Criminal Court of the City of New York, Bronx County, March 8, 2022

The Bronx Defenders (Quandalasha Fambro of counsel) for defendant.

Darcel D. Clark, District Attorney (Alexander Mangano of counsel), for plaintiff.

"I wish that for just one time you could stand inside my shoes

"You'd know what a drag it is to see you" (Bob Dylan, Positively 4th Street [1965]).

Few things lower the spirits of a criminal court judge who anticipates starting a trial on an aging case more than the last-minute appearance of a CPL 30.30 speedy trial motion based on the alleged insufficiency of a certificate of compliance (COC) filed long ago.

It generally means one of two things, neither of them good. First, it could mean that the prosecution has operated in bad faith, knowingly having failed to turn over discovery that it had in its possession or having made no meaningful effort to obtain such materials. Fortunately, this rarely turns out to be the case.

Alternatively, the filing of such a motion could mean that the discovery process has failed; that one or both of the parties haven't adequately conferred to resolve their disagreements; and that the defense has resorted to a motion that is unlikely to succeed, is certain to further delay the already overdue trial of the case, and was probably not even contemplated by the legislature when it enacted discovery reform a few years ago. Sadly, this is the type of motion the court must resolve today.{**74 Misc 3d at 1039}

Defendant Christopher Marin moves for dismissal of the charges against him on statutory and constitutional^[FN1] speedy trial grounds. He argues that a COC and the accompanying statement of readiness (SOR) were invalid and illusory, respectively. In a sequence of increasingly [*2]common events that would make our state legislators blush, he asks this court to dismiss his case on that basis 672 days after the People filed the documents at issue.

At the outset, it must be acknowledged that this delay is, to some degree, a concomitant of the COVID-19 pandemic. Nonetheless, in this intervening period, the defense not only raised then dropped alleged issues with the COC; not only signaled to the People, via email, its satisfaction with the People's discovery compliance; not only filed a reciprocal COC; but also answered ready for trial in court. None of the issues with this COC postdates these intervening events, including the pandemic. All the while the People acted reasonably to meet their discovery obligations.

This court notes this sequence of events less to fault the defense than to highlight the issues with an overly formulaic interpretation of the new discovery rules. While the defense is certainly entitled to ask for this case to be dismissed almost two years after the filing of the COC and SOR, that this is even a possible outcome strikes this court as an unfortunate state of affairs, and one unlikely to have been contemplated by the legislature when it reformed the discovery rules in an attempt to make them more fair, equitable and efficient.

After a careful consideration of the defendant's motion, the People's response, documents contained in the court file, and the transcripts from the proceedings, the court finds that a total of 57 days are chargeable to the People and denies the defendant's motion.

Under CPL 30.30, the People satisfy their obligation once they declare their readiness for trial (see People v Giordano, 56 NY2d 524 [1982]). The People are "ready" for trial when they serve "either a statement of readiness 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{**74 Misc 3d at 1040} 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.).

A statement of readiness for trial is valid when the People have removed all legal impediments to the commencement of their case (People v England, 84 NY2d 1, 4 [1994]). Any statement of readiness made by the People must be accompanied or preceded by a valid COC that indicates they have complied with their discovery obligations as set forth in CPL 245.20 (CPL 30.30 [5]). Additionally, pursuant to CPL 245.50 (3), the prosecution cannot answer ready for trial "for purposes of section 30.30 . . . until it has filed a proper certificate pursuant to subdivision one of this section."

In a motion to dismiss pursuant to CPL 30.30, the initial burden rests on the defendant to allege that his right to speedy trial has been violated (see People v Luperon, 85 NY2d 71, 77-78 [1995]). Then, the burden shifts to the People to identify "the exclusions on which they intend to rely" (id. at 78). If the defendant disagrees, he "must identify any legal or factual impediments to the use of these exclusions" (id.).

Here, the defendant is charged with operating a motor vehicle while under the influence of alcohol (Vehicle and Traffic Law § 1192 [2]), which is a class A misdemeanor. The complaint alleges that at approximately 4:30 a.m. on August 25, 2019, at the northeast corner of Saint Ann's Avenue and East 135th Street, County of the Bronx, the police observed the defendant speeding in a red Porsche on a public roadway. After the police stopped the defendant, they observed him to have bloodshot, watery eyes, slurred speech, and a strong odor of alcohol on his breath, and to be unsteady on his feet. The defendant is alleged to have stated, "I had one drink prior to being stopped, one hour before." The defendant submitted to a chemical breath test and his blood [*3]alcohol level was found to be .08 of one per centum by weight.

As the defendant is charged with a class A misdemeanor, the People must be ready for trial within 90 days from the commencement of the criminal action (CPL 30.30 [1] [b]). In this case, the defendant asserts that 110 days of includable time have elapsed.

The following constitutes the court's analysis of periods that are chargeable to the People. It is followed by a broader discussion of the court's concerns with these types of motions.{**74 Misc 3d at 1041}

August 25, 2019—December 3, 2019

The People concede that the period between the defendant's arraignment on August 25, 2019, and the filing of a supporting deposition and SOR off calendar on October 1, 2019, or 37^[FN2] days, should be charged.

December 3, 2019—January 22, 2020

On December 3, 2019, in court, the defense requested a motion schedule. The case was adjourned to January 22, 2020, for decision. Although the People had yet to file a COC and restate their readiness after January 1, 2020, the entire adjournment is nonetheless excludable as pretrial motion practice (CPL 30.30 [4] [a]; see People v Brown, 73 Misc 3d 131[A], 2021 NY Slip Op 50965[U], *1 [App Term, 1st Dept 2021]; People v Jaquez, 71 Misc 3d 1110, 1117 [Sup Ct, NY County 2021]). Zero days are charged for this period.

January 22, 2020—February 4, 2020

On January 22, 2020, the case was on for decision. When the court and the People were unable to find their copies of the defense's omnibus motion, the defense stated on the record that she believed she had filed motions and that she would refile them. In fact, the defense had not filed the omnibus motion and did not do so until June 3, 2021, even though the motion is dated March 10, 2020. Adding to the confusion, the People stated not ready on the record because they had not yet complied with the new discovery obligations. The court told the defense it could file its motions once the People filed their COC and the case was adjourned to February 4, 2020, for discovery compliance. Despite this record, the People concede this period of 13 days should be charged.

February 4, 2020—March 18, 2020

On February 4, 2020, the People had yet to file their COC. The case was adjourned to March 11, 2020, for this purpose. Off calendar, on February 11, 2020,^[FN3] the People filed their first COC and an SOR. On March 11, 2020, the defense claimed, generally, objections to the COC filed by the People. The case was adjourned to March 13, 2020, for what the court termed a "COC bench conference." On March 13, 2020, the parties discussed ongoing discovery issues, but the court did not rule{**74 Misc 3d at 1042} on the validity of the COC. The case was adjourned to March 18, 2020, for continued COC conference.

In the instant motion, the defendant claims the following items were disclosed after the People filed their February 11, 2020 COC: underlying internal affairs bureau (IAB) documents from a substantiated [*4]allegation for a testifying police officer; "out of service" documents for the Intoxilyzer 5000; and "calibration reports" from the Intoxilyzer 5000. Therefore, the defendant argues, the COC is invalid, and this entire period should be charged. The People counter, generally, that the COC is valid because they exercised due diligence and acted in good faith and that only the period from February 4, 2020, until the filing of their COC and SOR on February 11, 2020,^[FN4] or seven days, is chargeable. This court finds the COC valid.

The "out of service" documents are indisputably discoverable. Despite being created by the New York City Police Department (NYPD), these documents appear not to have been known to the Bronx DA's office until late February 2020, after the ADA filed his COC in this case. The People indicated that they turned over these documents "once [they] realized that it was not [sic] provided," which was on March 13, 2020. Therefore, this is not an instance where the People knew a particular piece of discovery was outstanding and, nonetheless, filed a COC (cf. People v Aquino, 72 Misc 3d 518, 524 [Crim Ct, Kings County 2021]).

In deciding the COC's validity, this court looks to the People's efforts to meet their obligations and finds them sufficient, agreeing that "good faith, due diligence, and reasonableness under the circumstances are the touchstones by which a certificate of compliance must be evaluated" (People v Perez, 73 Misc 3d 171, 177 [Sup Ct, Queens County 2021]). The People outlined reasonable steps taken to obtain discovery in this case, including the "out of service" documents. The court therefore declines to invalidate the COC on this basis.

The defense next argues that the COC is invalid because the People failed to turn over material underlying substantiated IAB allegations concerning a testifying police witness. This material "relate[s] to the subject matter of the case," and is therefore discoverable (see People v Castellanos, 72 Misc 3d 371, 378 [Sup Ct, Bronx County 2021]; accord Matter of Jayson C., 200 AD3d 447, 448 [1st Dept 2021]). When in the actual{**74 Misc 3d at 1043} possession of the People, it must be turned over to the defense (CPL 245.20 [1]).

The issue here, however, is whether a COC can be valid where this material is in the possession of the NYPD alone—not the prosecutor's office—and has not been turned over to the defense. The defendant argues that CPL 245.20 (2) imputes possession of this underlying NYPD material to the People, and that their COC is therefore invalid because they failed to turn over everything they "possessed." This court disagrees, based on the compelling reasoning of People v Perez (73 Misc 3d at 178-185).

CPL 245.20 (2) provides that "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" are deemed to be in the prosecutor's possession (emphasis added). Relying on People v Garrett (23 NY3d 878 [2014]) and thorough statutory analysis, the Perez court held that the limiting language found in CPL 245.20 (2) "circumscribes the People's discovery obligations" and that "[b]ecause they do not relate to the prosecution of the charge, police personnel records are not deemed, by the statute, to be in the People's control" (Perez, 73 Misc 3d at 178-180). The decision continues, "[t]he legislature quite easily could have created a provision that deemed all law enforcement materials and documents to be in the People's possession. Their decision not to do so evinces an intent that the People should not be imputed with the possession of certain materials" (id. at 180; see also People v Gonzalez, 68 Misc 3d 1213[A], 2020 NY Slip Op 50924[U], *2 [Sup Ct, Kings [*5]County 2020]; Matter of Certain Police Officers, 67 Misc 3d 458, 469-470 [Westchester County Ct 2020] [reading CPL 245.20 expansively to include all personnel records in the police department leads to "an unreasonable and excessive obligation" on the People]). The People cannot produce what they do not possess. Because the People have provided the defense with everything they possessed concerning these disciplinary proceedings, the failure to turn over all of the underlying materials prior to filing a COC does not invalidate that COC.

Nevertheless, the People still have an obligation to make "diligent, good faith effort to ascertain the existence" of such materials (see CPL 245.20 [2]) and must take reasonable steps to obtain such material before filing their COC (see CPL 245.50 [1]). Since they have done so here, the COC is not invalid on this basis. The People are directed to continue to take reasonable steps to obtain any such discoverable material.{**74 Misc 3d at 1044}

Finally, with respect to the "calibration reports," the defendant claims to be missing the calibration reports from the week of the incident. The People counter they have turned over the reports in accordance with the statute. The defendant has not provided this court with enough context to counter what appears to be the People's compliance, such as the frequency with which these reports are generated or the dates of the documents she possesses. The defendant elected not to file a reply. This court declines to invalidate the COC on this basis.

For the above reasons, the COC and SOR filed on February 11, 2020, were valid (CPL 30.30 [5]; 245.50 [3]). The period between February 11, 2020, and March 11, 2020, is not chargeable (see Chavis, 91 NY2d at 505) and only the seven days between February 4, 2020, and February 11, 2020, are chargeable.

March 11, 2020—November 12, 2020

Given the validity of the COC and SOR filed on February 11, 2020, the adjournments for a discovery conference between March 11, 2020, and March 20, 2020, are also not chargeable to the People, as the People had done all that was required of them in order to proceed to hearing and trial and because this delay was not solely attributable to the People (see England, 84 NY2d at 4; People v Anderson, 66 NY2d 529, 535 [1985]).

Additionally, beginning March 16, 2020, court operations within New York State were significantly curtailed due to the COVID-19 pandemic. As a result, time limits contained in the CPL were suspended by Executive Order (A. Cuomo) No. 202.8 (9 NYCRR 8.202.8) on March 20, 2020, and remained so until Executive Order (A. Cuomo) No. 202.67 (9 NYCRR 8.202.67) rescinded the suspension on October 4, 2020. Therefore, beginning March 20, 2020, CPL 30.30 time limits were not in effect. The period from March 20, 2020, through October 4, 2020, is excludable for this reason.

The case was administratively adjourned due to the COVID-19 pandemic on March 18, 2020, to June 17, 2020; then on June 17, 2020, to September 17, 2020; then finally September 17, 2020, to November 17, 2020.

While the CPL 30.30 time limits went back into effect on October 4, 2020, for the reasons discussed above the People were ready as of March 20, 2020. Therefore, the delay between October 4, 2020, and November 12, 2020, is not attributable to the People (see Anderson, 66 NY2d at 535). Zero days are charged.{**74 Misc 3d at 1045}

November 12, 2020—Present

On November 12, 2020, the defendant failed to appear. The case was adjourned to March 24, 2021, for him to appear. On that date, he did not appear, and the case was adjourned to June 2, 2021, both for defendant to appear and for the motion schedule the defense requested. On June 2, [*6]2021, the defendant appeared, but his attorney had yet to file motions. The case was adjourned for motion practice again to July 21, 2021. On July 21, 2021, the defense had filed motions, but the case was adjourned for decision to September 15, 2021. On September 15, 2021, a decision on the omnibus motion was rendered and the case was adjourned to November 8, 2021, for hearing and trial. As the People note, the defense did not include any COC issues in its omnibus motion. Regardless of discovery issues, these periods are all clearly excludable under CPL 30.30 (4) (a) and (b). Zero days are charged.

On November 8, 2021, the People and the defense both answered ready but the case was adjourned, due to court congestion, to November 29, 2021, for hearing and trial. On November 29, 2021, defense counsel was unavailable due to a COVID-19 exposure. The case was adjourned to December 13, 2021, for hearing and trial. These periods are excludable as none of this post-readiness delay is solely attributable to the People (see Anderson, 66 NY2d at 535). On December 13, 2021, the defense filed the instant motion. This period is excludable (CPL 30.30 [4] [a]). Accordingly, over this entire period, zero days are charged.

As described above, the decision not to invalidate the COC is not a close call. The People acted in good faith, and the defense got the discovery it needed. So how did we get here? How have we arrived at a place where motions of this nature, with little chance of success, are routinely filed on the eve of trial, thus further delaying the timely resolution of cases?

Many of the statutory discovery reforms implemented in 2020 were long overdue. The legislature recognized that early and complete discovery not only puts criminal litigants on an equal footing, but implemented properly, can also lead to earlier assessment of the strengths and weaknesses of cases and quicker dispositions. Toward that end, the legislature gave the automatic discovery mandates some teeth by requiring, in CPL{**74 Misc 3d at 1046}245.50, that the People file a valid COC prior to answering ready for trial and stopping the CPL 30.30 clock. The legislature additionally, in CPL 245.80, provided various sanctions available to the court should the parties become derelict in fulfilling their discovery obligations.

What the legislature did not anticipate, however, was the amount of unnecessary and burdensome litigation that would arise surrounding the intersection of CPL 30.30 and 245.50. Bronx Criminal Court has become ground zero for the "belated 30.30 on COC grounds" motion. Generally, it proceeds in the following steps:

• The People file a COC and answer ready for trial.

• The defense sometimes raises objections to the COC, which never quite get resolved with the People. Or the defense raises no objections.

• Multiple months and adjournments later, as the case approaches trial, these issues crystalize as the court seeks to get the case trial ready. The defense will advise the court for the first time that they never received certain potentially discoverable material.

• The day before or the day of trial, the defense files a motion claiming that the original COC was invalid because of this missing discovery. The defense motion argues that because the COC was invalid, the People's accompanying statement of readiness was illusory. And then, the motion goes on to argue that because there was no statement of readiness, the 30.30 clock never stopped, and the case must be dismissed on speedy trial grounds.

As a technical matter, given the correct facts, such a CPL 30.30 motion could have merit. There is case law long predating the discovery reforms indicating that statements of readiness can be illusory (see e.g. People v Cole, 73 NY2d 957, 958 [1989]). If the prosecution is later found [*7]not to have satisfied the COC prerequisite before answering ready, their statement of readiness could subsequently be found invalid (see CPL 30.30 [5]).

However, this court also believes that, while this remedy is technically available, it was neither foreseen nor intended by{**74 Misc 3d at 1047} the legislature.^[FN5] In fact, the legislature set forth a comprehensive scheme in CPL 245.80 for sanctions—up to and including dismissal—that a trial court can impose on the prosecution (or the defense, for that matter) for failing to live up to its discovery obligations. While it is true that the speedy trial requirements of CPL 30.30 operate independently of these discovery sanctions, it is equally true that the legislature specifically addressed the interplay of CPL 30.30 with the discovery rules in CPL 245.50 but made no specific mention of "retroactive COC invalidity" as a ground for CPL 30.30 dismissal, although it certainly could have done so. Because the legislature set forth a detailed regimen for discovery-related sanctions, it follows that this sanction protocol should constitute the primary mechanism for dealing with discovery failures. The drastic remedy of eve-of-trial CPL 30.30 dismissal for after-the-fact COC invalidity should be the exception, not the rule, and should be imposed only in the case of prosecutorial bad faith or unreasonable inaction (see CPL 245.50 [1] ["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"]).

The facts of the instant case demonstrate clearly why eve-of-trial COC/30.30 motions should be disfavored. The defense first raised issues with the prosecution's COC soon after it was filed in February 2020. What followed was exactly what should follow between parties working together to resolve their differences. On March 13, 2020, defense counsel emailed the prosecutor listing discovery items she believed she was missing (defendant's mot, exhibit C). That same day, the ADA wrote back enclosing "all paperwork" the People had regarding the breathalyzer devices at issue, along with the breathalyzer operator's "health card," and other information about simulator solutions (id., exhibit D). After a long delay that was probably attributable to the COVID-19 pandemic, defense counsel once again emailed the ADA on February 5, 2021, "to try to resolve discovery issues" and "move this case along" (id., exhibit C). {**74 Misc 3d at 1048}Once again, the ADA responded the same day, again attaching the materials he had provided a year earlier, along with some other documents (id., exhibit D). In response, defense counsel responded immediately that "[w]ith this representation, I will go ahead and file my COC" (id.).

This should have been the end of the matter: the defense raises issues, the People answer them with the requested discovery, the defense says they are satisfied, and the case proceeds to trial. But in the Bronx, we seem to have one more procedural step before a case can be tried—some 10 months after the exchange recounted above, on the eve of trial, the defense filed its retroactive COC/30.30 motion.

The court emphasizes that in this particular case, it is not accusing the defense of [*8]intentionally "lying in wait" to let the speedy trial clock run. It is unclear whether the delays in this case were caused by strategy, COVID-19, inattention, general "Bronxiness," or some combination thereof.

What is clear, though, is that this is not how these matters should be resolved. Any deficiencies with a COC should be raised promptly; the parties should confer immediately and attempt to resolve their differences; and if they can't, they should involve the court. What they shouldn't do is let the matter fester, and then raise the "Bronx Special" motion on the eve of trial, as was done here. All that accomplishes is to delay matters further, and this court will not reward that course of action unless there are compelling grounds to do so. As described above, there are no such grounds here.

Based on the foregoing reasons, the court finds that the periods between August 25, 2019-December 3, 2019, or 37 days; and January 22, 2020, to February 11, 2020, or 20 days; for a total of 57 days of includable time has lapsed. Accordingly, the defendant's motion to dismiss pursuant to CPL 30.30 (1) (b) is denied.