Supreme Court, Kings County, November 15, 2021

Brooklyn Defender Services (Izabel Garcia of counsel) for defendant.

Eric Gonzalez, District Attorney (Hannan Seirafi of counsel), for plaintiff.

The defendant, Malik Williams, moved by notice of motion, dated September 29, 2021, seeking the following relief:

1. An order pursuant to Criminal Procedure Law §§ 30.30 (1) (b) and 170.30 (1) (e) dismissing the accusatory instrument in the above-captioned case due to a denial of the right to a speedy trial for:

a. lack of proper service of the certificate of compliance (COC) and

b. failure to disclose police disciplinary records and body-worn camera (BWC) audit trails prior to certifying compliance; and

2. Granting such further relief as the court deems just and proper.

The defendant is represented by Izabel Garcia, Esq., of Brooklyn Defender Services (BDS).

On October 28, 2021, Assistant District Attorney (ADA) Hannan Seirafi filed an affirmation in opposition to the defendant's notice of motion to dismiss.

On March 7, 2021, the defendant was arrested (docket No. CR-006223-21KN) and charged with the following crimes alleged to have taken place on March 7, 2021:

Assault in the third degree (Penal Law § 120.00 [1]);

Criminal obstruction of breathing or blood circulation (Penal Law § 121.11 [a]);

Endangering the welfare of a child (Penal Law § 260.10 [1]);

Attempted assault in third degree (Penal Law §§ 110.00, 120.00 [1]);

Menacing in the third degree (Penal Law § 120.15); and

Harassment in the second degree (Penal Law § 240.26 [1]).

On March 8, 2021, the defendant was arraigned before the Honorable Leigh K. Cheng who issued a temporary order of protection (TOP) in favor of E.M. (hereinafter the CW [complaining{**73 Misc 3d at 1094} witness]) and J.W. (the parties' son), which was in effect until August 31, 2021, and adjourned the case to April 9, 2021, in DV-1C for conversion [*2]and for the filing of the COC.

On March 9, 2021, the People claim to have served and filed initial discovery with defense counsel and the court electronically although this could not be confirmed via the Electronic Document Delivery Service (EDDS).

On March 10, 2021, the People electronically served a superseding information on defense counsel and filed it with the court.

On April 9, 2021, the defendant appeared in Part DV-1C with counsel. The case was adjourned to May 7, 2021, for the filing of the COC.

On April 20, 2021, the defendant's criminal case was transferred to IDV2 (docket No. 20038V-2021) and adjourned to April 27, 2021.

On April 21, 2021, the defendant appeared in Part DV-2 with counsel. The People claim to have served and filed additional discovery, although this court has no copy of said discovery in the court file.

On April 27, 2021, the defendant appeared virtually in IDV2 with counsel. The People stated that the corroborating affidavit was served and filed on March 10, 2021. The court extended the TOP and adjourned the case to June 10, 2021, for the filing of the COC.

On June 3, 2021, the People served the COC and statement of readiness (SOR) via email to defense counsel and filed a courtesy copy with the court.

On June 10, 2021, the defendant appeared virtually in IDV2 with counsel. During the appearance, the People stated that the COC and SOR were uploaded to EDDS and were served on defense counsel and filed with the court on June 3, 2021. The court inquired as to whether the defendant would be challenging the People's COC and gave the defendant three weeks to file any opposition to the COC. The TOP was extended to the adjourn date of August 9, 2021.

On August 9, 2021, the defendant appeared virtually in IDV2 with counsel. The court extended the TOP and adjourned the case for a Huntley hearing and trial to September 30, 2021, for an in-person appearance.

On September 29, 2021, the defendant filed the instant motion to dismiss.{**73 Misc 3d at 1095}

On September 30, 2021, the defendant and counsel appeared in IDV2 in-person and the court commenced the Huntley hearing. The court extended the TOP and adjourned the matter to October 4, 2021, to continue the hearing and for the People's response to defendant's motion.

On October 4, 2021, the case was administratively adjourned, and the TOP was extended to October 7, 2021.

On October 7, 2021, the case was administratively adjourned, and the TOP was extended to October 19, 2021.

On October 19, 2021, the defendant appeared virtually in IDV2. The People were ordered to serve and file opposition papers to the defendant's motion no later than October 28, 2021. The court extended the TOP, and the case was adjourned to November 10, 2021, for a decision on defendant's motion and for the continued Huntley hearing.

On October 28, 2021, the People served and filed a supplemental COC.

CPL 30.30 "was enacted to serve the narrow purpose of insuring prompt prosecutorial readiness for trial, and its provisions must be interpreted accordingly" (People v Sinistaj, 67 NY2d 236, 239 [1986]; see People v Price, 14 NY3d 61, 64 [2010] ["the dominant legislative intent informing CPL 30.30 . . . (is) to discourage prosecutorial inaction"]). "CPL 30.30 (1) (a) requires the People to be ready for trial within six months of the commencement of [*3]a criminal action in which a felony is charged" and section 30.30 (1) (b) requires that the People be ready within 90 days in misdemeanor cases (Price at 63).

"The failure to declare readiness within the statutory time limit will result in dismissal of the prosecution, unless the People can demonstrate that certain time periods should be excluded" (People v Price at 63). Once a defendant sufficiently alleges that the People were not ready within the statutory period, "the People [have] the burden of showing their entitlement to a statutory exclusion" (People v Luperon, 85 NY2d 71, 81 [1995]; see People v Santos, 68 NY2d 859, 861 [1986]).

On January 1, 2020, CPL article 240 was replaced by CPL article 245. Notably, CPL 245.50 (3) requires the People to file a COC when they have fully provided the automatic discovery (CPL 245.50 [1]). Until the People file a COC, they cannot be deemed ready for trial (People v Ramirez-Correa, 71 Misc 3d{**73 Misc 3d at 1096}570 [Crim Ct, Queens County, Feb. 25, 2021]). In brief, "[w]hat constitutes 'trial ready' as of January 1, 2020, is not the same as when the People announced ready in . . . 2019" (People v Lobato, 66 Misc 3d 1230[A], 2020 NY Slip Op 50322[U], *4 [Crim Ct, Kings County 2020]).

CPL 30.30 was also amended to incorporate this change, and currently states that "[a]ny 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]). Once the COC is filed by the People, the defense may contest its validity on the record (id.).

In the case at bar, the defendant was arraigned on a misdemeanor complaint on March 8, 2021. The day of the arraignment is excluded from any speedy trial calculation (see People v Stiles, 70 NY2d 765 [1987]). Thus, the People had 90 days from March 9, 2021, to state "ready for trial" pursuant to CPL 30.30 minus any relevant exclusions.

March 9, 2021, through April 9, 2021 (31 Days Charged to the People)

The defendant was arraigned on March 8, 2021, and the People stated not ready. The case was adjourned to April 9, 2021, in DV-1C.

On April 9, 2021, the People failed to file a COC and were thus not ready for trial pursuant to CPL 30.30. The case was adjourned to May 7, 2021, in DV-1C for the filing of the COC. The case was then transferred and adjourned to April 27, 2021, in IDV2.

Thus, 31 days are chargeable to the People.

April 9, 2021, through April 27, 2021 (18 Days Charged to the People)

On April 27, 2021, the People failed to file a COC and were thus not ready for trial pursuant to CPL 30.30. The case was adjourned to June 10, 2021, for the filing of the COC.

Thus, 18 days are chargeable to the People.

April 27, 2021, through June 3, 2021 (37 Days Chargeable to the People)

It is undisputed that the People filed a COC, SOR and notice/disclosure form on June 3, 2021, with the court via email. The court must now determine whether the COC was properly served upon the defendant and whether the People fulfilled their discovery obligations prior to filing the COC.{**73 Misc 3d at 1097}

If valid, the People's COC and SOR would stop the CPL 30.30 clock and 37 days would be chargeable to the People, for a total of 86 days chargeable. If the People failed to provide the necessary discovery prior to serving and filing the COC, the People would have exceeded their CPL 30.30 speedy trial time and the case would be dismissed on 30.30 grounds.

The defendant concedes that the COC, SOR and a notice/disclosure form were filed by the People with the court and through the EDDS on June 3, 2021. However the defendant argues that the COC is nonetheless invalid because his attorney was not properly served with the COC and SOR via their service email address as demanded by the BDS office. The defendant contends that the COC was served on his attorney's work email address (igarcia@bds.org) at BDS, as well as IDVBDS.org, instead of the email address designated by BDS to receive service from the Kings County District Attorney's Office (KCDA) (service@bds.org).

The defendant contends that BDS and the KCDA mutually agreed to accept electronic service beginning on April 20, 2020, which was later reduced to writing (exhibit A to defendant's mot). The letter, signed by Nancy Hoppock, Chief Assistant District Attorney of Kings County, and Lisa Schreibersdorf, Executive Director of BDS, states as follows:

"On April 20, due to the COVID-19 pandemic and pursuant to CPLR Section 2103, the Kings County District Attorney's Office (KCDA) and Brooklyn Defenders Services (BDS) mutually agreed to accept electronic service of items that require 'legal service' including, but not limited to, statements of readiness, certificates of compliance, motion, 190.50 notices and other legal papers requiring service, as follows:

"BDS agreed to accept service of such items via email sent to service@bds.org. Each item or set-of papers being served on a case is to be sent as a separate email.

"KCDA agreed to accept service as follows:

"a) writs at CovidWritService@brooklynda.org

"b) Cross Grand Jury Notice at X190.50@brooklynda.org

"c) Motions and other items not listed in (a) or (b){**73 Misc 3d at 1098} but requiring legal service at MotionService@brooklynda.org

"This letter agreements serves to formalize the above agreement and governs electronic service between the parties. So long as KCDA or BDS has served a document pursuant to the terms of this letter agreement and has clearly identified the case related to the item served by the defendant's name and the docket number or indictment number, such service shall be valid service.

"Furthermore, KCDA and BDS agree that either office may withdraw their consent in writing with 10 days' notice to the other agency."

The defendant argues that pursuant to CPL 245.50 (3) "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." Subdivision one states that "[w]hen the prosecution has provided the discovery required by subdivision one of section 245.20 of this article . . . it shall serve upon the defendant and file with the court a certificate of compliance." Thus, the defendant contends that to file a proper COC sufficient to establish trial readiness for the purposes of CPL 30.30, the People must not only provide all required discovery, but they must also properly "serve" the COC on the defendant.

The defendant argues that since CPL article 245 is silent as to the means of service, the CPLR provides guidance as to electronic service. Specifically CPLR 2103 (b) (7) which states:

"(b) Upon an attorney. Except where otherwise prescribed by law or order of court, papers to be served upon a party in a pending action shall be served upon the party's attorney. Where the same attorney appears for two or more parties, only one copy need be served upon the attorney. Such service upon an attorney shall be made: . . .

"7. by transmitting the paper to the attorney by electronic means where and in the manner authorized by the chief administrator of the courts by rule and, unless such rule shall otherwise provide, such transmission shall be upon the party's written consent. The subject matter heading for each paper sent by electronic means must indicate that the matter being transmitted electronically is related to a court proceeding."

{**73 Misc 3d at 1099}The defendant contends that since BDS and KCDA agreed upon terms of service of court filings, including COCs, and those terms were not followed in this case the June 3, 2021 COC was not properly served and is thus invalid. The defendant further contends that since the June 3, 2021 COC is invalid, the CPL 30.30 clock did not stop on June 3, 2021, and thus the People are well over the 90 days required to state ready for trial.

The People contend that the June 3, 2021 COC was properly served upon the defense attorney's email address (igarcia@bds.org) and the email address for BDS' Integrated Domestic Violence cases (idv@bds.org) as well as the IDV2 Principal Court Attorney, Matthew Schwartz, Esq., and filed on EDDS.

The People argue that defense counsel acknowledged receipt and possession of the COC and SOR during the June 10, 2021 appearance, and in fact sought three weeks to controvert the People's COC and compliance with discovery. They contend that the defendant appeared again on August 9, 2021, and did not raise the issue of service until filing this motion on September 29, 2021, the day before the Huntley hearing. While the People admit that they did not use the specific email address agreed upon by BDS and the KCDA, they contend that the question of service on the BDS attorney or BDS organization does not affect the validity of the People's COC.

The People contend that while CPL 245.50 (1) requires the People to "serve upon the defendant and file with the court a certificate of compliance," the validity of that COC rests on whether "after exercising due diligence and making reasonable inquires 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." Furthermore, the People argue that CPL 245.50 (1) states 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." Thus, the People contend that the determination about whether a COC is proper is based on whether the People have made diligent, good faith efforts to meet their initial/automatic discovery obligations pursuant to CPL 245.20 (1), not on how the People served the COC.

The People argue that because they filed a proper COC, their SOR is not illusory. They argue that CPL 245.50 (3) states that{**73 Misc 3d at 1100} "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 People contend that courts have held that with regard to statements of readiness, "[i]t is the filing of the statement, not service, that is critical, and all that is required is 'prompt' notice to defense counsel." The People argue that in order to announce their readiness for trial, they must [*6]communicate their readiness on the trial court's record either by a SOR in open court or through a written notice of readiness sent by the prosecutor to defense counsel and the appropriate court clerk and that they met these requirements when they filed their COC and SOR via EDDS on June 3, 2021, and gave prompt notice to the defense via email at the attorney of record's email address which is more direct notice. BDS cannot hide behind this agreement now, months after the COC was allegedly served and filed when their request for time to challenge the COC was granted by the court.

The People argue that the defense has not demonstrated that they suffered any prejudice by receiving the COC and SOR via the defense counsel's direct email address rather than via service@bds.org. The People contend that they served and filed their COC after making diligent, good faith efforts to ascertain the existence of, obtain, and disclose all discoverable materials, and therefore, this court should find that the People's COC and discovery are proper.

The People have a duty to bring a case to trial within the authorized speedy trial time. Their failure to do so results in dismissal of the charges against the defendant. Under CPL 30.30, the People satisfy their obligation once they declare their readiness for trial (People v Giordano, 56 NY2d 524 [1982]). The People are "ready" for trial when they serve "either a SOR by the prosecutor in open court, transcribed by a stenographer, or recorded by the clerk or a written notice of readiness sent by the prosecutor to both defense counsel and the appropriate court clerk" (People v Chavis, 91 NY2d 500, 505 [1998]). The People must "in fact be ready to proceed at the time they declare readiness" (id.). The People's declaration of readiness is "presumed truthful and accurate" and "a defendant who challenges such a statement must demonstrate that it is illusory" (People v Brown, 28 NY3d 392, 405 [2016]).{**73 Misc 3d at 1101}

Since January 1, 2020, pursuant to CPL article 245, CPL 30.30 conditions the People's declaration of readiness for trial on satisfying their significantly expanded discovery obligations (see CPL 30.30 [5]). The People are also required to file and serve a written certificate demonstrating their compliance with those discovery obligations (id.). However, CPL 30.30 and 245.50 are silent as to what constitutes proper service of the COC.

When determining a question of statutory interpretation, the court's primary consideration "is to ascertain and give effect to the intention of the Legislature" (McKinney's Cons Laws of NY, Book 1, Statutes § 92). It is well-settled that "[t]he statutory text is the clearest indicator of legislative intent" and the court "should construe unambiguous language to give effect to its plain meaning" (Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d 653, 660 [2006]).

This court is well aware of the legislative history and the sweeping changes enacted in 2019 regarding CPL 30.30 and article 245, which went into effect on January 1, 2020. In their papers, both the defendant and the People attempt to decipher for this court the intent of the legislators in drafting these statutes in an attempt to sway this court to adopt their interpretation. It is clear that the statute requires the People to "serve and file" the COC; the question is whether the court must adhere to the private agreement entered into between BDS and the KCDA or whether the court has discretion in determining whether a particular method of service is proper and whether service by email to the BDS service address was waived by the defendant when the defense attorney acknowledged service of the COC by asking for three weeks to respond to the COC on June 10, 2021.

Both the defendant and the People have cited a March 21, 2021 letter outlining the terms of electronic service between BDS and the KCDA. This "letter," which has never been presented to the court or approved by the court in any fashion, is now being utilized by the defendant in an attempt to dismiss his criminal case despite the actual admitted notice received by his assigned counsel. Furthermore, the defendant is unable to cite to any statute wherein the court must adhere to a private agreement between the People and the defense attorney in terms of the method of service of a criminal court document.

Here, the People acknowledged that they served the COC on the defense attorney's work email address and the defense attorney{**73 Misc 3d at 1102} acknowledged receipt of the COC on not one, but two court appearances. It was not until the day before the Huntley hearing was to commence that the defense raised the issue of improper service in the underlying motion. The defendant's argument that he was in any way prejudiced by the People's alleged violation of a service agreement between BDS and KCDA is belied by his attorney's acknowledgement of receipt of the COC and by their request for three weeks to respond in writing. The defense attorney did not move to dismiss the criminal case on the grounds that the COC had been improperly served until the day before the Huntley hearing, because the COC had in fact been served on defense counsel and filed with the court on June 3, 2021, when counsel received it via email to her work email address and acknowledged receipt on the record.

The court's acceptance of service by email to the assigned defense attorney's designated work email address is in accord with the court's discretionary powers to bring about the intent of the legislature in implementing the laws they pass. (See e.g. CPL 245.35 [4] ["(t)o facilitate compliance with this article . . . the court in its discretion may issue an order . . . (r)equiring other measures or proceedings designed to carry into effect the goals of this article"].) The court is also ever cognizant of the need to interpret statutes to not bring about absurd results, which would be the effect of dismissing a valid accusatory instrument because service was made to the defense attorney's valid work email address, rather than a separate service email address. (See People v Santi, 3 NY3d 234, 244 [2004] ["we must interpret a statute so as to avoid an 'unreasonable or absurd' application of the law"].)

At no point prior to filing the motion to dismiss on September 29, 2021, almost four months from the filing of the June 3, 2021 COC, did the defendant challenge the validity of service of the People's COC or SOR on their designated email address. Furthermore, the court inquired of defense counsel during the court appearance on June 10, 2021, once the People stated on the record that the COC had been served and filed, as to whether they would challenge any aspect of the COC and gave them three weeks to do so. The defendant did not challenge any aspect of the People's COC within those three weeks.

[1] While this court acknowledges that during the COVID-19 pandemic an agreement such as the one entered into between the KCDA and BDS would be appropriate to ensure service of{**73 Misc 3d at 1103} certain documents, the People's failure to follow the agreement in this case is not fatal. The severity of the charges against the defendant, who is alleged to have assaulted the CW while holding the parties' child, the plain reading of the statute and the interests of justice require that this court permit the People to serve the COC to the assigned defense attorney's work email address as opposed to the BDS service address especially given the fact that the assigned defense attorney at BDS received the COC via her direct email and requested time to challenge the COC in open court.

As such, the People properly served and filed the COC on June 3, 2021.

The court must now determine whether the People were required to disclose certain materials as a prerequisite for filing a valid COC.

CPL 245.20, effective January 1, 2020 (amended on May 3, 2020), requires the People to disclose 21 categories of discoverable material to the defendant "as soon as practicable" but not later than a fixed period of time. CPL 245.20 (1) (k) provides in pertinent part:

"Information under [CPL 245.20 (1) (k)] shall be disclosed whether or not such information is recorded in tangible form and irrespective of whether the prosecutor credits the information. The prosecutor shall disclose the information expeditiously upon its receipt and shall not delay disclosure if it is obtained earlier than the time period for disclosure in subdivision one of section 245.10 of this article."

However, the court must determine what evidence is "relate[d] to the subject matter of the case" (CPL 245.20 [1]). "[T]he Court of Appeals [has] held that evidence is relevant 'if it has any tendency in reason to prove the existence of any material fact, i.e., it makes determination of the action more probable or less probable than it would be without the evidence.' " (People v Askin, 68 Misc 3d 372, 380 [Nassau County Ct 2020].)

The sole "condition precedent to the prosecutor's ability to file a COC is the discovery of all material considered [a]utomatic [d]iscovery" (People v Napolitano, 67 Misc 3d 1241[A], 2020 NY Slip Op 50802[U], *3 [Sup Ct, NY County 2020]).

CPL 245.20 (2) provides, in relevant part:{**73 Misc 3d at 1104}

"Duties of the prosecution. The prosecutor shall make a diligent, good faith effort to ascertain the existence of material or information discoverable under subdivision one of this section and 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. For purposes of subdivision one of this section, 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."

Any assessment of a prosecutor's due diligence with discovery compliance must be considered in conjunction with the provisos contained within CPL 245.55 (1) and (2) including whether the People made good faith efforts to provide evidence, including impeachment material, relevant to the defendant's case (People v Rosario, 70 Misc 3d 753, 756 [Albany County Ct 2020]).

CPL 245.55 (1) provides in relevant part:

"The 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, including, but not limited to, any evidence or information discoverable under paragraph (k) of subdivision one of section 245.20 of this article."

Furthermore, CPL 245.50 now requires the People to state their readiness for trial, in writing, by serving and filing a COC which "shall state 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. It shall also identify the items provided" (CPL 245.50 [1]).

The sole "condition precedent to the prosecutor's ability to file a COC is the discovery of all material considered [a]utomatic [d]iscovery" (People v Napolitano, 2020 NY Slip Op{**73 Misc 3d at 1105}50802[U], *3). The filing of a certificate of compliance with discovery is a prerequisite to asserting trial readiness under CPL 30.30 (see CPL 245.50 [3]).

The defendant contends that the NYPD paper work identified 11 police officers with information relating to this case. The defendant argues that the People provided "Disclosure Letters" containing summaries of substantiated NYPD allegations of misconduct for six of these officers. The defendant contends that the "Disclosure Letters" provided are insufficient and that the People are now required, pursuant to CPL 245.20 (1) (k), to provide further underlying NYPD records as part of their discovery obligations. This includes all underlying records for substantiated and unsubstantiated misconduct complaints where such evidence or information tends to impeach the credibility of a testifying officer.

The defendant argues that the People have a duty and had the opportunity to request materials, namely disciplinary records, in the possession of law enforcement since the inception of this case. The defendant maintains that he has not been served with any disciplinary records of the officers involved in this case, despite the assigned ADA certifying that she has provided the defense with discovery of "all items and information that related 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 defendant contends that pursuant to CPL 245.20 (2), this would include the disciplinary records in possession of state and local law enforcement for each officer involved in the arrest.

The defendant contends that the People failed to take the essential first step of reviewing the records to ensure that nothing subject to section 245.20 (1) (k), nor any Brady material, was included in the now-public misconduct records. The defendant argues that he does not have any indication that the assigned ADA reviewed the underlying records to ascertain whether they constituted material that would fall under the "wide umbrella" of section 245.20 (1) (k).

Thus, the defendant contends that the extent to which any Giglio information constitutes impeachable material remains unknown and the People cannot certify that they have made available all discoverable material. The defendant argues that the assigned ADA was placed on notice of the existence of such{**73 Misc 3d at 1106} records, as she sent defendant disclosure letters for the officers which were sparsely detailed, and the failure to provide these records invalidates the June 3, 2021 COC.

The People contend that they satisfied their obligation under this section when they provided to the defendant disclosure letters listing all pending and substantiated complaints against each of the officers who took part in this case and may be called upon by the People to testify at a hearing or trial.

The People contend that CPL 245.20 (1) (k) does not require the People to disclose [*10]unsubstantiated, unfounded or exonerated complaints against police officers because those allegations do not tend to impeach the credibility of the witness.

The People further argue that unsubstantiated, exonerated, and unfounded complaints do not tend to impeach the credibility of a witness, and this is the reason they are not discoverable under article 245, not because such disclosure had been previously restricted by Civil Rights Law § 50-a. The effect of the repeal of section 50-a is that the defense is now at liberty to submit a Freedom of Information Law request for such records. They contend that, as with the disclosure of unsubstantiated, unfounded, and exonerated complaints, the June 12, 2020 repeal of Civil Rights Law § 50-a does not change the conclusion that article 245 does not require the disclosure of all underlying disciplinary records.

The People contend that were the court to accept the defendant's overly expansive interpretation of section 245.20 (1) (k) and require the People to obtain and disclose all underlying records of all misconduct complaints against all testifying prosecution witnesses, the impact on the criminal justice system would be debilitating. It would render prosecution of even the most factually simple case a mandate to disclose untold quantities of information that would be irrelevant to the prosecution or to the defense of the case.

"CPL 245.20 (1) (k) (iv) provides, as relevant here, that the People must disclose to the defense '[a]ll evidence and information, including that which is known to police or other law enforcement agencies acting on the government's behalf in the case, that tends to . . . impeach the credibility of a testifying prosecution witness.' . . . As with all of the other automatic discovery provisions, the People are only{**73 Misc 3d at 1107} required to produce information that is in their 'possession, custody or control,' or the possession, custody or control of other entities under the People's 'direction or control' (CPL 245.20 [1])." (People v Lustig, 68 Misc 3d 234, 241-242 [Sup Ct, Queens County 2020].)

[2] In the case at bar, the court holds that the Giglio disclosure letters provided by the People are adequate and satisfy the People's automatic initial discovery burden by providing all substantiated and pending complaints against testifying police officers (People v Knight, 69 Misc 3d 546, 550 [Sup Ct, Kings County 2020]). The People are not required "to conduct disciplinary inquiries into the general conduct of every officer working the case" (People v Garrett, 23 NY3d 878, 890 [2014], quoting United States v Robinson, 627 F3d 941, 952 [4th Cir 2010]). To do so "would impose an unacceptable burden upon prosecutors that is likely not outweighed by the potential benefits defendants would enjoy from the information ultimately disclosed on account of the People's efforts" (id. at 891).

The defendant contends that BWC chain of custody records, or audit trails, are collected by a private company, Axon, which contracts with the NYPD. The defendant argues that these audit trails include metadata that must be produced by the People to the defense. The defendant argues that BWC audit trails record all the actions NYPD officers take with respect to the BWCs and recordings, including when the recording was uploaded, when the recording was viewed, whether the recording has been edited, who the recording has been shared with, whether the officer added notes to the recording, and more.

The defendant argues that the People routinely provide chain of custody documentation for physical evidence, and this court should require them to do the same for the BWC video evidence in this case. The defendant contends that BWC audit trails "relate to the subject matter [*11]of the case" under CPL 245.20 (1) because they provide the chain of custody documentation for the People's BWC video evidence. He contends that the BWC audit trails help establish the authenticity and accuracy of BWC videos in the same way that traditional chain of custody records do for physical evidence such as drugs or firearms.{**73 Misc 3d at 1108}

The defendant further argues that BWC audit trails are digital records that were "obtained" within the meaning of CPL 245.20 (1) (u) (i) by the NYPD and based upon the statute, the People are required to disclose "all electronically created or stored information seized or obtained by or on behalf of law enforcement from . . . a source other than the defendant which relates to the subject matter of the case" (CPL 245.20 [1] [u] [i] [B]). The defendant argues that the NYPD procured the audit trails for these officers' BWCs when it purchased a subscription from Axon and negotiated the terms of its user agreement with the company. The defendant contends further that by entering into a contract with Axon for an evidence.com account, the NYPD "procured through effort" BWC audit trails which must be disclosed to the defendant.

The People contend that audit trails are a form of "metadata" which in turn are electronically created or stored information (ESI). The People contend that the BWC audit trails are not discoverable under CPL 245.20 (1) (u), which required the disclosure of ESI that is "seized or obtained" by law enforcement from the defendant or a third party, and here, law enforcement has not seized or obtained BWC audit trails from the defendant or a third party.

The People contend that paragraph (u) contemplates materials such as electronic information found on a phone or a computer that law enforcement has taken from the defendant or a third party, such as texts, emails, documents and photographs. The People argue that BWC audit trails by comparison are comprised of data that is created by law enforcement's own BWC technology.

The People further argue that several paragraphs of CPL 245.20 (1) require the People to disclose materials and information that were specifically "made" by or on behalf of law enforcement, but paragraph (u) uses the term "seized or obtained" by or on behalf of law enforcement. The People contend that under the defendant's reading of paragraph (u) the People must disclose ESI beyond what law enforcement had seized or obtained from the defendant or a third party; the People would have to turn over metadata for every software and hardware that every law enforcement agency involved in the case utilizes on a day-to-day basis.

The People concede that the BWC recordings are "electronic recordings" that must be disclosed under CPL 245.20 (1) (g), but contend that the statute requires the People to disclose{**73 Misc 3d at 1109} only the electronic recordings themselves, not the metadata associated with the recordings. The People argue that disclosure of BWC recordings provides the defendant with all the relevant information about the recording, including a time and date stamp banner that is visible for the duration of the recording. The People argue that there is a 30 second buffer period when the camera is turned on by the officer, but other than turning the camera on and off and tagging or categorizing recordings, the officer has no ability to alter or edit a recording, nor does anyone in their chain of command.

The People dispute the defendant's contention that BWC audit trails are related to the subject matter of the case, since the balance of the audit trail information bears no relevance to the facts or issues in the case against the defendant. The People have provided all BWC footage and tags, and contend that the audit trails relating to this footage contain no information relating to the subject of the case and thus are not required to be provided to defense counsel.

[*12]

Generally, courts have held that BWC footage is discoverable pursuant to CPL 245.20 (1) (g). However, the statute does not specifically mention the terms "audit trails" or metadata. BWC audit trail data describes the history, tracking and management of the BWC itself. This data is created by a third-party vendor and not stored by the NYPD.

[3] This court concurs with the holding of the Honorable Matthew D'Emic in People v Larkin (72 Misc 3d 663 [Sup Ct, Kings County 2021]) who held that

"the audit trail of body camera footage offers no additional information regarding the subject matter of the criminal case—a consideration that strongly militates against mandating the automatic disclosure thereof. Moreover, there is little reason to believe that the audit trail is necessary for authentication purposes; when and by whom the body camera footage was recorded is not in question and the video is time and date stamped. Therefore, absent a particularized showing that the audit trail is likely to contain information that is relevant to the crime(s) charged which cannot be ascertained from the footage itself, it is not discoverable." (Id. at 667-668.)

The court concurs with the People that the BWC audit trails do not relate to the subject matter of the case, as the BWC{**73 Misc 3d at 1110} footage is self-authenticating, and the defendant has provided no evidence that the audit trails would relate to the defendant or any of the crimes charged.

Furthermore, the court concurs with the People's contention that the BWC audit trails are not required to be turned over pursuant to CPL 245.20 (1) (u) (i) (B) as that statute relates to information "seized or obtained" by or on behalf of law enforcement not information electronically generated by law enforcement personnel.

Thus, the People discharged their duty by furnishing the defendant with relevant body camera footage (Larkin at 666).

This court holds that the People properly served and filed their COC on June 3, 2021, by serving and filing same via email to the assigned defense attorney's work email address and uploading the documents through EDDS.

Furthermore, the court holds that the People satisfied their discovery obligations in relation to the Giglio and BWC disclosures such that they properly certified compliance on June 3, 2021.

Thus, the People are charged with 31 days from March 9, 2021, the day after the defendant's arraignment, through the April 9, 2021 adjourn date since a COC and SOR were not filed by that date.

The People are charged with 18 days from April 9, 2021, through the April 27, 2021 adjourn date since a COC and SOR were not filed by that date.

The People are charged with 37 days from April 27, 2021, through June 3, 2021, the date of the service and filing of the COC and SOR.

As such, the People are charged a total of 86 days and have not exceeded their CPL 30.30 speedy trial time.

For the foregoing reasons, this court hereby denies defendant's motion to dismiss in its entirety without a hearing.