Justice Court of the Town of Greenburgh, Westchester County, February 2, 2022

Michael Borrelli for defendant.

Miriam Rocah, District Attorney (Courtney Johnson of counsel), for plaintiff.

Defendant moves to dismiss the misdemeanor information pursuant to Criminal Procedure Law § 170.30 (1) (e), alleging that his right to a speedy trial was violated (see CPL 30.30 [1] [b]). Defendant claims, in pertinent part, that the People's December 11, 2020 certificate of compliance (COC) was not proper, and the People's statement of readiness was therefore illusory because evidence subject to mandatory discovery, to wit, a tape recording of a conversation between the investigating detective and the complainant, was belatedly disclosed on October 27, 2021 (see CPL 245.20 [1] [e]). Defendant argues that the People did not exercise due diligence before filing the December 11, 2020 COC. The People oppose, averring that the COC was proper and filed in good faith, after exercising due diligence and making reasonable inquiries to ascertain the existence of all known materials required to be turned over (see CPL 245.50 [1]). The court must determine whether the December 11, 2020 COC is proper, and if it is, whether a remedy is appropriate pursuant to CPL 245.80. If the original COC was invalid, dismissal of the accusatory instrument is warranted (CPL 30.30 [1] [b]).

Defendant is charged with the A misdemeanor of forcible touching (Penal Law § 130.52 [1]) and the B misdemeanor of sexual abuse in the third degree (Penal Law § 130.55). Defendant was arraigned on October 6, 2020, at which time he entered a plea of not guilty and the matter was adjourned at the People's request to October 16, 2020. On October 16, 2020, defendant was virtually present before this court and the People requested an adjournment to October 30, 2020, with defendant{**74 Misc 3d at 714} requesting a further adjournment to November 6, 2020, due to defense counsel's unavailability. On November 6, 2020, defendant was virtually present before this court and was arraigned on a superseding misdemeanor information. The People requested an adjournment to November 20, 2020, with defendant requesting a further adjournment to December 11, 2020, due to defense counsel's unavailability. On December 11, 2020, defendant [*2]was virtually present before this court and the People filed a certificate of compliance and statement of trial readiness. After making the requisite inquiry and affording the defense an opportunity to be heard, the court deemed the People ready for trial without any defense objections (see CPL 30.30 [5]). Defendant requested an adjournment to January 29, 2021, for investigation.

On January 29, 2021, defendant requested a jury trial. All parties were aware that no jury trials were yet taking place in any town or village court in the 9th Judicial District due to the COVID-19 pandemic. As such, the case was adjourned to April 23, 2021, as the court awaited approval by the 9th Judicial District Administrative Judge to recommence jury trials. Thereafter, the case was adjourned multiple times for jury trial approval. Finally, on September 10, 2021, upon receipt of approval for this court to proceed with jury trials, the matter was adjourned with the defendant's express consent to November 15, 2021, for trial.

Defendant and the People agree that on October 27, 2021, the People provided defense counsel with additional discovery material, specifically a tape-recorded phone call between Detective Albano and the complaining witness. Defense counsel states that a portion of this recorded call is corrupted; the People are silent on this fact. At defendant's request, the case was advanced to November 3, 2021, at which time defense counsel requested a motion schedule related to the instant motion to dismiss. On November 12, 2021, the People filed a supplemental COC. On November 17, 2021, defendant filed the instant motion, with the People filing an affirmation in opposition and memorandum of law on December 15, 2021, and defendant filing an affirmation in reply on December 29, 2021.

When a defendant is charged with a misdemeanor punishable by more than three months imprisonment, as defendant is in this case, the People have 90 days from the commencement{**74 Misc 3d at 715} of the criminal action to declare their readiness for trial (CPL 30.30 [1] [b]; Penal Law § 70.15 [1]). "A criminal action is commenced by the filing of an accusatory instrument against a defendant in a criminal court" (CPL 1.20 [17]). If the People fail to declare readiness within 90 days, then upon motion of defendant the matter must be dismissed, unless the People demonstrate that certain time periods are excludable from the speedy trial calculation (see People v Berkowitz, 50 NY2d 333, 349 [1980]; see also People v Brown, 28 NY3d 392 [2016]). Adjournments at the defendant's request are excludable, as are periods of delay granted by the court with the consent of the defendant or his/her counsel, and adjournments relating to pretrial motions (CPL 30.30 [4] [a], [b]).

To be ready for trial, the People must file a "certification of good faith compliance" consistent with the discovery requirements of CPL 245.20, the People must state its readiness on the record, and the court must conduct an "inquiry on the record as to [its] actual readiness" (CPL 30.30 [5]). The COC must 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" (CPL 245.50 [1]). Notably, "the prosecution shall not be deemed ready for trial . . . until it has filed a proper [COC]" (CPL 245.50 [3]). If the prosecutor subsequently provides defendant with additional discovery material, the prosecutor must file a supplemental COC (CPL 245.50 [1]).

Here, 66 days passed from arraignment to the People filing the original COC and declaring readiness on December 11, 2020. Of those 66 days, 39 days are chargeable to the [*3]People, as defendant expressly requested adjournments totaling 27 days due to counsel's unavailability on the dates requested by the People, which reasons defense counsel placed on the record (see People v Brown, 73 Misc 3d 131[A], 2021 NY Slip Op 50965[U] [App Term, 1st Dept 2021]; Matter of People ex rel. LaBrew v Vance, 192 AD3d 645, 645 [1st Dept 2021] ["(R)egardless of whether the People declared their readiness, the adjournments . . . were excludable based on defense counsel's consent"]).^[FN1]

{**74 Misc 3d at 716}Post-readiness delays are treated differently in some respects. Post-readiness delays due to "calendar congestion and lack of . . . court facilities" are excluded from the CPL 30.30 calculation (People ex rel. Franklin v Warden, Brooklyn House of Detention for Men, 31 NY2d 498, 501 [1973]). After the People announced readiness on December 11, 2020, defendant requested an adjournment to January 29, 2021, for investigation.^[FN2] This period is excluded regardless of the People's readiness as an adjournment on consent (Matter of People ex rel. LaBrew v Vance, 192 AD3d at 645). On January 29, 2021, defendant requested a jury trial. At that time, all town and village courts in the 9th Judicial District required individual approval by the Administrative Judge before holding a jury trial. To receive approval, the court had to demonstrate that it had the facilities necessary to ensure the safety of all participants and the jurors considering the ongoing COVID-19 pandemic. On September 10, 2021, the Administrative Judge approved jury trials in the Greenburgh Town Court, and the parties were notified. A November 15, 2021 trial date was set with the consent of the parties.^[FN3]

Since the adjournments from January 29, 2021, to November 3, 2021 (when defendant requested a motion schedule and stopped the speedy trial clock), were attributable to lack of court facilities to hold a trial, they must be excluded from the CPL 30.30 calculation if the People were in a post-readiness posture. Therefore, defendant's motion to dismiss hinges on the validity of the December 11, 2020 COC. If the COC was not proper, then the People were in a pre-readiness posture, and the entire adjournment period of 278 days from January 29, 2021, to November 3, 2021, is chargeable. When added to the{**74 Misc 3d at 717} chargeable delays before December 11, 2020, that would bring the total days charged to the People to 307 days—well beyond the 90 [*4]days permitted by statute and dismissal must be granted.

"[N]umerous 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" (People v Rodriguez, 73 Misc 3d 411, 416 [Sup Ct, Queens County 2021], citing 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 Gonzalez, 68 Misc 3d 1213[A], 2020 NY Slip Op 50924[U] [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], and People v Davis, 70 Misc 3d 467, 474-480 [Crim Ct, Bronx County 2020]). Moreover, the discovery statute "should not be construed as an inescapable trap for the diligent prosecutor" (Erby, 68 Misc 3d at 633). Rather, "good faith, due diligence, and reasonableness under the circumstances are the touchstones by which a certificate of compliance must be evaluated" (Rodriguez, 73 Misc 3d at 417).

In its affirmation, the People clearly articulate its "efforts to comply with CPL 245.20 (1) with respect to the statutory subsections or specific items of discovery at issue" (Rodriguez at 417). The People also established its good faith compliance "by recounting the steps [it] took to obtain certain materials or ascertain the existence thereof, [and] explaining the reasons why particular items are outstanding, lost or destroyed" (Rodriguez at 417; see also People v Ryklin, 72 Misc 3d 1208[A], 2021 NY Slip Op 50678[U], *2 [Sup Ct, Kings County 2021] ["(T)he failure to provide a 911 call, or two 911 calls, does not per se invalidate a certificate of compliance"]).

Here, the People detail the efforts of the Westchester County District Attorney's Office, and ADA Courtney Johnson, to secure discoverable material before filing the COC. In her uncontroverted affirmation, ADA Johnson avers that since the inception of the case she had an open dialogue with Detective Albano, the detective assigned to the case. ADA Johnson further affirms that because of this ongoing communication, she learned on December 4, 2020 (before the People filed the COC), about a supplemental, amended statement made by the complainant. ADA Johnson immediately requested that this{**74 Misc 3d at 718} document be provided to the People to disclose to defendant. Then, in further review of the file, ADA Johnson discovered that there were yet additional missing items, including a booking photograph, booking report, and fingerprint rap sheet, which the prosecutor immediately requested from the Greenburgh Police Department (GPD), so that these documents could be provided to defendant. The communications between ADA Johnson, Detective Albano, and GPD members were confirmed by emails attached as unnumbered exhibits to the People's affirmation. The People also attached receipts confirming the electronic transfer of these documents to defense counsel, and an email from Jack Algaba from GPD to the People stating, "it appears you [the People] have everything related to [the] case" (affirmation in opp of ADA Courtney Johnson, unnumbered exhibit).

When Detective Albano informed the People on October 14, 2021, that her initial contact with the complainant took place over the phone, for the first time she revealed that the call "may" have been recorded. The People immediately made inquiries of GPD to see if such recording existed (Johnson affirmation at 7). The recording was located by GPD and provided to the People the very next day, according to an email sent from Mike Marino of GPD to both ADA Johnson and Detective Albano (Johnson affirmation, unnumbered exhibit) who were both previously unaware of its existence. A copy of the audio was provided to defense counsel on October 27, 2021, and on November 12, 2021, the People filed a supplemental COC with the court and defense counsel.

The prosecutor in this case has demonstrated that she acted with due diligence, in good faith, and reasonably under the circumstances, when she took multiple steps prior to filing the COC to ensure that the People were in possession of all known discoverable material, including having an ongoing dialogue with the investigating detective. In fact, because of these communications, as well as her independent review of the file, when additional discoverable material became known, ADA Johnson immediately procured the materials and expeditiously furnished them to defense counsel. Based on the submissions, the fact that ADA Johnson and the District Attorney's Office were unaware of the possibility that the recorded call existed before October 14, 2021, remains unchallenged.

Defense counsel claims, in reply, that the People are "deemed" to be in possession of all items in the possession of{**74 Misc 3d at 719} the police department (CPL 245.20 [2]), and that the court's inquiry should cease there, since the police department's knowledge of the recording must be imputed to the People. Asserting that this issue is dispositive of the People's actual readiness on December 11, 2020, the court declines to follow this reasoning.

The court's primary consideration in determining a question of statutory interpretation "is to ascertain and give effect to the intention of the Legislature" (McKinney's Cons Laws of NY, Book 1, Statutes § 92). While the "statutory text is the clearest indicator of legislative intent" and courts "should construe unambiguous language to give effect to its plain meaning" (Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d 653, 660 [2006]; see also Roberts v Tishman Speyer Props., L.P., 13 NY3d 270, 286 [2009]), "[c]ourts must interpret new laws as part of a symmetrical and coherent regulatory scheme" (People v Weston, 66 Misc 3d 785, 787 [Crim Ct, Bronx County 2020, Hartofilis, J.], citing Yatauro v Mangano, 17 NY3d 420 [2011]), and different parts of the same act, though contained in different sections, are to be construed together as if they were all in the same section (see McKinney's Cons Laws of NY, Book 1, Statutes § 130).

As such, when reviewing the new discovery law in its totality, Criminal Procedure Law § 245.50 acknowledges the possibility that not all discoverable material will be turned over to the defense prior to filing a COC. The statute permits the filing of a COC even when discoverable material is "lost or destroyed" or subject to a protective order (CPL 245.50 [1]).

"While recognizing that some discovery may not be provided to the defense, CPL § 245.50(1) makes no allowance for COC non-filing. Even where some discovery items are not provided to the defense, the People's COC filing obligation remains. The People must still 'exercis[e] due diligence and mak[e] reasonable inquiries' and then provide the defense with all 'known material and information' " (People v Surgick, 73 Misc 3d 1212[A], 2021 NY Slip Op 51007[U], *1 [Albany City Ct 2021], quoting CPL 245.50 [1]).

Pursuant to this reasoning, the Surgick court reasoned that a COC was not invalidated for the belated disclosure of discoverable material not previously known to the prosecution (2021 NY Slip Op 51007[U], *2 ["(I)t appears that the People fully complied with (its) continuing duty to investigate and disclose.{**74 Misc 3d at 720} Because the People demonstrated that (its) 'additional radio transmissions' were disclosed in good faith and reasonable under the circumstances, 'no adverse consequences shall result' (CPL 245.50 [1]) and Defendant's objections are rejected"]).

While CPL 245.20 deems all material in the possession of a law enforcement agency to be in the possession of the People, CPL 245.50 (1) is equally clear that a prosecutor files a valid COC if she discloses and makes available "all known material and information subject to discovery" (emphasis added). The drafters of the discovery statute thought it appropriate to [*6]distinguish between "possession" and "knowledge." Therefore, this court will do the same. Since the People, after exercising due diligence by making reasonable inquiries and acting in good faith, were unaware of the recorded call, the People provided all known material to defense counsel on December 11, 2020.

To read CPL 245.50 any other way would also fly in the face of CPL 245.80 (3), which provides specific remedies for the prosecution failing to disclose the recorded statement of a testifying witness. In relevant part, the statute provides that the prosecutor's failure to disclose such a statement before trial

"shall not constitute grounds for any court to order a new pre-trial hearing or set aside a conviction, or reverse, modify or vacate a judgment of conviction, in the absence of a showing by the defendant that there is a reasonable possibility that the non-disclosure materially contributed to the result of the trial" (CPL 245.80 [3]).

If the legislature determined that discovery of a new statement, even after trial, does not constitute grounds for a new trial, then it would be illogical to interpret CPL 245.50 to effectively mandate dismissal of an entire case if the same evidence was discovered before trial. Since here, even after exercising due diligence, the People had no actual knowledge of the recording when they filed the COC, the recording's existence has no bearing on the COC's validity.

Defendant's proffered interpretation of the statute would also run counter to the People's continuing statutory duty to disclose under CPL 245.60. Pursuant to this section, the People are under a continuing obligation to disclose any "additional material or information which it would have been under a duty to disclose . . . had it known of [the material] at the time of a{**74 Misc 3d at 721} previous discovery obligation" (CPL 245.60 [emphasis added]). This section of the discovery statute would be entirely superfluous if COCs were invalidated for any belated disclosure because the invalidation of a COC would most likely result in the dismissal of the case on CPL 30.30 grounds. If courts were to invalidate every COC for belated disclosure of materials revealed in good faith, such rulings would disincentivize the People to disclose previously unknown discoverable information when the People learn of it. Defendant's interpretation of CPL 245.20 is therefore at complete odds with the rest of the statute, which must be read with a presumption of openness (CPL 245.20 [7]). In this court's view, article 245 of the CPL and the legislative intent and spirit behind its enactment demands a review of the entire statute, the purpose of which is to facilitate the "exchange of information and evidence in criminal cases" (Assembly Mem in Support of 2019 NY Senate-Assembly Bill S1716, A1431, incorporated in L 2019, ch 59, § 1, part LLL).

That is not to suggest there will be no consequences for the People's inadvertent failure to timely disclose the recording. The legislature contemplated this very scenario when enacting the discovery statute in 2019. Criminal Procedure Law § 245.55 (3) (a) provides that the police must notify the People of the existence of any known police recordings "in writing upon the filing of an accusatory instrument." If the People fail to disclose such a recording "due to a failure to comply with this obligation by police officers . . . the court upon motion of the defendant shall impose an appropriate remedy or sanction pursuant to section 245.80 of this article" (CPL 245.55 [3] [b]). Since the instant situation is directly addressed, the court is bound to follow the statute. The court must therefore evaluate an appropriate remedy or sanction pursuant to CPL 245.80.

While defendant writes that he is not requesting sanctions until the court rules on his motion to dismiss, defendant implicitly requests sanctions by arguing prejudice in his motion. Prejudice is not pertinent to a motion to dismiss on CPL 30.30 grounds, but it is pertinent with respect to sanctions, given a discovery violation, under CPL 245.80. Notably, all pretrial [*7]motions should be brought within one set of papers (CPL 255.20 [2]). The court may impose remedies and sanctions on the People for belated disclosure even when a COC was filed in good faith (see Rodriguez, 73 Misc 3d at 420; see also CPL 245.20 [5]; 245.80). Therefore, the court will hear oral arguments{**74 Misc 3d at 722} from defendant and the People with respect to possible sanctions pursuant to CPL 245.80.

Prior to issuing a ruling on remedies or sanctions, the court must listen to the tape to determine the extent of prejudice to the defendant, given the fact that part of the tape in question was corrupted. In the interest of judicial economy, the court orders the parties to submit a copy of the recording at issue for in camera review one week before the hearing.

Upon consideration of the foregoing, the court hereby decides that defendant's motion to dismiss pursuant to CPL 170.30 (1) (e) is denied; and orders that oral arguments be heard with respect to possible remedies or sanctions pursuant to CPL 245.80; and orders the parties to submit a copy of the recording at issue to the court one week before the hearing for in camera review.