Supreme Court, Queens County, September 7, 2021

Dawn M. Florio Law Firm PLLC, New York City (Dawn M. Florio of counsel), for defendant.

Melinda Katz, District Attorney, Kew Gardens (Graham V. Amodeo of counsel), for plaintiff.

The defendant, Gerard Rodriguez, is charged with attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]), assault in the first degree (Penal Law § 120.10 [1]), assault in the second degree (Penal Law § 120.05 [2]), and two counts of criminal possession of a weapon in the second degree (Penal Law § 265.03 [1] [B]; [3]).

The People filed a certificate of compliance, pursuant to CPL 245.50 (1), on July 16, 2020. On April 16, 2021, the People filed a supplemental certificate of compliance. The defendant now moves for a ruling deeming the People's certificate improper, arguing that the People failed to provide certain discoverable materials, and dismissal of the indictment. The People oppose the defendant's motion in its entirety.

On January 1, 2020, article 245 replaced article 240 of the Criminal Procedure Law. This change was a part of a package of criminal justice reforms intended to, inter alia, expand discovery in criminal cases. Shortly after these changes became effective, several amendments were made to the new law. (See L 2020, ch 56, § 1, part HHH; 2020 McKinney's Session Law News of NY, No. 1 at 475-480.)

Pursuant to CPL 245.20 (1), prosecutors are required to disclose "all items and information that relate to the subject matter of the case and are in the possession, custody or control of the prosecution or persons under the prosecution's direction or control." The statute further provides a non-exhaustive list of materials subject to disclosure under this provision. (CPL 245.20 [1].) CPL 245.10 sets forth a time line for these disclosures, requiring the People to comply with this automatic discovery obligation within a certain period of time, except in cases with "exceptionally voluminous" discovery materials, where initial automatic discovery may be stayed for an additional 30 days without the need for a motion.

In making such disclosures, the statute explains:

"The prosecutor shall make a diligent, good faith effort to ascertain the existence of material or information discoverable under [CPL 245.20 (1)] and{**73 Misc 3d at 414} to cause such material or information to be made available for discovery where it exists but is not within the prosecutor's possession, custody or control; provided that the prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain." (CPL 245.20 [2].)

And, importantly, "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 245.20 [2].) Congruent with that provision, CPL 245.55 (1) directs that

"[t]he district attorney and the assistant responsible for the case . . . shall endeavor to ensure that a flow of information is maintained between the police and other investigative personnel and his or her office sufficient to place within his or her possession or control all material and information pertinent to the defendant and the offense or offenses charged . . . ."

The statute also explicitly dictates that "[t]here shall be a presumption in favor of disclosure" in interpreting article 245. (CPL 245.20 [7].)

In keeping with this principle, the People's discovery obligations are ongoing. Should the prosecution learn of additional material or information that it would have been required to disclose pursuant to CPL 245.20, "it shall expeditiously notify the other party and disclose the additional material and information as required for initial discovery under this article." (CPL 245.60.)

Significantly, the law also ties the People's compliance with their discovery obligations to the calculation of speedy trial time pursuant to CPL 30.30. Now, the People must file a certificate of compliance upon satisfaction of their discovery obligations under CPL 245.20 (1). (CPL 245.50 [1].) Therein, the People must affirm 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." (Id.) In addition to this statement, the certificate must include a list of the discovery materials provided. (Id.) Moreover, if the People provide additional discovery in [*3]connection with their ongoing obligations outlined in CPL 245.60, they must file a supplemental certificate{**73 Misc 3d at 415} "identifying the additional material and information provided." (CPL 245.50 [1].) Notably, the statute also specifies, "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].)

At the same time, the law makes the certificate of compliance a prerequisite to the People's trial readiness within the meaning of CPL 30.30. Pursuant to CPL 245.50 (3),

"absent an individualized finding of special circumstances in the instant case by the court before which the charge is pending, 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."

The statute further clarifies that

"[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 [CPL 245.80 (1) (b)], despite diligent and good faith efforts, reasonable under the circumstances." (CPL 245.50 [3].)^[FN*]

And CPL 30.30 also now reflects this change, stating, "Any statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of section 245.20 . . . ." (CPL 30.30 [5].)

An order deeming a certificate of compliance improper, then, necessarily amounts to a determination that the People's statement of readiness for trial is illusory. (See CPL 30.30 [5]; People v Barnett, 68 Misc 3d 1000, 1002 [Sup Ct, NY County 2020].){**73 Misc 3d at 416} And the statute requires that "[c]hallenges to, or questions related to a certificate of compliance shall be addressed by motion." (CPL 245.50 [4].) However, for the purposes of evaluating a claim concerning the validity of a certificate of compliance, the statutory scheme does not define what constitutes a "proper" certificate, which it makes the prerequisite to an announcement of trial readiness. (CPL 245.50 [3].) Given that the statute specifies that "[n]o adverse consequence" shall adhere to the People based on the filing of a certificate that is filed "in good faith and reasonable under the circumstances" (CPL 245.50 [1]), the most reasonable inference is that such a certificate is "proper" within the meaning of CPL 245.50 (3) and, thus, fulfills that section's prerequisite to any valid statement of readiness by the People.

In this regard, numerous courts have found that belated disclosures should not invalidate a certificate of compliance that was made in good faith after the exercise of due diligence where the delay resulted from, for example, minor oversights in the production of material, delayed discovery of the existence of certain items, or a good faith position that the material in question was not discoverable. (See People v Bruni, 71 Misc 3d 913 [Albany County Ct 2021]; People v Erby, 68 Misc 3d 625, 633 [Sup Ct, Bronx County 2020]; People v [*4]Gonzalez, 68 Misc 3d 1213[A], 2020 NY Slip Op 50924[U], *1, *3 [Sup Ct, Kings County 2020]; People v Knight, 69 Misc 3d 546, 552 [Sup Ct, Kings County 2020]; People v Lustig, 68 Misc 3d 234, 247 [Sup Ct, Queens County 2020]; People v Randolph, 69 Misc 3d 770, 770 [Sup Ct, Suffolk County 2020]; People v Davis, 70 Misc 3d 467, 474-480 [Crim Ct, Bronx County 2020].) Indeed, in People v Erby (68 Misc 3d at 633), a court of coordinate jurisdiction addressing a discovery challenge observed:

"As the legislative history of article 245 indicates, and as the article's sanctions and remedies provisions suggest, the new discovery law, designed as it was to be remedial in nature, should not be construed as an inescapable trap for the diligent prosecutor who professionally, assiduously and in good faith attempts to comply with their new and extensive requirements under the discovery statute, but through no fault of his or her own, is unable to comply with every aspect of the automatic discovery rules specified in CPL 245.20."

Similarly, in People v Knight, another court addressed a situation in which the People had provided "[a] very few [additional] {**73 Misc 3d at 417}discovery items" to the defendant after filing their certificate of compliance. (69 Misc 3d at 552.) The court concluded that "[t]heir absence from the original certificate of compliance does not vitiate it," reasoning that "[b]y any measure it was filed 'in good faith' and was 'reasonable under the circumstances' " and, thus, was "valid." (Id.)

In this court's view, good faith, due diligence, and reasonableness under the circumstances are the touchstones by which a certificate of compliance must be evaluated. Accordingly, upon a challenge to a certificate of compliance, the People must articulate their efforts to comply with CPL 245.20 (1) with respect to the statutory subsections or specific items of discovery at issue. If the People establish that they exercised due diligence and acted in good faith in filing their certificate, their certificate of compliance shall be deemed valid. This may be accomplished by recounting the steps they took to obtain certain materials or ascertain the existence thereof, explaining the reasons why particular items are outstanding, lost or destroyed, and submitting their good faith arguments for why certain materials are not discoverable under the statute. 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.

The defendant challenges the People's original certificate of compliance on two related bases. First, he claims that the People failed to disclose a search warrant and affidavit in a timely fashion. He argues that this failure was inexcusable and prevented him from moving to controvert or otherwise challenging the warrant at the time of omnibus motion practice, thus, delaying the progress of the case. Second, he claims that the People neglected to turn over 24 police officers' memo books.

The People acknowledge that they did not turn over these materials until their April 16, 2021 supplemental certificate. However, they contend that the absence of the search warrant documents did not render their certificate invalid, because it was the result of a good faith belief that the search warrant pertained not to this case, but rather to an unrelated homicide occurring near this attempted murder in time and proximity. Relatedly, they also argue that the 24 memo books at issue do{**73 Misc 3d at 418} not relate to the subject matter of this case, but, instead, to the homicide. The People state that they have disclosed these materials only in an abundance of caution.

The People explain that this case involves an incident occurring on January 13, 2020, at about 3:45 a.m. Following a dispute between members of rival gangs inside a Queens nightclub, the defendant, the victim, and several other individuals stepped outside the club, where the defendant shot the victim. The defendant then fled in a white Mercedes SUV.

Within seconds of that shooting and just around the block, a member of the complainant's group named Jerry Rojas shot multiple times at members of the defendant's group. One of Rojas's shots struck and killed a man named Vladimir Olivo.

The People affirm that during NYPD's investigations of these two shootings, they grouped them together as one case and maintained the paper work relating to both incidents together. The homicide of Vladimir Olivo is now being prosecuted by the United States Attorney's Office for the Southern District of New York.

According to the People, members of the Queens County District Attorney's Office's Homicide Investigation Bureau drafted and obtained a search warrant for the white Mercedes SUV the defendant in this case used as a getaway car during their investigation of the Olivo homicide. Because of the circumstances under which the warrant was procured, the assigned prosecutor for this indictment believed that the warrant concerned the Olivo homicide rather than this case. Nonetheless, the warrant was executed on the Mercedes that the People maintain the defendant used in his flight from the scene. In doing so, the police obtained DNA swabs and latent print evidence that the People have submitted for laboratory analysis in the hopes of using it against this defendant.

With respect to the 24 memo books relating to the homicide case, this court finds that they are discoverable because they "support a potential defense to a charged offense." (CPL 245.20 [1] [k] [iii].) Given that these two shootings occurred so close in time and location, and clearly involved interconnected groups of individuals, the defendant may naturally want to pursue a third-party defense. The materials regarding the Olivo homicide, thus, relate to a potential defense and are subject to automatic discovery. Similarly, the search warrant materials are undoubtedly discoverable, which the People do not dispute.

{**73 Misc 3d at 419}[1] Nevertheless, the court finds that the People's certificate of compliance was valid even in the absence of these materials. As discussed thoroughly above, good faith, diligence, and reasonableness under the circumstances are the standards by which a certificate of compliance must be judged. (See CPL 245.50 [1].) Here, the People's efforts to comply with their discovery obligations evinced all of these qualities. The People turned over more than 500 pages of documents in connection with their initial certificate of compliance. In a case with such voluminous discovery materials, the absence of several documents from the original certificate is excusable, so long as the People rectify it in a timely fashion when they realize the error. Moreover, the People's communications with defense counsel, which they have attached to their opposition papers, demonstrate that they have endeavored with great diligence to ensure that counsel received all documents to which the defendant is entitled.

With respect to the missing memo books, the People had a reasonable, good faith legal argument that they did not relate to the subject matter of the case. Accordingly, their failure to turn them over at an earlier time does not undermine the validity of their certificate of compliance.

[2] As for the search warrant materials, their absence from the People's initial disclosure is more troubling. However, as the People explain, it stemmed from a good faith misunderstanding, which, in this court's view, does not render their certificate of compliance invalid. But the [*6]invalidation of a certificate of compliance is not the only relief available to a defendant for such a lapse.

The discovery law states: "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].) In other words, even where a certificate is made in good faith and reasonable under the circumstances and, thus, proper, a discovery violation that does not render the entire certificate invalid may still warrant sanctions. CPL 245.80 (1) (a) provides: "When material or information is discoverable under this article but is disclosed belatedly, the court shall impose an appropriate remedy or sanction if the party entitled to disclosure shows that it was prejudiced." In imposing sanctions, the statute explains, the court may{**73 Misc 3d at 420}

"make a further order for discovery, grant a continuance, order that a hearing be reopened, order that a witness be called or recalled, instruct the jury that it may draw an adverse inference regarding the non-compliance, preclude or strike a witness's testimony or a portion of a witness's testimony, admit or exclude evidence, order a mistrial, order the dismissal of all or some of the charges, or make such other order as it deems just under the circumstances." (CPL 245.80 [2].)

Here, the People disclosed the search warrant materials well after omnibus motion practice and even after they initially announced ready for trial. Under these circumstances, this court must conclude that the defendant experienced prejudice as a result of the People's delay. If the People had turned these materials over at an earlier date, the defendant would have moved to controvert the warrant during omnibus motion practice. Because they did not, the defendant's trial would have to be delayed still further to allow him the opportunity to do so. Regardless of any excludable time under CPL 30.30, the practical effect of this late discovery is to delay the defendant's trial in a number of ways. Given that testing is apparently not yet complete on these materials, the ultimate disclosure of whatever documents are produced in connection with that testing will delay his trial yet again, as counsel will, quite reasonably, want the opportunity to review those documents and defend against them. To mitigate this prejudice, this court finds that a sanction against the People is appropriate. The court, therefore, hereby excludes all fruits of the search warrant, including the DNA and latent print evidence and any laboratory analysis thereof, from use as evidence at trial.

As noted above, the court finds that the People's certificate of compliance was proper notwithstanding the above-mentioned sanction for late discovery of the search warrant materials. Given that it was made in good faith and reasonable under the circumstances, the court finds that the People's certificate of compliance was valid, pursuant to CPL 245.50 (3). The defendant's motion to challenge is, therefore, denied.

Relatedly, because the defendant's CPL 30.30 motion relies on the premise that certain periods are chargeable to the People because their certificate of compliance was improper, the court also denies that motion. The court further denies the defendant's motion for dismissal as a discovery sanction and{**73 Misc 3d at 421} the defendant's motion to dismiss in the interest of justice pursuant to CPL 210.20 (1) (i) and 210.40. Because the People's certificate of compliance is proper and the delays in providing some discovery materials arose from a good faith legal position or an oversight, the defense has not come close to demonstrating any "exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant" that would warrant dismissal in the furtherance of justice. (CPL 210.40 [1] [e].) Having reviewed all other factors delineated in CPL 210.40, the court concludes that the defendant has failed to establish [*7]that the interests of justice require dismissal in this case.

For all these reasons, the defendant's motion is denied except to the extent that the sanction of preclusion is imposed for the People's failure to disclose the search warrant materials in a timely fashion.

"When material or information is discoverable under this article but cannot be disclosed because it has been lost or destroyed, the court shall impose an appropriate remedy or sanction if the party entitled to disclosure shows that the lost material may have contained some information relevant to a contested issue."

Thus, this section addresses only situations in which material is "lost" or "destroyed," leaving unclear the meaning of "otherwise unavailable" in CPL 245.50 (3).