Defense filed a motion seeking dismissal of the Indictment based on the prosecution's failure to timely disclose disciplinary records of six members of law enforcement which defense argues is subject to automatic discovery, thus making the prosecution's Certificate of Compliance (COC) illusory and their Statement of Readiness (SOR) null and void. Defense argues that because of the illusory filing, the prosecution could never have been ready for trial and the Indictment must be dismissed based on a violation of speedy trial rules pursuant to Criminal Procedure Law (CPL) §§ 210.20(1)(g), 30.20 and 30.30. The People argue that the documents recently disclosed were not subject to automatic discovery, as they did not relate to the subject matter of the case; that the files were not deemed to be in their constructive possession under CPL § 245.20(2); that a summary of the records was sufficient to meet their Brady/Giglio obligations; that the motion is untimely pursuant to CPL § 255.20(1) & (3); and that there is no speedy trial violation pursuant to CPL § 30.30.

The court notes that the documents referenced in these motions consist of disciplinary records in the possession of law enforcement; internal disciplinary/investigation records in the actual possession of the District Attorney's Office; and records pertaining to the names of two expert witnesses, along with access to their curriculum vitae, list of publications and a written statement of facts that formed their opinion (in summary form). Defense's argument is only directed at the disclosure of the first two categories of papers. As such the court will only evaluate whether the late filing of law enforcement disciplinary records impacted the prosecution's COC or SOR such that sanctions or a dismissal of the Indictment is warranted.

Initially, the court will determine whether the defense motion was timely filed. Thereafter, the court will determine if the late disclosure by the prosecution was subject to the automatic discovery timeframe and, if it was, whether the initial COC, filed by the prosecution on January 9, 2020, was filed "in good faith and reasonable under the circumstances." See, CPL § 245.50. Third, the Court will decide if there has been a speedy trial violation. Lastly, the Court will determine if any sanctions are appropriate if the Indictment is not dismissed.

Before any aspects of this motion can be decided, the court needed to establish a timeline upon which it would rely in making its decision. This timeline is based upon a combination of the markings on the Court's files; the judge's notes regarding adjournments within the file; signed [*2]adjournment slips between the parties and court; email correspondence between the parties; Executive Orders (EO) from the Governor's Office which tolled certain time periods during the Covid-19 pandemic and Administrative Orders and Memorandum from the Office of Court Administration that impacted court operations in New York State. As there is no factual dispute as to any singular time frame put forth by defense, but rather a blanket statement by defense that all time should be charged to the People (with certain exceptions) because their COC was illusory, the court need not hold a hearing to establish which portions of the timeline are potentially excludable. See, People v. Brady, 167 AD3d 927 (2nd Dept. 2018).

CPL § 245.50(4) states that "challenges to, or questions related to a certificate of compliance shall be addressed by motion." The statute is nevertheless silent on the timing of making such a motion and whether it need be in writing.

Motion practice is governed by CPL Article 255. Effective January 1, 2021, CPL § 255.20(1) states: "all pre-trial motions shall be served or filed within forty-five days after arraignment and before commencement of trial ". The court has always been authorized to provide additional time for motions based on the court's discretion. CPL § 255.20(3) states that "any appropriate pre-trial motion based upon grounds of which the defendant could not, with due diligence, have been previously aware, or which, for other good cause, could not reasonably have been raised within" the specified time frames, must be decided by the court on its merits.

There is seemingly no appellate level precedent directly addressing the timeliness of a defendant's motion to challenge a COC. However, there are several lower court cases that tackle the issue and have held that a defendant cannot unreasonably delay the filing of a challenge to a COC and then ask the court to charge that time to the People when the COC is found to be deficient. See, People v. Nova-Ceballos, Ind No. 98-2019 (Sup Ct. NY Cty 2021) (Kiesel, J.); People v. Guevara-Ramirez, Dkt. CR-007083-21bx (Crim. Ct. Bronx Cty 2022) (McCormack, J); People v. Barralaga, 73 Misc 3d 510 (Crim Ct, NY Cty 2021).

Conversely, many lower courts have decided defense challenges to valid COCs and have either stood silent on the timeliness of the motion or determined that the timing of the filing, [*6]despite a significant delay, did not invalidate the merits of the motion. See, People v. Knight, 69 Misc 3d 546 (Sup Ct. Kings Cty 2020); People v. Lustig, 68 Misc 3d 234 (Sup Ct. Queens Cty 2020). See also, People v. Mauro, 71 Misc 3d 548, 551-552 (Co. Ct. Westchester Cty 2021) (in denying the People's argument that the defense motion was untimely, it held, "the court was effectively closed for four months and many deadlines have been tolled for even longer. This, coupled with the lack of a statutory deadline for the motion, compels the court to reject the People's argument that Defendant's motion must be denied on the grounds that counsel failed to move more promptly. Therefore, the court will address the asserted merits of Defendant's motion.").

Although this court will likewise address the asserted merits in this motion because of a lack of statutory guidance, this court believes that the motion is untimely based on the established timeline. The original COC was filed on January 9, 2020. This case was "set for trial" on March 16, 2020. County agencies were shuttered as of March 13, 2020 due to the Covid-19 pandemic. A trial in progress in Nassau County was shut down the week of March 16, 2020. No new jurors were called in for jury duty. Courts effectively shut down by March 20, 2020 and speedy trial time was suspended by EO 202.8. Speedy trial time was re-instated as of October 5, 2020 (EO 202.67) and Nassau County was authorized to conduct trials in the sole courtroom retrofitted to meet Covid safety guidelines as of November 2, 2020. However, by November 16, 2020, trials were suspended again even though speedy trial time was technically running.^[FN1] Thereafter, trials could be commenced in late March 2021 but Nassau County did not start trials until May 2021. The court conferenced this case on June 29, 2021 and suggested a fall trial. On September 14, 2021 the court again asked the attorneys when they would be available to proceed to trial and was told by defense that there was "no rush" as the defendant had an immigration issue. As the court was concentrating on the trials of incarcerated defendants and this defendant had been released, a December trial date was established. On November 3, 2021, based on rising Covid numbers and a personnel issue within the Legal Aid Society, the case was adjourned "for trial" to February 14, 2022. The defense filed this motion on January 21, 2022 with trial set to commence twenty-four days later.

Defense knew on January 9, 2020 that they were proceeding to trial on March 16, 2020. The defense was presumably getting their case ready for trial and reviewing the discovery. As such, they knew, or should have known, that they did not have the disciplinary records or other impeachment material of any officer on or before March 16, 2020. They took no steps to challenge the COC at that time. See, CPL § 245.50(4). Thereafter, on June 12, 2020, Civil Rights Law § 50(a) was repealed. This repeal came with much fanfare and significant news coverage. Attorneys throughout the state praised the progress finally made in being able to review law enforcement personnel records almost without restrictions. The courts had again started conferencing cases for trials to start in late 2020. By June 29, 2021, the defense knew that this case was in the trial queue and was soon to have a trial start date. It was only at the request of defense that this case was not started in 2021. However, by November 3, 2021, the defense knew this case was going to trial on February 14, 2022. Yet, they did nothing to [*7]challenge the COC until January 21, 2022 — two years past the filing of the original COC and twenty-two months after the first scheduled trial date. This delay is inexcusable and contrary to the defense position in their reply papers that they did not have to take any steps to challenge the appropriateness of the prosecution's COC until after the second filing occurred. Under statutory motion practice guidelines, the defense was required as of January 9, 2020 to know (or should have known) that they did not have impeachment material as it related to the police witnesses. Thereafter, as of June 12, 2020 when the Civil Right Law § 50(a) was repealed, defense knew (or should have known) that they did not have any impeachment material or the disciplinary records of any police witness. And each time this case was conferenced with this court to find a trial date, defense knew or should have known that they did not have disciplinary records. Waiting until the trial start date is less than one month away to file a challenge to a COC that was filed on January 9, 2020 with a trial start date of March 16, 2020 is problematic and untimely. Defendant cannot claim that even with due diligence, he would not have been previously aware of the missing documents or for other good cause, could not have reasonably raised this issue, in a motion, in a timely manner. See, CPL § 255.20(3). Defense simply needed to review their discovery in anticipation of the start of the trial. As such, Defendant's motion should be denied without any evaluation of the People's actions related to the COC. However, this court will review the merits of the motion irrespective of the untimeliness of the filing based on a lack of precedent regarding when challenges to COCs must be filed.^[FN2]

As of the writing of this decision, there has been no known appellate decision addressing either the issue of the scope of the prosecution's duty to disclose under, or the ramifications for their failure to comply with, the automatic discovery provisions under the newly enacted CPL Article 245. There have been numerous lower court decisions, but no general consensus has emerged on the issues presented here. Below is this court's understanding of the issues based on legislative history, the plain reading of the applicable statutes and case law.

CPL Article 245 was passed as part of the 2019 budget in New York State. Its intent was to codify the scattered practice of "open file discovery" among prosecution offices. The law sought to stop the practice of "trial by ambush" and to provide defense with the entirety of a prosecutor's file with rare and limited exceptions.

CPL § 245.20(1) reads in part that the prosecution must disclose to defense "all items and information that relate to the subject matter of the case "(emphasis added) including but not limited to enumerated items within the statute. Lower courts throughout New York State have issued decisions that highlight the qualifier of "relate to the subject matter of the case." [*8]See, e.g., People v. Ashleigh Cruz, Dkt. No. 009359-20NA, (Dist. Ct. Nassau Cty 2021) (Alexander, J.) (only police personnel records "related to the subject matter of the case" are automatically discoverable and deemed to be in the possession of the prosecution). Other courts have remained silent on the qualifier in issuing a decision. See, e.g., People v. Cooper, 71 Misc 3d 559 (County Ct. Erie Cty 2021); People v. Herrera, 2021 NY Misc LEXIS 1428 (Dist Court, Nassau Cty 2021) (Engel, J) (prosecution's failure to act to obtain "all material and information" from police personnel files results in a violation of CPL Article 245).

This court finds that the words "relate to the subject matter of the case" is a purposeful qualifier that the Legislature placed into the statute. Because the Legislature did not define this phrase within CPL Article 245, the court must look to prior statutes that incorporated that language and case law for assistance in understanding that phrase. McKinney's Cons. Laws of NY, Book 1, Statutes § 75, advises that the "power to construe the statutes of this state is ordinarily vested in the courts." However, the Legislature can provide the meaning they intend behind the use of certain words.

Where a word has received a judicial construction, it will almost invariably be given the same meaning where it is again used by the Legislature in connection with the same subject. Thus where the same word comes up for construction a second time, or rather in connection with a second act, the Legislature is deemed to have knowledge of the construction which had previously been placed upon it, and to have used it in subservience to such judicial meaning.
 Id.

Prior case law has discussed evidence "which relates to the subject matter of the witness's testimony". See, People v. Rosario, 9 NY2d 286, 289 (1961). The Court of Appeals, in People v. Poole, 48 NY2d 144, 148-149 (1979), interchanged the word "relate" with "relevant" when examining whether the People provided all Rosario material at a trial. We know from People v. Scarola, 71 NY2d 769, 777 (1988), that the Court of Appeals held that evidence is relevant "if it has any tendency in reason to prove the existence of any material fact, i.e., it makes determination of the action more probable or less probable than it would be without the evidence." As such, CPL § 245.20(1) must be read to give its words not only their plain meaning (McKinney's Statutes § 232) ("it is a general rule in the interpretation of statutes that the legislative intent is primarily to be determined from the language used in an act, considering the language in its most natural and obvious sense."), and a meaning as determined by case law precedent (McKinney's Statutes § 75), but also a meaning that does not lend itself to the absurd. See, People v. Schneider, 37 NY3d 187, 196 (2021); People v. Santi, 3 NY3d 234, 242 (2004).

This court finds that a plain reading of CPL § 245.20(1) requires the items that are subject to "automatic discovery" be related to the subject matter of the case.

Thus, CPL § 245.20(1)(k) codified the timing of when the prosecution had to provide impeachment evidence in their actual or constructive possession "related to the subject matter of the case." This could include items such as: a witness identified someone else as a participant in the crime; a witness failed to pick out the defendant in a line-up; a witness recanted his/her statement; information developed that someone else committed the crime; a videotape that does not support the People's theory of the case; or an officer was reprimanded for how they handled a certain aspect of the current case. What CPL § 245.20(1)(k) could not have intended to include [*9]was the release of police personnel files because at the time of the passage of this legislation, Civil Rights Law § 50(a), which protected these files, was still in full force and effect. When the Legislature subsequently modified portions of CPL Article 245, which became effective on May 3, 2020, they again failed to indicate that CPL § 245.20(1)(k) included police personnel files.

Thereafter, on June 12, 2020, Civil Rights Law § 50(a) was repealed by the Legislature. The legislative memo accompanying this repeal states that "[r]ecent events have highlighted the importance for the public to have access to information, specifically with regards to law enforcement disciplinary records." Those events related to the treatment of minority populations at the hands of law enforcement. The memo further explains that the practice of defense attorneys not being able to cross examine police witnesses in criminal cases needed to change. Yet the repeal of Civil Rights Law § 50(a) and the subsequent amendment to the Public Officer law still allowed for redactions of police personnel files prior to their release to the public. Those redactions included any technical violation "not otherwise connected to a [sic] such person's investigative, enforcement, training, supervision, or reporting responsibilities." At the time of the repeal of Civil Rights Law § 50(a), the Legislature had to be aware of the impact such a disclosure requirement would make on prosecutorial agencies. There was a "hew and cry" raised throughout the State related to that very issue. Decisions started pouring in from the courts about how the repeal of Civil Rights Law § 50(a) impacted CPL § 245.20(1)(k) and the Legislature remained silent. What was clear from the repealed legislation was that "the entire" personnel file of a police witness need not be disclosed to the public. What is also clear is that the argument from defense attorneys that the "legislative intent" of CPL § 245.20(1)(k) was for the prosecution to obtain and turn over law enforcement personnel records is not accurate. It could not be as it was against the law at the time Article 245 came into existence.

Under former CPL § 240.20(h), the People were required to disclose to a defendant "[a]nything required to be disclosed prior to trial, to the defendant by the prosecutor, pursuant to the constitution of this state or of the United States." This section codified the prosecution's duties under the Brady/Giglio progeny of cases to disclose to the defense impeachment material "favorable to the defense, material either to guilt or punishment, or affecting the credibility of prosecution witnesses", irrespective of whether the prosecution credits the information. People v. Baxley, 84 NY2d 208, 213 (1994). While the new discovery statute repeals this section of CPL Article 240, the court finds that it does not go so far as to replace it by wholly incorporating it into automatic discovery, as Brady and Giglio disclosure requirements are much broader than CPL Article 245's restriction of material "related to the subject matter of the case" which "impeach[es] the credibility of a testifying prosecution witness" CPL 245.20(1)(k).

The Court of Appeals has repeatedly specifically recognized the distinction between impeachment related to the case and that which generally impeaches the credibility of a witness. In People v. Perez, 65 NY2d 154, 159 (1985), in addressing a Rosario violation, the Court held "[o]f course not every statement made by a witness which reflects on his credibility should be viewed as relating to the subject matter of his testimony." (Finding information in the prosecutions file regarding statements their witness made to defendant's family in apparent furtherance of a bribe offer or request relating to the homicide charge on which the defendant was then awaiting trial constituted Rosario as they were directly related to the witness' trial testimony because it was that testimony which the bribe discussions were intended to affect.)

Almost twenty years later, in People v. Garrett, 23 NY3d 878, 889 (2014), the Court of Appeals reaffirmed this distinction between impeachment related to the subject matter of the [*10]case and impeachment that generally affects the credibility of a witness:

"But there is a distinction between the nondisclosure of police misconduct "which has some bearing on the case against the defendant," and the nondisclosure of such material which has "no relationship to the case against the defendant, except insofar as it would be used for impeachment purposes" (Vasquez, 214 AD2d at 100; see Robinson, 627 F3d at 952). In the latter circumstance, the offending officer is not acting as "an arm of the prosecution" when he or she commits the misconduct, and the agency principles underlying the imputed knowledge rule are not implicated (see id. at 101)."

While this court understands the desire to "fill in the gap" between former CPL § 240.20(h) and current CPL Article 245, that simply is not the role of the court. Over thirty-five years of jurisprudence holds that police personnel records which have "no relationship to the case against the defendant except insofar as it would be used for impeachment purposes" is not the same as impeachment material "which has some bearing on the case against the defendant". Garrett, supra. Nothing in CPL Article 245 changes this. There is simply no language which magically turns general impeachment material into something that it never was before.

Thus, the court finds that any police personnel documents "related to the subject matter of the case" must be turned over as part of automatic discovery. However, any such documents which do not relate to the subject matter of the case, but are of a general impeachment value, must be analyzed under the constitutions of New York State and the United States, and the long litany of case law interpreting them.

"The prosecution is required to disclose information that is both favorable to the defense and material to either defendant's guilt or punishment (see Brady v Maryland, 373 US 83, 87, 83 S Ct 1194, 10 L Ed 2d 215 [1963]; People v Vilardi, 76 NY2d 67, 73, 555 NE2d 915, 556 NYS2d 518 [1990]). That duty to disclose encompasses impeachment evidence as well as exculpatory evidence (see Strickler v Greene, 527 US 263, 280, 119 S Ct 1936, 144 L Ed 2d 286 [1999]; Giglio v United States, 405 US 150, 154-155, 92 S Ct 763, 31 L Ed 2d 104 [1972]). "The rule applies regardless of the good or bad faith of the prosecutor, for its purpose is not to punish misconduct but to ensure that the accused receives a fair trial" (People v Bryce, 88 NY2d 124, 129, 666 NE2d 221, 643 NYS2d 516 [1996]). To establish a Brady violation warranting a new trial, "a defendant must show that (1) the evidence is favorable to the defendant because it is either exculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose because the suppressed evidence was material" (People v Hayes, 17 NY3d 46, 50, 950 NE2d 118, 926 NYS2d 382 [2011]; see also Strickler, 527 US at 281-282)." People v. Ulett, 33 NY3d 512, 515 (2019).

Thus, the Court must determine 1) whether the recently disclosed material "relate to the subject matter of the case"; and 2) if not, whether the People satisfied their constitutional burdens under Brady/Giglio to turn over general impeachment information in a timely fashion.

In this case, the files at issue are as follows:

(1) a founded allegation against an officer for failure to follow police procedure in [*11]conducting an investigation and making an arrest; the officer lost seven (7) days of pay.

(2) a computer-generated printout of a citizen complaint showing an "undetermined" and a "founded" allegation from the same set of facts that resulted in the retraining of an officer. This disclosure also included a statement from the District Attorney's office that there would not be a prosecution and the matter was referred back to the Internal Affairs Unit (IAU).

(3) a computer-generated printout of a citizen complaint that reflects a founded allegation of an officer related to a car accident wherein he allowed a 15 year old teen to refuse medical attention without calling her parents. The parent did not seek any further action beyond advising the police department of her concerns. The officer was retrained on proper procedure related to minors refusing medical attention and the notification of parents.

(4) a computer-generated printout of two citizen complaints; the founded complaint alleged that the officer registered his personal vehicle at an out of state residence. The undetermined matter involves a complainant, with a history of lodging complaints, calling the detective for an update on her supposed open case. The detective is alleged to have been rude when he stated, "I am going to do you a favor and hang up."

(5) a computer-generated printout of four citizen complaints which resulted in one "founded" and three "undetermined" results. The founded allegation is based on an attorney letter to the police department that an officer "did not act properly" while conducting a domestic violence incident. The undetermined matters included an allegation of harassment based on the officer issuing numerous tickets to the same motorist over an undisclosed time frame; a complaint that a separate motorist was given three tickets without cause and the officer spoke in a "demeaning" manner and lastly that the officer was disrespectful and broke the phone of an arrestee. An additional printout from the DA's office indicates a referral back to IAU after an investigation of missing property during an underage drinking sting at a particular bar.

(6) a judgment order from the Eastern District of New York dismissing a complaint against an officer and deeming the case closed.

A review of these documents reveals that none of these documents discuss incidents that "relate to the subject matter of the case" such that the People were required to turn them over as part of automatic discovery.

CPL § 245.20(1) requires disclosure of "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 " (emphasis added). Even if the Court found that the documents "related to the subject matter of the case", it must then also determine whether the material was in the People's actual or constructive possession, custody or control.

To do so, an analysis is also required of CPL § 245.20(2) which states in part: "For purposes of subdivision one of this section, all items and information related to the prosecution of a charge (emphasis added) in the possession of any New York state or local police or law [*12]enforcement agency shall be deemed to be in the possession of the prosecution." The qualifier of "related to the prosecution of a charge" needs to undergo the same analysis as the qualifier in CPL § 245.20(1), namely, "relate to the subject matter of the case." It appears that the Legislature intended a prosecuting agency to be in constructive possession of police files if those files are "related to the prosecution of a charge." That begs the question of what must the prosecution do to determine if there is a file within law enforcement's possession that "relates to the prosecution of a charge." That question is answered by CPL § 245.55 titled "Flow of Information." Subdivision 1 states: "The district attorney and the assistant responsible for the case shall endeavor to ensure that a flow of information is maintained between the police and [the] office sufficient to place within [the office's] possession or control all material and information pertinent to the defendant and the offense or offenses charged." The statute thereafter specifically references CPL § 245.20(1)(k) by indicating that there may be documents under CPL § 245.20(1)(k) within the possession of law enforcement that the prosecution is responsible for obtaining. If those documents exist, law enforcement is required to turn those documents over to the prosecution. Specifically, CPL § 245.55(2) states that law enforcement is required to turn over to the prosecuting agency "a complete copy of its complete records and files related to the investigation of the case or the prosecution of the defendant ". However, that which is deemed to be in constructive possession of the prosecution, still must be "related to the prosecution of a charge." See, People v. Perez 73 Misc 3d 171 (Sup Ct, Queens Cty 2021) (court determined that the limiting language in CPL § 245.20(2) removed police personnel records from being in the People's constructive possession); People v. McHale, Ind. # 181N/20 (County Ct, Nassau Cty 2021) (J. Ricigliano) (the statute as written allows for certain items within the possession of law enforcement to be excluded from the prosecution's constructive possession). See also, Mauro, supra ("By its plain wording, CPL Article 245 is quite specific in detailing the material that a prosecutor must provide. The absence of any specific reference to police personnel files militates against [d]efendant's argument"). Id. at 557.

This court finds that the plain reading of Article 245, which contains qualifiers such as "relates to the subject matter of the case" and "related to the prosecution of a charge," limits automatic discovery and that which is deemed to be in the People's constructive possession. As such, the meaning of Article 245 as it relates to police personnel files and the discovery obligations of the prosecution is likewise limited for files that are not in the actual possession of the District Attorney's Office.

A different analysis is required for records in the actual possession of the District Attorney's Office. In that situation, the question is not whether the prosecution is "deemed" to be in possession of the records. They are in actual possession of the records. However, automatic discovery has two prongs which must both be met. Here, the Court has found that the records at issue do not meet the first prong and, as such, do not fall under the framework of CPL § 245.20(1).

As a practical matter, the People will not know whether information contained in police personnel files relates "to the subject matter of the case" or "the prosecution of the charge" until they review them. Thus, in filing their COC and SOR without first obtaining and reviewing this information, they run the risk and will suffer the consequences of late disclosure should it be subsequently determined by a court that such records are related to the subject matter of the case and are not timely disclosed to the defense. How the People choose to proceed, however, is not [*13]an issue before this court. In this case, the documents at issue do not meet both prongs of the CPL § 245.20.

Under CPL § 245.50, the People must file a COC before they can announce their readiness for trial. 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."

In this case, the People filed a COC and corresponding SOR pursuant to the new discovery laws on January 9, 2020. Thereafter, on January 10, 2022 they provided the supplemental discovery which included police department paperwork related to disciplinary matters of six potential police officer witnesses and internal District Attorney paperwork related to several of those officers regarding the Office's investigation of disciplinary complaints. As the court finds that the documents underlying the second COC and SOR were not required to be disclosed under CPL § 245.20(1), the People's COC was not impacted by the failure to provide these documents to the defense. Because the original COC is found to have been properly filed, the Court need not address whether it was filed "in good faith and reasonable under the circumstances. CPL § 245.50.

Assuming arguendo that the police personnel records discussed above contain impeachment material relevant to the subject matter of the case, that finding would not invalidate the COC and SOR. Article 245 makes clear that the People have a continuing duty, pursuant to CPL § 245.60, to disclose information that they subsequently learn exists which was required to be disclosed pursuant to CPL § 245.20. The People must file an additional COC upon the serving of additional discovery. CPL § 245.50. As such, when passing the new discovery statute, the legislature contemplated the filing of supplemental COCs during the pendency of a criminal action. In fact, the discovery statute states, "No adverse consequences to the prosecution or the prosecutor shall result from the filing of a certificate of compliance in good faith and reasonable under the circumstance ". CPL § 245.50. However, sanctions have been authorized for late disclosure upon the showing by the aggrieved party that they were prejudiced by the late disclosure. CPL § 245.80(1). At a minimum, it was contemplated that the court would grant the aggrieved party more time to "prepare and respond to the new material." Id.

Here, the defense has not shown that it has suffered any prejudice from the potential late disclosure. CPL § 245.80(1) states, "[w]hen 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." The defense received the documents on January 10, 2022. Trial was set for February 14, 2022. The trial has not yet been rescheduled. The defense has had and will continue to have ample time to "use" these documents, if legally permissible, and has not suffered any prejudice from their delayed disclosure.

Additionally, Brady/Giglio require exculpatory and impeachment material to be given to the defendant as soon as practicable and at a time when he or she can meaningfully use it to cross-examine the prosecution's witnesses or as evidence during the trial. People v. Cortijo, 70 NY2d 868, 870 (1987). Again, the defense must claim that prejudice occurred from the prosecution's failure to turn over Brady/Giglio material. See, United States v. Bagley, 473 US 667, 679 n.8 (1985); People v. LaValle, 3 NY3d 88, 109-110 (2004). Because the defense did not argue that this late disclosure caused them prejudice, there is no remedy required to be imposed by the court.

Lastly, in further evaluating this motion, and because there is no appellate guidance related to the issues presented herein, this court will continue to decide on the merits, each aspect of the attorneys' arguments. Assuming, arguendo, that the People's COC was found to be illusory thereby negating their SOR, this court will now evaluate the speedy trial aspects of this motion. It is the holding of this court that an invalid COC does not automatically result in all time being charged to the People. An invalid COC and SOR merely triggers the need for a separate and distinct analysis of whether adjournments are chargeable to the People. Nothing within the wording of CPL Article 245 or CPL Article 30 says otherwise.

The calculation of speedy trial time is controlled by CPL § 30.30. The People must be ready for trial within six months of the commencement of an action wherein the defendant is charged with having committed a felony offense. CPL § 30.30(1)(a). In this case, the criminal action commenced with the filing of the felony complaint on July 19, 2018, making the six month period the equivalent of 184 days. Certain time frames are excludable from this calculation. The most common of these exclusions are: motion practice (CPL § 30.30(4)(a)); requested adjournments by defense or consent adjournments between the parties (CPL § 30.30(4)(b)); and "exceptional circumstances" as delineated in CPL § 30.30(4)(g). The People are tasked with assuring a clear record exists regarding adjournments and thus will be charged with any time frame that cannot be determined to fall into a legally authorized exclusion. See, People v. Berkowitz, 50 NY2d 333, 348-349 (1980).

Defendant was arraigned on the felony complaint on July 19, 2018. The defense sought adjournments until October 2, 2018 when they waived the case to the grand jury without a speedy trial waiver. Thereafter, the defendant was arraigned on an indictment on November 9, 2018. The prosecution immediately announced ready for trial. New discovery laws came into effect on January 1, 2020 that required the prosecution to meet certain benchmarks before they were again "ready" for trial.^[FN3] The prosecution filed their COC and new SOR on January 9, 2020. All adjournments for the next two years were either due to restrictions on the court's ability to conduct trials or at the request/consent of the defense. On January 9, 2022, the defense requested disciplinary records of officers involved in this case in various capacities. Those records were provided the following day at which time the prosecution filed a subsequent COC and SOR.

Defense argues that they never would have consented to adjournments in this case, after January 1, 2020, if they had known that the People's COC and SOR were invalid.^[FN4] Their argument fails under statutory construction, case law and common sense. Regarding statutory construction, there is a "well established rule of statutory construction that a court should avoid any interpretation that leads to absurd and unintended consequences." See, Schneider, supra. The statute is clear on its face that time is excluded when consent is clear on the record. The Legislature has never provided for a hearing as to why a defendant consented to an adjournment. To find otherwise would be absurd and would burden the court with having to determine, after the fact, why a defense attorney consented and if they would have consented had they known other information or should they have known what they now claim they didn't know when they consented. See, People v. Kopciowski, 68 NY2d 615, 617 (1986) ("where adjournments are allowed at defendant's request, those periods of delay are expressly waived in calculating the People's trial readiness, without the need for the People to trace their lack of readiness to defendant's actions citing, People v. Worley, 66 NY2d 523"). See also, People v. Ortiz, 295 AD2d 134 (1st Dept. 2002) (When defense consents to or requests an adjournment and it is granted by the court, "[t]he People's readiness or lack of readiness during those periods is irrelevant .those periods of delay are expressly waived in calculating the People's trial readiness ".). It is not up to this court to litigate the underlying reason for a consent or defense adjournment absent some blatant conduct by the People that amounts to a fraud upon the defense and the Court.

In People v. Otero, 70 Misc 3d 526, 531 (City Ct., Albany Cty 2020), the defendant argued that the People's belated compliance with the new discovery rules rendered them ineligible for an exclusion of a time period which the defense requested to consider a plea offer. Although the Court acknowledged "the intuitive logic" of the defense argument, it held that

"[d]espite its appeal, the defendant's argument founders on a critical legislative omission. None of the extensive 2019 reforms modified the definition of excludable time as it relates to discovery compliance. In fact, the two statutes which directly address the interplay between discovery and speedy trial (CPL §§ 30.30[5] and 245.50) do not mention a word about withholding the CPL § 30.30(4) exclusions from prosecutors who fail to provide discovery. The implication of this legislative inaction is clear: prosecutors who donot comply with discovery can still find refuge in the CPL § 30.30(4)(d) exclusions. They can, in other words, still use excludable time, even if they did not provide discovery." The Court continued, "That may not be fair, or even desirable. However, it is not the job of the courts to fill a void left by the legislature. It is a basic rule of statutory construction that a Court must not, in construing a statute, insert a provision which it is reasonable to suppose that the Legislature intended to omit Here, it is more than reasonable to suppose that the legislature intended to omit changes to the CPL 30.30 exclusions relative to discovery violations. After all, the reforms were [*14]lengthy, exhaustive and comprehensive. They added an entirely new Article to the CPL (CPL Article 245) and made corresponding changes to the speedy trial statute. Despite these changes, neither the new Article 245 nor the conforming amendments to the speedy trial statute addressed the impact of discovery compliance on the availability of speedy trial exclusions — something the legislature could easily have done if it wanted to."

In this case, the defense seeks all time from January 1, 2020 to January 21, 2022 to be charged to the People for failure to file a valid COC irrespective of their request of the court or their consent to an adjournment. The People argue that only the time frame from January 1, 2020 to January 9, 2020 is chargeable to them (9 days). Neither side discusses the pre-indictment delay or the numerous administrative issues impacting the court because of the pandemic. The following is the breakdown of timeframes chargeable to the prosecution.

This case commenced on July 19, 2018 and defense requested adjournments until October 2, 2018. None of that time is chargeable to the People.

The People are charged with the timeframe between October 2, 2018 when the case was waived to the grand jury and November 9, 2018 when the defendant was arraigned on the indictment and the People announced that they were ready for trial. (38 days)

Thereafter, based on the new discovery law, the People needed to file a COC and SOR before stating that they were again "ready for trial." That timeframe from January 1, 2020 to January 9, 2020 is chargeable to the prosecution. (8 days)

The timeframe from January 9, 2020 to March 16, 2020 (when the courts ceased their ability to try cases) is not chargeable to the People as defense specifically requested time to obtain certain records for his defense and thereafter needed to file his own COC.

The time frame from March 16, 2020 to October 4, 2020 is not chargeable to the People as EO 202.8 stopped the speedy trial clock. No other discussion is needed. The "clock" stopped.

On October 5, 2020, when the speedy trial clock restarted, the Court did not have any jurors available for the parties to conduct a trial. In fact, the Administrative Order dated Oct. 16, 2020 advised Nassau County judges that trials would commence for Term 12. The first day of Term 12 was November 2, 2020. The time frame from October 5, 2020 to November 2, 2020 cannot be chargeable to the People as it was legally impossible to try a case as no jurors were available. The entire period consists of an administrative adjournment. Moreover, defense had previously consented to an adjournment until November 5, 2020.

On November 5, 2020, the defendant and an interpreter appeared live in the courtroom. The Judge and the parties appeared virtually. Although one trial was being conducted at a time in Nassau County ^[FN5] , the parties were not desirous of moving this case forward. In fact, the Legal Aid Society made their position clear that they would not enter the courthouse while the Covid numbers were again increasing. Defense does not get to argue that their own refusal to enter the courthouse has no impact on the evaluation of whether the time requested for an adjournment was either on consent or specifically a defense request. Defense asked for December 3, 2020 and this timeframe is not chargeable to the People.

Trials were again halted on November 16, 2020 via the memorandum of Chief Administrative Judge Lawrence K. Marks. If the court cannot provide the jurors needed to conduct a trial, time cannot be charged to the prosecution. Regardless, defense had consented to an adjournment until December 3, 2020.

Trials were allowed to commence again on March 22, 2021 per the memorandum of Administrative Judge Norman St. George. All time from November 16, 2020 to March 22, 2021, are administrative and not charged to the prosecution.

On March 18, 2021, another virtual conference was held. The ADA was on medical bed rest and the defense consented to an adjournment to April 20, 2021. This time is not chargeable to the prosecution.

There was an administrative adjournment on April 20, 2021 until June 29, 2021 as no courtroom was available for trial. Therefore, this time was not chargeable to the People.

The time frame between June 29, 2021 and September 14, 2021 is likewise not chargeable to the People as both parties agreed to a fall trial with defense advising the court that they were in "no rush" to try the case as the defendant was being released from custody and dealing with immigration issues. This was a consent adjournment. The defense cannot argue against their own words in seeking this time to be charged to the People.

The time frame between September 14, 2021 and November 3, 2021 is also not chargeable to the prosecution as it was a consent adjournment. The defense again stated their desire to wait on the start of this trial as Covid numbers had been, once again, starting to rise.

On November 3, 2021 the Covid numbers were steadily rising in Nassau County with the Omicron variant plaguing the court system. That situation in conjunction with a personnel issue at the Legal Aid Society prompted the defense to seek a trial in the new year. A trial date of February 14, 2022 was agreed upon and consented to by both parties. Again, defense cannot walk away from their words to the court that a staffing issue prevented them from being able to try this case. To say otherwise is disingenuous.

This motion was filed on January 21, 2022.

Consequently, this court finds that the timeframe chargeable to the prosecution consists of 38 days of pre-indictment delay and 8 days to file a COC and SOR. That totals 46 days. As the People have not exceeded the 184 day timeframe, they are not in violation of speedy trial and the Indictment is not dismissed.

Thus, despite the defendant's untimely motion, the court finds that the prosecution's COC was not illusory as the late disclosures were not subject to automatic discovery, and even it they were, no prejudice was shown by the defense and no remedy was warranted. Moreover, the prosecution did not exceed its speedy trial time in being ready for trial.

Wherefore the defendant's motion is denied in all respects.