Supreme Court, Westchester County, March 16, 2022

Legal Aid Society, White Plains (Jessica Hugel of counsel), for defendant.

Miriam E. Rocah, District Attorney, White Plains (Cooper W. Gorrie of counsel), for plaintiff.

The defendant was convicted by a jury of, among other things, burglary in the first degree in connection with an armed home invasion, and is awaiting sentence. In this post-verdict motion, the defendant argues that the People's belated disclosure of inculpatory DNA evidence linking him to a 9 millimeter magazine found at the scene of the alleged burglary—which evidence the court precluded the People from using at trial for any reason—renders the People's previous statement of readiness illusory such that the action should be dismissed on speedy trial grounds. The court disagrees.

By way of background, the defendant and his codefendant Joshua Emanuel were indicted [*2]together in connection with a December 18, 2020 armed home invasion. The indictment charged the defendant with burglary in the first degree (four counts), burglary in the second degree (two counts), robbery in the first degree (two counts), robbery in the second degree (five counts), and assault in the second degree.

On February 10, 2021, the People served a certificate of compliance and statement of readiness. The People served supplemental certificates of compliance on March 17, 2021, November 10, 2021, November 18, 2021, November 24, 2021, and November 28, 2021, each of which related to matters not germane to this motion.

A jury trial for both defendants commenced on November 29, 2021. On December 1, 2021, the People began their direct case.{**75 Misc 3d at 192} The People's theory at trial was that, during the alleged home invasion, each defendant separately brandished a handgun and that they acted in concert with each other during the incident. The People's evidence established that Emanuel was arrested at the residence where the alleged burglary occurred and that the defendant fled from the scene on foot but was apprehended in the rear yard of another residence on the same street. The People presented evidence that one gun was recovered in the kitchen of the residence where the burglary allegedly occurred. The alleged second gun was never recovered but a 9 millimeter magazine was recovered in the basement of the premises. The People argued that this magazine corroborated the eyewitness testimony that there was a second gun, which they alleged the defendant personally displayed during the burglary.

On December 6, 2021, while the trial was ongoing, the People purportedly became aware of a June 16, 2021 report notifying them of a positive match between a DNA sample taken from the 9 millimeter magazine recovered at the scene of the crime and a sample of the defendant's DNA kept in the New York State DNA index system database (i.e., a CODIS hit notification).

On December 6, 2021, while the trial was ongoing, the People disclosed the report's existence to defense counsel and the court, and provided a copy to defense counsel.

Defense counsel orally moved to dismiss the indictment on CPL 30.30 grounds, arguing that the belated disclosure of the report rendered the People's certificate of compliance invalid and their declaration of readiness illusory.

In opposing the motion, the People voluntarily agreed not to introduce the DNA evidence at trial.

The court denied the oral speedy trial motion, indicating that the remedy it would have imposed was preclusion of the allegedly inculpatory DNA evidence, had the People not effectively agreed to that remedy in representing that they would not offer the DNA evidence for any purpose at trial. The court further held that the People were precluded from using the DNA evidence for any reason, including for impeachment on cross-examination, or on rebuttal. To the extent that the belatedly disclosed evidence was inculpatory, the court noted that there was no prejudice to the defendant in that the DNA evidence would not be presented to the jury.{**75 Misc 3d at 193}

At the conclusion of the trial, the jury convicted the defendant of, inter alia, burglary in the first degree pertaining to physical injury caused to one of the victims of the home invasion and burglary in the second degree pertaining to the gun that was purportedly displayed by Emanuel and was recovered at the scene of the crime. Notably, however, the defendant was acquitted of the count of burglary in the second degree pertaining to the alleged unrecovered gun, the existence of which the People theorized at trial was proved by, among other things, the recovery of the 9 millimeter magazine on the premises (i.e., the magazine on which the precluded DNA evidence was recovered).

The defendant is presently awaiting sentencing.

The defendant now moves to reargue his prior oral motion to dismiss the action on the ground that the People's certificate of compliance and statement of readiness were illusory. The People oppose the motion.

"CPL 30.30 (1) (a) requires the People to be ready for trial within six months of the commencement of a criminal action in which a felony is charged" (People v Price, 14 NY3d 61, 63 [2010]). "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" (id.). 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]).

"Any statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of [CPL] 245.20" (CPL 30.30 [5]). CPL 245.20 (1) sets forth a nonexclusive list of items and information required to be disclosed to the defendant as part of the People's initial discovery obligation. The duty to disclose is continuing and is triggered when the prosecution subsequently learns of additional material or information which it would have been under a duty to disclose had it known of it at the time of a previous discovery obligation (see CPL 245.60). "When the prosecution has provided the discovery required by [CPL 245.20 (1)] . . . it shall serve upon the defendant and file with the court a certificate of compliance" (CPL 245.50 [1]).

"The inquiry [on the issue of the People's readiness] is whether the People have done all that is required of them to bring the{**75 Misc 3d at 194} case to a point where it may be tried" (People v England, 84 NY2d 1, 4 [1994]).

While "[a] statement of readiness at a time when the People are not actually ready is illusory and insufficient to stop the running of the speedy trial clock" (People v England, 84 NY2d 1, 4 [1994]), the mere fact that the People have committed a discovery violation does not render the statement of readiness illusory, particularly when the People are otherwise actually ready to try the case.

Indeed, the CPL expressly contemplates scenarios where discovery is belatedly disclosed and provides for remedies in such circumstances. Specifically, CPL 245.80 (1) (a) provides: "When material or information is discoverable under this article but is disclosed belatedly, the court shall impose an appropriate remedy or sanction if the party entitled to disclosure shows that it was prejudiced."

Applying that standard, the late disclosure of the inculpatory DNA evidence warrants the sanction of preclusion, which the court imposed (and which the People rightfully agreed was the appropriate sanction). There is no reason to believe the People's late disclosure was willful or intentional, which might have warranted a more severe sanction, as the prosecutors who prepared the case for trial did so without the benefit of this highly inculpatory DNA evidence. Of course, had the DNA evidence been inconclusive or exculpatory, the defendant would likely have been entitled to the imposition of a different sanction, since such evidence would necessarily have altered his defense strategy.

The defendant's argument that this singular discovery violation renders the statement of readiness illusory would effectively make CPL 245.80 (1) (a) meaningless, since every discovery violation occurring late in the action would potentially trigger a speedy trial issue. Rather, the [*4]CPL specifically provides 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; but the court may grant a remedy or sanction for a discovery violation as provided in [CPL] 245.80" (CPL 245.50 [1] [emphasis added]; see People v Marin, 74 Misc 3d 1037, 1047 [Crim Ct, Bronx County 2022] ["Because the legislature set forth a detailed regimen for discovery-related sanctions (in CPL 245.80), it follows that this sanction protocol should constitute the primary mechanism for dealing with discovery{**75 Misc 3d at 195} 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"]).

Certainly, a statement of readiness could be deemed illusory in a case where the certificate of compliance was filed in bad faith or was premised upon completely inadequate disclosure (see e.g. People v Edwards, 74 Misc 3d 433, 444 [Crim Ct, NY County 2021] ["Nondisclosure is not excused by the People's sincere belief that certain material in their possession, or deemed to be in their possession, is not discoverable"]; People v Barralaga, 73 Misc 3d 510, 514 [Crim Ct, NY County 2021] ["(G)ood faith is, by itself, inadequate where the People fail to use diligence to comply with their discovery obligations. Absent a valid explanation, the People's concession that they inexplicably failed to turn over numerous items of discovery is insufficient"]).

It is well-settled, of course, that "the statement 'ready for trial' contemplates more than merely mouthing those words" (People v England, 84 NY2d 1, 5 [1994]). However, in this case, the People did everything required of them to bring the case to a point where it could be tried, albeit without the benefit of extremely favorable DNA evidence linking the defendant to the crime. With the benefit of hindsight, since the trial has now concluded, the defendant arguably received the maximum benefit of the court's preclusion of the inculpatory DNA evidence insofar as the jury acquitted him of the second-degree burglary count pertaining to the alleged unrecovered gun. Had the report been properly and timely disclosed, the prosecution likely would have made additional pretrial preparations to introduce highly inculpatory DNA evidence linking the defendant to the 9 millimeter magazine. In sum, the People's blunder in failing to realize that they were in possession of such highly incriminating evidence until it was too late to utilize it against the defendant at trial clearly inured to the defendant's benefit insofar as he was acquitted of the burglary count pertaining to the display of the unrecovered gun, and it should not be a basis for dismissing the rest of the indictment.

Accordingly, the People's belated disclosure of inculpatory DNA evidence linking the defendant to the alleged crime did not render their statement of readiness illusory.{**75 Misc 3d at 196}

Therefore, it is ordered that the defendant's motion pursuant to CPLR 2221 (d) to reargue a prior oral motion to dismiss the action on the ground that the People's certificate of compliance and statement of readiness were illusory is denied.