By indictment filed on November 4, 2020, defendant was charged with criminal possession of a weapon in the second degree, a class C armed violent felony (Penal Law § 265.03 [3]) and criminal possession of a weapon in the third degree, a class D felony (Penal Law § 265.02 [1]). By motion, defendant challenges the validity of the People's November 10, 2020 certificate of compliance (CoC) and concomitant statement of trial readiness (STR). The People oppose.

A CoC "serves only one practical purpose: [i]t is a necessary prerequisite to a valid statement of readiness under C.P.L. § 30.30" (People v Barnett, 68 Misc 3d 1000, 1002 [*2][Statsinger, J, Sup Ct, July 20, 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), NY Slip Op 50802(U) [Paek, J, Sup Ct, June 11, 2020]).

Defendant argues, inter alia, that the People failed to act with due diligence in ascertaining the existence of impeachment material for their law enforcement witnesses. While the People oppose, they have recently filed a new CoC, effectively demonstrating that the November 10, 2020 CoC was invalid and the associated declaration of readiness illusory. Accordingly, defendant's motion is granted, and the People's November 10, 2020 CoC deemed invalid and the concomitant STR is deemed illusory and consequently, speedy trial time has continued to accrue.^[FN1] Motion granted.

The required judicial inquiry testing the People's "actual" trial readiness (see CPL 30.30 [5]; CPL 245.50) as set forth in the March 4, 2021 CoC will be scheduled by the court.

As in People v Quinlan, 2021 NY Slip Op 21020, 2021 WL 417125 (Gray, J Bronx Crim Ct, Jan 29, 2021) and People v DeSean Cooper, Ind. No. 00853-2020 (Eagan, JCC Erie Co Ct, Feb 23, 2021), this case also turns on the issue of what constitutes the People's possession of material and what is known to the People.^[FN2] Discovery compliance now requires the People, upon disclosing "all known" materials, to certify that due diligence was exercised to ascertain the existence of any other materials (see People v Adrovic, 69 Misc 3d 563 [Kitsis, J., NY Crim Ct, Sept 3, 2020]). CPL 245.20 (2) provides, in relevant part:

"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 " [emphasis added]; see also CPL 245.55 [1], [2])

The People's March 4, 2021 CoC provides, in pertinent part:

"All known and available material and information required to be disclosed pursuant to CPL §245.20(1) and not subject to a CPL § 245.70 protective order, has now been disclosed or made available to the defendant. The People will continue to seek and provide any materials known or suspected to exist which are not in our actual possession" (Mar 4 CoC bulleted Para 2 [emphasis added]).

"Any outstanding materials which may exist will be provided as they come into our actual possession" (Mar 4 CoC bulleted Para 3 [emphasis added]).

At the forthcoming required judicial inquiry pertaining to the People's March 4, 2021 CoC (see CPL 30.30 [5]; CPL 245.50), the prosecutor should, at a minimum, be prepared to explain how the above factual assertions harmonize with each other and with the People's self-imposed limits on the scope of inquiry and disclosure of known materials as set forth in Para 68 of the Rossi Affirmation. Assuming harmonization is possible, the next and dispositive issue becomes whether the People's actions to date comply with the plain text and spirit of CPL Article 245 as well as the holdings in People v Quinlan (supra) and People v Cooper (supra), the reasoning and analysis of which this court concurs.

"[R]egardless of whether the People have actual possession of discoverable material and information from law enforcement, such material and information is statutorily deemed to be in [*3]the People's possession" (People v Quinlan, supra at *4 [emphasis in original]; see CPL 245.55 [1], [2]). "'[W]hat the People may not do is file a certificate of compliance in which they claim to have exercised due diligence and turned over 'all known material and information,' while at the same time not actually turning over all known material and information'" (People v Quinlan, supra at *3, quoting People v Adrovic, 69 Misc 3d 563, 574 (Kitsis, J, NY Crim Ct Ct 2020]). As succinctly stated by Judge Eagan, "[t]he People may not withhold known material and information subject to automatic discovery and expect the court to accept a certificate of compliance and statement of trial readiness" (People v Cooper, supra at 7).

The above constitutes the decision and order of this court.