Supreme Court, New York County, October 28, 2021

The Legal Aid Society (Lamar Miller of counsel) for defendant.

Cyrus R. Vance, Jr., District Attorney (Kathryn Suma of counsel), for plaintiff.

Defendant has moved for an order "[d]eeming the prosecution's certificate of compliance (COC), filed on August 3, 2021, to be improper." He also asks that the requirement that the defense file its own COC (see CPL 245.10 [2]; 245.50 [2]) be deferred until 30 days after "the prosecution files and serves a valid COC." Defendant's motion is denied in its entirety. The defense is directed to file its own COC within 30 days of this decision.

On June 15, 2019, defendant was arrested on an outstanding parole violation warrant in the vicinity of 50 Avenue D, in New York County. An inventory search of his fanny pack revealed small packages containing drugs—crack cocaine, heroin and marijuana.

The indictment charges the defendant with criminal possession of a controlled substance in the third degree, fourth degree, and seventh degree, and he was arraigned on the indictment on July 30, 2019. The People provided discovery and, on August 3, 2021, filed a COC.

Defendant filed the instant motion on September 24, 2021. The motion specifies that the "following discovery materials were not provided to the defense prior to the [People's] filing of the COC in this case: Radio Runs. See C.P.L. § 245.20(1)(e)." (Affirmation of Lamar Miller, Esq., ¶ 8.) The People have acknowledged that they did not provide recordings of the radio runs, explaining that by the time they sought them from the NYPD the recordings had been deleted. (Affirmation of Kathryn Suma, Esq., ¶ 13.) The People did, however, turn over to the defense the Sprint reports, which included transcriptions of the radio runs. (Id.){**73 Misc 3d at 806}

The defendant's motion also alludes, in a non-specific way, to disclosures relating to police officer disciplinary records. (Miller affirmation ¶¶ 32-69.) However, it does not identify any particular item or items of discovery, relating to any particular individual, that the defense [*2]believes it is entitled to but did not receive.

1. The motion is moot because the People have not yet answered ready for trial.

In People v Barnett (68 Misc 3d 1000 [Sup Ct, NY County 2020]), this court held that a defendant's motion seeking a stand-alone declaration that a COC was invalid—that is, a declaration of a COC's invalidity not associated with a parallel claim that the People's statement of trial readiness (SOR) was invalid—was moot. Barnett reasoned that, since the only purpose of a COC is to serve as "a necessary prerequisite to a valid statement of readiness" for CPL 30.30 purposes, it follows that the question of the validity of a COC is only ripe for adjudication in the context of a judicial determination of the validity of an SOR. (Barnett, 68 Misc 3d at 1002; see CPL 30.30 [5]; 245.50.)

The case at bar is identically postured. The People have yet to answer ready, the speedy trial clock is currently tolled due to motion practice, and defendant explicitly asserts in his motion that he is not seeking relief pursuant to CPL 30.30. (Miller affirmation ¶ 14.) The defense does not even mention, let alone attempt to distinguish, Barnett in its motion papers, but the court cannot see any reason why its holding would not apply here.

Indeed, the only cases the defense cites are cases in which a court considered the validity of a COC as a means of determining the validity of an SOR. (Miller affirmation ¶ 12.)^[FN1] As noted above, those cases are simply inapposite here, and the court, in its own research, has been unable to locate any case in which a court has considered the merits of a stand-alone motion to{**73 Misc 3d at 807} invalidate a COC. Certainly, every case to cite Barnett has done so only in the context of the interaction between the COC requirement and CPL 30.30. (E.g. People v Haymon, 71 Misc 3d 1203[A], 2021 NY Slip Op 50267[U] [Albany County Ct 2021].)

Given this, defendant's motion is denied as moot.

2. The relief sought is not authorized.

There is a second reason, not discussed in Barnett, for denying this motion. The relief requested—a judicial declaration that a COC is invalid, absent an SOR, is not authorized by the relevant provisions of the CPL. There is only one circumstance that allows for testing the validity of a COC—a judicial inquiry into the validity of an SOR. CPL 245.50 (3) provides that absent "special circumstances," 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." A parallel provision in CPL 30.30 (5) provides that once the People state that they are ready for trial, there must be an "inquiry on the record as to their actual readiness." Furthermore that SOR "must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of section 245.20 of this chapter [that is, a COC] and the defense [*3]shall be afforded an opportunity to be heard on the record as to whether the disclosure requirements have been met." (Id.) Read together, these two sections clearly set out the single path that the legislature has laid for testing whether a COC is "proper." During the mandatory judicial inquiry into actual trial readiness, the defense has its opportunity "to be heard" on that very issue.

As evidenced by section 30.30 (5), the legislature clearly knows how to establish procedures for testing the validity of a prosecutor's assertion of compliance with the statutory discovery obligations. That the legislature chose to do so only in the context of testing the validity of an SOR provides a strong negative inference that the legislature did not intend to authorize a stand-alone challenge to a COC outside of that single context. (See e.g. Lomaglio v Lomaglio, 42 Misc 3d 827, 847 n 17 [Sup Ct, Monroe County 2013] [drawing a negative inference from legislature's failure to limit the award of attorneys' fees to the prevailing party in a provision in section 238 of the Domestic Relations Law].)

At its core, the defendant's complaint about the COC is nothing more than a garden-variety complaint that there has been{**73 Misc 3d at 808} a discovery violation: the radio runs were not preserved, were not disclosed, and can never be disclosed because they were not preserved. The remedies for discovery violations such as this are contained in CPL 245.80 (2), and that list of remedies does not include a stand-alone declaration that a COC is invalid. The statutorily-prescribed "remedies or sanctions" are that a court may:

"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." (Id.)

That declaring a COC invalid is not on this list further supports the negative inference that the legislature did not authorize a stand-alone challenge to a COC outside the context of assessing trial readiness.^[FN2]

For these reasons as well, defendant's motion is denied.

3. Conclusion

Defendant's motion is denied. The defense is directed to file its own COC within 30 days of the date of this decision.