Supreme Court, New York County, July 20, 2020

New York County Defender Services (Rebecca Phipps of counsel) for defendant.

Cyrus R. Vance, Jr., District Attorney (Lauren Di Giovanni of counsel), for plaintiff.

This case presents a novel question under the new discovery protocols, codified in Criminal Procedure Law article 245, as to the effect of a certificate of compliance (hereinafter C.O.C.) (see CPL 245.50 [1]), filed by the People in a case where discovery is, at least arguably, incomplete, but the People have not yet answered ready for trial. Specifically, defendant has moved for an order deeming such a C.O.C. invalid. That motion is denied as moot.

I. Factual Background

On February 4, 2020, defendant was arraigned on an indictment charging him with one count of criminal sale of a controlled substance in the first degree (Penal Law § 220.43 [1]), two counts of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]), one count of criminal possession of a controlled substance in the fourth degree (Penal Law § 220.09 [1]), and one count of criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03).^[FN1] Defendant entered a plea of not guilty; the court released him on his own recognizance and set a motion schedule. The People had by then already filed a C.O.C., dated January 24, 2020. At arraignment, the People served on the defense a notice and disclosure form (N.D.F.), which detailed the discovery materials that had been provided to the defense. As of this writing, the People have not answered ready for trial.

Defendant filed his omnibus motion on June 29, 2020,^[FN2] which, as pertinent here, sought an order deeming the January 24, 2020 C.O.C. invalid. Defendant argued that (1) the [*2]discovery materials that the People provided contained redactions more extensive than those permitted by CPL former 240.20 (1), but the People had not obtained a protective order, and (2) certain discoverable materials remained outstanding. The court reserved decision and directed the People to provide the court with additional information. The People have done so, and the matter is now ripe for decision.{**68 Misc 3d at 1002}

II. Legal Discussion

Defendant's motion is moot, even if the C.O.C. is incomplete, due to the interaction between the new discovery rules and CPL 30.30.

Section 245.20 (1) of the CPL, part of the recent discovery reform legislation, prescribes a long list of materials that the People are obligated to disclose to the defendant. This section is an expanded version of the predecessor statute, CPL 240.20, which prescribed a considerably shorter list of materials. The new legislation also imposes strict time periods within which discovery must be provided (CPL 245.10 [1]), and the requirement that the People file a C.O.C. when they "ha[ve] provided the discovery required by" CPL 245.20 (1), except for materials that have either been lost or destroyed or materials that are the subject of a protective order. (See generally CPL 245.50 [1].)

The C.O.C. serves only one practical purpose: It is a necessary prerequisite to a valid statement of readiness under CPL 30.30. Unless the court makes an "individualized finding of special circumstances" the People "shall not be deemed ready for trial . . . until [they have] filed a proper certificate [of compliance] pursuant to" CPL 245.50 (1). (CPL 245.50 [3]; see also 30.30 [1] [a] [in a felony case, the People must be "ready for trial" within "six months of the commencement of the criminal action"].) The People can be deemed ready for trial upon filing a C.O.C. in a case where otherwise discoverable materials have been lost or destroyed, or are otherwise unavailable, although CPL 245.50 (3) contains a reminder that sanctions for a discovery violation might be available in such cases.

This case, however, turns only on the interaction between the C.O.C. requirement of CPL 245.50 (1) and the ordinary CPL 30.30 rules, which, on this question, the legislature did not change. Under those rules, for two reasons, defendant's motion is moot.

The first reason is that the People have not yet answered ready for trial. A defective or incomplete C.O.C. might well result in a judicial finding that a statement of readiness is illusory. Indeed, as far as this court can discern, that could be the only legal effect of declaring a C.O.C. to be invalid. This means that here, since the People have not yet answered ready for trial, there could be no legal consequence at all to the court's invalidating the C.O.C. This, then, moots the defendant's request for such a declaration; determining the issue would not directly affect any legal right of either party. (Matter of Hearst {**68 Misc 3d at 1003}Corp. v Clyne, 50 NY2d 707, 713-714 [1980] [courts are "forbid(den)" from "pass(ing) on academic, hypothetical, moot, or otherwise abstract questions"]; see e.g. People v Payne, 88 NY2d 172, 182 [1996] [step one of Batson inquiry becomes moot once the court has ruled on steps two and three].)

It is hardly surprising, then, that courts have so far, in very large part, only ruled on the validity of a C.O.C. in cases where the People have also answered ready for trial. (E.g. People v Nelson, 67 Misc 3d 313 [Franklin County Ct 2020]; People v Askin, 68 Misc 3d 372 [Nassau County Ct 2020].) In these cases, the question whether the C.O.C. was valid as a necessary prerequisite to a valid statement of readiness was not "academic, hypothetical, [or] moot." But here, absent a statement of readiness, it is.

There is a second, closely related, reason that the question here is moot. This case is [*3]currently in the midst of motion practice and has been since the defendant's arraignment in Supreme Court. (See CPL 30.30 [4] [a] [excluding the delay occasioned by "pre-trial motions" from "the time within which the people must be ready for trial"].) This means that even if the People had filed a statement of readiness in this case, that statement would not have stopped the speedy trial clock, as the clock is already stopped. And, again, since the only purpose of invalidating the C.O.C. would be to invalidate a statement of readiness, and in this case, a statement of readiness would not have stopped the speedy trial clock, the validity of the C.O.C. is again moot.

Accordingly, since the interaction between the speedy trial rules and the C.O.C. requirement moots the defendant's request, the motion is denied as moot.

III. Conclusion

For the above reasons, defendant's motion to have the C.O.C. declared invalid is denied.