In this matter, defendant moves by notice of motion to dismiss the accusatory instrument due to the People's failure to file a valid Certificate of Compliance ("COC") and properly convert the accusatory instrument within the speedy trial timeframe (CPL 30.30 [1] [b]).

The court arraigned defendant on Penal Law § 120.00, and related charges, on March 6, 2023. The court adjourned the matter to May 3, 2023. On the next court date (May 3, 2023), the People were not ready. The court adjourned the matter to May 19, 2023, and June 21, 2023, for the People to file the Certificate of Compliance and Statement of Readiness ("SOR"). The People filed same, and superseding information, off-calendar on June 5, 2023. On the next court date (June 21, 2023), the court adjourned the matter to September 11, 2023, for defense COC.

Defendant filed the instant motion to dismiss ("Defense Motion") on August 10, 2023. The People remitted opposition ("People's Response") on August 28, 2023. On September 11, 2023, the court granted the defendant's request to file a reply, which defendant filed said reply ("Defense Reply") on September 19, 2023.

Upon review, the court hereby denies defendant's motion to deem the accusatory instrument improperly converted and herby grants defendant's motion to invalidate the COC.

Defendant argues that the People failed to properly convert the accusatory instrument from a misdemeanor complaint into an information. The factual part of the accusatory instrument reads as follows:

The deponent is informed by [the complainant] that, at the above time and place, the defendant did take a metal object into defendant's hand and swing it at the informant's [*2]head, and that the defendant's fist, which was holding said object, did strike the informant about the head.

The deponent is further informed by the informant that the above-described actions caused informant to suffer bruising and swelling to the head, to suffer substantial pain, to fear further physical injury, and to become alarmed and annoyed.

Defendant argues that a segment of the accusatory instrument contains hearsay, namely, "the deponent is informed by [the complainant]." The defense acknowledges that a supporting deposition can rectify hearsay in the accusatory instrument but notes that the supporting deposition in this case lacks a certificate of translation. The defense contends that such certificate is required, because the accusatory instrument is written in English, while it remains uncontested that the complainant primarily speaks Spanish and relied on a third-party ^[FN1] for translation. The defense maintains that the People's failure to include a certificate of translation renders the accusatory instrument unconverted (Defense Motion, p. 5).

The People counter that a certificate of translation is not necessary. They also assert that the defendant's argument is flawed, because the alleged hearsay defect is based upon an external factor, outside the four corners of the accusatory instrument (People's Response, p. 5). Further, the People contend that they are currently making active efforts to acquire a certificate of translation (People's Response, p. 6).

An accusatory instrument is facially sufficient when the misdemeanor complaint contains non-hearsay allegations of an evidentiary nature that, together with accompanying supporting depositions, provide reasonable cause to believe that the defendant committed the offenses charged (People v Henderson, 92 NY2d 677, 669 [1999]; People v Alejandro, 70 NY2d 133, 137 [1987]; People v Dumas, 68 NY2d 729, 731 [1986]). CPL 100.15 (3) provides that the factual allegations must establish every element of the offenses charged. CPL 100.40 (1) (c) states that "[n]on-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof."

The Court of Appeals, in People v Slade/Brooks/Allen, 37 NY3d 127 [2021], addressed conversion challenges that were raised in three different cases involving the use of interpreters and/or certificates of translation. Throughout its decision, the Court reiterated that defects that do not appear on the face of an accusatory instrument are deemed "latent deficiencies" that do not warrant dismissal of a criminal case (Slade/Brooks/Allen, 37 NY3d 127, 137 [2021] citing Matter of Edward B., 80 NY2d 458, 463 [1992]). The Court noted that the "CPL does not require a certificate of translation, [nor] a certificate in any particular form, to create a facially sufficient instrument" (People v Slade/Brooks/Allen, 37 NY3d 127, 139 [2021]). The Court explained that the Civil Practice Law and Rules explicitly requires a translator's affidavit/qualifications when an affidavit or exhibit is translated in a foreign language, whereas the CPL is devoid of any such language (Slade/Brooks/Allen, at 139). The Court reasoned that the purpose of the conversion requirement is to give a defendant notice of the charges against [*3]him sufficient to prepare a defense and to guard against double-jeopardy, as opposed to establishing "the truth" of the allegations (Slade/Brooks/Allen, at 141).

In its analysis of the Brooks case, the Court noted that the defendant's ground for dismissal pertained to a certificate of translation that was neither referenced nor incorporated into the accusatory instrument (Slade/Brooks/Allen, at 128). The Court explained that such certificate could not be used to "create a facial defect that is otherwise undetectable on the face of the accusatory instrument" (Slade/Brooks/Allen, at 128). The Court also rejected the defendant's arguments in Slade based upon the four corners doctrine. In that case, the People failed to present the certificate of translation with the English-language, first-party complaint before filing their COC and SOR, although the facts revealed that the complaining witness spoke Spanish (Slade/Brooks/Allen, at 133). The Court held, inter alia, that the certificate was an external document that could not be used to create a "facial defect" (Slade/Brooks/Allen, at 138). In the Allen matter, where, on the face of the accusatory instrument, it was indicated that an accurate, verbatim translation occurred, the Court found that there existed no additional layer of hearsay for pleading purposes, based upon the agency rationale (Slade/Brooks/Allen, at 141). Under that rationale, a translator is deemed merely the declarant's agent (Slade/Brooks/Allen, at 140).

Applying these principles, it is hermetically understood that the court must only look at the four corners of an accusatory instrument when addressing conversion issues. There is no hearsay defect on the face of the accusatory instrument in this case. Neither the accusatory instrument nor the supporting deposition references an interpretation or language issue. The mere fact that a translator, or language conduit, was utilized does not warrant the quantum leap in logic that the defense argues this court should take. In fact, the argument that there is no certificate of translation is inapposite to a conversion challenge. Neither an outright dismissal, nor a finding that the People included information in the accusatory instrument that was constructively or intentionally falsified is warranted. Any such finding would contravene binding case law, as well as the substantive objectives for requiring the removal of hearsay from the factual portions of a misdemeanor complaint. Moreover, the determination of the truthfulness of allegations in an information rest within the purview of the factfinder at trial. Thus, the court finds that the accusatory instrument is properly converted.

Defendant contends that the People failed to disclose the following items: (1) photographs; (2) NYPD arrest checklist; (3) ambulance forms; (4) documents or screenshots of information viewed on complainant's phone; (5) witness names and contact information; (6) handwritten aided card; (7) updated disclosure letters for four officers; (8) missing impeachment material; and (9) unredacted CCRB reports for two officers.

The People argue that they acted with due diligence and filed their COC in good faith (People's Response, p. 4). The People state that the items in contention do not exist or are not in the People's possession (People's Response, p. 4). The People further state that the defendant failed to show that he suffered prejudice and, consequently, dismissal is too harsh a sanction (People's Response, p. 4). The People maintain that they did request additional materials on May 30, 2023, to wit: "memo books, property vouchers, WINQ form, AIDED form, Medical Treatment of Prisoner form, and any other documents, notes, and photographs that have not yet been turned over" (People's Response, p. 2).

The statutory framework of CPL 245.10 "abolishes the prior mechanism for obtaining [*4]discovery through serving a demand upon the People and instead requires the People provide the discovery listed in CPL 245.20 'automatically' within the deadlines established" (People ex rel. Ferro v. Brann, 197 AD3d 787, 787-88 [2d Dept 2021] quoting People v Mashiyach, 70 Misc 3d 456, 461 [Crim Ct, Kings County 2020]). CPL 245.20 provides, in pertinent part, that the People shall disclose "all items and information that relate to the subject matter of the case and ... are in [their] possession, custody or control." It is further statutorily mandated that items and information in the possession of any local police or law enforcement agency is deemed to be in the possession of the People, and the People must actually produce any such discovery to defendant (People ex rel. Ferro v. Brann, 197 AD3d at 787-88 [2d Dept 2021]; CPL 245.20 [2]).

CPL 245.20 (7) presumption of openness states that "[t]here shall be a presumption in favor of disclosure when interpreting sections 245.10 and 245.25, and subdivision one of section 245.20, of this article." Thus, when reading CPL 245.20 (1) it should be done so in conjunction with CPL 245.20 (7) (see People v Rahman, 79 Misc 3d 129 [A] [App Term, 2d Dept, 11th & 13th Jud Dists 2023] [holding that the People were required to disclose FDNY/EMS records in light of the instruction to interpret 245.20 [1] in favor of disclosure]).

After providing the discovery required, the People must file a COC that states they exercised due diligence, made reasonable inquiries to ascertain the existence of material and information subject to discovery, and disclosed same to defendant (CPL 245.50 [1]). The People must file a supplemental certificate if they provide additional discovery after filing the initial COC (CPL 245.50 [1]). In the supplemental certificate, the People must set forth the additional material and information that is being provided to the defense and detail the basis for the delay (CPL 245.50 [1] and [1-a]). It is statutorily prescribed that the People shall not suffer an adverse consequence from filing a COC in good faith and reasonable under the circumstances (CPL 245.50 [1]). Stated another way, the filing of a supplemental COC should not impact the validity of the People's original certificate, if such certificate was filed in good faith after the People have exercised due diligence in accordance with Section 245.20; or if the additional discovery did not exist at the time of the filing of the original COC (CPL 245.50 [1-a]).

Notwithstanding the above statutory provisions, a "bare-bones assertion" as to the People's initial discovery obligation, "does not provide the Court with the necessary factual basis to make a finding as to due diligence" (People v Pondexter, 76 Misc 3d 349, 353 [Crim Ct, NY County 2022]). Rather, the People must sufficiently detail their efforts to comply with the statute and further, they must explain how the error occurred, when it was detected, and when it was remedied (CPL 245.50 [1-a]; People v Pondexter, 76 Misc 3d at 353 [Crim Ct, New York County 2022] citing People v. Pierna, 74 Misc 3d 1072 [Crim Ct, Bronx County 2022]).

The defendant has the initial burden of identifying a specific defect with the People's COC (People v Brown, 74 Misc 3d 1227 [A] [City Ct, Albany County 2022]). If discovery is contested, the burden shifts to the People to demonstrate that they operated in good faith, exercised due diligence, and expeditiously provided any missing discovery to defendant (People v. Pondexter, 76 Misc 3d 349, 353 [Crim Ct, New York County 2022]).

Defendant argues that the People failed to disclose photographs of the complaining witness's injuries (Defense Motion, p. 7). The People state that they are not in possession of any photographs but that they requested same from the precinct and the arresting officer (People's [*5]Response, p. 6).

Photographs taken by a public servant engaged in law enforcement are discoverable under CPL 245.20 (1) (h). The People do not state whether they reached out to the complainant to inquire whether law enforcement took photographs prior to the People filing the COC. Moreover, the results of the People's inquiry to the precinct and arresting officer are unknown, as the People neglected to fully address the entirety of the issue concerning the photographs. In an assault case, proof of injury is germane to meeting a specific element of the crime. It is also typical for law enforcement personnel to take photographs of injuries in an assault case. Thus, the People should have made reasonable inquiries to determine whether photographs exist and then disclose said photographs to the defense. The People's failure to disclose any photographs, or demonstrate that they made reasonable inquiries to ascertain the existence of photographs, prior to filing the COC renders the COC invalid.

The People concede that they did not disclose the NYPD arrest checklist to the defense (People's Response, p. 6). The People unilaterally decided that the NYPD arrest checklist is not discoverable. They state that "[the arrest checklist] contains the name, shield, command, and some other basic information about the arresting officer, name and arrest number of the defendant, and a list of checkboxes where the arresting officer may check off the documents that he included in the arrest packet sent to the District Attorney's office." Under CPL 245.20 (1) (e) the arrest checklist is within contemplation of written or recorded statements that are discoverable as documents created by law enforcement personnel. The People's belief that the form contains "no information about the case" is displaced (People's Response, p. 6). The People's failure to establish due diligence in ascertaining and disclosing said material renders the COC invalid.

The People failed to disclose ambulance forms signed by a sergeant as seen on body-worn camera ("BWC") (Defense Motion, p. 7). The People state that the ambulance forms are not in their possession (People's Response, p. 7). CPL 245.20 (1) (j) states that the People are required to disclose "all [...] records [...] concerning physical or mental examinations relating to the criminal action or proceeding which were made by or at the request or direction of a public servant engaged in law enforcement activity." The Appellate Term held that in interpreting CPL 245.20 (1) in favor of disclosure and "because EMS provided treatment to the complainant at the request or direction of the NYPD" that FDNY/EMS records are discoverable under CPL 245.20 (1) (j) (People v Rahman 79 Misc 3d 129 [A] [App Term, 2d Dept, 11th & 13th Jud Dists 2023]). CPL 245.20 (2) also requires the People to make an effort to ascertain materials not within their possession. Thus, the People were required to make a diligent effort to ascertain said EMS records. The People state that the forms are "either with the FDNY or ambulance" (People's Response, p. 7). The fact that the People are unaware of the entity in possession of these forms suggests that they have not made attempts to contact the FDNY or ambulance to ascertain the existence of such forms. The People fail to present the court with any evidence demonstrating their due diligence or the efforts undertaken to fulfill their obligations [*6]regarding this item of discovery. Thus, the COC is invalid on this ground.

As shown on an officer's BWC, an officer viewed "documents or screenshots" on the complainant's phone (Defense Motion, p. 7). The defendant asserts that this material is subject to discovery (Defense Motion, p. 7). The People counter that the complainant's phone is not in their possession and further, that BWC footage does not show what, if anything, was on the phone when the complainant handed said phone to the officer (People's Response, p. 7).

The contents on the phone may be discoverable under CPL 245.20 (1) (e) as "[a]ll statements, written or recorded or summarized in writing or recording, made by persons who have evidence or information relevant to any offense charged [... ]." It is not enough that the People state they do not physically possess the cell phone, and footage from body-worn camera did not indicate the presence of information on the device. The People do not establish that they made any inquiries to the officer, or complainant, about the contents on the phone and thus, fail to establish due diligence in ascertaining this material. The People's failure in this regard renders the COC invalid.

Defendant argues that the People failed to provide witness contact information. The defense asserts that several individuals gave statements to police officers, as seen on BWC footage (Defense Motion, p. 8). However, the People state that throughout the BWC footage, there is no indication that the police recorded any witness information (People's Response, p. 7). The People also maintain that they requested such information from the precinct and the arresting officer, and no such information has been provided (People's Response, p. 7).

CPL 245.20 (1) (c) requires the People to disclose adequate names and contact information for persons who have evidence of information relevant to any offense charged. The court acknowledges that the People expended efforts to ascertain witness names and contact information by examining the BWC footage and requesting the information from the precinct and arresting officer. The People have affirmed that no information was received and therefore, the court finds that People demonstrated due diligence regarding this item of discovery. The COC is not invalid, nor the SOR illusory, on this ground.

Defendant argues that the People failed to disclose the handwritten aided card (Defense Motion, p. 8). The People state that a handwritten aided card was never made in this case. The People maintain that they also reached out to the police precinct and "were told by the sergeant on duty that said cards have not been used in at least four years" (People's Response p. 7-8). The People cannot disclose that which does not exist. Therefore, the COC is not invalid, nor the SOR illusory, on this ground.

The People disclosed impeachment material for several officers. Defendant states that two of those officers have additional cases against them, and the People failed to disclose the materials associated with those cases as part of impeachment material. The People counter that they have satisfied their obligations to disclose impeachment information to the defense (People's Response, p. 8).

Impeachment material is discoverable under CPL 245.20 (1) (k) (iv) (See People v Hamizane, NY Slip Op 23233 [App Term, 2d Dept 2023]). Under CPL 245.20 (1) (k) (iv), the People are required to disclose "[a]ll 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 [... ] impeach the credibility of a testifying prosecution witness [... ]." CPL 245.20 (1) (d), specifically obligates the People to designate which officers are potential testifying prosecution witnesses. In fact, the Appellate Term has held that "with respect to every listed potential police witness, it [is] the People's obligation to disclose whether or not disciplinary records exist, and to provide the defense with copies of existing records" (People v Hamizane, NY Slip Op 23233 [App Term, 9th & 10th Jud Dist 2023] citing Matter of Jason C., 200 AD3d 447, 449 [1st Dept 2021] and People v Rodriguez, 77 Misc 3d 23, 24 [Sup Ct, App Term, 1st Dept 2022]). The court emphasized that the People must disclose all disciplinary records that tend to impeach the credibility of a testifying prosecution witness and those disciplinary records clearly go to the weight of the credibility of the witness (id; see also People ex rel. Ferro v Brann, 197 AD3d 787 [2d Dept 2022; People v Rodriguez, 77 Misc 3d 23 [Sup Ct, App Term, 1st Dept 2022] [holding the COC invalid due to People's failuire to disclose underlying impeachment materials pursuant to CPL 245.20 (1) (k)]; Matter of Jayson C, 200 AD3d 447, 449 [1st Dept 2021]; People v Spaulding, 75 Misc 3d 1219 [A] [Crim Ct, Bronx County 2022]).

This court recognizes that the People are not required to disclose impeachment material for non-testifying officers. The Notice/Disclosure Form ("NDF") in this case indicates a total of six officers. Two of whom are indicated as potential prosecution witnesses by the insertion of a "Y" next to their name. The People do not designate whether the remaining four officers are prosecution witnesses, as the form is without an indicator next to those officers' names. Although the defendant's argument regarding impeachment materials concern these remaining four officers, the People do not address the matter. The People's failure to disclose all impeachment material and properly designate which officers are potential testifying prosecution witnesses renders the COC is invalid.

Defendant argues that the People provided disclosure letters for four officers but that the disclosure letters are outdated. Specifically, defendant states that one officer's disclosure letter was over 6 months old, and the disclosure letters for three other officers were over 9 months old (Defense Motion, p. 8). The People state that those letters were the most current letters that existed at the time they filed the COC and affirm that they "will turn over updated letters as part of their ongoing discovery obligations" (People's Response, p. 8). As stated above, the People are required to disclose impeachment material for testifying prosecution witnesses under CPL 245.20 (1) (k) (iv). It is unclear from the People's NDF whether these officers are prosecution witnesses. The court credits the People's statement that the disclosure letters were the most recent ones that existed when they disclosed them to the defendant. Further, the People have [*7]affirmed that they will disclose updated letters as part of ongoing discovery. Thus, the COC is not invalid, nor the SOR illusory, on this ground.

Defendant states that the People redacted CCRB reports, closing reports, and full investigatory files for a sergeant and police officer (Defense Motion, p. 8). Defendant argues that the People are required to disclose unredacted materials (Defense Motion, p. 8). The People do not address the issue of redactions in their opposition papers.

The People are not authorized to unilaterally redact discoverable materials; however, Article 245 provides certain exceptions where redactions are permitted. CPL 245.20 (6) states that "[e]ither party may redact social security numbers and tax numbers from disclosures under this article." CPL 245.20 (5) also states that "[w]hen some parts of material or information are discoverable but in the judgement of a party good cause exists for declining to disclose other parts, the discoverable parts shall be disclosed, and the disclosing party shall give notice in writing that non-discoverable parts have been withheld." Further, CPL 245.70 (1) states that "upon showing of good cause by either party, the court may at any time order that discovery or inspection of any kind of material or information under this article be denied, restricted, conditioned or deferred, or make such other order as is appropriate [...]." The statute further provides that the court has discretion in making said discovery alternatively available to counsel. In other words, the parties must move the court to shield discovery or identify to defendant in writing that non-discoverable parts have been withheld. As the People have failed to address the redacted materials, nor does review of the record reveal that they requested a protective order, the COC is invalid on this ground.

Finally, the People request that the court forgo dismissal and instead consider a sanction pursuant to CPL 245.80, conflating the standards of CPL 30.30 with those of CPL 245.80 (People v Gaskin, 214 AD3d 1352 [4th Dept 2023]). These are wholly different standards (id.). CPL 245.80 was designed to address issues with lack of compliance under CPL 245.10 (i) and (ii) "where the People only violate the 20- or 35- day discovery deadlines" (People v. Rafoel, 77 Misc 3d 1231[A] [Crim Ct, Queens County 2023]). If the People fail to disclose discovery after the CPL 245.10 (i) and (ii) deadlines, then the defendant has the burden of showing prejudice and the court may impose a sanction. Unlike CPL 245.80 where a sanction is discretionary, a CPL 30.30 dismissal is mandatory where the People are not ready within the speedy trial timeframe (Barry Kamins, Bail and Discovery Reform: The Third Round, NYLJ [June 6, 2022]) ["One must distinguish this discretionary type of dismissal [CPL 245.80], ...from a dismissal under CPL 30.30, which is mandatory when based on a failure by the prosecutor to file a valid certificate of compliance"]; People v Hamizane, NY Slip Op 23233 [App Term, 2d Dept 2023] [holding a showing of prejudice is not required to establish COC improper]). Thus, sanctions as a remedy are irrelevant when the People have failed to file a valid COC within the allotted CPL 30.30 timeframe.

When the top count of an accusatory instrument is an A misdemeanor, as is the case here, the People must be ready for trial within 90-days of the commencement of the criminal action (CPL 30.30 [1] [b]). To be ready for trial and stop the speedy trial clock, the People must file (1) a COC in good faith; (2) a valid SOR; and (3) certify that all the counts in the accusatory instrument are facially sufficient pursuant to CPL 30.30 (5-a) (People v Ramirez-Correa, 71 [*8]Misc 3d 572 [Crim Ct, Queens County 2021]).

Here, the accusatory instrument was filed, and the defendant was arraigned, on March 6, 2023. The number of days from the filing of the accusatory instrument (March 6, 2023) to the date on which the defendant filed the instant motion (August 10, 2023) is 157 days. Thus, the instant matter exceeds the 90-day speedy trial time limitation.

Accordingly, it is hereby

ORDERED, that the court hereby denies defendant's motion to deem the accusatory instrument improperly converted, and it is further

ORDERED, that the court hereby grants defendant's motion is dismiss the matter on speedy trial grounds due to an invalid COC, and it is further

ORDERED, that the temporary order of protection is vacated.