Criminal Court of the City of New York, Kings County, September 3, 2020

The Legal Aid Society (Sneha Dhanapal of counsel) for defendant.

Eric Gonzalez, District Attorney (Arianna Beltrez of counsel), for plaintiff.

The defendant, charged with violations of operating a motor vehicle while under the influence of alcohol or drugs as both a traffic infraction and a misdemeanor (Vehicle and Traffic Law § 1192 [1], [3]), as well as two counts of criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03) and one count of failure to obey traffic control signal (Vehicle and Traffic Law § 1111), now moves for an order dismissing the information pursuant to CPL 30.30 (1) (b).

After careful review of the defendant's motion, the People's response, and all relevant legal authority, the motion to dismiss is granted. The court finds that 105 chargeable days have accrued since arraignment.

November 19, 2018-January 10, 2019

On November 19, 2018, the defendant was arraigned on a misdemeanor complaint on which the highest charge was a misdemeanor punishable by a maximum imprisonment term of one year. (Penal Law § 220.03; Vehicle and Traffic Law § 1193.) Thus, the People had 90 days to be ready to proceed to trial. (CPL 30.30 [1] [b].) The defendant was released on his own recognizance and the case was adjourned to January 10, 2019, for conversion. The People served and filed a statement of readiness and forensic toxicology report off-calendar on January 9, 2019.

51 chargeable days.

January 10, 2019-February 7, 2019

On January 10, 2019, the People maintained their readiness for trial. The case was adjourned for discovery by stipulation to February 7, 2019. Because adjournments for discovery are designated in the statute as "other proceedings concerning the defendant," this time period is excludable from the 30.30{**69 Misc 3d at 565} calculation. (See CPL 30.30 [4] [a]; People v Dorilas, 19 Misc 3d 75 [App Term, 2d Dept, 2d & 11th Jud Dists 2008].)

0 chargeable days.

[*2]February 7, 2019-March 11, 2019

On February 7, 2019, the People served some discovery materials on the defendant and the case was adjourned to March 11, 2019, for hearings and trial. Under the 2019 rules for calculating speedy trial time, this adjournment is excludable pursuant to People v Reed (19 AD3d 312 [1st Dept 2005]) and People v Greene (223 AD2d 474 [1st Dept 1996]; but see People v Collins, 190 Misc 2d 72 [App Term, 2d Dept 2001]).

0 chargeable days.

March 11, 2019-April 9, 2019

On March 11, 2019, the People were not ready for trial and requested nine days. The case was adjourned to April 9, 2019, for hearings and trial. Because the People had previously announced their readiness to proceed, they are not charged for the time period of the adjournment in excess of the time they requested. (People v Nielsen, 306 AD2d 500 [2d Dept 2003]; People v Williams, 229 AD2d 603 [2d Dept 1996].)

9 chargeable days.

April 9, 2019-May 23, 2019

On April 9, 2019, the People were not ready for trial because the arresting officer was not available, and the People requested eight days. The case was adjourned for hearings and trial to May 23, 2019. The court indicated that the People would be charged until a statement of readiness was served and filed, with a minimum of eight days chargeable. On April 19, 2019, the People served and filed a statement of readiness, thereby tolling the speedy trial clock. (See People v Stirrup, 91 NY2d 434 [1998].)

10 chargeable days.

May 23, 2019-June 4, 2019

On May 23, 2019, the defendant did not appear in court. A bench warrant was ordered and stayed and the case was adjourned to June 4, 2019, for the defendant to appear and for hearings and trial. Although there is no indication in the court file whether or not the People were ready for trial on that date, this period is excludable due to the defendant's absence. (E.g. People v Notholt, 242 AD2d 251 [1st Dept 1997]; People v Parker, 186 AD2d 593 [2d Dept 1992].)

0 chargeable days.

June 4, 2019-July 10, 2019

On June 4, 2019, the defendant appeared and the court denied the defendant's motions to dismiss for facial insufficiency and denial of speedy trial. The case was adjourned for hearings and trial to July 10, 2019. The adjournment following the defendant's return on the bench warrant is excludable. (People v Berger, 2 Misc 3d 46 [App Term, 2d Dept, 2d & 11th Jud Dists 2003].)

0 chargeable days.

July 10, 2019-September 17, 2019

On July 10, 2019, the People announced ready for trial. Defense counsel, however, was engaged elsewhere, and so the case was adjourned for hearings and trial to September 17, 2019. This adjournment was at the request of defense counsel and so it is excludable. (CPL 30.30 [4] [b]; see also People v Barden, 27 NY3d 550 [2016]; People v Brown, 149 AD3d 584 [1st Dept 2017].)

0 chargeable days.

September 17, 2019-October 21, 2019

On September 17, 2019, the People announced ready for trial and served additional [*3]discovery on the defendant. The court conducted a combined Dunaway/Mapp/Huntley/Ingle hearing. At the conclusion of the hearing, defense counsel requested an opportunity to submit a written brief; the court granted that request. The case was adjourned to October 21, 2019, for decision on the defendant's motion to suppress. Adjournments for motion practice are specifically excluded by the statute. (CPL 30.30 [4] [a].)

0 chargeable days.

October 21, 2019-October 31, 2019

On October 21, 2019, there was no decision and the case was adjourned to October 31, 2019, for decision. Adjournments for the court to decide a motion are excludable. (See e.g. People v Dean, 45 NY2d 651, 657 [1978]; People v Singh, 288 AD2d 404 [2d Dept 2001].)

0 chargeable days.

October 31, 2019-November 8, 2019

On October 31, 2019, there was no decision and the case was adjourned to November 13, 2019, for decision. The case was then advanced to November 8, 2019, whereupon the court rendered its decision suppressing a portion of the defendant's statement, as well as the results of a blood draw. The case was then adjourned to November 13, 2019, for trial. The time for{**69 Misc 3d at 567} the court to decide the motion is excludable, supra. Additionally, the period from November 8 to November 13 is excludable as a reasonable period of time for the People to prepare for trial following the determination of the motion to suppress. (See People v David, 253 AD2d 642, 645 [1st Dept 1998].)

0 chargeable days.

November 13, 2019-December 9, 2019

On November 13, 2019, the People announced not ready for trial and requested seven days because the assigned ADA was on trial on another case. The case was adjourned to December 9, 2019, for trial. Because the People had previously announced ready for trial, they are not charged for the period of the adjournment in excess of the time they requested. (People v Nielsen, 306 AD2d 500 [2d Dept 2003]; People v Williams, 229 AD2d 603 [2d Dept 1996].)

7 chargeable days.

December 9, 2019-December 16, 2019

On December 9, 2019, the People again announced not ready for trial, because the assigned ADA was out of the office on a personal matter, and requested seven days. The case was adjourned to December 16, 2019.

7 chargeable days.

December 16, 2019-January 21, 2020

On December 16, 2019, the People requested a motion schedule to reargue the court's suppression decision with respect to the results of the blood draw. A motion schedule was set and the case was adjourned for decision and trial to January 21, 2020. Adjournments for motion practice are excludable under CPL 30.30 (4) (a). (See also People v Kelly, 33 AD3d 461 [1st Dept 2006].)

0 chargeable days.

January 21, 2020-January 28, 2020

On January 1, 2020, new legislation went into effect that imposed additional discovery requirements on the People before they could be deemed ready for trial. Legislative amendments that take effect during the pendency of a case apply to subsequent proceedings (see Simonson v International Bank, 14 NY2d 281, 289 [1964]), but do not serve to invalidate prior proceedings (see [*4]Matter of Berkovitz v Arbib & Houlberg, Inc., 230 NY 261, 270 [1921]; Charbonneau v State of New York, 148 Misc 2d 891 [Ct Cl 1990]). Therefore, the changes in the law effective as of January 1, 2020, do not invalidate the People's{**69 Misc 3d at 568} previous statements of readiness. However, beginning on January 1, 2020, the People reverted to a state of unreadiness and could not be deemed ready until filing the certificate of compliance required by CPL 245.50.

This court has previously held that, because the legislature has deemed 15 days a reasonable period of time for the People to comply with their discovery obligations under CPL 245.10 (1), 15 days are excludable from the speedy trial calculation pursuant to CPL 30.30 (4) (a). (People v Roland, 67 Misc 3d 330 [Crim Ct, Kings County 2020].) Consequently, the People had 15 days from January 1, 2020, the effective date of the legislation, to serve and file a certificate of compliance and announce ready for trial. The People did not serve and file a certificate of compliance in that time period. Nor did the People have a certificate of compliance on January 21, 2020, when the case was called on the record. However, the court also did not have a decision on the People's motion to reargue, and the case was adjourned to January 28, 2020, for the court's decision. Again, adjournments for the purpose of determining a motion are excludable, regardless of whether the People would have been ready for trial or not. (See e.g. People v Dean, 45 NY2d 651, 657 [1978]; People v Singh, 288 AD2d 404 [2d Dept 2001].)

0 chargeable days.

January 28, 2020-February 18, 2020

On January 28, 2020, the court rendered its decision granting the People's motion to reargue, holding in abeyance the decision on the motion to suppress the blood draw results, and granting the People an opportunity to reopen the suppression hearing for the limited purpose of establishing the legality of the blood draw under Vehicle and Traffic Law § 1194 (4). The People did not have a certificate of compliance and the case was adjourned to January 30, 2020, for the People to serve and file a certificate of compliance.

Following the calendar call on January 28, the People served a certificate of compliance that same day.^[FN1] On January 30, 2020, the defendant challenged the People's January 28 certificate as{**69 Misc 3d at 569} invalid and described several items of discovery that were still outstanding, including the memo books of three police officers. The defendant had also previously demanded that the People provide the laboratory results for the alleged heroin and Suboxone that are the subject of the two section 220.03 charges against the defendant.

At the calendar call on January 30, the court declined to rule on the defendant's challenge to the People's certificate of compliance and adjourned the case to February 18, 2020, for trial. However, as there is now a motion to dismiss for a speedy trial violation before the court, the issue is ripe. (Compare People v Barnett, 68 Misc 3d 1000, 1002 [Sup Ct, NY County 2020] ["A defective or incomplete C.O.C. might well result in a judicial finding that a statement [*5]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"].)

At the very least, the unexplained failure by the People to provide the laboratory results for the alleged controlled substances renders their January 28 certificate of compliance and statement of readiness illusory. The People's argument that the laboratory results are generated by an independent agency, the Office of the Chief Medical Examiner, and consequently are outside the scope of what the People are required to provide is specious. The statute explicitly requires that the People disclose

"[a]ll reports, documents, records, data . . . including but not limited to preliminary tests and screening results and bench notes and analyses . . . concerning . . . scientific tests or experiments or comparisons, relating to the criminal action or proceeding which were made by or at the request or direction of a public servant engaged in law enforcement activity, or which were made by a person whom the prosecutor intends to call as a witness at trial or a pre-trial hearing, or which the prosecution intends to introduce at trial or a pre-trial hearing." (CPL 245.20 [1] [j].)

While the new discovery reforms have imposed additional burdens on the prosecution, a defendant facing controlled substances charges has always been entitled to the laboratory analysis establishing that the substance possessed was in fact{**69 Misc 3d at 570} a controlled substance. (See CPL 240.20 [1] [c] [repealed 2020].) The People cannot credibly claim that they did not know they were required to produce the laboratory results to the defendant.

Further, the People did not provide certain memo books or the names of officers involved in the apprehension, observation, and testing of the defendant. Notably, at the time the People served the first certificate of compliance, the People argue they were unaware of the identity of several officers involved in the arrest and had failed to make any effort to obtain their memo books. However, the transcript of the suppression hearing (which the People attached to papers previously filed in this case) shows that the People knew the names of the other officers involved in order to gather their memo book entries. The People correctly point out that the statute contains the following language: "No adverse consequence to the prosecution or the prosecutor shall result from the filing of a certificate of compliance in good faith" (CPL 245.50 [1]). Honest errors may well be excusable. But here the People have failed to demonstrate any steps they took to exercise the due diligence the statute requires prior to filing a certificate of compliance. (See id.)

The statute requires a "proper" certificate of compliance precede or accompany any statement of readiness for trial by the People, but does not explicitly dictate the consequence of an incomplete certificate of compliance. (CPL 245.50 [3].) The court, however, is guided by the body of law governing illusory statements of readiness, and finds the People's January 28 statement of readiness and certificate of compliance insufficient to toll the speedy trial clock. (Compare People v Brown, 28 NY3d 392 [2016].)

Prior to the enactment of CPL article 245, different counties developed different practices around discovery. Some counties followed a more structured approach requiring formal motions, while in Kings County, discovery was made "by stipulation," obviating the need for motions. Each approach had its benefits and drawbacks. Discovery by motion offered a formal structure resulting in the delivery of discovery by certain deadlines; however, those deadlines came substantially later in the course of the case, depriving defendants of any knowledge of the evidence against them until both sides were gearing up for trial. Discovery by stipulation, on the other hand, got some basic materials such as police reports into defendants' hands sooner,{**69 Misc 3d at 571} but it [*6]often resulted in rolling disclosures over many months in a seemingly endless process.

Article 245 sought to provide the benefits of both systems, early disclosure in a structured way, while avoiding the drawbacks of burdensome, often pro forma, motions, and drawn-out periods of disclosure. Consequently, prosecutors across the state have needed to adjust how they meet their discovery obligations, in some cases by obtaining discovery, particularly reports generated by the police and other law enforcement entities, earlier in the prosecutorial process, and in some cases by self-imposing earlier deadlines to satisfy the statute's completeness requirements.

The January 1 reforms initially required the People to provide discovery "as soon as practicable but not later than" "fifteen calendar days after the defendant's arraignment" (CPL 245.10 [1] [a] [ii]).^[FN2] The People can obtain an automatic stay of that deadline for up to 30 days where "discoverable materials are exceptionally voluminous or, despite diligent, good faith efforts, are otherwise not in the actual possession of the prosecution." (CPL 245.10 [1] [a] [iv] [B].) If the People require additional time with which to meet their discovery obligation, the statute directs the People to move for additional time, which the court may grant "upon a showing of good cause." (CPL 245.70 [2].) As noted, starting on January 1, 2020, the legislature required the prosecution to certify compliance with its discovery obligations:

"The certificate of compliance 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 discovery . . . If additional discovery is subsequently provided prior to trial pursuant to section 245.60 of this article, 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{**69 Misc 3d at 572} of compliance in good faith . . . but the court may grant a remedy or sanction for a discovery violation as provided in section 245.80 of this article." (CPL 245.50 [1].)^[FN3]

The People must certify that they have complied with their discovery requirements before they may be deemed ready for trial, absent an "individualized finding of [exceptional] circumstances . . . by the court." (CPL 245.50 [3].)

Compliance requires disclosing "all known" materials, as well as affirming that due diligence has been exercised to ascertain the existence of any other materials. (CPL 245.50 [1].)^[FN4] The drafters of article 245 acknowledge that two distinct situations of nondisclosure may arise. First, despite the People's diligent and reasonable inquiries to ascertain the existence of material subject to mandatory disclosure, new or unanticipated material or information may later surface. When that happens, CPL 245.60 permits the People to disclose such subsequently unearthed discovery "expeditiously" and without penalty.^[FN5] Upon disclosing the newly discovered material or information, CPL 245.50 (1) requires the People to certify discovery compliance anew by filing a supplemental certificate of compliance. (CPL 245.60.)

The second circumstance arises when, despite the People's diligent and reasonable inquiries to obtain material subject to required disclosure, they may from time to time identify some particular items they have not yet acquired. When that occurs, and when the People's initial 35-day and additional 30-day deadlines to make mandatory disclosures are due to expire, the{**69 Misc 3d at 573} legislature gave the People the option to apply, under CPL 245.70 (2), for a good cause extension for additional time in which to deliver the required discovery and file a proper certificate of compliance. Under these circumstances, the People must make a motion in which they establish good cause for extending the discovery period. (Id.) As with all applications for a good cause extension, the People's motion would need to set forth the steps they have already taken to gather the missing materials, why their diligent and reasonable inquiries have so far been unsuccessful, and their reasonable expectation for when they expect to come into possession of each missing item. By following the prescribed procedure and upon the granting of the motion the People would get additional time to disclose these hard-to-obtain items without penalty.^[FN6] The People would not be able to file a certificate of compliance until providing the items enumerated in their good cause application, because CPL 245.50 (1) requires disclosure of "all known material and information" required by CPL 245.20 (1) before the People can make the certification.^[FN7]

The statute provides one additional option for prosecutors who are unable to provide known-but-unobtained discovery. CPL 245.50 (3) allows the People to request the court to find{**69 Misc 3d at 574} "exceptional circumstances" for the nondisclosure. If the court makes an individualized finding that such exceptional circumstances exist in a case, it can accept the People's statement of readiness and permit the People to go forward with their case notwithstanding the lack of a certificate of compliance. (CPL 245.50 [3].) By placing the issue before the court and seeking a ruling based on individualized circumstances, the People may then be able to move forward in their prosecution of a case before disclosure of, and perhaps without ever disclosing, outstanding discovery. This also gives the defense the opportunity to ask the court to exercise its discretion in crafting an appropriate remedy for the failure to disclose, as anticipated by the statute. (CPL 245.80.) What the People may not do is file a certificate of compliance in which they claim to have exercised due diligence and turned over "all known material and information" (CPL 245.50 [1]), while at the same time not actually turning over all known material and information, without the express permission of the court.

Furthermore, the court assumes without deciding that an accidental failure to include a particular disclosure will not necessarily invalidate a certificate of compliance, so long as the prosecutor can demonstrate that she acted in good faith. (Id.) However, where the prosecutor has failed to demonstrate diligence and reasonableness in obtaining and disclosing required information and, as a result of that lack of diligence and reasonableness, has failed to make a necessary disclosure, then the certificate of compliance is invalid.

Prejudice to the defendant is not a factor in this analysis; the People's obligation to provide discovery, and to certify compliance with that obligation, is not relieved by an absence of prejudice to the defendant. Indeed, one legislative goal of making discovery automatic seems to have been to avoid any parsing of what items the People or the court think are necessary for the defendant and what may be concealed. CPL 245.20 (1) provides a checklist of the required disclosures, whether or not they are helpful, relevant, consequential, or critical in any given case. The only consideration the legislature gave to prejudice analysis is for late disclosure or nondisclosure. Therefore, while a defendant must show some prejudice in order to obtain a sanction against the People under CPL 245.80, the burden is not lifted from the People to comply with their obligation in the first instance. When the People submit documentation to the court certifying their compliance with their statutory{**69 Misc 3d at 575} obligation, they must do more than merely mouth the words. (Compare People v England, 84 NY2d 1, 5 [1994].) Because a "proper" certificate of compliance—that is, one filed in good faith asserting that the prosecution has exercised the necessary due diligence in complying with their obligations—is now a prerequisite before the People may legally be deemed ready for trial, previous case law holding that discovery failures do not impact the People's readiness have now been abrogated by statute and are no longer controlling.

Here, the People served a certificate of compliance without having disclosed the necessary laboratory reports. Additionally, the People had not turned over police officer memo [*7]books, names and affiliations as required by the statute. (CPL 245.20 [1] [d], [e].) Nor had they exercised the necessary due diligence to do so. Reading the hearing transcript would have alerted the People to the outstanding materials. The People have provided no explanation for their failure to disclose these materials, and to this day, some remain undisclosed. The People claim in their response papers:

"In the instant case, the People made significant efforts to ascertain and obtain all discoverable materials; the newly assigned Assistant District Attorney made diligent, good faith efforts to secure missing memo books, following up with both Officers Johnson and Pasicznik via personal telephone numbers, employer telephone numbers, emails, and notifications requesting paperwork. Items were turned over as they were received." (People's response at 8 [Aug. 20, 2020].)

However, none of these efforts was made until after January 30, 2020, when the assigned ADA apparently learned Officer Pasicznik's name for the first time. Nor do these efforts account for the missing laboratory reports. The People have failed to specify what due diligence they exercised prior to serving and filing the January 28 certificate of compliance.

For these reasons, the court rejects the January 28 certificate. Although the February 26 certificate contained an additional disclosure, the laboratory reports and some memo books were still missing, and therefore that certificate is invalid as well. The People have not filed a valid certificate of compliance, they have not moved for additional time pursuant to CPL 245.70 (2), nor have they sought "an individualized finding of exceptional circumstances" from the court. Thus, the People have not been ready for trial since the discovery reforms{**69 Misc 3d at 576} went into effect. Although the periods from January 1 through January 28, 2020, from February 18 through March 12, 2020, and from March 12, 2020, until today's decision are tolled for motion practice and other proceedings, see infra, the period from January 28, 2020, through February 18, 2020, is chargeable to the People.

Therefore, since the People did not have a valid statement of readiness, predicated on a valid certificate of compliance, this entire adjournment is chargeable to the People.

21 days chargeable.

February 18, 2020-March 12, 2020

On February 18, 2020, the defendant again requested the same items of outstanding discovery. The court adjourned the case to March 12, 2020, for the defendant to file a reciprocal certificate of compliance (see CPL 245.10 [2]). On February 26, 2020, the People served and filed a supplemental certificate of compliance as permitted by CPL 245.60. Because the primary purpose of this adjournment was for the defendant to comply with his reciprocal discovery requirements, the delay was not caused by the People and therefore this time is excludable. (See CPL 30.30 [4] [a] [exempting the People from readiness requirement during period of time "resulting from other proceedings concerning the defendant"]; see also People v Aubin, 245 AD2d 805 [3d Dept 1997].)

0 chargeable days.

March 12, 2020-September 3, 2020

On March 12, 2020, the defendant served and filed his certificate of compliance, as required by CPL 245.50 (2), as well as the instant motion to dismiss. The case was adjourned for the People's response and the court's decision. Several administrative adjournments were granted as a result of the COVID-19 pandemic. This adjournment is excludable for motion practice, as well as Executive Order (A. Cuomo) 202.8 (9 NYCRR 8.202.8) (Mar. 20, 2020) and subsequent executive orders, which tolled CPL 30.30.

0 chargeable days.

Based on the foregoing, the court finds a total of 105 days chargeable to the People.