Defendant Manuel Luja moves to invalidate the People's Certificate of Compliance ("COC") and to dismiss the misdemeanor charges against him pursuant to CPL §§ 30.30 (1) (b), 30.30 (5-a), and 210.20 (1) (g), and/or, in the alternative, for an Allard hearing on the underlying facts. For the reasons set forth below, the motion to invalidate the COC and dismiss the charges, or, in the alternative, for an Allard hearing is denied, the People are directed to turn over additional discovery as discussed below, within 20 days of this decision and order, and all other issues are respectfully referred to the trial court.

Defendant was arrested on November 27, 2023, and charged with two counts of Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs (VTL §§1192 [2], [3]), both unclassified misdemeanors, and one count of Driving While Ability Impaired (VTL §1192 [1]), a violation. On November 28, 2023, Defendant was arraigned, at which time his license was suspended, and he was released on his own recognizance. At Defendant's request, the case was adjourned to November 30, 2023, for a hardship hearing. The hardship hearing was then adjourned to December 4, 2023, at Defendant's request,^[FN1] at which time a hearing was conducted over two days, concluding on December 5, 2023. The proceeding was thereafter adjourned for decision to December 11, 2023. On December 11, 2023, the Court (Pacheco, J.) issued a decision denying the hardship privilege, and the case was adjourned to February 5, 2024, for the results of a "screening and assessment" and a COC to be filed by the People. On February 5, 2024, the People were not compliant, and the case was adjourned for a COC to [*2]February 28, 2024.

On February 26, 2024, the People filed and served an off-calendar COC and Statement of Readiness ("SOR"). The COC noted the following missing discovery: "Daily Roll Call Log" and two "IAB Logs for PO Singleton" (Oh Affirm., Ex. A at 3).

The following day, on February 27, 2024, the People emailed defense counsel two redacted IAB logs for Police Officer Singleton that were listed as missing from the original COC (Oh Affirm., ¶ 14). The People then filed and served two Supplemental COCs, both dated February 28th, 2024. The first of these Supplemental COCs ("SCOC 1") related to the aforementioned IAB logs for Police Officer Singleton and states by way of explanation:

"When the People filed their initial COC on February 26, 2024, the People indicated that the two aforementioned IAB logs were missing and will be turned over as soon as they are in the People's actual possession."

The second Supplemental COC ("SCOC 2") concerned the missing Daily Roll Call Log and an ICAD readout, which were also turned over at the time of SCOC 2's filing (Oh Affirm., Ex. C). SCOC 2 states that the assigned Assistant District Attorney ("ADA") made a request of his Trial Prep Assistant ("TPA") to follow up with NYPD for the Daily Roll Call Log, which he had not previously received, and that:

In response, the TPA forwarded the Daily Roll Call Log and ICAD that was received from NYPD but was not forwarded to the assigned. On the same date, the assigned forwarded the Daily Roll Call Log and ICAD to defense counsel (id.).

At the next court appearance, on February 28, 2024, the People served a superseding information, Defendant was arraigned, and the People maintained their readiness for trial. A discovery conference was ordered for March 21, 2024, to allow defense counsel an opportunity to review the materials turned over.

By email dated March 5, 2024 (the "Defense Discovery Email"), defense counsel provided the People with a list of materials that she believed to be outstanding, including: the most recent calibration reports for the breathalyzer machine used in this case, "Giglio for PO Delacruz," the "Ambulance call report," and the "[body worn camera] BWC audit trail / log" (Oh Affirm., Ex. D).

On March 20, 2024, the People turned over to Defendant the calibration reports for the breathalyzer machine used, and filed and served a third Supplemental COC ("SCOC 3") of even date. SCOC 3 states that the People were providing the calibration report now "as these records did not previously exist and have been recently created by NYPD" (Oh Affirm., Ex. E).

As concerns the other items listed in the Defense Discovery Email, the People responded by email dated March 20, 2024, to state that certain items, such as the ambulance call report did not exist, that the so-called Giglio materials for Police Officer Delacruz would not be shared because the prosecution would not be calling this officer to testify, and that the BWC audit trail/log would not be shared because it was "[n]ot discoverable under CPL § 245.20" (Oh Affirm., Ex. F).

On March 21, 2024, the parties appeared before this Court for a COC conference. Among other objections, Defense took issue with the validity of the COC based on the lack of so-called Giglio materials for Police Officer Delacruz, who was the only Spanish-speaking officer on the scene and who effectuated the arrest of Defendant, who only speaks Spanish. [*3]Defense also objected to the BWC audit trails not being turned over, as well as to the People's failure to turn over the ambulance call report generated by the FDNY, and the roll call log for the 45th Precinct, which did not include PO Hart, who was the IDTU officer at the time of the arrest. The Court directed the parties to file the instant motion.

On April 5, 2024, the People served upon Defense the daily roll call log for Police Officer Hart and filed their fourth supplemental COC of even date ("SCOC 4"). According to SCOC 4, this document was previously requested from the 45th Precinct, but was received from Highway Patrol and turned over "as soon as it came into our actual possession" (Oh Affirm., Ex. H).

As of the filing of the instant motion, Defense asserts that the following items remain outstanding:

a. Documents noted as completed on the arrest checklist, including:

1. Warrant check

2. Standardized field sobriety notes

3. Notice of hearing (operating motor vehicle after consuming alcohol)

4. Custom metadata added to BWC

5. Notice of chemical test refusal hearing

b. "Giglio" for Police Officer Delacruz

c. The ambulance call report

d. All relevant NYPD roll call logs

e. BWC audit trails/logs

Defense contends that because of these missing documents, the People have failed to comply with their discovery obligations, their COC and SCOCs are invalid, and the accompanying SORs are illusory and insufficient to stop the speedy trial clock. Defense calculates 114 days chargeable to the People, including in its calculations the time for the hardship hearing decision and up to the time that the Court directed the filing of this motion, and argues that, as such, the criminal court information must be dismissed.

In opposition, the People contend their COC should not be invalidated because "[c]omplete compliance is not required for this Court to find that the People's COC is valid" as it is not "contemplated" within the statutory language, legislative intent or subsequent judicial interpretations of CPL § 245 (Williams Affirm. at 3). The People maintain that filing the COC was reasonable under the circumstances and no adverse consequence can be imposed where the prosecution exercised "due diligence in determining the existence of discoverable material" and filed its COC in good faith under the circumstances (Williams Affirm. at 6).

With respect to the specific items that are outstanding, the People argue, among other things, that they cannot disclose items that do not exist. Specifically, that:

a. Per the 45th Precinct, a "wanted person inquiry" was not generated in this case and therefore no warrant check can be disclosed (Williams Affirm., Ex. 16);

b. No field sobriety test was performed, as evident from the BWC footage, and, therefore, Standardized Field Sobriety Notes were not generated (Williams Affirm. at 10);

c. NYPD did not file a notice of hearing form and therefore a Notice of Hearing was never generated (id.).

d. Defendant did not refuse a breathalyzer test and, therefore, no Notice of Chemical Test Refusal Hearing was generated.

As concerns the custom metadata added to the BWC, the People maintain that BWC footage shared via evidence.com automatically shared all custom metadata added and anything further is not discoverable.

Turning to the so-called Giglio material for Police Officer Delacruz, the People contend that impeachment material for a non-testifying officer is not subject to automatic discovery under CPL § 245.20 (1) (k) (iv), citing the Appellate Division, Fourth Department's recent decision in People v Cooperman (225 AD3d 1216 [4th Dept 2024]). Alternatively, the People argue that in the event this Court finds these materials for Police Officer Delacruz were discoverable, the Court should take into consideration that, "the People acted in good faith and with due diligence reasonable under the circumstances," and not invalidate their COC on this basis (Williams Affirm. at 12).

With respect to the ambulance call report, the People initially represented that these documents had been requested from NYPD and that NYPD stated that the ambulance call report did not exist (Oh Affirm., Ex. G at 11). However, it was FDNY EMS that responded in this case and, therefore, those documents would not have necessarily been in NYPD's possession. Defense maintains that any documents created by FDNY must, nevertheless, be deemed to be within the custody and control of the People pursuant to CPL § 245.20 (2), which provides that, "all items and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency shall be deemed to be in the possession of the prosecution." As such, Defense argues that any document generated by FDNY is automatically discoverable. The People, however, counter that because ambulance reports can be obtained by defendant via subpoena, and also implicate Defendant's HIPAA-protected information, the failure to obtain these documents cannot serve as a basis to invalidate the COC.

Finally, the parties dispute whether BWC audit logs are subject to automatic disclosure under CPL § 245.20 and cite conflicting Criminal Court decisions in support of their respective positions.

In a misdemeanor case, the People must be ready for trial within ninety days of the time a criminal court action is commenced, less any excludable time (CPL § 30.30 [1] [b]; People v Brown, 28 NY3d 392, 403 [2016]). The day of arraignment is excluded from the speedy trial calculations (People v Stiles, 70 NY2d 765[1987]), as is the post-arraignment adjournment time for a hardship hearing made at the defendant's request (see CPL § 30.30 [4] [a]; People v Tavares, 81 Misc 3d 1245[A]). The "speedy trial clock" is next tolled when the People declare ready for trial (People v Labate, — NE3d —, 2024 NY Slip Op 01582, 2024 WL 1199349 [March 21, 2024]). To be deemed ready for trial, the People must file their statement of readiness ("SOR") and "serve upon the defendant and file with the court a certificate of compliance," certifying that they have complied with their discovery obligations (CPL §§ 245.50 [1]; 245.50 [3]).

Here, Defendant was arraigned on November 28, 2023, and requested a hardship hearing at his arraignment. The hardship hearing was not held until December 4, 2023, which time is excludable as "a reasonable period of delay resulting from other proceedings concerning the defendant" (CPL § 30.30 [4] [a]). Inasmuch as defendant argues that, at most, only the period up to the first day of the hardship hearing may be excluded and the People should be charged for the second day of the hearing as well as the time to decision (i.e., December 5 to December 11, 2023), this would fly in the face of the plain text of CPL § 30.30 (4)(a), which clearly includes [*4]"the period during which such matters are under consideration by the court" (emphasis added). Accordingly, the People's "30.30 clock" did not begin to run until December 12, 2023, the day following the Court's decision on the hardship hearing. When the COC was filed on February 26, 2024, 76 days were chargeable to the People.

The mere fact that additional discovery was provided after the COC was filed does not invalidate the COC here. As the Court of Appeals recently noted in People v Bay, CPL § 245.50 (1) directs that, "'[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,'" subject to any "discovery sanctions and remedies where provided in CPL 245.80" (41 NY3d at 209 [citation omitted]). The "key question in determining if a proper COC has been filed is whether the prosecution has 'exercis[ed] due diligence and ma[de] reasonable inquiries to ascertain the existence of material and information subject to discovery'" (id. at 211, citing CPL §§ 245.20 [1], [2]; 245.50 [3]).

Under the statutory scheme, where additional discovery is provided after a COC has been filed, the People must file a supplemental COC that details the reason(s) for the delayed disclosure "so that the court may determine whether the delayed disclosure impacts the propriety of the [original] certificate of compliance" (CPL § 245.50 [1-a]). As Bay explained, a supplemental COC will not "impact the validity" of the original COC if it is filed in good faith and after the exercise of due diligence, or if the additional discovery disclosed did not exist at the time that the original COC was filed.

Here, the People demonstrate their good faith and due diligence by promptly filing a supplemental COC with additional information as soon as it became available or as soon as its absence was brought to the People's attention. For example, inasmuch as the original COC notes missing Roll Call and IAB Logs, both items were shared just two days later, together with SCOC 1 and SCOC 2 (Oh Affirm., Exs. A - C).

With respect to so-called Giglio materials for Police Officer Delacruz, the People maintain that they do not need to provide information about prior misconduct for officers who they do not intend to call to testify at trial, citing CPL § 245.20 (1) (k).^[FN2] Courts in New York have reached different conclusions on whether so-called Giglio materials for non-testifying officers must be disclosed (compare e.g., People v Figueroa, 76 Misc 3d 888, 894-96 [Crim Ct Bronx County 2022] ["disclosure of prior misconduct is not limited to witnesses whom the People choose to call to testify"], with People v Diaz, 77 Misc 3d 727 [Crim Ct Bronx County 2022] [rejecting analysis in Figueroa as "unpersuasive"]). The question has not yet been [*5]directly addressed by either the Court of Appeals or the Appellate Division, First Department.

The Appellate Division, Fourth Department, however, recently held in People v Cooperman, that disciplinary records for non-testifying officers were not subject to automatic discovery under CPL § 245.20 (1) (k) (iv) as that section of the discovery statute only "requires disclosure [] of materials that tend to 'impeach the credibility of a testifying prosecution witness'" (225 AD3d 1216, 1219 [4th Dept 2024] [emphasis in original], quoting CPL § 245.20 [1] [k] [iv]). Not insignificantly, however, the Court in Cooperman declined to address whether "other portions of CPL 245.20 (1) (k) applied to the personnel files at issue here" as that argument had not been preserved for the Court's review (225 AD3d at 1219).

Clearly, any potential misconduct disclosures concerning the only Spanish-speaking officer at the scene of a DWI arrest of a Spanish-only speaking Defendant "could be of significant consequence to negate a defendant's guilt, provide a basis to suppress evidence, or support a potential defense even if the prosecution has decided not to call the officer in question as a witness" (People v Peralta, 79 Misc 3d 945, 953 [Crim Ct Bronx County 2023]). Notably, and although unaddressed by Cooperman, supra, CPL § 245 (l) (k) (i) requires the People to disclose "all evidence and information . . . that tends to negate defendant's guilt as to a charged offense," and CPL 245.20 § (l) (k) (iii) requires disclosure of "all evidence and information . . . that tends to support a potential defense to a charged offense." Whether police misconduct records are discoverable under these portions of the discovery statute necessarily requires a "fact-specific" inquiry "based on the officer's particular involvement in the case and the nature of the misconduct allegations against him" (People v Jackson, 79 Misc 3d 832, 840 [Crim Ct NY County 2023]).

Here, as noted above, Police Officer Delacruz was the only Spanish-speaking officer at the scene of the arrest and the one who communicated with Defendant during his arrest. Given the critical role he is alleged to have played in communicating with Defendant, and mindful of the statutory "presumption in favor of disclosure when interpreting" the provisions of CPL § 245.20 (1) that is required by CPL § 245.20 (7), disciplinary records for this police officer should be provided. Accordingly, the Court directs the People to produce these materials to Defense within 20 days of this decision and order.

Failure to provide such records at this point does not render the COC invalid (see e.g., People v Villota, 2024 NY Slip Op 50757(U), 2024 WL 3212012 [Sup Ct Queens County 2024] ["failure to disclose the additional material requested by the Defendant does not invalidate the People's certificate of compliance"]). As Bay made clear:

Although the relevant factors for assessing due diligence may vary from case to case, courts should generally consider, among other things, the efforts made by the prosecution and the prosecutor's office to comply with the statutory requirements, the volume of discovery provided and outstanding, the complexity of the case, how obvious any missing material would likely have been to a prosecutor exercising due diligence, the explanation for any discovery lapse, and the People's response when apprised of any missing discovery (41 NY3d at 212).

Applying this standard to the case at bar, it cannot be said that the "missing [Giglio] material[s] would likely have been [obvious] to a prosecutor exercising due diligence" given that such materials are not always subject to disclosure (id.; e.g., People v Diaz, 77 Misc 3d 727 [rejecting automatic disclosure of such records]). The purpose of the discovery statute is to [*6]insure "prompt prosecutorial readiness for trial" (People v Sinistaj, 67 NY2d 236, 239 [1986]) and "discourage prosecutorial inaction" (People v Price, 14 NY3d 61, 64 [2010]), and the Court finds that the People have satisfied their obligations in that respect here.

Turning to the BWC audit logs, the People argue that the discoverable portions of the logs have already been shared with Defense when the footage was shared via evidence.com, and that anything additional need not be shared absent a specific showing how this data is relevant to the subject matter of the case (Williams Affirm. at 14-15). This position appears to be in stark contrast to the current trend in this Court and others that recognizes that BWC audit logs are subject to automatic discovery due to the information those logs contain (e.g., People v Carlos Romero, CR-019954-23BX [Crim Ct Bronx County May 9, 2024] [collecting cases]; People v Rollerson, 82 Misc 3d 1212 [A] [Crim Ct Bronx County March 20, 2024 [discussing rationale for disclosure]). While the COC was filed in this case during a period when this question was arguably more unsettled (see e.g., Rollerson, supra), the People must turn over this information within 20 days of this decision and order.

With respect to the FDNY EMS ambulance report, the People requested this information from NYPD and were told it did not exist (Williams Affirm., Ex. 5). To obtain this information from FDNY, the People would either need a so-ordered subpoena or a subpoena accompanied by a HIPAA form from the defendant. CPL § 245.20 expressly exempts the People from having to obtain any information that requires a subpoena since the Defense is equally well-positioned to subpoena such information. Nothing in the record suggests Defense Counsel tried to subpoena such information and was unable to do so. Moreover, here, Defense is in a better position to have Defendant sign any required HIPAA forms that may be required to obtain disclosure. This is not a basis to invalidate the COC here.

Finally, with respect to any documents that the People maintain were never created such as the warrant check, standardized field sobriety notes, notice of hearing and/or notice of chemical test refusal (person under age 21), the People maintain these documents were never created and, therefore, cannot be turned over. This is supported by the record as, for example, Defendant did not refuse a test and it would thus make sense that no refusal paperwork was ever created.

For the avoidance of doubt, inasmuch as the People argue that the "severe measure of invalidating the People's COC" is not warranted because Defendant cannot articulate any prejudice as a result, this analysis has been explicitly rejected by the Court of Appeals in Bay, and, as Bay explained, wholly "misunderstands the statutory scheme" (41 NY3d at 213-214 ["Contrary to the People's contentions, a defendant need not demonstrate prejudice to obtain dismissal based on the failure to timely comply with discovery obligations"]). To the extent this was not settled law before Bay was decided, it is settled now and the People should not continue to repeat this argument in their papers in opposition to COC motions as if, at least some portion of, these papers were written before Bay was ever decided and never updated.

The time from arraignment on November 28, 2023 to decision on the hardship hearing on December 11, 2023 is excluded from speedy trial calculations (see CPL § 30.30 [4] [a]).

At the time the initial COC and SOR was filed on February 26th, 76 days were chargeable to the People.

The Court does not find that the subsequent filing of COC 2 two days later invalidates the [*7]original filing, as discussed above. Even if it did, only 78 days would be chargeable.

COC 3 and COC 4 were filed in response to discovery conferencing of the case and/or because previously unavailable information became available and does not invalidate the original COC (see CPL 245.35 [1]).

Based on the foregoing, 76 days are chargeable to the People.

Inasmuch as Defendant seeks a hearing pursuant to People v Allard, 28 NY3d 41, 45 (2016) with respect to any disputed issues of material facts so that said issues may be resolved, there are no material disputed issues of fact requiring a hearing to resolve on this motion.

Accordingly, it is hereby

ORDERED that that Defendant's motion to dismiss pursuant CPL §§ 30. 30 (1) (b), 30.30 (5-a) and 210. 20 (1) (g) is DENIED, and it is further

ORDERED that the People's Certificate of Compliance filed on February 26, 2024, is deemed VALID; and it is further

ORDERED that defendant's request for Allard hearing is DENIED, and it is further

ORDERED that the People are directed to comply with their continuing discovery obligations pursuant to CPL § 245, including Brady disclosures, and it is further

ORDERED that the People are directed to timely turn over all documents required by this decision within 20 days of this decision and order, and it is further

ORDERED that all other issues are respectfully referred to the trial court.