Justice Court of the Town of Henrietta, Monroe County, August 16, 2021

Tim Donaher, Public Defender (T.J. Marletta of counsel), for defendant.

Sandra J. Doorley, District Attorney (Anthony Freeman of counsel), for plaintiff.

The defendant moves for an order invalidating the People's certificate of compliance and statement of readiness for trial (COC) and dismissing the People's misdemeanor accusatory instrument on the grounds that she has been denied a speedy trial by virtue of incomplete and untimely discovery. The motion is granted. The COC is declared invalid and the misdemeanor accusatory instrument is dismissed.

On October 22, 2020, defendant was arraigned on charges of driving while ability impaired by drugs (Vehicle and Traffic Law § 1192 [4]); driving without a license (Vehicle and Traffic Law § 509 [1]); unregistered vehicle (Vehicle and Traffic Law § 401 [1] [a]); and following too closely (Vehicle and Traffic Law § 1129 [a]). All charges were alleged to have occurred on August 26, 2020. At arraignment, the People offered a plea to the misdemeanor (Vehicle and Traffic Law § 1192 [4]), in full satisfaction of all charges. Discovery being incomplete, the matter was adjourned to December 1, 2020.

On November 23, 2020, court activities were restricted due to the COVID-19 pandemic. Accordingly, the matter was administratively adjourned to February 22, 2021. On November 24, 2020, the People filed an initial COC, which indicated readiness for trial and that all discovery was complete, except for a tow slip and rolling logs. A supplemental COC was filed on December 21, 2020, stating that the "rolling logs of Dep Corona" had been provided to the defendant.

On February 22, 2021, a virtual conference was held and adjourned to March 10, 2021, to afford the defendant additional time to consider the filing of motions and the People's offer. At the March 10, 2021 virtual conference, the defendant indicated that no motions would be filed, requested a trial and asked for an adjournment to decide between a bench and jury trial. The{**73 Misc 3d at 287} matter was adjourned to April 22, 2021, for that decision. At the April 22, 2021 virtual conference, the court queried the People about their COC and was assured that all discovery was complete. The defendant did not raise any issues with discovery at that time, but did request another month to consider whether to waive a jury trial. An adjournment to May 24, 2021, was [*2]granted.

On May 21, 2021, the defendant requested and was granted a further adjournment to July 8, 2021, due to the death of the defendant's father. Also on that date, the defendant emailed a request to the People for the drug recognition expert's full rolling log (the log), noting that a previous request for the log to the Assistant District Attorney formerly handling the file had gone unanswered. Only log entry No. 96 concerning the defendant's toxicology evaluation was provided on December 21, 2020. Having received no response to its request, the defendant emailed the drug recognition expert (DRE) directly on July 7, 2021. The log was obtained from the DRE on July 8, 2021, and this motion was filed. The People provided defendant with additional discovery material, filed a second supplemental COC and requested time to respond to defendant's motion. Consequently, argument was scheduled for July 28, 2021.

The core of defendant's argument is that the December 21, 2020 supplemental COC was illusory because discovery was not complete at that time. Most significantly, the log had not been produced. The defendant argues that the log, which includes toxicology evaluations of subjects obtained prior and subsequent to the defendant's evaluation, is essential for evaluating the DRE's work and for possible impeachment of the DRE's testimony at trial. As such, production of the log is mandated by the automatic discovery provisions of CPL 245.20.

The defendant further argues that by reasonable inquiry and the exercise of due diligence the People should have provided the log since what they produced was clearly a partial document, consisting only of entry No. 96. The defendant's position is that the COC being invalid and well more than 90 days having elapsed since defendant's arraignment, the misdemeanor accusatory instrument must be dismissed pursuant to CPL 30.30 (1) (b).

The People concede that the log was discoverable and relevant to defendant's defense, but argue that the COC was not illusory. It was offered in good faith and reasonable under the circumstances because the log is not readily available and is{**73 Misc 3d at 288} often produced only after further inquiry. The People further argue that the failure to provide the log prior to July 8, 2021, was not prejudicial to the defendant because she now has the information necessary to prepare for trial. In addition, the People argue that the defendant waited an inordinate amount of time to demand additional discovery, and that the defendant has an obligation to promptly point out discovery deficiencies and should not sit and wait for the speedy trial clock to run out.

The automatic discovery provisions of CPL 245.20, coupled with the speedy trial dictates of CPL 30.30 (1) (b), require the People to complete relevant discovery to the defendant within 90 days after a misdemeanor arraignment. The People are required to provide "results administered or taken within the past ten years of each expert witness whom the prosecutor intends to call" (CPL 245.20 [1] [f]); "[a]ll reports . . . concerning physical or mental examinations, or scientific tests . . . made by or at the request or direction of a public servant engaged in law enforcement activity . . . [including] . . . any conflicting analyses or results by laboratory personnel" (CPL 245.20 [1] [j]); and "[a]ll evidence and information, including that which is known to police . . . , that tends to . . . (iv) impeach the credibility of a testifying prosecution witness" (CPL 245.20 [1] [k] [iv]).

Pursuant to CPL 245.20 (2), "all items and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency shall be deemed to be in the possession of the prosecution."

CPL 245.50 requires the People to file a COC when discovery is complete certifying that "after exercising due diligence and making reasonable inquiries to ascertain the existence of [*3]material and information subject to discovery, the prosecutor has disclosed and made available all known material and information subject to discovery" (CPL 245.50 [1]) and that "the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper certificate pursuant to subdivision one of this section" (CPL 245.50 [3]).

Although CPL 245.50 (1) exempts from mandatory discovery lost or destroyed items or those under a protective order, CPL 245.50 (1) also provides that "[n]o 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."

"Clearly, the People's trial readiness is now directly tied to meeting their discovery obligations, 'such that discovery compliance is a condition precedent to a valid announcement of readiness for trial.' " (People v Quinlan, 71 Misc 3d 266, 270 [Crim Ct, Bronx County 2021], quoting People v Lobato, 66 Misc 3d 1230[A], 2020 NY Slip Op 50322[U], *4 [Crim Ct, Kings County 2020].) Absent a valid exception, a COC filed prior to discovery compliance is illusory and does not stop the speedy trial clock. (People v Cooper, 71 Misc 3d 559, 565 [Erie County Ct 2021].)

In the absence of controlling authority to guide the court in evaluating the validity of a COC in light of the recent linkage of discovery with the speedy trial rules, the court is guided by the views of other trial courts that have grappled with this issue. The consensus is that "the guiding principles when evaluating the validity of a COC must be good faith, due diligence, and reasonableness under the circumstances." (People v Ferrer, 72 Misc 3d 1212[A], 2021 NY Slip Op 50706[U], *4 [Crim Ct, Bronx County 2021]; see also People v Perez, 73 Misc 3d 171, 176 [Sup Ct, Queens County 2021].)

The Ferrer court offered several useful factors for the court to consider in determining the validity of a COC:

"(1) the nature of missing/delayed discovery, (2) prosecution's efforts to obtain it, (3) whether the information was in the People's possession; and if it was, the reasons for the non- or late-disclosure, and (4) the defense's ability to independently obtain the records, and weigh them against any prejudice to the defense." (2021 NY Slip Op 50706[U], *4.)

The first factor assesses whether the missing material was discoverable and whether it was central or peripheral to defendant's case. If discoverable, but of arguably minor importance, the failure to disclose might justify imposing sanctions rather than invalidating the COC. (See People v Bruni, 71 Misc 3d 913, 921 [Albany County Ct 2021].) In this case, the parties agree that the log was subject to discovery and relevant to defendant's defense.

Taking the third factor second, information in the possession of law enforcement is statutorily deemed to be in the possession of the People. (CPL 245.20 [2]; Quinlan at 272.) "Thus, the assertion that known discovery materials are not in their physical possession does not in any way excuse their failure to{**73 Misc 3d at 290} provide them." (People v Georgiopoulos, 71 Misc 3d 1215[A], 2021 NY Slip Op 50380[U], *3 [Sup Ct, Queens County 2021].)

"Accordingly, all police paperwork is imputed to be in the People's control and it is the prosecutor's duty to work with the police to obtain such materials. As a result, it is never sufficient for the People to affirm that an item is not in their physical possession to defeat a certificate of compliance challenge." (Georgiopoulos, 2021 NY Slip Op 50380[U], *5.)

Monroe County Sheriff's Deputy Corona, the DRE, maintained the log. Although the District Attorney's office may have needed to ask him for it, that did not render it out of the [*4]People's reach. The People have not argued that production of the log qualified for exemption from discovery pursuant to CPL 245.50 (1). The log was not lost or destroyed, nor subject to a protective order. The log was statutorily deemed to be in the People's possession. It should have been obtained and produced to the defendant.

The next factor to consider is the People's efforts to obtain the discoverable materials. Good faith, due diligence and reasonable inquiry to find extant discovery material are required. (CPL 245.50 [1]; Perez; People v Aquino, 72 Misc 3d 518 [Crim Ct, Kings County 2021].)

Good faith may be found when the People, even though unsuccessful, have substantially complied and demonstrate that they have made their best efforts to obtain all discoverable material. (Bruni at 921; Georgiopoulos, 2021 NY Slip Op 50380[U], *3; People v Pealo, 71 Misc 3d 337, 345 [Penfield Just Ct, Monroe County 2021].)

Good faith can be demonstrated by the People's recitation of the steps taken to obtain the material and the outcome of their efforts. "On the other hand, where the People fail to set forth their efforts to locate items of discovery or determine that they do not exist, or the efforts they describe do not amount to due diligence, their certificate may be invalidated." (Perez, 73 Misc 3d at 177; Georgiopoulos, 2021 NY Slip Op 50380[U], *3.)

Good faith may even be exhibited when the People can explain the rationale for their belief that discoverable materials were not discoverable. (Georgiopoulos, 2021 NY Slip Op 50380[U], *3.)

Some courts have averred that inadvertently omitting discoverable material gathered in good faith should not{**73 Misc 3d at 291} invalidate a COC. (People v Moore, 72 Misc 3d 903 [Sup Ct, Kings County 2021] [COC not invalidated after relevant memo book entries were accidentally omitted during uploading discovery material].) Likewise, minor oversights that delay discovery production should not invalidate a COC. (Perez, 73 Misc 3d at 176.)

In this matter, the People did not claim that the log was not discoverable, or that it was inadvertently omitted, or delayed by oversight. They could not explain why the log was not obtained, nor enumerate any steps that had been taken to secure it. There is no indication that the supplemental COC's characterization of the partial log as "rolling logs of Dep Corona" was a deliberate attempt to obscure the fact that but a single entry log had been produced. More likely it was carelessness that resulted in a failure to ascertain the completeness of the log prior to production. Whether deliberate or careless, the People's lack of effort demonstrates a lack of good faith.

Even if not deemed bad faith, the People's apparently perfunctory review of the "rolling logs of Dep Corona" exhibits a lack of due diligence and reasonable inquiry. "[W]here 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." (People v Adrovic, 69 Misc 3d 563, 574 [Crim Ct, Kings County 2020].)

As noted above, the DRE's full rolling log was discoverable, but only a partial log was produced. Even the most casual observer would acknowledge that a log that starts and ends with entry 96 could not be the full document. And, the People are not a casual observer. Rather, the People are under an obligation to perform due diligence, to make a reasonable inquiry to ensure all discoverable material is provided. They made no such inquiry.

The last factors to be considered are the defense's ability to independently obtain the materials and to weigh the missing/late discovery against any prejudice to the defendant.

"Independent of any obligation the People may have, the defense counsel cannot sit idly by or she runs the risk of never having the information for hearings and trial to the potential detriment of her client." (Ferrer, 2021 NY Slip Op 50706[U], *7.) "The defendant is obligated to pursue his rights; he should not silently lie in wait with a challenge to the People's discovery{**73 Misc 3d at 292} compliance while the speedy trial clock ticks loudly in the background." (People v Nova-Ceballos, Sup Ct, NY County, 2021, index No. 98/2019, slip op at 3.)

Arguably, though the defendant did not bring the issue of the missing log to the People's attention until after the speedy trial clock had run, defense counsel cannot be fairly characterized as having lain in wait for that to occur. Instead, the slow pace of court proceedings during the pandemic and staff churn in both the defense and prosecution's offices may have been contributing factors.^[FN*] Regardless of the cause of delay, the People failed to respond to the defendant's belated requests for the log resulting in the defendant obtaining it independently.

The log now in defendant's hands mitigates any prejudice arising from the People's failure to produce it. However, that does not mean that the People's failure should be forgiven. "[T]he People's obligation to provide discovery, and to certify compliance with that obligation, is not relieved by an absence of prejudice to the defendant." (Aquino at 527, quoting Adrovic at 574.)

While the defendant should have acted more promptly to assert the need for full discovery, that does not, on the facts of this case, nullify the mandatory nature of automatic discovery. The People did not exert a good faith, diligent effort, reasonable under the circumstances, to obtain and provide existent, relevant discoverable material, even after prompting from the defendant.

Although the defendant now has received all discovery materials, including the DRE's full log, full discovery was not timely received rendering the COC that erroneously certified discovery completely illusory. Far more than 90 days having elapsed since the defendant's arraignment, her right to a speedy trial has been violated. Accordingly, the defendant's motion to declare the certificate of compliance and statement of readiness invalid is granted and the misdemeanor accusatory instrument is dismissed.