pursuant to section 245.70 of this article. The prosecution may withhold the names and identifying information of any person who contacted 911 without the need for a protective order pursuant to section 245.70 of this article, provided, however, the defendant may move the court for disclosure. If the prosecution intends to call such person as a witness at a trial or hearing, the prosecution must disclose the name and contact information of such witness no later than fifteen days before such trial or hearing, or as soon as practicable.

(h) All photographs and drawings made or completed by a public servant engaged in law enforcement activity, or which were made by a person whom the prosecutor intends to call as a witness at trial or a pre-trial hearing, or which relate to the subject matter of the case.

(o) All tangible property that relates to the subject matter of the case, along with a designation of which items the prosecution intends to introduce in its case-in-chief at trial or a pre-trial hearing. If in the exercise of reasonable diligence the prosecutor has not formed an intention within the time period specified in subdivision one of section 245.10 of this article that an item under this subdivision will be introduced at trial or a pre-trial hearing, the prosecution shall notify the defendant in writing, and the time period in which to designate items as exhibits shall be stayed without need for a motion pursuant to subdivision two of section 245.70 of this article; but the disclosure shall be made as soon as practicable and subject to the continuing duty to disclose in section 245.60 of this article.

(u) (i) A copy of all electronically created or stored information seized or obtained by or on behalf of law enforcement from: (A) the defendant as described in subparagraph (ii) of this paragraph; or (B) a source other than the defendant which relates to the subject matter of the case.

However, the reference to "subject matter" is conspicuously absent from CPL § 245.20 (1) (k):

(k) All evidence and information, including that which is known to police or other law enforcement agencies acting on the government's behalf in the case, that tends to: (i) [*7]negate the defendant's guilt as to a charged offense; (ii) reduce the degree of or mitigate the defendant's culpability as to a charged offense; (iii) support a potential defense to a charged offense; (iv) impeach the credibility of a testifying prosecution witness; (v) undermine evidence of the defendant's identity as a perpetrator of a charged offense; (vi) provide a basis for a motion to suppress evidence; or (vii) mitigate punishment. Information under this subdivision shall be disclosed whether or not such information is recorded in tangible form and irrespective of whether the prosecutor credits the information. The prosecutor shall disclose the information expeditiously upon its receipt and shall not delay disclosure if it is obtained earlier than the time period for disclosure in subdivision one of section 245.10 of this article.

It is respectfully submitted that had the Legislature wanted to limit the scope of evidence and information open to disclosure pursuant to CPL § 245.20 (1) (k) it would have done so.

Nevertheless, this Court finds that although it disagrees with that portion of the Fourth Department's holding which conditions the disclosure of personnel records to matters related by subject matter, the decision is nonetheless binding until the Appellate Division, First Department, or the Court of Appeals addresses the issue (see People v Hill, 834 NYS2d 841, 845 [Crim Ct, New York County 2007]["The Appellate Term, First Department, has relied on Mountain View in holding that the Criminal Court had followed the correct procedural course in deeming itself bound by a decision of the Appellate Division, Fourth Department"] [internal citations omitted] citing Mountain View Coach Lines, Inc. v Storms, 102 AD2d 663, 664 [2d Dept 1984]; see also People v Brisotti, 169 Misc 2d 672, 673 [App Term, 1st Dept 1996] [per curiam], lv. denied 89 NY2d 940 [1997]); see also People v Pestana, 195 Misc 2d 833, 838 [Crim Ct, New York County 2003]).

When the Johnson analysis is applied to the facts at bar, we find that the record is devoid of any representation that the IAB allegations of misconduct against POs Roberts and Rodriguez are related to the subject matter of the current charges against defendant. Consequently, until the First Department or the Court of Appeals decides differently, this Court finds that defendant is not entitled to the underlying materials to the IAB logs for POs Roberts and Rodriguez.

Additionally, insofar as the parties have cited to Nichols supra, we held that although the defendant complained that "the People's summaries do not suffice" to discharge their CPL § 245.20 (1) (k) obligations, the prosecution had in fact disclosed the IAB logs referenced in those summaries and, thus, had discharged their obligations (see Nichols at *5). The Nichols decision did not address whether underlying records to IAB logs were themselves discoverable.

Accordingly, the People's due diligence and compliance with Article 245 with respect to Giglio disclosures was established, and the CoC, filed on April 25, 2023, was valid.

In the case at bar, the People's 30.30 speedy trial calculation commenced on December 25, 2022, the day after defendant's arraignment, and the matter was adjourned to February 6, 2023 for conversion (December 25, 2022 to February 6, 2023 = 43 days chargeable). On March 6, 2023, the People filed a motion for a protective order pursuant to CPL § 245.70 (2) and the matter was adjourned to April 20, 2023 (February 6, 2023 to March 6, 2023 = 28 days).^[FN5] On [*8]March 31, 2023, the People's motion for a protective order was granted and they were given an extension to April 25, 2023, to discharge discovery (March 31, 2023 to April 25, 2023 = 0 days chargeable). On April 25, 2023, the People filed and served their CoC and SoR.

Consequently, 71 days in total are chargeable to the People, and their readiness was declared within the time statutorily prescribed when the top charge is a misdemeanor (see CPL § 30.30 [1] [b]; People v Flores, 79 Misc 3d 1239 [A], 2023 NY Slip Op 50834[U], *2 [Crim Ct, Bronx County 2023] citing People v Galino, 38 NY3d 199, 205 [Ct of App 2022]).

Based upon the foregoing, defendant's motion to invalidate the CoC and for dismissal of the accusatory instrument on statutory speedy trial grounds pursuant to CPL §§ 30.30 (1) (b) and 170.30 (1) (c) is DENIED. Additionally, the Court:

DENIES defendant's request to conduct a hearing on the underlying facts;

DENIES defendant's request for an order suppressing evidence but GRANTS defendant's request for pre-trial hearings pursuant to Ingle/Johnson/Atkins/Mapp/Dunaway, Mapp/Dunaway/Ingle and Huntley/Dunaway;

REFERS the issue of preclusion pursuant to CPL § 710.30 and Sandoval/Ventimiglia to the trial court; and

DIRECTS the People to comply with their continuing discovery obligations pursuant to CPL § 245, including Brady disclosures.

This constitutes the opinion, decision, and the order of the Court.