Defendant, charged with one count of Criminal Possession of a Controlled Substance in the Seventh Degree in violation of Penal Law § 220.03, moves this Court to find the People's Certificate of Compliance ("COC"), filed on November 10, 2021, invalid, and for an order dismissing the accusatory instrument pursuant to CPL § 30.30.

The People oppose defendant's motion, arguing that the COC was valid because it was made in good faith, and because they exercised due diligence and made reasonable inquiries to find and provide all necessary discovery prior to certifying compliance. Accordingly, the People argue that because their COC was valid, they have not exceeded the CPL § 30.30 speedy trial time limitations. For the reasons stated below, the defendant's motion is DENIED.

On September 1, 2021, the People filed the accusatory instrument commencing this action. On November 10, 2021, the People filed the Discovery Package, Automatic Discovery Form (ADF), Certificate of Readiness (COR), Certificate of Compliance (COC), Affidavit of Service, and a Table of Contents (TOC). The arresting officers' body-worn camera footage was listed in both the People's ADF and TOC and was uploaded to the eDiscovery portal for transmission. (Vidal Aff. ¶ 8). The footage, however, was not transmitted along with the other items of discovery. (Vidal Aff. ¶ 9).

After serving the discovery, the People emailed defense counsel regarding the discovery listed in the ADF and TOC, and inquired of defense counsel whether all had been received by the defense. (Vidal Aff. ¶ 8, Exhibits 6, 7, Email dated November 10, 2021, and Email dated November 16, 2021). The People did not receive a reply to their email on November 10th, nor did they receive a reply to their November 16th email on the date of its transmission.

On November 29, 2021, 19 days after the ADF was filed, and after the People's emails inquiring into the defense's receipt of all discovery, defense counsel alerted the People that, unlike the rest of the documents provided in eDiscovery, the body-worn camera footage had not been received. (Exhibit 9). Upon seeing that the body-worn camera footage had not transmitted as intended, the People disclosed the footage via the eDiscovery portal within two hours of receiving defense counsel's November 29th notification, and sent an email alerting defense counsel of the transmission. (Vidal Aff. ¶ 9, Exhibit 10).

On December 1, 2021, the defendant filed an omnibus motion which included a challenge to the People's compliance with CPL Article 245. On December 2, 2021, Judge Morales adjourned the matter for a response and decision on the defendant's omnibus motion. At that appearance, Judge Morales left the issue of the validity of the November 10, 2021 COC open to further briefing and adjourned the case for decision.

On January 27, 2022, the court granted defendant a Mapp/Dunaway hearing, and ordered that the parties confer on all issues regarding discovery pursuant CPL § 245.35. The case was then adjourned for hearing and trial to March 2, 2022.

On March 2, 2022, the People announced ready for trial, but the case was adjourned due to defendant appearing virtually and stating that he was experiencing symptoms of COVID-19. Defense counsel again raised the issue of the November 10th COC, and the People specified that its witnesses, and prosecutor were ready, and that it had complied with CPL Article 245.^[FN1] The case was adjourned to March 24th for trial.

On March 24, 2022, People announced not ready due to the unavailability of the arresting officer, and requested March 30, 2022 for trial. The court adjourned for hearings and trial to March 30, 2022.

On March 30, 2022, the People again announced ready for trial. The defendant then filed the instant dismissal motion and the case was adjourned to May 2, 2022 for response and decision.

Defendant is charged with "at least one . . . misdemeanor punishable by a sentence of imprisonment of more than three months." CPL 30.30(l)(b). Thus, his motion to dismiss must be granted if the People were not ready for trial within 90 chargeable days of the commencement of the action. Id. Central to defendant's motion to dismiss is defendant's claim that the People's COC filed on November 10, 2021 was invalid, and therefore the People were not ready for trial upon its filing.

The People filed their COC on November 10, 2021 after serving discovery disclosures pursuant to CPL §§ 245.20(1) and 245.50(1). The defendant asserts that the November 10, 2021 COC was invalid based on the People's failure to disclose the body-worn camera footage. See Defs Mot. at p. 4.

Under CPL § 245.50(1), the People's COC can be deemed valid if filed "in good faith and reasonable under the circumstances." The legislature specifically included "due diligence" and "good faith" in the statutory language in recognition that a COC could be valid even when certain materials had not been disclosed. See CPL § 245.50(1); People v. Williams, Crim Ct NY County, October 18, 2021, Thompson, J., Dkt. No. CR-000709-20NY at p. 5; People v. Ingramminors, Crim Ct NY County, April 14, 2021, Diaz, J., Dkt. No. CR-020938-20NY at p. 6; People v. Knight, 69 Misc 3d 546, 552 (Sup. Ct., Kings Co. 2020) (deeming a COC valid even [*2]when an additional "discovery items" were turned over after the Certificate had been filed).

The Williams court held that the People displayed good faith in their disclosure of extensive discovery, and good faith in the prompt rectification of the inadvertent nondisclosure. Williams, CR-000709-20NY at p. 5. The court concluded that the failure to turn over medical records on February 19, 2020, when the COC was filed, "appears to be an unintentional oversight [that] does not demonstrate that the People acted in bad faith as to warrant invalidating of their COC." Id. As such the court found the COC and COR was valid despite the error.

In Ingramminors, the defendant also challenged the People's COR and COC due to an error in disclosing adequate contact information for witnesses through the eDiscovery portal. The People had filed and served an ADF which indicated that the witness's contact information was uploaded onto the WitCom application and the People believed they had uploaded all witness information into the application. The People later reopened the application to discover that the witness information had not been made accessible to the defendant. The court found that the error was not an attempt to keep this evidence from the defense, and that the legislature foresaw these types of human errors, by providing 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 section 245.80." See Ingramminors, CR-020938-20NY at p. 4.^[FN2]

On November 10, 2021, the People disclosed a number of documents including the (1) arrest report, (2) datasheet, (3) Desk Appearance Ticket ("DAT") and DAT paperwork, (4) criminal complaint and complaint paperwork, (5) supporting deposition, (6) prisoner movement slip, (7) arrest checklist, (8) activity logs and disclosure advisory letters for Officer Lyon, Officer Khader, and Officer English, (9) command long, (10) body-worn camera checklist, (11) 911 report, (12) online booking system paperwork, (13) prison pedigree card, (14) property clerk invoice, (15) mugshot, (16) New York Police Department controlled substance analysis report, and (17) hand written notes by the People.

The body-worn camera footage for the officers was uploaded to eDiscovery along with the above-mentioned documents. All the above-mentioned material was intended to be disclosed together, but an unknown technical error prevented the body-worn camera footage from being properly transferred on the eDiscovery portal. (Vidal Aff. ¶ ¶ 8, 9). The People certified their compliance, in good faith, in accordance with CPL § 245.50(1), and certified their readiness for trial in accordance with CPL § 245.50(3).

Any mistaken non-disclosure was not the result of lack of due diligence in acquiring and reviewing the material, nor the result of bad faith. Based on the foregoing, the November 10, 2021 COC is not to be invalidated because of the inadvertent non-disclosure of the camera [*3]footage. Indeed, the People never concealed the existence of the footage from the defense and, in fact, through email correspondences, invited a review of all discovery, and invited requests for clarification, and additional discovery production.

Good faith, due diligence, and intent to disclose are demonstrated by the body-worn camera details appearing in both the ADF and the TOC, as well as transmission of the material through the eDiscovery Portal upon the People's learning that the footage had not been properly transferred. (Vidal Aff. ¶ ¶ 8, 9). Indeed, defendant has not alleged, let alone shown, any prejudice suffered because of the immediate disclosure of the camera footage after defense notified the People of the omission, after the November 10, 2021 filing of the COC. (See CPL§ 245.80).

The Legislature provided for a method of resolving disputes by providing that parties could be ordered to "diligently confer in attempt to reach an accommodation to any dispute concerning discovery prior to seeking a ruling from the court." CPL § 245.35(1). The strong preference of the legislature is that discovery disputes should be resolved as the cases progress to trial—these disputes should not be used by the defense as means for stopping a prosecution entirely. Discussions between the parties regarding ongoing discovery is contemplated by the CPL's "flow of information," "continuing duty to disclose," and "court-ordered procedures to facilitate compliance" provisions (see CPL § § § 245.55, 245.60 and 245.35).

The record establishes that the People operated in good faith, with due diligence, and immediately remedied, when alerted by the defense, the missing material. The Court finds that the non-disclosure was an unintentional oversight that does not warrant invalidating the certificate of compliance. People v. Moore, 72 Misc 3d 903, 907 (Sup Ct Kings County 2021).

1. September 1, 2021 to November 10, 2021: 70 Days Chargeable

Finding that the certificate of compliance is valid, the Court now turns to speedy trial time calculations. Pursuant to CPL § 30.30(l)(b), the People must be ready for trial within ninety days of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony. CPL § 30.30 (1)(b).

Accordingly, the People are charged with the 70 days from September 1, 2021 until November 10, 2021, the date upon which the COC and COR were filed. The People concede this time is chargeable.

2. November 10, 2021 to December 2, 2021: 0 Days Chargeable

The time after November 10, 2021 to December 2, 2021 is not chargeable to the People as the filing of the COC and COR tolled the speedy trial clock. As discussed infra, the People did provide discovery in compliance with CPL Article 245, and the COC filed on November 10, 2021 was valid. People v. Moore, 72 Misc 3d 903, 907 (Sup Ct Kings County 2021).

3. December 2, 2021 to January 27, 2022: 0 Days Chargeable

For this period, 0 days are chargeable to the People. CPL 30.30(4)(a)("reasonable period of delay resulting from other proceedings concerning the defendant, including pre-trial motions" is excludable). The period is also excludable because the People answered ready on the record, in the presence of defense counsel. See People v. Cajigas, 224 AD2d 370, 372 (1st [*4]Dept. 1996).

4. January 27, 2022 to March 2, 2022: 0 Days Chargeable

This time is excludable as to the matter was adjourned for hearing and trial on January 27 to March 2, 2022. CPL § 30.30(4)(a); People v. Levingston, 66 Misc 3d 148(A)(App Term, 1st Dept. 2020.).

5. March 2, 2022 to March 24, 2022: 0 Days Chargeable

This period is excludable as the People announced ready for trial and defendant appeared virtually because of health concerns, and announced that he was not ready to proceed.

6. March 24, 2022 to March 30, 2022: 6 days Chargeable

This time is chargeable as the People announced not ready due to the unavailability of the arresting officer on March 24th and requested March 30th for trial.

7. March 30th to May 2, 2022; 0 Days Chargeable

On March 30th 2022, the People announced ready for trial and the defendant filed the instant motion to dismiss. The case was adjourned to May 2, 2022 for response and decision. For this period, 0 days are chargeable to the People. CPL § 30.30(4)(a)("reasonable period of delay resulting from other proceedings concerning the defendant, including pre-trial motions" is excludable). The period is also excludable because the People answered ready on the record, in the presence of defense counsel. See People v. Cajigas, 224 AD2d 370, 372 (1st Dept. 1996).

Defendant's motion to invalidate the People's certificate of compliance and to dismiss pursuant to CPL 30.30 is denied. As detailed above, 76 days are chargeable to the People. The People have not exceeded CPL 30.30 time limitations.

This constitutes the Decision and Order of the Court.