Summary

1. Defendant's motion to deem invalid the certificate of compliance dated August 21, 2023, is DENIED.

2. Defendant's motion to dismiss the information on statutory speedy trial grounds is DENIED.

3. Defendant's motion to suppress fruits of defendant's observation, seizure and/or arrest is GRANTED to the extent of ORDERING the following pre-trial hearings: Dunaway/Huntley/Mapp.

4. Sandoval and Molineux matters are RESERVED to the trial court for resolution.

5. All other branches of defendant's omnibus motion are DENIED.

Defendant, Dinelson Jerez, was arraigned on June 4, 2023, on an information charging him with driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2]), common law driving while intoxicated (Vehicle and Traffic Law § 1192 [3]) and driving while ability impaired by alcohol (Vehicle and Traffic Law § 1192 [1]). On August 21, 2023, the People served and filed a certificate of compliance (CoC) and statement of readiness (SoR). On September 7, 2023, defense counsel informed the assigned assistant district attorney (AADA) by email that portions of the NYPD Internal Affairs Bureau (IAB) complaint logs for a named police officer were missing. Approximately five minutes later, the AADA sent defense counsel a return email with the missing complaint log portions attached; ten minutes thereafter the AADA served and filed a supplemental CoC (SCoC) and another companion SoR.

Defendant filed an omnibus motion dated October 2, 2023, in which he does not dispute that the People did come into compliance with their discovery obligations almost immediately after being informed of the oversight. Defendant submits, however, that because of the People's discovery error, necessitating correction and the filing of an SCoC, the original "COC was no more than a placeholder" and thus invalid. This argument is unavailing. "No adverse [*2]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" (CPL 245.50 [1]). The court rejects defendant's invitation to rule, in effect, that a prosecutorial discovery error or oversight requiring the filing of an SCoC renders the filing of any prior CoC or SCoCs to be per se not "in good faith" and not "reasonable under the circumstances" (id.; see People v Pondexter, 76 Misc 3d 349, 353 [Crim Ct, Bronx County 2022] ["Inadvertent errors or omissions will not automatically invalidate a COC and [S]OR"]).

However, this does not end the inquiry sparked by defendant's CoC challenge.

"[W]hen a COC is challenged, it is incumbent upon the People to demonstrate that they operated in good faith, exercised due diligence and expeditiously provided any missing materials. They must sufficiently articulate their efforts to comply with the statute and explain how the error occurred and was detected, and when it was remedied" (Pondexter, 76 Misc 3d at 353).

Here, the AADA has been forthcoming about an admitted goof that was fully corrected mere minutes after defendant fulfilled his statutory obligation, "[t]o the extent that [defendant was] aware of a potential defect or deficiency . . . , . . . to . . . notify or alert the [People] as soon as practicable" (CPL 245.50 [4] [b]).

Defendant's complaint that the missing discovery was not "produced until [after] defense counsel alerted the prosecution to the fact that the material was missing" overlooks the fact that the State Legislature designed the discovery statute to include this failsafe. "Although not expressly stated, the apparent intent in mandating that the opposing party should be notified of or alerted to the defect or deficiency 'as soon as practicable' is to provide that party an opportunity to address the complaint . . . [and to] allow a reasonable time for the parties to resolve a purported defect or deficiency set forth in a notice or alert" (William C. Donnino, Practice Commentaries, McKinney's Cons Laws of NY, CPL 245.50; see People v Smith, 79 Misc 3d 649, 654 [Sup Ct, Queens County 2023] [the purpose of CPL 245.50 (4) (b) is "to diminish any opportunity for manipulation and to provide some guidance on a party's duty to challenge a COC within a reasonable period of time, the Legislature amended the statute to require that the actions necessary to challenge a COC be made 'as soon as practicable' "] [quoting CPL 245.50 (4) (b)]; People v Sellie, 77 Misc 3d 1234[A], 2023 NY Slip Op 50093[U], *5 [Schenectady County Court 2023] ["Where, as here, the defense is aware of a potential defect or deficiency related to a certificate of compliance, counsel must 'notify or alert the opposing party as soon as practicable' of the defect"] [same]; People v Rodriguez, 73 Misc 3d 411, 419 [Sup Ct, Queens County 2021] [under the facts alleged, "the absence of several documents from the original certificate is excusable, so long as the People rectify it in a timely fashion when they realize the error"]; People v Barralaga, 73 Misc 3d 510, 520-521 [Crim Ct, NY County 2021] ["[I]t would encourage gamesmanship to permit the defense to allow the speedy trial clock to run for an unreasonable period before . . . contacting the prosecutor to resolve discovery disputes. CPL 30.30 (5) was enacted to protect a defendant from being unfairly disadvantaged preparing for trial by the withholding of discovery. That protection must not be used as a sword by the defendant to run out the CPL 30.30 clock."]).

The court declines to vitiate the otherwise presumptively valid initial CoC in this matter in light of the AADA's demonstrated "diligent, good faith effort to ascertain the existence of material or information discoverable under [CPL 245.20 (1)] and to cause such material or information to be made available for discovery" (CPL 245.20 [2]). Accordingly, the branch of [*3]defendant's omnibus motion moving the court to deem invalid the People's CoC dated August 21, 2023, is DENIED. As the correlated branch of defendant's omnibus motion, moving to dismiss the information on statutory speedy trial grounds, is based upon defendant's unavailing CoC invalidity claim, it, too, is DENIED.

The branches of defendant's omnibus motion seeking suppression of the fruits of his observation, seizure or arrest is GRANTED to the extent of ORDERING the following hearings: Dunaway/Huntley/Mapp. All other branches of defendant's omnibus motion seeking suppression or, alternatively, hearings are DENIED as duplicative of hearing requests by defendant herein granted or unsupported by defendant's arguments or the record. In particular, defendant's request for a Gursey hearing is DENIED(see People v Gursey, 22 NY2d 224 [1968]). The bareboned declaration that a "chemical breath test was performed in violation of [defendant's] limited right to consult with counsel before deciding whether to consent to chemical testing" is insufficient to grant a hearing. Defendant does not allege any of the three points necessary to obtain Gursey suppression, or a hearing thereon, i.e., that he made "such a request" to speak with counsel, that counsel was "physically present [or could] be reached promptly by telephone or otherwise" at the time of the request, and that it was "feasible for the police to allow defendant to attempt to reach counsel without unduly delaying administration of the chemical test" (People v Smith, 18 NY3d 544, 549 [2012]).

Sandoval and Molineux motions are RESERVED to the trial court for resolution (see People v Sandoval, 34 NY2d 371 [1974]; People v Molineux, 168 NY 264 [1901]). All other branches of defendant's omnibus motion have been reviewed and are DENIED as redundant of motions decided herein, duplicative of applicable statutory or constitutional guidelines, or unsupported by defendant's arguments or the record.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.