Criminal Court of the City of New York, Queens County, February 24, 2020

Melinda Katz, District Attorney (Samantha Schlich of counsel), for plaintiff.

The Legal Aid Society (Gerard Deenihan of counsel) for defendant.

The defendant is charged with attempted murder in the second degree, Penal Law §§ 110.00 and 125.25 (1), burglary in the first degree, Penal Law § 140.30 (1), burglary in the second degree, Penal Law § 140.25 (2), assault in the second degree, Penal Law § 120.05 (2), and criminal possession of a weapon in the fourth degree, Penal Law § 265.01 (2), for entering 28-31 45th Street, apartment 2, in Queens, NY and stabbing Rosario Imundi in the back with a knife on September 8, 2019.

By written motion dated February 18, 2020, the People seek a CPL 245.70 (2) good cause modification and extension of their 15-day discovery compliance requirement pursuant to CPL 245.10.

The People assert, "in spite of diligent efforts," there remains "undisclosed" and "yet to be obtained" discovery materials and argue: (1) that they have disclosed "a majority" of the discoverable material and provide a three page, 21 item list of material provided to date; (2) that they need time to obtain and/or review and redact any additional information; (3) that the unobtained discovery is in the possession of "city, state, federal and private entities which are currently fielding requests for discoverable information from prosecutors throughout the city and state"; and (4) that the assigned prosecutor has a case load of 52 felonies and has been "endeavoring," along with support staff, to "come into compliance" with CPL 245.10 and 245.20 since January 1, 2020.

CPL 245.10 (1) (a) provides that the People must "perform its initial discovery obligations . . . not later than fifteen calendar days after the defendant's arraignment" and allows [*2]for a stay, up to an additional 30 calendar days, if the materials are "exceptionally voluminous or, despite diligent, good faith efforts," the material is not in the actual possession of the prosecution. CPL 245.70 (2) permits a court to "alter the time periods for discovery imposed by" CPL article 245 "upon a showing of good cause."

Here, the People have failed to show good cause warranting modification, extension or deferment of the discovery time period. The People have not specified any of the items that remain outstanding, what agency or agencies are in possession of the{**67 Misc 3d at 281} outstanding materials, if and when they requested the items, or any efforts made to obtain them. Thus, the People's reliance on People v Adams (66 Misc 3d 918 [Sup Ct, Queens County 2020, Morris, J.]) is misguided since, in that matter, the People disclosed all of the 200 Rikers phone calls to the defendant but sought an extension to narrow down which of the phone calls would be introduced by the People at trial. Whereas here, the People are blanketly requesting an extension, and asserting there is outstanding material, without any specifics as to what material or how much, who has that material, when they expect to receive it or why they haven't received it to date.

Additionally, they filed the instant motion on February 18, 2020—48 days since CPL article 245 became effective and more than five months since the defendant's criminal court arraignment—untimely and without any explanation as to the delay. (See People v Appling, Sup Ct, Kings County, Jan. 6, 2020, Sciarrino, Jr., J., index No. 03763-2019 [court ruled that the People must specify what materials are "voluminous" or what efforts were taken to obtain the outstanding material].)

Furthermore, while the People aver that some of the information contained in the documents may qualify for a protective order, they do not move for a protective order of documents currently in their possession, but merely speculate as to what may be contained within undisclosed and possibly unreceived documents.

Accordingly, the People's motion seeking an extension, modification and/or deferment of the CPL 245.10 discovery time period pursuant to CPL 245.70 (2) is denied.