The Defendant moves for an order invalidating the People's certificate of compliance and statement of readiness for trial ("COC") and dismissing the People's accusatory instrument on the grounds that he has been denied a speedy trial by virtue of incomplete and untimely discovery. The motion is granted. The COC is declared invalid and the accusatory instrument is dismissed.

On September 21, 2021, the Defendant was arraigned on charges of violating Vehicle and Traffic Law §1192(3) — Driving While Intoxicated 1st Offense and Vehicle and Traffic Law §1129(A) — Following Too Close. He pled not guilty and the matter was adjourned to October 21, 2021 for discovery and possible disposition. The following day, September 22, 2021, the People filed a certificate of compliance and statement of readiness for trial ("COC").

On October 21, 2021, the Defendant reported that discovery was incomplete due to the People's failure to provide the 911 telephone calls and the motor vehicle accident report; requested an adjournment for purposes of filing an omnibus motion; and waived CPL §30.30 time. The Court adjourned the case to November 29, 2021 for argument of the omnibus motion and directed the people to complete discovery by that date.

On October 28, 2021, the Defendant filed the omnibus motion. The People's response and cross-motion were filed on November 29, 2021. At that day's motion hearing, the Defendant advised the Court that the 911 telephone calls and motor vehicle accident report remained outstanding. The Court imposed a December 14, 2021 deadline for discovery to be completed and scheduled a probable cause and Huntley hearing for January 26, 2022. However, the 911 calls and motor vehicle accident report were not provided [*2]to the Defendant until January 24, 2022. At the January 26, 2022 probable cause and Huntley hearing the People requested an adjournment due to the unavailability of their witness. The hearing was adjourned to February 23, 2022.

This motion to dismiss was filed by the Defendant on February 7, 2022. On February 17, 2022 at the Defendant's request, the Court indefinitely postponed the probable cause and Huntley hearing in order to hear arguments on the dismissal motion on February 23, 2022 instead. The People filed a Supplemental COC and response to the motion at the February 23rd hearing. Following argument, the Court reserved decision on the dismissal motion until March 23, 2022 and ordered that any supplemental arguments or authority be filed with the Court in writing within ten days. None were received.

The Defendant's argument is that the September 22, 2021 COC was illusory because discovery was not complete at that time, that more than 90 days chargeable to the People elapsed from the date of the Defendant's arraignment to the filing of the Supplemental COC, and that consequently the accusatory instrument should be dismissed pursuant to CPL §30.30(1)(b). The Defendant calculates 139 days chargeable to the People.

The People argue that the COC was not illusory. It was offered in good faith and reasonable under the circumstances because the 911 calls were not in the People's possession and that the failure to provide the motor vehicle accident report was not prejudicial to the Defendant because the information was available in other documents that were produced. The People calculate 13 days chargeable to themselves if the COC is found not illusory and 42 days if it is illusory.

The automatic discovery provisions of CPL §245.20, coupled with the speedy trial dictates of CPL §30.30 (1)(b) require the People to complete relevant discovery to the Defendant within 90 days after a misdemeanor arraignment.

CPL §245.50 requires the People to file a COC when discovery is complete certifying that "after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery, the prosecutor has disclosed and made available all known material and information subject to discovery," CPL §245.50(1) and that "the People shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper certificate pursuant to subdivision one of this section," CPL §245.50(3).

Although CPL §245.50(3) exempts from mandatory discovery lost or destroyed items or those under a protective order, CPL §245.50(1) also provides that "[n]o adverse consequence to the People or prosecutor shall result from the filing of a certificate of compliance in good faith and reasonable under the circumstances."

"Clearly, the People's trial readiness is now directly tied to meeting their discovery obligations, 'such that discovery compliance is a condition precedent to a valid announcement of readiness for trial.'" (People v. Quinlan, 71 Misc 3d 266, 270 [Crim Ct, Bronx County 2021], quoting People v. Lobato, 66 Misc 3d 1230 [A], 2020 NY Slip Op. 50322 [U], *4 [Crim Ct, Kings County 2020].) Absent a valid exception, a COC filed prior to discovery compliance is illusory and does not stop the speedy trial clock. (People v. Cooper, 71 Misc 3d 559, 565 [Erie County Ct 2021].)

In the case of People v. Knorr, 73 Misc 3d 285, 289 [Henrietta Just Ct, Monroe County 2021] this Court concurred with the prevailing view that, "the guiding principles when evaluating the validity of a COC must be good faith, due diligence, and reasonableness under the circumstances." (People v. [*3]Ferrer,72 Misc 3d 1212[A], 2021 NY Slip Op 50706[U],*4 (Crim Ct, Bronx County 2021); see also People v. Perez, 73 Misc 3d 171, 176 [Sup Ct, Queens County 2021].)

Knorr applied factors enunciated by the Ferrer Court to consider in determining the validity of a COC: "(1) the nature of the missing/delayed discovery, (2) prosecution's efforts to obtain it, (3) whether the information was in the People's possession; and if it was, the reasons for the non- or late-disclosure, and (4) the defense's ability to independently obtain the records, and weigh them against any prejudice to the defense," Id. at *4. Those factors are useful to consider here.

The first factor assesses whether the missing material was discoverable and whether it was central or peripheral to Defendant's case. If discoverable, but of arguably minor importance, the failure to disclose might justify imposing sanctions rather than invalidating the COC. (See People v. Bruni, 71 Misc 3d 913, 921 [Albany County Ct 2021].) In this case, the 911 calls and the motor vehicle accident report are relevant to Defendant's defense. Both items could shed light on the issue of probable cause.

The second factor to consider is the People's efforts to obtain the discoverable materials. Good faith, due diligence and reasonable inquiry to find extant discovery material are required. (CPL §245.50 [1]; Perez, supra; People v. Aquino, 72 Misc 3d 518 [Crim Ct, Kings County 2021].)

In this matter, the People did not claim that the 911 calls and motor vehicle accident report were not discoverable. They noted in the COC that they had requested the 911 Call Center to preserve the 911 calls, but recited no other steps taken thereafter to obtain the calls. The COC stated that all police reports had been provided although the motor vehicle accident report had not been. The People's only explanation for the delay in providing the information from September 22, 2021 to January 24, 2022 was that the Assistant District Attorney assigned to the case left his position around the December 14, 2021 date that the Court had ordered discovery to be complete.

This is not a satisfactory excuse for the delay in providing the information. There were certainly other prosecutors available to complete discovery. The People could have, but did not, move for additional time for discovery. (CPL §245.70 [2]) Further, the departure of a prosecutor is not an unusual occurrence and does not rise to the level of an exceptional or special circumstance that would warrant the Court to find good cause for an extension of time absent a motion. (People v. Pealo, 71 Misc 3d 337, 345 [Penfield Just Ct, Monroe County 2021] — recent discovery law changes and Court closures during pandemic were exceptional circumstances that justified discovery delay and CPL §245.50 [3] allowed the Court to make that finding without a prior motion.)

"[W]here the prosecutor has failed to demonstrate diligence and reasonableness in obtaining and disclosing required information and, as a result of that lack of diligence and reasonableness, has failed to make a necessary disclosure, then the certificate of compliance is invalid." (People v. Adrovic, 69 Misc 3d 563, 574[Crim Ct, Kings County 2020].) The People's failure to meet the Court's deadline for discovery showed a lack of diligence and reasonable effort.

The third factor assesses whether or not the discoverable material is in the possession of the People; and if it was, the reasons for the non- or late-disclosure. Information in the possession of law enforcement is statutorily deemed to be in the possession of the People. (CPL §245.20 [2]; Quinlan at 272.) "Thus, the assertion that known discovery materials are not in their physical possession does not in any way excuse their failure to provide them." (People v. Georgiopoulos, 71 Misc 3d 1215[A], 2021 NY Slip Op 30380[U], *3 [Sup Ct, Queens County 2021].) "Accordingly, all police paperwork is imputed to be in the People's control and it is the prosecutor's duty to work with the police to obtain such materials.[*4]As a result it is never sufficient for the People to affirm that an item is not in their physical possession to defeat a certificate of compliance challenge." (Georgiopoulos,*5.)

The People argue that the 911 calls were not in their possession, but rather in the possession of a secondary agency, the 911 Call Center. Since the 911 Call Center has been accredited by both the Commission on Accreditation for Law Enforcement Agencies and the New York State Sheriff's Association, it arguably may qualify as a law enforcement agency that should be deemed to be accessible to the People. However, that issue was not raised by the Defendant and need not be decided here because it is indisputable that the motor vehicle accident report was within the possession of law enforcement and statutorily deemed to be in the People's possession.

The last factors to be considered are the defense's ability to independently obtain the materials and to weigh the missing/late discovery against any prejudice to the Defendant.

"Independent of any obligation the People may have, the defense counsel cannot sit idly by or she runs the risk of never having the information for hearings and trial to the potential detriment of her client." (Ferrer, *7.) "The defendant is obligated to pursue his rights; he should not silently lie in wait with a challenge to the People's discovery compliance while the speedy trial clock ticks loudly in the background." (People v. Nova-Ceballos, Sup Ct, NY County 2021, index No. 98/2019, slip op at 3.)

In this case, the Defendant was persistent in demanding delivery of the 911 Calls and the motor vehicle accident report. They first reported that discovery was incomplete on October 21, 2021 and the Court directed that discovery be completed by November 26, 2021. Again, on November 26, the Defendant protested that the 911 calls and motor vehicle report had not been provided and the Court ordered that they be produced by December 14, 2021.

The People argue that there was no prejudice to the Defendant because it now has the 911 calls and the information contained in the motor vehicle accident report could have been gleaned from the other documents that were produced. This argument is disingenuous. The Defendant should not have to wait until the People get around to providing discovery or hunt for the information to formulate an adequate defense. Avoiding that scenario is part of the rationale behind automatic discovery. "[T]he People's obligation to provide discovery, and to certify compliance with that obligation, is not relieved by an absence of prejudice to the defendant."(Aquino at 527, quoting Adrovic at 574.)

Although the Defendant now has received all discovery materials and a statutorily compliant supplemental COC, full discovery was not timely received rendering the September 22, 2021 COC that erroneously certified discovery complete illusory. More than ninety days having elapsed from September 21, 2021 to February 23, 2022, the Court must determine whether the speedy trial clock has run by evaluating excludable time.

Because the original COC was illusory, the period of 30 days from September 21, 2021 to October 21, 2021 is chargeable to the People.

On October 21, the Defendant waived §30.30 time and requested an adjournment to file and argue motions. Accordingly the period from October 22 to November 29 is excluded.

Motions were decided on November 29 and the Defendant's request for probable cause and Huntley hearings was granted. The hearings were scheduled for January 26, 2022. Although the People argue that pursuant to CPL §30.30(4)(a) the 58 days from November 29, 2021 to January 26, 2022 should [*5]be excluded as pre-trial motion time, as the Defendant has argued, motion time should only be excluded if it impairs the People's ability to declare readiness for trial. (People v. Washington, 54 Misc 3d 1217[A], 2017 NY Slip Op 50195, *3 [Monroe County 2017]; People v. Roscoe, 210 AD2d 1003, 1004 [4th Dept. 1994], People v. Rodriguez, 214 AD2d 1010, 1010 [4th Dept. 1995].) Since the People did not retract their statement of readiness from September 22, 2021, their readiness cannot be considered impaired by the motion schedule. Accordingly 58 days are chargeable to the People.

On January 26, the People requested an adjournment of the probable cause and Huntley hearings to February 23 due to the unavailability of their witness. However, on February 7 the Defendant moved for dismissal and the Dismissal hearing was subsequently scheduled for February 23 postponing the other hearings. Due to the People's adjournment request, the 12 days from January 26 to February 7 are chargeable to the People. The 16 days from February 7 to February 23 are excludable time for the People's preparation of a response to the dismissal motion.

The 28 days from February 23 to March 23 are excludable as time for the Court's consideration of the dismissal motion.

100 days being chargeable to the People, the Defendant's right to a speedy trial has been violated.Accordingly, the accusatory instrument is dismissed.

This constitutes the Decision and Order of the Court.