After reviewing the court file and the extensive submissions by the parties, the following constitutes the decision and order of the court.

On January 1, 2020, New York State's discovery statute codified in the Criminal Procedure Law (CPL) Article 245 took effect and required prosecutors to disclose to the defense discovery within a fixed period of time. The statute divides the prosecutor's discovery obligations into two tranches — Automatic and Supplemental. The prosecutor is required to disclose enumerated items (automatic discovery) within 15 days of the defendant's arraignment. CPL section 245.10(1)(a). Supplemental Discovery is required to be turned over as soon as practicable but no later than 15 days prior to the first scheduled trial date. CPL section 245.10(1)(b).

The defendant contends that the People are required to turn over certain materials related to their supplemental discovery prior to filing their Certificate of Compliance (COC). The defendant further argues that the People's failure to do so invalidates the COC and the indictment must be dismissed pursuant to CPL 30.30(1)(a) because the People have not been ready for trial for more than 184 days.

The defendant, Joseph Napolitano, is charged with Strangulation in the Second Degree, a violation of Penal Law section 121.12, Assault in the Second Degree, a violation of Penal Law section 120.05(2), Menacing in the Second Degree, a violation of Penal Law section 120.14(2), Endangering the Welfare of a Child, a violation of Penal Law section 260.10(1) and Criminal Contempt in the Second Degree, a violation of Penal Law section 215.50(3) based on an incident [*2]that occurred on August 16, 2017.

The defendant was arraigned on the indictment on January 25, 2018 and the matter was adjourned for the first time for trial for June 7, 2018. After defendant moved to dismiss the indictment pursuant to CPL 30.30(1)(a), the court issued a decision on September 19, 2019 denying the defendant's motion to dismiss, finding only 168 days charged to the People.

On January 1, 2020, the new discovery laws took effect, requiring the prosecution to file a Certificate of Compliance once all discovery enumerated under 245.20(1)(a) had been turned over. On January 13, 2020, the People filed their Certificate of Compliance, dated January 8, 2020 along with a written Molineux application.^[FN1] On January 17, 2020, the People turned over to the defense all but one of the Domestic Incident Reports (DIR) and on January 28, 2020 the People turned over all of the Sprint reports related to the Molineux application. There is still police paperwork related to the Molineux application that the People are attempting to procure and eventually turn over.

Shortly after the People filed the COC, on January 19, 2020, the defendant filed the instant motion contesting the validity of the COC and requesting this court to charge the People 21 days from the period of January 1, 2020 until January 22, 2020 and to dismiss the indictment pursuant to CPL 30.30(1)(a). The defendant on February 6, 2020 filed a Supplemental Affirmation in support of his motion. The People opposed the defendant's motion on February 27, 2020. The defendant replied to the People's Opposition on May 25, 2020.

The defendant argues that the indictment must be dismissed because more than 184 days of chargeable time has elapsed. The defendant contends the COC is invalid since the People failed to discharge their discovery obligations under CPL 245 prior to its filing and therefore the Prosecutor should be charged from January 1, 2020 until the next date the case was adjourned for trial which was January 22, 2020.

In so finding, the defendant urges this court to apply CPL 245 retroactively to all indictments pending as of the statute's effective date of January 1, 2020. CPL 245 is a new procedural statute governing the management of discovery. Generally, procedural statutes are applied retroactively — for matters commenced prior to the effective date, the statute affects the procedural steps of those matters taken after the effective date. In order for the statute to apply to steps taken prior to the effective date, the legislature must clearly express such intent. A procedural statute may also apply prospectively only if there is clear expression of legislative intent for that statute to do so. McKinney's Cons. L. NY Section 55 and comment^[FN2] ; People v. Pena, 309 AD2d 687 (1st Dept. 2003), citing People v. Sorbello, 285 AD2d 88 (2d Dept. 2001). The court concludes the newly enacted CPL 245 is a procedural statute that is retroactive to pending cases on the effective date of January 1, 2020 and therefore affects the proceedings from January 1, 2020. However, there is no clear expression in the legislative history to indicate the legislature's intent to apply the statute to the actions that were already taken prior to the statute's [*3]effective date nor is there clear expression of the legislature's intent to apply the statute prospectively as the People urge. See People v. DeMilio, 2020 NY Slip Op 20003, **3 (Co Ct Dutchess Co January 7, 2020). Therefore, the court declines to apply the statute's requirements to actions taken prior to its effective date or prospectively.

The defendant argues when the Prosecutor filed his written Molineux application, it obliged the People to file the underlying police paperwork in connection with this application prior to the filing of a COC. The defendant acknowledges that the Prosecutor's obligations to file written notice of Molineux evidence is considered Supplemental Discovery. Defendant's Affirmation, p. 7; CPL 245.20(3). The defendant does not cite to any specific section of CPL 245 in either his Initial Affirmation or Memorandum of law, his Supplemental Affirmation, or his Reply Affirmation to support his contention that the COC may not be filed prior to the Prosecutor's discharge of his obligations under CPL 245.20(3).

CPL 245 requires the prosecutor to turn over discovery to the defendant in two tranches, the timing of which occurs at different stages. The first tranche of discovery falls under the heading of Automatic Discovery which includes twenty-one categories of discoverable material that must be turned over to the defendant as soon as practicable but no later than 15 days after the defendant's arraignment. CPL 245.20(1)(a)-(u); 245.10(1). The second tranche of discovery falls under the heading of Supplemental Discovery which includes all Molineux evidence the Prosecutor intends to introduce at trial and must be turned over to the defendant as soon as practicable but no later than 15 days prior to the first scheduled trial date.^[FN3] CPL 245.20(3); 245.10(1)(b). The prosecutor may file a COC once she has discharged her discovery obligations under CPL 245.20(1)(a)-(u). If the Prosecutor learns of additional material to be disclosed under CPL 245.20 the Prosecutor shall turn that additional material over expeditiously and may file a supplemental COC. CPL 245.60; 245.50.

The defendant does not allege in his initial Affirmation, Memorandum of Law, Supplemental Affirmation or his Reply Affirmation that the Prosecutor failed to turn over any discoverable materials prior to the filing of the COC. Instead the defendant urges the court to interpret CPL 245.20(1)(e) to include all statements, writings or recordings contained in the DIRs related to the Molineux Application so that this material must be turned over as part of the Prosecutor's Automatic Discovery obligation. However, CPL 245.20(1)(e) clearly states that the statements, writings or recordings that must be turned over in this category of discovery must be "relevant to any offense charged or to any potential defense thereto." CPL 245.20(1)(e). The timing of each tranche of discovery also contradicts the defendant's interpretation of CPL 245.20(1)(e). The category of discoverable materials under Automatic Discovery clearly relate to the offense charged and must be turned over no later than 15 days after the defendant's arraignment. However, Supplemental Discovery may be provided no later than 15 days prior to trial. The legislature cannot and did not intend to obligate the prosecutors to turn over paperwork related to the supplemental discovery 15 days after arraignment when notice of Molineux is only required 15 days prior to trial.

The only condition precedent to the prosecutor's ability to file a COC is the discovery of all material considered Automatic Discovery. CPL 245.50(1). Therefore, the failure of the [*4]prosecutor to turn over paperwork related to his Molineux Application does not invalidate the COC filed on January 13, 2020. Therefore, the court does not find the time period of January 1, 2020 until January 22, 2020 is chargeable.^[FN4]

The defendant relies on this time period from January 1, 2020 until January 22, 2020 to renew his motion to dismiss the indictment pursuant to CPL 30.30(1)(a). Since the court finds this time period is not charged to the People, the court finds 168 days charged to the People. Therefore the defendant's motion to dismiss is denied.

This opinion constitutes the Decision and Order of the court.