Supreme Court, Bronx County, May 17, 2020

The Bronx Defenders (Angelo Petrigh of counsel) for defendant.

Darcel D. Clark, District Attorney (Michael Duffy of counsel), for plaintiff.

{**68 Misc 3d at 627}The defendant has been charged by indictment with attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]), criminal possession of a weapon in the second degree (Penal Law § 265.03 [1] [b]) and related charges stemming from an incident in which the defendant, on October 28, 2018, at 4:00 a.m., in the vicinity of 215th Street and Hicks Street, Bronx County, allegedly fired a shot into the abdomen of Stefan Collins. By oral application on February 18, 2020 (see CPL 30.30 [8]), the defendant sought release from custody pursuant to CPL 30.30 (2) (a), alleging that 102 days were chargeable to the People. The People opposed the application and, on February 20, 2020, this court conducted a hearing on the defendant's application (see CPL 30.30 [8]).

The court, having considered the court file and the parties' contentions and extensive submissions, finds as follows:

To establish a violation under CPL 30.30 (2) a defendant must demonstrate the existence of a delay in excess of the statutory time period (People v Santos, 68 NY2d 859, 861 [1986]). Upon meeting this burden, the burden shifts to the People to establish that certain periods within that time period should be excluded (see People v Fields, 214 AD2d 332 [1st Dept 1995]). The People also bear the burden of clarifying, on the record, the basis for an adjournment so that a motion court can determine to whom an adjournment should be charged (People v Cortes, 80 NY2d 201, 215 [1992]; see also People v Liotta, 79 NY2d 841 [1992]; People v Berkowitz, 50 NY2d 333 [1980]).

Criminal Procedure Law § 30.30 (2) provides:

"Except as provided in subdivision three . . . , where a defendant has been committed to the custody of the sheriff . . . in a criminal action he or she must be released on bail or on his or her own recognizance, upon such conditions as may be just and reasonable, if the people are not ready for trial in that criminal action within:

"(a) ninety days from the commencement of [*2]his or her commitment to the custody of the sheriff . . . in a criminal action wherein the defendant is accused of one or more offenses, at least one of which is a felony."

The parties agree that 72 days are chargeable to the People during the period from the defendant's arrest up until January 13, 2020. As framed by the defendant in his February 28, 2020 letter to the court, the parties agree that "[t]he dispute [is] {**68 Misc 3d at 628}whether the time from January 13, 2020 to February 18, 2020 [is] chargeable."

The defendant has been committed to the custody of the sheriff since his arrest on October 28, 2018. Accordingly, release is required under CPL 30.30 (2) unless the period in contention is excludable under CPL 30.30 (4).

CPL 30.30 (4) provides, in pertinent part:

"In computing the time within which the people must be ready for trial . . . the following periods must be excluded:

"(a) [the] period of delay resulting from other proceedings concerning the defendant, including but not limited to: . . . pre-trial motions . . . and the period during which such matters are under consideration by the court; or . . .

"(g) other periods of delay occasioned by exceptional circumstances, including but not limited to, the period of delay resulting from a continuance granted at the request of a district attorney if (i) the continuance is granted because of the unavailability of evidence material to the people's case, when the district attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will become available in a reasonable period; or (ii) the continuance is granted to allow the district attorney additional time to prepare the people's case and additional time is justified by the exceptional circumstances of the case" (emphasis added).

Defendant, in his February 28th written submission, writes:

"The prosecution has been unable to state ready for trial since January 1, 2020 because they have failed to comply with CPL 245.50. As such, they have reverted to a pre-readiness posture, where they are unable to be trial ready until they comply. Any prior statements of readiness were rendered invalid on January 1, 2020."

In support of this position, defendant points to the legislative history of CPL article 245 and specifically points to the sponsor's statement which provided: "Kalief's Law will ensure that a statement of 'readiness' is real by tying it to discovery requirements, requiring the People to possess evidence that they are in fact 'ready' for trial while allowing for flexibility when the facts merit additional time" (Sponsor's Mem in Support {**68 Misc 3d at 629}of 2019-2020 NY Assembly Bill A3973; L 2019, ch 59, § 1, part KKK, § 1).

Defendant further stated:

[*3] "A statute must be read and given effect as it is written by the Legislature, not as the court may think it should or would have written it if the Legislature had envisaged all of the problems and complications which might arise in the course of its administration, no matter what disastrous consequences may result from following the express intent of the Legislature the Judiciary cannot avoid its duty" (citations omitted).

While the legislature might not have "envisaged all of the problems and complications" that enactment of article 245 would foment, this court finds it difficult to conclude that legislators would be unconcerned with "disastrous consequences" wrought by legislation that was designed to rectify a problem, not create one. Illustrative of this point is an inquiry raised in this matter during oral argument. The court, drawing upon a recent discussion with another prosecutor concerning his efforts to comply with the new discovery law on another case involving a significant violent felony offense, asked the defense to assume that the prosecution had provided more than 50,000 documents, hundreds of recorded conversations and dozens of body-cam videos but were unable to secure one page of one tangentially involved officer's memo book; under those circumstances, would the defense position be that the prosecution, even while specifying their past and ongoing efforts to secure that one page and committing, subject to sanction, to immediate disclosure of that one page when obtained, would be unable to announce ready? The defense, in response, unequivocally stated that not only would that be their position but that was what the law required.

The prosecution, recognizing the implications of the defense position, though primarily in the context of the continuing applicability of the CPL 30.30 exclusions prior to the filing of a certificate of compliance, writes, in part:

"[D]efendant's motion brings about powerful policy considerations. If defendant is correct and a certificate of readiness is an inflexible prerequisite in order for the CPL 30.30 (4) time periods to be excluded, the rule will result in the dismissal of countless cases. The People's arguments above are likely adopted by District Attorney's Offices throughout the State . . . [I]t is also likely that {**68 Misc 3d at 630}certificates of compliance are not filed while motions are pending or while other prosecutors reasonably relied upon traditional excludability under CPL 30.30.

"Amplifying these concerns is that certificates are more difficult to file in serious cases with significant police involvement in discovery obligations. Defendant's arguments, if accepted, could result in the dismissal of a number of serious felony cases, including violent felonies. Indeed, one need only consider the attempted murder case at hand to recognize the vast impact of this interpretation."

Although resolution of defendant's motion does not require assessment of the "powerful policy considerations" noted by the prosecution, given the import of the issues raised, this court has reviewed both the statutory language and the legislative history of article 245 in an attempt to ascertain legislative intent. In this endeavor, the court has applied the oft-quote analytical framework provided by the Court of Appeals. As stated in People v Andujar (30 NY3d 160, 166 [2017]):

"When presented with a question of statutory interpretation, our primary consideration 'is to ascertain and give effect to the intention of the Legislature.' While 'the words of the statute are the best evidence of the Legislature's intent,' legislative history may also be relevant as an aid to construction of the meaning of words" (citations omitted).

[1] The defendant correctly notes that CPL 245.50 (3) requires the prosecution, "absent an individualized finding of special circumstances," to file a proper certificate of compliance before they may "be deemed ready" for trial. The defendant, however, mistakenly reads CPL 245.50 (1) for the uncompromising proposition that absent full compliance with the article's automatic disclosure requirements, the prosecution may neither file a certificate of compliance nor rely upon section 30.30 (4) exclusions. CPL 245.50 (1) provides, in pertinent part:

"When the prosecution has provided the discovery required by subdivision one of section 245.20 . . . it shall serve upon the defendant and file with the court a certificate of compliance. The certificate . . . shall state that, 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{**68 Misc 3d at 631} discovery . . . If additional discovery is subsequently provided prior to trial . . . a supplemental certificate shall be served upon the defendant and filed with the court identifying the additional material and information provided. No 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; but the court may grant a remedy or sanction for a discovery violation as provided in section 245.80 of this article" (emphasis added).

Section 245.80 provides for remedies or sanctions where the prosecution, while acting in good faith, has failed to fully comply with their discovery obligations. When either the prosecution or defense furnishes belated discoverable material or information and prejudice ensues, the aggrieved party is entitled to an appropriate remedy or sanction. When discoverable material or information is lost or destroyed and the aggrieved party can demonstrate that such material or information is relevant to a contested issue, a remedy or sanction should be imposed. And when a party fails to adhere to a judicial order, a remedy or sanction will be warranted. The article's reference to "supplemental" certificates under CPL 245.50 (1) and the inclusion of remedies and sanctions for discovery violations of a material nature, inferentially, and powerfully, suggest that fidelity to an absolute, uncompromising and inflexible disclosure standard, for both the prosecution and the defense, is neither required or desirable.

As for the article's legislative history, the New York State Assembly Memorandum in Support of the Legislation stated that the purpose of the legislation was:

"To modernize and make New York State's criminal discovery rules fairer. This bill calls for the repeal [of] our current flawed discovery rules (Article 240 of the Criminal Procedure Laws) and offers a better, comprehensive statute; Article 245. This bill eliminates the unfairness and inefficiencies of the present system and, if enacted, would facilitates [sic] swift, efficient, [*5]and just disposition of criminal cases" (Sponsor's Mem in Support of 2017-2018 NY Assembly Bill A4360-A; L 2019, ch 59, § 1, part LLL, § 2).

Legislative intent may also be gleaned from the legislature's inclusion of Berger v United States (295 US 78, 99 [1935]) as justification for the new discovery law.{**68 Misc 3d at 632}

"In Berger . . . the United States Supreme Court declared that the prosecutor must be a servant of the law, both seeking to avoid wrongful convictions and using every legitimate means to bring about just ones . . . To assist in the speedy resolution of criminal cases, to help the innocent from suffering harm, and to ensure that the guilty (every person wrongly charged enables a criminal to walk free) face certain justice . . . . Fairer discovery will not impede law enforcement from carry[ing] out its mission—it will assist them and will prevent miscarriages of justice" (Sponsor's Mem in Support of 2017-2018 NY Assembly Bill A4360-A; L 2019, ch 59, § 1, part LLL, § 2).

Berger specifies the goals that the criminal justice system is designed to achieve—speedy resolution of criminal cases; protection of the innocent (presumably, this includes not only the wrongfully accused but the victims of the rightfully accused); "certain justice" for the guilty and "[f]airer discovery" that "will not impede law enforcement from carry[ing] out its mission . . . prevent[ing] miscarriages of justice." Article 245, with its stated purpose of "eliminating unfairness and inefficiencies," is designed to accomplish these goals and it is one of the many procedural tools that have evolved over the course of centuries to move toward a more just criminal justice system.

Inasmuch as the concept of "fairness" and "justice" denotes the impartial, unbiased and equitable treatment of all, and insofar as the legislature has provided remedies and sanctions for anticipated discovery violations committed by either party, this court has difficulty accepting the defense position that any and all discovery compliance missteps, no matter how immaterial, preclude the prosecution from seeking an otherwise valid exclusion under CPL 30.30 (4) or from filing a statement of readiness that properly notifies the defense of the prosecution's diligence in attempting to secure all automatic discovery items; their ongoing efforts to do so; and their assurance that such items, subject, of course, to a protective order, will be provided upon attainment. Indeed, acceptance of defendant's argument, if brought to its direct, logical and irremediable conclusion, would not only "impede law enforcement from carry[ing] out its mission" but would also undermine the goals of protecting the innocent and ensuring that the guilty face "certain justice." While other trial and appellate courts may conclude otherwise, this court will not countenance such an interpretation of article 245.{**68 Misc 3d at 633}

As the legislative history of article 245 indicates, and as the article's sanctions and remedies provisions suggest, the new discovery law, designed as it was to be remedial in nature, should not be construed as an inescapable trap for the diligent prosecutor who professionally, assiduously and in good faith attempts to comply with their new and extensive requirements under the discovery statute, but through no fault of his or her own, is unable to comply with every aspect of the automatic discovery rules specified in CPL 245.20. Accordingly, the court rejects the defendant's position that absent full compliance with the article's automatic disclosure requirements, the prosecution may not rely upon CPL 30.30 (4) exclusions. The court, while acknowledging that there are provisions in the statute that are arguably inconsistent, [*6]upon due consideration of the statutory language and legislative intent, rejects any implication that the prosecution, absent total compliance with CPL 245.20, is precluded from filing a certificate of compliance. To the extent, if any, that imprecise or inconsistent statutory provisions in the article exist, this court calls upon the legislature to consider clarifying and rectifying those provisions that, arguably, do not comport with the legislation's salutary intent.

As to the specific exclusions sought by the prosecution, the prosecution asserts that application of the exclusions contained in CPL 30.30 (4) (a) and (g) warrant denial of the defendant's release motion. With respect to the "exceptional circumstances" claim, the prosecution writes:

"[T]he period . . . should be excludable because the delay was occasioned by 'exceptional circumstances' . . . including the passage of a massive unfunded new discovery statute. The discovery statute went into effect on January 1, 2020 and placed significant strain on this Office, forcing many ADAs to remain at the Office into the early morning on a near-nightly basis. Despite passing these sweeping reforms, the legislature and executive refused to provide additional funding for prosecutors. The discovery reform has also led to an unprecedent[ed] level of ADA departures, which exacerbated the already onerous workloads. This has also prevented courts from being able to send cases out to trial. As a result, the remaining ADAs have been buried in discovery and compliance issues and in a way never seen before in New York criminal law . . .

"[T]he implementation of this law, and the unfunded {**68 Misc 3d at 634}manner in which it was implemented, placed prosecutors in an unworkable and unfeasible position. This unprecedented situation constitutes exceptional circumstances within the meaning of CPL § 30.30 (4) (g)."

The prosecution detailed, at great length, in a "non-exhaustive" list, the substantial efforts employed to comply with their discovery obligations. The assigned prosecutor noted that even though he was on trial, picking a jury from December 3, 2019, until December 11, 2019, and conducting that trial, from January 2, 2020, until January 13, 2020, he still endeavored to meet his obligations on this, and presumably, other cases to which he was assigned. On January 15, 2020, the prosecution provided the defense with an automatic disclosure letter that included hundreds of pages of documentation that, prior to the enactment of article 245, had not been discoverable; multiple large video files; full certified files related to scientific testing; every piece of documentation generated by the New York Police Department that he was able to gather; sound recordings; documents concerning a related criminal case; cell phone GPS data; call logs; subscriber information with related documentation; internally created documents; body-worn camera footage and medical records. The prosecutor further noted that during the period from December 28, 2019, until February 7, 2020, he worked numerous, unscheduled, weekend and holiday shifts and that on 23 separate occasions he put in notifications for officers to secure discoverable materials and information. Numerous other prosecutors who regularly appear before this court have provided additional anecdotal reports of the burdens engendered by the new legislation.

Defendant argues, in effect, that application of the "exceptional circumstance" exclusion, if granted, would be available in perpetuity and that the prosecution, aware of their impending obligations since March of 2019, should have been prepared for the discovery onslaught. The People respond that the viability of the "exceptional circumstance" argument would dissipate with time and that prosecutorial offices did not complacently await the discovery tsunami that was approaching. Specifically, they point out that preparation entailed a "massive undertaking" that required implementation of new systems, coordination with other agencies and extensive training.

As stated in People v Smietana (98 NY2d 336, 341 [2002]), "[t]here is no precise definition of what constitutes an exceptional{**68 Misc 3d at 635} circumstance under CPL 30.30 (4) (g). The Legislature enacted this catchall provision because it could not anticipate every situation that might warrant tolling of the speedy trial time period." When the prosecution seeks to exclude a time period as an exceptional circumstance, they must establish that (1) material evidence is unavailable due to an "exceptional circumstance"; (2) the People have exercised due diligence to obtain the material evidence; and (3) such evidence will be available within a reasonable period of time (see People v Anderson, 66 NY2d 529 [1985]; People v Zirpola, 57 NY2d 706 [1982]). And, as recommended in People v Price (14 NY3d 61, 64 [2010]), "although not required," where the prosecution believes an exceptional circumstance exclusion lies, "the statute's text contemplates that the prosecutor will seek a continuance from the court." This is the preferred method so that "the prosecutor [can] secure a prior judicial ruling as to exceptional circumstances rather than ask a court to apply the exclusion after the fact" (id.).

Moreover, while CPL 245.10 (1) (a) (i) does set specific time limitations for discovery compliance, other provisions allow, with judicial authorization, deviation from these limitations. CPL 245.70 (2) provides: "Upon motion of a party in an individual case, the court may alter the time periods for discovery imposed by this article upon a showing of good cause." CPL 245.10 (1) (a) (iv) (B) provides:

"When the discoverable materials are exceptionally voluminous or, despite diligent, good faith efforts, are otherwise not in the actual possession of the prosecution, the time period in this paragraph may be extended pursuant to a motion pursuant to subdivision two of section 245.70 of this article. For purposes of this article, voluminous materials may include, but are not limited to, video footage from body worn cameras, surveillance cameras or dashboard cameras."

[2] Here, notwithstanding the "credible, vigorous activity" exercised by the prosecution in pursuing the voluminous discoverable materials and information attendant to this case (see generally People v Washington, 43 NY2d 772, 774 [1977]), the prosecution, inexplicably, never sought, by a show of good cause, an extension of the discovery time period. The prosecution{**68 Misc 3d at 636} should have, in accordance with CPL 245.70 (2), sought an alteration of the article's time periods for discovery or made an application for an exceptional circumstance exclusion to the court. While this court is unaware of any trial or appellate court decision holding that such a good faith extension or application would constitute a proper basis for a 30.30 (4) exclusion, arguably such an exclusion would be appropriate. Given the ready availability of such [*8]mechanisms, and the failure to utilize such mechanisms, the court finds that the prosecution has failed to establish the basis for an exceptional circumstance exclusion.

[3] The prosecution also seeks exclusion, pursuant to CPL 30.30 (4) (a), on the ground that there were "other proceedings concerning the defendant." On January 13, 2020, although the matter was scheduled for hearing and trial, the parties were awaiting a decision from the Honorable Margaret Clancy on the defendant's motion to controvert the search warrant. The decision, dated January 9, 2020, and first provided to the parties in open court on January 13, 2020, ordered a Mapp/Dunaway hearing and denied the motion to controvert, indicating that the basis for that portion of the decision would be provided at a later date. (Judge Clancy had previously ordered a Rodriguez/Huntley/Dunaway hearing, on or about Feb. 19, 2019.) Although the matter was adjourned to February 3, 2020, for hearing and trial, an outstanding decision, or at least a portion thereof, remained. And, as held by the First Department, where a motion is under consideration by a court, time is excludable (see People v Shannon, 143 AD2d 572 [1st Dept 1988], lv denied 73 NY2d 860 [1988]).

The parties sharply disagree on whether the adjournment to February 3, 2020, is chargeable to the People. The defendant, as previously noted, insists that, under CPL 245.50 (3), the People reverted to a "pre-readiness" posture on January 1, 2020, at which point they could not rely on speedy trial exclusions that may have formerly applied without filing a certificate of compliance (hearing tr at 7-8). The People argue that the adjournment is excludable under CPL 30.30 (4) (a).

While the introduction of CPL article 245 constituted a sweeping and systematic change to the discovery law, it did not change or amend CPL article 30. CPL 30.30 (4) still lists circumstances under which an adjournment is excludable and{**68 Misc 3d at 637} there is no basis upon which to conclude that CPL article 245 nullified the vast body of speedy trial case law in New York.^[FN*]

In accordance with CPL 30.30 (4) (a) and its progeny, the People have a reasonable time to prepare after the receipt of a hearing decision (see People v Levingston, 66 Misc 3d 148[A], 2020 NY Slip Op 50254[U] [App Term, 1st Dept 2020]; People v Kastner, 132 AD3d 420 [1st Dept 2015], lv dismissed 27 NY3d 966 [2016]). Moreover, even if it were conceded that the People were in a "pre-readiness" posture, the CPL 30.30 (4) exclusions would still apply (see People v Cortes, 80 NY2d 201 [1992]).

Although the People had not yet filed a certificate of compliance as of the adjournment, there is no basis to conclude that the CPL 30.30 (4) exclusions are a nullity until such filing. The defendant relies on CPL 245.50 (3) to essentially argue just that but it strains credulity to conclude that the language there simply swallowed up the plain meaning of article 30, also [*9]effective on January 1, 2020. By modifying portions of article 30, yet reenacting CPL 30.30 (4), the legislature clearly intended speedy trial exclusions to remain viable (cf. People v Lobato, 66 Misc 3d 1230[A], 2020 NY Slip Op 50322[U] [Crim Ct, NY County 2020]).

Additionally, the People filed a motion for a protective order pursuant to CPL 245.70 on January 17, 2020, seeking to have the grand jury testimony in the instant matter deemed "protected discovery." Non-frivolous motions made in good faith, whether filed by the prosecution or the defense, are excludable under CPL 30.30 (4) (a) (see People v Barnes, 160 AD3d 890, 890 [2d Dept 2018] ["delays attributable to the People's motion to compel a handwriting exemplar . . . excludable"], lv denied 31 NY3d 1145 [2018]; People v James, 170 AD3d 477, 479 [1st Dept 2019] ["The court also correctly excluded . . . period during which the People's motion for consolidation . . . was pending . . . Although the People ultimately withdrew the motion because their efforts . . . there is nothing to suggest that the motion was not made in good faith or that it was frivolous"], lv denied 33 NY3d 1070 [2019]).

[4] Here, the People sought a ruling from the court on an issue which otherwise would prevent the case from moving forward to trial. The inescapable conclusion is that the People's{**68 Misc 3d at 638} request for a protective order constitutes a "motion" for which time is excludable. Counsel for the defendant also conceded that a protective order request constitutes a motion, and is thus excludable under CPL 30.30 (4) (hearing tr at 23). However, counsel for the defendant posited that a protective order motion by the People was unnecessary as the defendant offered to consent to a protective order. While counsel, in a January 15, 2020 email, indicated a willingness to consent to an order "so long as this is the standard motion" (People's affirmation ¶ 19; hearing tr at 28), such consent was equivocal at best and did not obligate the People to refrain from filing their protective order request. Indeed, the parties did not arrive at an agreement until the next court date on February 3, 2020 (People's affirmation ¶ 21). The motion was thus not resolved until then, after which the matter was adjourned to February 18, 2020, for hearing and trial. Having only received a final decision on their protective order motion on February 3, 2020, and being entitled to a reasonable time to prepare following such decision, the adjournment to February 18, 2020 was excludable.

Based on the pendency of the protective order, the court's remaining decision on a portion of the outstanding defense motion and the prosecution's right to a reasonable time to prepare after the receipt of a hearing decision, albeit a partial one, the court finds 72 days are chargeable to the People. Accordingly, the defendant's motion to be released on speedy trial grounds is denied.

All other arguments and requests for any additional relief advanced by the parties have been reviewed and rejected by this court as being not applicable or without merit.