SUMMARY

The defendant's motion to dismiss for insufficient discovery disclosure is GRANTED.

The accusatory instrument was filed on October 13, 2023 and the defendant was arraigned the same day. He is accused with a top count of driving while intoxicated (Vehicle and Traffic Law § 1192 [2]), among other charges. The People filed a statement of readiness and certificate of discovery compliance (COC) on December 17, 2023. The defendant moves to invalidate the People's statement of readiness for insufficient discovery disclosure and for the following reasons that motion is granted.

In order for the People to announce ready for trial, they must automatically disclose all discovery in their custody and control that relates to the subject matter of the defendant's case (CPL 245.50 [1]; 245.20 [1], [2]). Once all known discovery has been turned over, the People must file a COC that certifies they have exercised due diligence and made reasonable inquiries to learn of existing discoverable material, and have disclosed that material to the defendant (CPL 245.50 [1]).

"Should a defendant bring a CPL 30.30 motion to dismiss on the ground that the People failed to exercise due diligence and therefore improperly filed a COC, the People bear the burden of establishing that they did, in fact, exercise due diligence and made reasonable inquiries prior to filing the initial COC despite a belated or missing disclosure" (People v Bay, 41 NY3d 200, 213 [2023]). "[T]he 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).

"Although the statute nowhere defines 'due diligence,' it is a familiar and flexible standard that requires the People 'to make reasonable efforts' to comply with statutory directives. Black's Law Dictionary is in accord; it defines 'due diligence' as "[t]he diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation" (Black's Law Dictionary 573 [11th ed 2019]). Reasonableness, then, is the touchstone — a concept confirmed by the statutory directive to make 'reasonable inquiries'" (Bay at 211-213).

When assessing a prosecutor's due diligence and reasonable inquiry, "courts should [*2]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 laps, and the People's response when apprised of any missing discovery" (id. at 212).

The defendant challenges the People's COC for failing to timely disclose two types of police documents, and the Court will assess the People's due diligence, reasonable inquiry and disclosure as to each, within the framework discussed above.

The People are required to disclose "all police reports, notes of police and other investigators, and law enforcement agency reports" (CPL 245.20 [1] [e]). The defendant challenges the validity of the People's COC for failing to disclose complete activity log entries for officers listed in their COC. The People do not respond to this challenge. Activity logs prepared by officers involved in the defendant's arrest are automatically discoverable (CPL 245.20 [1] [e]). These police documents were in the People's possession (CPL 245.20 [2]), and therefore a proper COC required the disclosure of these completed records.

In addition to all police reports, the People are also required to automatically disclose "a copy of all electronically created or stored information . . . obtained by or on behalf of law enforcement from . . . a source other than the defendant which relates to the subject matter of the case" (CPL 245.20 [1] [u] [i] [B]). Under these sections, the defendant also challenges the People's COC for failing to disclose audit trails for police body worn camera footage. The People respond that these documents are not discoverable, as they do not relate to the subject matter of the defendant's case.

In response to the defendant's challenge, the Court requested that the People obtain and produce the defendant's audit trails. The People cite to courts of concurrent jurisdiction for the premise that audit trails are not automatically discoverable. This Court finds more persuasive the arguments and analysis in People v Ballard (82 Misc 3d 403 [Crim Ct, Queens County 2023]) and finds that audit trails as described in that case are automatically discoverable (see People v Gourdine, — Misc 3d —[A], 2024 NY Slip Op 51031[U] [Sup Ct, Kings County 2024]; People v Bienaime, — Misc 3d —[A], 2024 NY Slip Op 51035[U] [Crim Ct, Kings County 2024]; People v Rosado, 83 Misc 3d 1242[A], 2024 NY Slip Op 50904[U] [Crim. Ct, Bronx County 2024]; People v Dieudonne, 83 Misc 3d 1237[A], 2024 NY Slip Op 50877[U] [Crim Ct, Kings County 2024]; People v Luja, 83 Misc 3d 1240[A], 2024 NY Slip Op 50893[U] [Crim Ct, Bronx County]; People v Cole, 83 Misc 3d 1229[A], 2024 NY Slip Op 50839[U] [Crim Ct, Kings County 2024]; People v Robert K., 83 Misc 3d 1229[A], 2024 NY Slip Op 50838[U] [Crim Ct, NY County 2024]; People v Lyte, 83 Misc 3d 1204[A], 2024 NY Slip Op 50655[U] [Crim Ct, NY County 2024]; People v Cumbe, 82 Misc 3d 1242[A], 2024 NY Slip Op 50524[U] [Crim Ct, Kings County 2024]; People v Duran, — Misc 3d —, 2024 NY Slip Op 24120 [Crim Ct, Bronx County 2024]; People v Rollerson, 82 Misc 3d 1212[A], 2024 NY Slip Op 50291[U] [Crim Ct, Bronx County 2024]; People v Shar, 82 Misc 3d 1251[A], 2024 NY Slip Op 50589[U] [Crim Ct, Richmond County 2024]; People v James, 82 Misc 3d 1248[A], 2024 NY Slip Op 50570[U] [Crim Ct, Kings County 2024]; People v Champion, 81 Misc 3d 292 [Crim Ct, NY County 2023]; People v Torres, 79 Misc 3d 1204[A], 2023 NY Slip Op 50532[U] [Crim Ct, Queens County 2023]). The Court has reviewed the body work camera audit trails in the defendant's case [*3]and confirms that the information contained in those documents include the material discussed in Ballard, specifically arrest categories and notations corresponding to individual time clips of body worn camera video, all input by officers. Therefore, the body worn camera footage audit trails should have been disclosed with the People's initial COC as a part of automatic discovery.

The defendant also challenges the People's COC for failing to disclose an Intoxicated Driver's Unit (IDTU) Log (CPL 245.20 [1] [e]), police reports associated with a motor vehicle accident (id.), a Personal Breath Test (PBT) calibration record (CPL 245.20 [1] [s]), LIDAR calibration documents (CPL 245.20 [1] [e], [j], [s]), and LIDAR certification documents (CPL 245.20 [1] [e], [f]). The People do not dispute that these documents are automatically discoverable, but respond that the IDTU log does not exist, the accident reports were not filled out as no accident occurred in the defendant's case, the PBT calibration record was disclosed on December 17, 2023 with their original COC, and that there are no physical LIDAR documents to disclose.

The defendant argues that LIDAR calibration and certification documents do in fact exist, despite the representations from the People's arresting officer made in an email. The defendant points to a New York State Police Discovery Checklist which lists LIDAR calibration paperwork as an identified report for disclosure, as well as two cases which discuss LIDAR calibration reports as evidence (People v Deep, 12 Misc 3d 1337 [Ithica City Ct 2006]; People v Grant, CR-035204-22KN [Dec 21, 2023 Kings County, J.]). The People submitted an email from Officer Matteo Aluzzo in which he states that "the LIDAR does not produce any physical records. Its [sic] goes through a self-test every time it is turned on."

In response to the officer's representations, the Court requested an evidentiary hearing. In preparation for the hearing, the People again spoke to Officer Aluzzo, who produced a LIDAR Certificate of Accuracy for the device used in the defendant's case. This document was in the People's possession (CPL 245.20 [2]) and was data "relating to the criminal action . . . made by or at the request or direction of a public servant engaged in law enforcement activity" (CPL 245.20 [1] [f]) and is also a "record[] of calibration, certification, inspection . . . of machines and instruments utilized to perform any scientific tests and experiments" related to the defendant's case (CPL 245.20 [1] [s]). The People do not contest that the LIDAR certification is automatically discoverable and their COC should have included disclosure of this document.

As to the other challenged documents that the People respond do not exist, the People's COC was not required to disclose what was not created.

A proper COC is one that certifies "after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery, the prosecutor has disclosed and made available all known material and information subject to discovery" (CPL 245.50 [1]). In this case, the People filed a COC without disclosing complete officer activity logs, body worn camera footage audit trails, and a LIDAR certification record, all within the People's possession at the time they certified discovery compliance.

The Court considers a "holistic assessment of the People's efforts to comply with the automatic discovery provisions" (People v Cooperman, 225 AD3d 1216, 1220 [4th Dept 2024]) [*4]and finds that, despite disclosing other discovery, there is insufficient evidence of due diligence in the People's efforts to comply with the discovery statute. The People do not provide any specific account of due diligence to prepare a complete COC, and do not respond at all as to the missing completed activity logs. The People instead argue their good faith reliance on non-binding case law for the opinion that audit trails are not discoverable material, and good-faith reliance on their officer's representation that a LIDAR machine self-calibrates and therefore produces no records.

The Court agrees that the "familiar and flexible standard" of due diligence does not require "strict liability" or a "perfect prosecutor" (Bay at 212). "An analysis of whether the People made reasonable efforts sufficient to satisfy CPL article 245 is fundamentally case-specific" (id.). In this case, the People do not provide any reason for disclosing incomplete activity logs, or argue voluminous discovery, or an overly complex case. Additionally, the People have not provided the complete activity logs in response to the defendant's conferral or motion challenge.

As to the audit trails, the police record material associated with body worn camera footage taken during the defendant's case, train officers to disclose that material to prosecutors, and yet the People continue to argue it is not discoverable (see Ballard, 82 Misc 3d 403). Instead, the People rely on non-binding caselaw that supports withholding audit trails, despite the discovery statute's emphasis on a presumption of openness (CPL 245.20 [7]). In this case, the People know audit trails exist, are presumed in possession of them, and insist on a policy of unilaterally withholding that material. This is not evidence of due diligence.

As to the LIDAR certification, the facts in this case do not support a finding of due diligence and reasonable inquiry. In response to the defendant's challenge, the People asked Officer Aluzzo for any records of LIDAR calibration and his response demonstrated that he did not understand what information was requested. Officer Aluzzo wrote "the LIDAR does not produce any physical records. Its [sic] goes through self-test every time it is turned on." This response does not address whether the machine is calibrated independently, rather than every time it is operated. Under these circumstances, it is unreasonable for the People to rely on this answer alone without further inquiry; this is a document in the People's possession, related to a machine that takes scientific measurements of a vehicle's speed, which will be relied on at any suppression hearing and trial. How the machine comes to an accurate reading is a foundational element relating to the subject matter of the defendant's case. Once the Court requested a hearing on these documents, the witness was able to locate and provide them. The level of diligence exercised to prepare for a hearing should, at the very least, be the same level of diligence required for discovery certification.

Under these circumstances, Bay makes clear that a "good faith" reliance on non-binding case law or equivocal responses from law enforcement does not replace the necessary diligence required by the law (Bay at 212 ["the plain terms of the statute make clear that while good faith is required, it is not sufficient standing alone and cannot cure a lack of diligence"]). Here, the People made no attempt to obtain and review the audit trails or LIDAR documents for discoverable information prior to filing their COC and therefore have not conducted reasonable inquiry in order to certify discovery compliance (see People v Luna, — Misc 3d —, 2024 NY Slip Op 24146 [App Term, 2d Dept, 9th & 10th Jud Dists 2024] [where the People were not found diligent when they filed a COC without receiving and reviewing records they had requested from police]). Despite the People's disclosure of other discovery, the conscious refusal to obtain and [*5]review police-generated audit trails for discoverable material is not diligent. The failure to obtain and review the LIDAR certification prior to filing their COC, given the facts of this case, is also not diligent.

When considering all the factors discussed above, the Court finds a lack of due diligence for the People to disclose completed activity logs, audit trails, and the LIDAR certification record and the original COC filed without this material is invalid.

The defendant moves to dismiss pursuant to CPL 170.30 (1) (e), CPL 30.30 (1) (b), and CPL 245.50 (3). He is accused with a top count of an unclassified misdemeanor, therefore the People have 90 days from the commencement of the criminal action to be ready for trial (CPL 30.30 [1] [b]; People v Cooper, 98 NY2d 541, 543 [2002]; People v Cook, 30 Misc 3d 134[A], 2011 NY Slip Op 50084[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2011], lv denied 17 NY3d 793 [2011]). "[O]nce a defendant has shown the existence of an unexcused delay greater than [90 days], the burden of showing that time should be excluded falls upon the People" (People v Barden, 27 NY3d 550 [2016], quoting People v Santos, 68 NY2d 859, 861 [1986]; see People v Santana, 80 NY2d 92, 105 [1992]).

For the above-mentioned reasons, the People have not met their burden to show due diligence to disclose complete activity logs, body worn camera footage audit trails, and LIDAR certification records, therefore their COC and statement of readiness were invalid (CPL 245.50 [3]). The People have not sought any other remedy available to them under the statute; the People do not move for a finding of special circumstances (CPL 245.50 [3]), they did not request a modification of discovery deadlines for good cause (CPL 245.70 [2]), or seek a protective order (CPL 245.70).

Accordingly, the speedy trial clock continued to run from the commencement of the action on October 13, 2023 until February 26, 2024 when the defendant filed the instant motion (CPL 30.30 [4] [a]). The People do not argue for any excludable periods of delay during this period.

The Court finds a total of 136 days included in speedy trial calculations. This total exceeds the 90 days mandated by statute and the defendant's motion to dismiss is granted.

IT IS SO ORDERED. The clerk is directed to enter this order.