Criminal Court of the City of New York, Kings County, May 7, 2021

The Legal Aid Society (Olga Karounos of counsel) for defendant.

Eric Gonzalez, District Attorney (Moise Andre Oge of counsel), for plaintiff.

Defendant is charged with assault in the third degree (Penal Law § 120.00 [1]), attempted assault in the third degree (Penal Law §§ 110.00, 120.00 [1]), menacing in the second degree (Penal Law § 120.14), menacing in the third degree (Penal Law § 120.15), criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [2]) and harassment in the second degree (Penal Law § 240.26 [1]). By motion filed on February 23, 2021, defendant moves to dismiss the accusatory instrument for exceeding the speedy trial requirements of CPL 30.30. On March 16, 2021, the People filed their response and the defense filed a reply on April 2, 2021.

For the following reasons, defendant's motion to dismiss the remaining charges pursuant to CPL 30.30 is granted.

A. Applicable Standards

Where, as here, the top count charged on the information is an A misdemeanor, the People are required to be ready for trial within 90 days, less any excludable time (CPL 30.30 [1] [b]). The 90-day period commences with the filing of the accusatory instrument (see CPL 1.20 [17]; People v Stirrup, 91 NY2d 434, 438 [1998]). Before answering ready for trial, the People must have "done all that is required of them to bring the case to a point where it may be tried" (People v England, 84 NY2d 1, 4 [1994]).

On January 1, 2020, new discovery and speedy trial laws went into effect, replacing CPL article 240 and amending sections of CPL 30.30. CPL article 245 delineates the People's expanded discovery obligation, sets out time frames for its completion and establishes potential sanctions for late or unobtained discovery where prejudice is shown (see CPL 245.10 [1] [a]; 245.20, [*2]245.80). The "initial discovery" provision of CPL 245.20 (1) states: "The prosecution shall disclose to the defendant . . . all items and information that relate to the subject matter of the case and are in the possession, custody or control{**72 Misc 3d at 520} of the prosecution or persons under the prosecution's direction or control." This same provision delineates a non-exhaustive list of items that the People must provide (People v Lustig, 68 Misc 3d 234, 237 [Sup Ct, Queens County 2020]). In effect, the overhaul of the discovery provisions has transformed New York's discovery practice into open file discovery or "at least make[s] open file discovery the far better course of action to assure compliance" (id. at 238 [internal quotation marks omitted], citing William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, CPL 245.10).

Under these provisions, the People must comply with their discovery obligations without any demand from the defense. Upon completion of discovery, the People must file a "certificate of compliance" affirming that "all known material and information subject to discovery" has been disclosed and provided to the defense, and that the People have exercised due diligence and made reasonable inquiries to ascertain the existence of the same (CPL 245.50 [1] [emphasis added]). Moreover, the statute sets out a schedule for the disclosure of discovery, generally 35 days from arraignment, with allowances made for voluminous material and other specific circumstances, and with the risk of sanctions for delay where prejudice is shown.^[FN1]

Under the new discovery rules, a "proper" certificate of compliance must be filed before the People can be deemed ready for trial (CPL 245.50 [3]; see People v Lobato, 66 Misc 3d 1230[A], 2020 NY Slip Op 50322[U], *4 [Crim Ct, Kings County 2020]; People v Berkowitz, 68 Misc 3d 1222[A], 2020 NY Slip Op 51044[U] [Crim Ct, Kings County 2020]). Further, once the People file a certificate of compliance "preceding or accompanying" a declaration of readiness, the court must then conduct its own on-the-record inquiry as to the People's "actual readiness," and allow the defense to be heard on whether the disclosure requirements have been met (CPL 30.30 [5]). If the People do not achieve full compliance with the discovery mandate because some material is "lost, destroyed, or otherwise unavailable," the People may nonetheless be deemed ready by the court if special circumstances exist to excuse a specific nondisclosure and if the People have shown "diligent and good faith efforts, {**72 Misc 3d at 521}reasonable under the circumstances" (CPL 245.50 [3]; see also 30.30 [5]).^[FN2]

B. Relevant Facts of This Case

The facts are not in dispute. The defendant was arraigned on the instant charges on [*3]August 31, 2020. At that time, the laws regarding speedy trial were tolled by order of the Governor due to the global pandemic of COVID-19. Once the tolling of the speedy trial provisions ended for misdemeanors on October 4, 2020, the People had 90 days to prosecute this case. On the 90th day, specifically, January 4, 2021, the People filed a certificate of compliance and statement of readiness.

The defendant moved to challenge the validity of the certificate of compliance and statement of readiness because several items of discovery had not been provided by January 4, 2021, including the 911 call, radio run, and property vouchers.^[FN3]

On March 8, 2021, the People served a supplemental certificate of compliance and provided the defendant with the 911 call, radio run and property vouchers. On March 16, 2021, the People responded to the defendant's motion arguing that the omission of these concededly discoverable items should not invalidate the previously filed certificate of compliance and statement of readiness from January 4th. In their response, the People state that the 911 call and radio run were ordered on December 24, 2020, but were not received by January 4, 2021, and that only the Sprint report was available by the 90th day (see People's response at 9). The People also claim that despite a "thorough review of the arrest paperwork" and "an inquiry of the arresting officer," the People were not aware of the existence of the property vouchers on January 4, 2021{**72 Misc 3d at 522} (see People's response at 11).^[FN4] There are no facts set forth to explain why the outstanding items were not provided until March 8, 2021.

The issue before this court is whether the People's statement of readiness on January 4, 2021, was effective in stopping the speedy trial clock on the 90th day, notwithstanding the People's failure to disclose known discoverable material by that date. To determine the People's readiness, the court must first assess whether the People met their discovery obligations under the newly revised statutory scheme, as ordinarily, discovery disclosure and the filing of a "proper" certificate of compliance are a prerequisite to the People's readiness (see CPL 245.50 [1], [3]; accord People v Adrovic, 69 Misc 3d 563, 573-574 [Crim Ct, Kings County 2020]; Lobato, 2020 NY Slip Op 50322[U], *4).

What constitutes a "proper" certificate of compliance for trial readiness purposes? CPL 245.50 (1) allows the People to file a certificate of compliance even when the People know some discoverable material has not been disclosed to the defendant if it is "subject [to] an order pursuant to [CPL 245.70]." Section 245.70 allows the People to apply for a protective order under CPL 245.70 (1) to shield certain discoverable material from full disclosure, and/or allows either side to request a "good cause" extension of the discovery deadlines under CPL 245.70 (2).^[FN5] The statute also allows the People to file a certificate of compliance if some discoverable material has not been disclosed because it has been lost or destroyed (CPL 245.50 [1]).

In each of these scenarios, it is up to the court to decide if the People have met the requisite statutory standards of due diligence notwithstanding the outstanding discovery and can{**72 Misc 3d at 523} still be deemed ready for trial by having "done all that is required of them to bring the case to a point where it may be tried" (England, 84 NY2d at 4). For example, if the People have been granted a "good cause" extension under CPL 245.70 (2) to locate some hard-to-find material but otherwise affirm their discovery compliance, they may persuade the court that the specific item is not required for the People to proceed with their case. After the requisite inquiry, the court may accept the statement of readiness, while also allowing more time for the discovery to be provided to the defense (see e.g. Berkowitz, 2020 NY Slip Op 51044[U] [People deemed ready although underlying OCME material for defendant's blood draw was still outstanding where blood draw evidence was not to be used by People at trial; diligence in obtaining data within a reasonable time afterwards also shown]). On the other hand, if the outstanding discovery is necessary for the People's case and likely available within a reasonable time, the People may persuade the court to apply the "exceptional circumstances" provision of CPL 30.30 (4) (g) to toll the speedy trial clock. Or the People may instead petition the court for a determination that special circumstances exist that should allow them to be declared ready without filing a certificate of compliance (see CPL 245.50 [3]; see also Adrovic, 69 Misc 3d at 573-574). Under all circumstances, however, the People cannot be deemed ready where discoverable material is "lost, destroyed, or otherwise unavailable" unless the People have shown that "diligent and good faith efforts, reasonable under the circumstances" were employed to try to obtain the material (CPL 245.50 [3]).

By allowing for the possibility that the People be deemed ready even when some discovery is outstanding, the legislature acknowledged that unavoidable delays and unforeseen hurdles may prevent a diligent prosecutor from complying fully with their discovery obligations, despite their best efforts to obtain all the relevant material in a timely fashion (People v Weston, 66 Misc 3d 785, 789 [Crim Ct, Bronx County 2020] [extension provisions of discovery statute designed to address realistic delays prosecutors face in gathering discovery]; see also Adrovic, 69 Misc 3d at 573-574 ["(b)y 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"]). These exceptions to the full discovery mandate as a prerequisite to trial readiness{**72 Misc 3d at 524} are narrowly drawn, limited to "special circumstances" and only available if the People persuade the court that their efforts to achieve full discovery compliance were sufficient under the statutory standard (CPL 245.50 [3]). Incomplete discovery is further discouraged by the statutory provisions allowing for imposition of sanctions, should the belated or thwarted disclosure of discovery cause prejudice to the defendant (CPL 245.50 [1]; 245.80 [1] [b]).

Here, the People do not claim any of the statutory exceptions for filing a certificate of compliance while they knew the 911 call and radio run were still outstanding. The People have not requested a protective order under CPL 245.70 (1), nor do they argue a "good cause" basis existed that should allow the People more time to disclose the material under CPL 245.70 (2).^[FN6] The People have not argued that the particular circumstances of this case warrant either the tolling of the speedy trial clock, or a declaration of readiness without a valid certificate of compliance (CPL 245.50 [3]; 30.30 [4] [g]).

Certainly here, there has been no showing of diligence, nor of efforts that were reasonable under the circumstances.^[FN7] It is not disputed that the People took four months from arraignments to order the 911 call and radio run. This clearly discoverable material was requested for the first time on December 24, 2020, and not surprisingly, was not available for disclosure in time for the 90th day deadline, which fell three business days later. Even then, the People did not supply the outstanding material until March 2021, an additional two months after{**72 Misc 3d at 525} certifying their discovery compliance, and more than six months after the defendant's arrest. On these facts, the court is not persuaded that the People exercised due diligence to obtain the 911 call or radio run, as is required under CPL 245.50 (1).

The People claim their admitted noncompliance with the discovery mandate should not count as noncompliance because of their "good faith" in filing the certificate of compliance (People's response at 7 [claiming that a certificate of compliance is "not rendered illusory by the fact that the prosecution later disclosed discoverable material . . . that had been in existence on the date of the filing of the COC"]). While there are references to good faith in article 245, such references do not modify the unequivocal "all known material" standard for the disclosure of [*4]discovery that is contained in the plain language of CPL 245.50 (1).^[FN8] Discovery compliance is measured by a tally of the known and existing material, after the "exercising [of] due diligence and making [of] reasonable inquiries to ascertain [its] existence" (CPL 245.50 [1]). The People may present their specific frustrations in identifying and collecting discovery when asking the court to deem them ready notwithstanding discovery noncompliance, as discussed supra. However, discovery compliance is a question of diligence and reasonableness given the particular facts of the case: neither a claim of good faith nor the absence of bad faith, standing alone, can exempt the People from these requirements.^[FN9]

{**72 Misc 3d at 526}The People further argue that invalidating this certificate of compliance for the omission of known discoverable material is not permitted, citing to selected language within CPL 245.50 (1) that the People will not suffer "adverse consequence" from the "good faith" filing of a certificate of compliance (People's response at 7-10). This provision reads in full as follows:

"If additional discovery is subsequently provided prior to trial pursuant to section 245.60 [setting forth the parties' continuing duty to disclose], 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." (CPL 245.50 [1] [emphasis added].)

Contrary to the People's interpretation, this provision is not relevant where the People are already aware of the missing discovery material when the certificate of compliance is filed. This provision applies where either side "subsequently learns of additional material or information" that would have been subject to disclosure "had it known of it at the time" a prior certificate was filed (CPL 245.60). Here, the People admit they were aware of the 911 call and radio run before the first certificate of compliance was filed. Moreover, the People's last minute efforts to obtain the 911 call and radio run were neither diligent nor reasonable under the circumstances.

To read the "no adverse consequence" language from section 245.50 in the manner suggested by the People would insulate the People from a finding that their failure to comply with the discovery mandate invalidated their statement of readiness. Such an interpretation would contradict long-established case law regarding the court's ability to declare a statement of readiness illusory, as well as the provisions of CPL 30.30 (5) that{**72 Misc 3d at 527} mandate an inquiry by the court into the People's actual readiness, tie discovery compliance to readiness, and expressly permit a defense challenge to the claim of discovery compliance (see CPL 30.30 [5]; People v Lobato, 2020 NY Slip Op 50322[U], *4 ["provisions of CPL § 245.50 and 30.30 interlace discovery compliance and trial readiness"]; see e.g. People v Sibblies, 22 NY3d 1174, 1181 [2014]). A certificate of "compliance" in name only will not shield the People from the application of the speedy trial statutes, where discovery is incomplete and no exception applies to excuse the nondisclosure or to permit the People to be deemed ready despite the missing material (accord People v Quinlan, 71 Misc 3d 266, 272 [Crim Ct, Bronx County 2021] ["charging the People with any related 30.30 time is not an 'adverse consequence' as contemplated by CPL 245.80"]).

The People also contend that the Sprint report should serve as an adequate substitute for the missing 911 call and radio run, that the 911 call and radio run were provided two months later, and moreover, that the defendant cannot claim that prejudice was incurred (People's response at 17-18). The framework for discovery set forth in article 245 does not call for prejudice to the defendant to be considered when assessing discovery compliance and trial readiness in the first instance (Adrovic, 69 Misc 3d at 574 ["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"]). The impact of missing or belated discovery and whether prejudice was incurred by the defendant for the same are evaluated when the court considers whether discovery noncompliance warrants a remedy or sanction under CPL 245.80 (id.).

In this case, the People failed to provide known discoverable material to the defendant before filing a certificate of compliance affirming that all such material had been provided. The People have not presented any factual basis that special circumstances exist under CPL 245.50 (3) for the People to be deemed ready without meeting their discovery mandate, nor that diligent efforts were made to obtain the known discovery. Moreover, the People have not shown there was a particular obstacle to obtaining the discoverable material that might qualify for a "good cause" extension under CPL 245.70 (2) or to toll speedy trial under CPL 30.30 (4) (g). Accordingly, the People's statement of readiness filed on the 90th day was illusory. The speedy trial clock therefore continued to run beyond{**72 Misc 3d at 528} January 4, 2021, up to February 4, 2021, the date a motion schedule was set. The People exceeded the 90 days allotted to prosecute this case under CPL 30.30 and the defendant's motion to dismiss pursuant to CPL 30.30 is granted.

"[w]henever pursuant to this section a prosecutor states or otherwise provides notice that the people are ready for trial, the court shall make inquiry on the record as to their actual readiness. If, after conducting its inquiry, the court determines that the people are not ready to proceed to trial, the prosecutor's statement or notice of readiness shall not be valid for purposes of this section."

The court notes that this provision abrogates the previous standard where a statement of readiness was presumed to be truthful and accurate (see People v Brown, 28 NY3d 392, 405 [2016]).

"[a] court may deem the prosecution ready for trial pursuant to section 30.30 of this chapter where information that might be considered discoverable under this article cannot be disclosed because it has been lost, destroyed, or otherwise unavailable as provided by paragraph (b) of subdivision one of section 245.80 of this article, despite diligent and good faith efforts, reasonable under the circumstances." (Emphasis added.)