Supreme Court, Queens County, September 27, 2022

Queens Defenders (Wilson A. LaFaurie of counsel) for defendant.

Melinda Katz, District Attorney (Jamie-Lynn Burns of counsel), for plaintiff.

By omnibus motion dated July 6, 2022, the defendant moves for the following: (1) inspection and release of the grand jury minutes; (2) dismissal of the indictment as defective; (3) dismissal of the indictment, or alternatively, reduction of the counts as legally insufficient; (4) suppression of statement evidence (Dunaway/Huntley); (5) suppression of physical evidence (Dunaway/Mapp); (6) suppression of identification evidence (Dunaway/Wade); (7) a Sandoval hearing; (8) request for bill of particulars; (9) demand to produce (CPL 240.20, 240.40 [1]); (10) reservation of rights; and (11) dismissal of the indictment pursuant to CPL 30.30 (1) (a) and 210.20 (1) (g).

Defendant's motion to inspect the grand jury minutes is granted. Upon inspection, defendant's motion for release of the grand jury minutes is denied since the defendant has failed [*2]to demonstrate any compelling need for such action and the court is able to determine the motion without assistance (see CPL 210.30 [3]). However, the People are reminded of their obligation to disclose all transcript(s) of person(s) who testified before the grand jury, unless subject to a protective order, pursuant to CPL 245.20 (1) (b).

Defendant's motion to dismiss the indictment, or alternatively, to reduce the counts therein, is denied since the evidence adduced before the grand jury was legally sufficient to sustain the indictment. Moreover, the District Attorney properly instructed the grand jury on the relevant law (see{**77 Misc 3d at 484} People v Calbud, Inc., 49 NY2d 389 [1980]). Lastly, the presentation of the case to the grand jury was not defective as a matter of law. The minutes reveal that a quorum of the grand jurors was present during the submission of evidence and at the time that the District Attorney instructed the grand jury on the law. No unauthorized person within the meaning of CPL 190.25 was present at any time during the proceedings (see People v Sayavong, 83 NY2d 702 [1994]). Additionally, no irregularity that would impair the integrity of the grand jury occurred (see People v Adessa, 89 NY2d 677 [1997]; People v Huston, 88 NY2d 400 [1996]).

The prosecutor and defense counsel (hereafter the parties) are reminded of their continuing duty to diligently confer with each other pertaining to any and all outstanding discovery issues/disputes, excluding protective orders under CPL 245.70.

Pursuant to the Administrative Order of the Chief Administrative Judge (see Admin Order of Chief Admin Judge of Cts AO/393/19) and in furtherance of the fair administration of justice, the parties are hereby reminded and directed to uphold their constitutional, statutory, and ethical responsibilities in the above-captioned proceedings.

Additionally, the People are ordered to comply with their initial automatic discovery obligations outlined in CPL 245.10 and 245.20; their continuing discovery obligations as set forth in CPL 245.60; and their continuing obligation to provide all Brady material. Finally, defendant and/or defense counsel are ordered to comply with their reciprocal discovery obligations pursuant to CPL 245.20 (4) and 245.60.

Defendant moves to dismiss the instant indictment pursuant to CPL 30.30 (1) (a) and CPL 210.20 (1) (g) on the ground that the People's statement of readiness filed on March 27, 2022, was illusory due to the People's failure to file a valid certificate of compliance with the requisite disclosure mandates pursuant to CPL 245.20, namely, the grand jury minutes.

Procedural History

Defendant was arraigned on the felony complaint on September 30, 2021, in Queens County Criminal Court and the case was adjourned to October 5, 2021, for grand jury action. On{**77 Misc 3d at 485} October 5, 2021, the People had not yet obtained an indictment of this matter. The case was, thereafter, adjourned four times between October 5, 2021, and March 8, 2022, for grand jury [*3]action. Notably, defendant had not waived speedy trial or consented to any adjournment during this entire period of time.

On March 22, 2022, the People filed a notice of voted indictment, followed shortly thereafter by a certificate of compliance and statement of readiness filed on March 27, 2022. (178 total days charged to the People)

On April 12, 2022, the defendant was arraigned on the indictment in Supreme Court. The case was adjourned to May 18, 2022, for defense motions. This entire adjournment is excluded for motion practice pursuant to CPL 30.30 (4) (a). (178 total days charged to the People)

On May 18, 2022, defendant represented that defense motions would be filed by end of business on that date. The court adjourned the case to July 6, 2022, for decision on defendant's motion. This entire adjournment is excluded for motion practice pursuant to CPL 30.30 (4) (a). (178 total days charged to the People)

On July 6, 2022, defendant filed the instant motion. The court set a date for the People's response and adjourned the case to August 23, 2022, for decision on motion. This entire adjournment is excluded for motion practice pursuant to CPL 30.30 (4) (a). (178 total days charged to the People)

On August 23, 2022, motions were fully submitted. The court needed additional time to render its decision. The case was adjourned to September 12, 2022, for decision on motion. In the interim, on August 29, 2022, defendant filed a reply motion. This entire adjournment is excluded for motion practice pursuant to CPL 30.30 (4) (a). (178 total days charged to the People)

On September 12, 2022, the court had yet to render its decision on motions. The case was again adjourned to September 27, 2022, for decision on motion. This entire adjournment is excluded for motion practice pursuant to CPL 30.30 (4) (a). (178 total days charged to the People)

People's Certificate of Compliance and Statement of Readiness

The defendant contends that the People failed to meet their automatic discovery obligations pursuant to CPL 245.20 (1) which rendered the statement of readiness (SOR) filed on March 27, 2022, invalid. CPL 245.20 (1) provides that "[t]he {**77 Misc 3d at 486}prosecution shall disclose to the defendant . . . all items and information that relate 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."

CPL 245.20 (7) directs this court to apply a presumption in favor of disclosure when interpreting the statutory text of CPL 245.10, 245.25, and 245.20 (1). All items and information related to the prosecution of a charge in the possession of any New York State or local police department or law enforcement agency are explicitly deemed to be in the prosecutor's possession, custody, or control (CPL 245.20 [2]). The statute further imposes an automatic and affirmative duty upon the prosecutor to make diligent, good faith efforts to determine the existence of material and/or information to be available for discovery where it exists but is not within the prosecutor's possession, custody, or control (CPL 245.20 [2]). Where, despite diligent, good faith efforts and reasonable inquiry, the People are unable to secure and disclose mandated discoverable material within the statutorily allotted time periods, [*4]the law prescribes that the People make an application to the court to enlarge the time to comply with its disclosure requirements (CPL 245.70 [2]).

The statute goes on to enumerate a non-exhaustive list of materials subject to the prosecution's automatic disclosure mandate (CPL 245.20 [1]) and specifically includes grand jury minutes within the mandate of automatic discovery (CPL 245.20 [1] [b]). The statute further provides,

"If in the exercise of reasonable diligence, and due to the limited availability of transcription resources, a transcript is unavailable for disclosure within the time period specified in subdivision one of section 245.10 . . . such time period may be stayed by up to an additional thirty calendar days without need for a motion pursuant to subdivision two of section 245.70 of this article; except that such disclosure shall be made as soon as practicable and not later than thirty calendar days before the first scheduled trial date, unless an order is obtained pursuant to section 245.70 of this article." (Id.)

The new discovery statute imposes an affirmative and ongoing duty for the People to obtain and disclose additional material and information that is subject to automatic mandatory{**77 Misc 3d at 487} discovery pursuant to CPL 245.20 (see CPL 245.60). Moreover, the new law now directly links the People's compliance with their automatic discovery obligations, as a condition precedent, to the validity of its SOR and speedy trial calculations.

To be sure, notwithstanding the provisions of any other law, CPL 245.50 (3) provides that absent an individualized finding of special circumstances by the court before which a charge is pending, the prosecution shall not be deemed ready for trial pursuant to CPL 30.30 until it has filed a proper certificate of compliance (COC) pursuant to CPL 245.50 (1). Similarly, CPL 30.30 (5) requires that 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.

In order for the People to file a valid SOR, the People must first: (1) file a COC upon satisfaction of their discovery obligations under CPL 245.20 (1), except for discovery that is lost or destroyed, or any items or information that are the subject of a protective order pursuant to CPL 245.70; (2) affirm that they have disclosed and made available all known material and information subject to discovery after having exercised due diligence and making reasonable inquiries to ascertain the existence of such material and information; and (3) include a list identifying the discovery materials provided (CPL 245.50 [1]). If additional discovery is subsequently provided or required prior to trial, the statute provides for a supplemental certificate which shall be served upon the defendant and filed with the court identifying the additional material and information provided (CPL 245.60). 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 CPL 245.80.

Clearly, grand jury minutes are automatically discoverable pursuant to CPL 245.20 (1) (b); and the People were required to disclose such materials to the defendant in order to satisfy their obligations under CPL 245.20 (1). Despite the clear mandate of the statute, the People filed a COC on March 27, 2022, wherein the People affirm that they had disclosed "all existing known material and information subject to discovery," except items or information subject to a protective order under section 245.70 of the Criminal Procedure Law (People's certificate of compliance filed Mar. 27, 2022 at 1 [emphasis added]). The People further posit that the grand jury minutes, which{**77 Misc 3d at 488} they knew to exist at the conclusion of the grand jury presentment, were not yet [*5]available to them (id.). The People's COC averments are flawed in this regard. First, unlike a lab test or DNA analysis that had yet to be conducted or completed at the time of a COC filing, the minutes of a grand jury proceeding are recorded in real time and exist upon the conclusion of the presentment. That the grand jury minutes had not yet been transcribed does not negate the veracity of their existence. Second, unlike a test or report conducted by an entity outside of the People's control, as in the Office of the Chief Medical Examiner for example, grand jury stenographers throughout New York City are employed by the prosecutor's office (see Judiciary Law § 321).^[FN*] Hence, the grand jury minutes and the transcription of said grand jury minutes are directly under the prosecutor's custody and control.

In promulgating the new discovery statute, the legislature anticipated a circumstance where the prosecutor may be deemed ready for trial, despite noncompliance with its automatic discovery obligations, and recognized that unavoidable delays may prevent a diligent prosecutor from attaining full compliance despite its best efforts to obtain all relevant material in a timely manner (People v Aquino, 72 Misc 3d 518 [Crim Ct, Kings County 2021]; People v Adrovic, 69 Misc 3d 563 [Crim Ct, Kings County 2020]; People v Diaz, 75 Misc 3d 314 [Crim Ct, Bronx County 2022]; People v Henry, 74 Misc 3d 1230[A], 2022 NY Slip Op 50265[U] [Sup Ct, Richmond County 2022] [the only purpose of a certificate of compliance is to serve as a necessary prerequisite to a valid statement of readiness for purposes of CPL 30.30]). In such case, amongst the available statutory options, the People may seek a judicial ruling authorizing their filing of an SOR based on an individualized finding of special circumstances pursuant to CPL 245.50 (3) (id.).

In this case, the People failed to move the court for "an individualized finding of special circumstances" (CPL 245.50 [3]) to file an SOR despite their awareness of the existence of grand jury minutes; nor have they demonstrated any impediments{**77 Misc 3d at 489} or obstacles to having the grand jury minutes transcribed for disclosure that might constitute an exceptional circumstance under CPL 30.30 (4) (g). The People do not allege that the grand jury minutes were either lost or destroyed, or that such information was the subject of a protective order pursuant to CPL 245.70. In fact, the People have failed to put forth any argument in support of a statutory exception that would authorize their filing of an SOR under the circumstances presented here.

Instead, in an apparent effort to stop the speedy trial clock, given the almost six month delay in securing an indictment, the People filed a COC and SOR erroneously affirming that they "have disclosed and made available all existing known materials and information subject to discovery," and that "the following materials have been or are being turned over at the time of this certificate" (see People's certificate of compliance filed Mar. 27, 2022 at 1 [emphasis added]). Included amongst the materials that the People affirm were either previously disclosed or disclosed in tandem with their COC filing are the requisite grand [*6]jury minutes pursuant to CPL 245.20 (1) (b). Yet, in the same filing, the People subsequently concede that the minutes of such grand jury proceedings were not yet available and thus not disclosed prior to or with the COC filing (see People's certificate of compliance filed Mar. 27, 2022 at 2). This renders the People's COC affirmations to be patently false. Accordingly, whereas here, the People cannot point to a statutory exception exempting nondisclosure of the grand jury minutes or authorizing a declaration of readiness for trial in spite of such missing discovery, this court finds the People's COC filed on March 27, 2022, to be invalid.

To accept the People's SOR under these circumstances would, in effect, vitiate the underlying legislative intent of the statute which mandates full compliance with discovery as a prerequisite to the People's declaration of readiness for trial (see Adrovic [the People cannot file a certificate of compliance claiming they have disclosed all known discovery if they have not actually done so without the express permission of the court]; People v Quinlan, 71 Misc 3d 266 [Crim Ct, Bronx County 2021]; see also People ex rel. Ferro v Brann, 197 AD3d 787 [2d Dept 2021] [the People's filing of a certificate of compliance pursuant to CPL 30.30 (5) cannot be complete until all material and information subject to discovery was actually disclosed to defendant pursuant to CPL 245.50 (1)]). Hence, I find that the SOR filed{**77 Misc 3d at 490} on March 27, 2022, was neither accompanied with and/or preceded by the requisite good faith certification of compliance with the disclosure requirements of CPL 245.20 (see CPL 245.50 [3]; 30.30 [5]) and is therefore illusory.

Speedy Trial Calculations

Defendant stands charged with one or more offenses, at least one of which is a felony. Hence, the People must announce ready for trial within six calendar months from the date of commencement, absent a showing of excludable time (CPL 30.30 [1] [a]). In this case, the criminal action against defendant commenced on September 30, 2021, upon his arraignment on the felony complaint. As such, the People have a total of 181 days to bring defendant to trial.

In determining whether the People have satisfied their obligation to be ready for trial under Criminal Procedure Law § 30.30, this court must calculate the time between the filing of the first accusatory instrument and the People's declaration of readiness, then subtract any statutorily excludable periods of delay, and finally add any periods of post-readiness delay that are attributable to the People for which statutory exclusions apply (see People v Cortes, 80 NY2d 201 [1992]). Once the defendant has shown the existence of a delay greater than the statutory period, the burden rests on the People to show any pre-readiness exclusions, and on the defendant to show any post-readiness inclusions (People v Chavis, 91 NY2d 500, 504-505 [1998]). The People also bear the burden of producing a record of the proceedings sufficient for the court to reach "an informed decision" regarding what time may be excludable (People v Cortes at 215-216; People v Stirrup, 91 NY2d 434 [1998]).

As discussed above, defendant was arraigned on the felony complaint on September 30, 2021. The People filed their COC and SOR on March 27, 2022. Notably, the People concede, and this court finds that there were no excludable adjournments throughout this period. Accordingly, the entire 178 day period from September 30, 2021, to March 27, 2022, constitutes chargeable time. Additionally, upon defendant's arraignment on the indictment on April 12, 2022, to the present, this case remained in motion practice. Accordingly, the entire period from April 12, 2022, to the present constitutes excludable time pursuant to CPL 30.30 (4) (a). Hence, only the 16 day period from the People's filing of the COC/SOR on March 27, 2022, to defendant's Supreme Court [*7]arraignment upon the indictment on April 12, 2022, remains at issue.{**77 Misc 3d at 491}

CPL 30.30 (5) explicitly states, "Any statement of readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of section 245.20 of this chapter." As discussed above, the People failed to meet these requirements in their initial COC/SOR filing on March 27, 2022. Although the People disclosed the requisite grand jury minutes to defendant on March 29, 2022, they failed to file a supplemental COC and/or SOR containing the requisite affirmations of "good faith compliance" pursuant to CPL 245.20. In fact, to date, the People have yet to file a supplemental COC and/or SOR upon full compliance with the automatic discovery mandates of CPL 245.20. This means the speedy trial clock continues ticking subject only to the applicable statutory exclusions under CPL 30.30 (4). Hence, I find that the 16 day period from March 27, 2022, to April 12, 2022, constitutes time charged to the People. (194 total days charged to the People)

For the aforementioned reasons, this court calculates that the People have accrued a total of 194 days of delay since commencement of this action to date. Accordingly, defendant's motion to dismiss on the ground of a statutory speedy trial violation is granted in its entirety. Sealing is stayed 30 days from the date of this order.

In light of this court's speedy trial ruling, the remaining branches of defendant's omnibus motion are rendered moot.