The People here did not meet their statutory duty to serve automatic discovery and file a certificate of compliance within 35 days of arraignments. Instead, the People violated that deadline more than twice over. Then, with only five days left on the 90-day "speedy-trial clock" for the entire case, the People submitted their "certificate" of discovery "compliance." However, on the first court date thereafter, the defense objected, arguing that the certificate was improper. They noted that they had not actually received some discovery the People claimed to have disclosed.

By a motion that directly followed, the defense alleges that the People filed their certificate of discovery compliance without first actually producing several documents. These include: 911 audio files and related documents; police misconduct records for NYPD officers Sybil Ramos, Earl Quinones, Robert Kosich, Heriberto Perez, and Gregory Thuesday; IDTU calibration reports, gas chromatography reports, and simulator-solution reports; a memo book entry; IDTU certifications; NYPD photographs of a witness' identification, car insurance, and registration; and a police report about the interrogation warnings in this case. The defense also claims the People never made diligent, good-faith efforts to ascertain the existence of and make available FDNY members' contact information relating to this case.

The People respond that they tried to disclose some documents through their OneDrive system on the 85th day after arraignments but failed due to a "technological error." They also argue that the NYPD photographs are not discoverable. And they argue that they have no discovery obligations regarding FDNY members' contact information.

For the following reasons, the defense's motion is GRANTED.

The procedural history is effectively uncontested.^[FN1] On November 1, 2021, Bronx [*2]Criminal Court arraigned Mr. Francis. The top charge was V.T.L. § 1192[3], an unclassified misdemeanor punishable by up to 364 days in jail. At arraignment, the People were not ready for trial. The court adjourned the case. On December 15, 2021, the next court date, the People again were not ready for trial. The court adjourned the case. On January 19, 2022, the next court date, the People yet again were not ready for trial. The court adjourned the case. On January 25, 2022, off calendar, the People filed and served a certificate of discovery compliance and statement of readiness. This was the 85th day after arraignments. The speedy-trial deadline would have been five days later. (See C.P.L. § 30.30[1][b]). On February 2, 2022, the next court date, the defense requested a motion schedule, which resulted in the instant motion.

I. The certificate of compliance was not proper.

a. First, the certificate was not proper because the People failed to actually produce automatically discoverable material in their possession.

On the 85th day after arraignments, the People filed a certificate of discovery compliance ("COC") even though they had committed what they call a "technological error" and an "inadvertent" "mishap." (Pr. Resp. at 4-6). The People did so on the 85th day after arraignments even though the discovery statute requires that they make these disclosures by the 35th day after arraignments. (C.P.L. § 245.10). The People acknowledge that the result of this "technological error" was that the defense did not receive much of their discovery production. (Pr. Resp. at 4-6). This missing discovery "included" but was "not limited to": "911 audio files," "the Sprint Report," and "other items relating to the 911 call"; "Calibration Reports, Gas Chromatography Reports, DOH Intoxilyzer Affidavit, and the IDTU Officer's Memo Book entry"; and police misconduct records. (Id.). The parties do not dispute that the People's automatic discovery obligations cover all this material (except for the police misconduct records).^[FN2] Nonetheless, the [*3]People argue they can file a COC even if discovery is not "actually . . . disclosed" to the defense, so long as they exercise "good faith" and "due diligence." (Id.).

Last year, in nearly the same circumstances, the Appellate Division squarely rejected the People's position here. (People ex rel. Ferro v. Brann, 197 AD3d 787, 788 [2d Dep't 2021]).^[FN3] In Ferro, like here, the defense did not actually receive "approximately fifty items listed in the COC as 'e-shared through the QCDA Portal.'" (Pr. Br. at 7, People ex rel. Ferro v. Brann, A.D. Docket No. 2021-05850 [Aug. 18, 2021]). Also in Ferro, like here, the People argued that they exercised "good faith" and "due diligence." (See id. at 22-23). They believed they had shared all the files with the defense and later reshared any of the files that were not produced properly. (Id. at 9-10, 22-23). In all, the People in Ferro "sent and resent" over "900 files" of discoverable material to defense counsel after "counsel claimed that she had not originally received that material." (Id. at 22). The People argued that especially given the "voluminous discovery" in that serious felony case, they exercised "due diligence" and acted "in good faith." (Id. at 9-10, 22-23). The Appellate Division held that "contrary to the People's contention," the COC "could not be deemed complete" until the discovery "identified in the certificate" was "actually produced" to the defense. (Ferro, 197 AD3d at 788 [emphasis added]).

Ferro accords with the discovery statute's plain text. Criminal Procedure Law § 245.50[1] defines a proper COC as one filed "[w]hen the prosecution has provided the discovery required by subdivision one of section 245.20." Therefore, a "'good faith' certification of 'due diligence' does not make a COC proper" if discovery is not actually produced. (People v. Vargas, 2022 NY Slip Op. 50651[U], at *2 [Crim. Ct., Bronx County 2022]). Actually producing "the discovery required by subdivision one of section 245.20" is a "necessary condition" of a proper COC. (id.; see also C.P.L. § 245.50[1]).

Even if due diligence applied, however, the Court would not find it here. As an initial matter, the People did not attempt to disclose and certify discovery until the 85th day after arraignments, well after the statute's 35-day deadline. (C.P.L. § 245.10). In addition, while the statute mandates that the People "shall disclose" automatic discovery, it does not require that the People pick a specific method to do so. (See C.P.L. §§ 245.20[1]. 245.50[1]). The People may make their files available by any method—even simply opening their entire case file to the defense for copying and inspection. The statute certainly does not require that the People disclose material, document by document, through OneDrive. Indeed, because the statute's mandate "virtually constitute[s] 'open file' discovery, or least make[s] 'open file' discovery the far better course of action to assure compliance," such piecemeal methods may invite unnecessary risk. (See Hon. William C. Donnino, Practice Commentaries, C.P.L. § 245.10). Here, the People chose to use their own OneDrive process to meet their discovery obligations document by document. Accordingly, they bore the burden of diligently ensuring that their own process and technology actually worked. Especially because they started the process well after the 35-day discovery deadline, and only five days before the speedy-trial deadline for the entire [*4]case, the People failed to establish such diligence here.

The lack of due diligence aside, this Court follows Ferro. There, failing to actually produce fifty out of 900 files in that serious felony case rendered the COC improper. Here, failing to actually produce several critical discovery folders in a garden-variety DWI misdemeanor case does the same. Just like in Ferro, the People's COC "could not be deemed complete until all of the material and information identified in the certificate as subject to discovery and electronically shared with the defendant was actually produced to the defendant." (See Ferro, 197 AD3d at 788). That did not occur until well after the People's 90-day speedy trial deadline. (See Pr. Resp. at 4). Therefore, the People's COC was improper, and the People did not validly answer ready for trial within the required 90 days from arraignment.

b. Second, the certificate was not proper because the People failed to produce automatically discoverable material in NYPD possession.

The People also failed to produce, this time intentionally, NYPD photographs relating to this case. The People concede this. (See Pr. Resp. at 6-7). The People's allegations in this case involve a car accident between Mr. Francis and a "potential witness" named Mr. Sufian. (See id.). The defense claims that body-worn cameras depict NYPD officers photographing Mr. Sufian's "state ID, the insurance card for the vehicle, and . . . the car registration." (Def. Mot. at 10).

The People argue that these NYPD photographs are not discoverable because they "do not have any bearing on the issues presented in this case." (Pr. Resp. at 7). They argue that "Mr. Sufian is not the defendant." (Id.). And they assert that, in their view, these photographs do not contain "any information" that would be "relevant to the charges." (Id.).

The People's argument misapprehends the law. NYPD photographs taken at the scene of the incident are automatically discoverable. Criminal Procedure Law § 245.20[1][h] mandates that the People disclose "[a]ll photographs . . . made or completed by a public servant engaged in law enforcement activity" that "relate to the subject matter of the case." Criminal Procedure Law § 245.20[2] deems any discoverable material in the possession of law enforcement to be in the possession of the People. Here, the People accuse Mr. Francis of driving while intoxicated and causing an accident with Mr. Sufian's car. NYPD photographs taken at the scene of that accident are clearly "photographs . . . made by a public servant engaged in law enforcement activity" that "relate to the subject matter of the case."

The People conflate whether an item is "relevant to the charges" with the discovery standard of whether an item "relate[s] to the subject matter of the case." (Compare Pr. Resp. at 7 with C.P.L. § 245.20[1]). The discovery statute does not ask the People to unilaterally determine what they believe would be "relevant to the charges." "[I]t is not for the People to determine whether a particular item might be admissible" or relevant. (See People v. Soto, 72 Misc 3d 1153, 1160 [Crim. Ct., NY County 2021] [rejecting the People's determination in that case that some impeachment evidence was not relevant to credibility]).

The People should not be "making their own determination" about what NYPD photographs in a case are discoverable. (See id. at 1162; see also People v. Williams, 72 Misc 3d 1214[A], at *5 [Crim. Ct., NY County 2021]; People v. Spaulding, 75 Misc 3d 1219[A], at *3 [Crim. Ct., Bronx County 2022]). All of them are discoverable. (C.P.L. § 245.20[1][h]). The list [*5]of categories in C.P.L. § 245.20[1] "relieves the People of having to define what is or is not discoverable." (Williams, 72 Misc 3d 1214[A], at *5). The People's most basic duty is to disclose all discoverable material on that list in their possession or in the possession of law enforcement. (C.P.L. §§ 245.20[1], 245.50[1]). Here, the People did not disclose NYPD photos taken in this case before filing their COC. Therefore, their COC was improper, and the People did not validly state ready for trial within 90 days of arraignment.

c. Third, the certificate was not proper because the People failed to establish that they made diligent, good faith efforts to ascertain the existence of FDNY contact information and to make it available for discovery.

The defense alleges that "body worn camera footage shows that there were at least 5 FDNY members" at the scene of the incident in this case. (Def. Mot. at 10). They allege that these members "assessed the medical necessities of [Mr.] Francis and [Mr.] Sufian." (Id.). And they claim that the People did not make diligent, good faith efforts to ascertain the existence of the FDNY members' contact information and to make it available for discovery. (Id.).

The People do not contest any of this. (See generally Pr. Resp. at 6-8). Instead, they argue that because the FDNY is not "an entity within the People's custody or control," FDNY contact information "is not to be considered automatic discovery." (Id. at 7). They conclude that "there is no discovery violation" for their nondisclosure. (Id.).

The People's conclusion misapprehends their duties. To be sure, the FDNY members' contact information is not "automatic discovery" as defined under C.P.L. § 245.20[1]. But automatic discovery is not the People's only discovery duty. Under C.P.L. § 245.20[2]—entitled "[d]uties of the prosecution"—where discoverable material exists "but is not within the prosecutor's possession, custody or control," the People must make "a diligent, good faith effort to ascertain [its] existence" and "to cause [it] to be made available for discovery." (C.P.L. § 245.20[2]). Thereafter, in their COC, the People must certify in good faith that they "exercis[ed] due diligence and [made] reasonable inquiries to ascertain the existence of material and information subject to discovery" and disclosed it. (C.P.L. § 245.50[1]). Upon a challenge, it is incumbent on the People to articulate what efforts they made to ascertain the existence of the challenged discoverable material and to make it available for discovery.

Here, the People fail to articulate any efforts whatsoever to ascertain the existence of the FDNY members' contact information and to make it available for discovery. Instead, the People only claim, incorrectly, that they have no obligations regarding this material at all, simply because it was not in their control. However, such material is discoverable, as it "relate[s] to the subject matter of the case." (C.P.L. § 245.20[1]). Accordingly, since it was not in their control, the People had to make diligent, good-faith efforts to ascertain its existence and make it available. (C.P.L. § 245.20[2]). The People's COC was not proper for this failure, as well, and so the People did not validly state ready for trial within 90 days of arraignment.

Mr. Francis' top charge is driving while intoxicated, a violation of V.T.L. § 1192[3]. That charge is an unclassified misdemeanor, punishable by up to 364 days in jail. Accordingly, the [*6]People had 90 days from arraignment to validly state ready for trial on this case. (See C.P.L. § 30.30[1][b]).

The People did not state ready until January 25, 2022. This was 85 days after they commenced the case against Mr. Francis on November 1, 2021. There is nothing in the procedural history described by the parties to justify any C.P.L. § 30.30[4] exclusions.

On January 25, 2022, off calendar, the People filed their COC and stated ready for trial. However, as described above, their COC was not proper. The People have not established any "special circumstances" that would allow them to state ready on an improper COC. (See C.P.L. § 245.50[3]). Therefore, their statement of readiness was illusory. On February 3, 2022, the defense requested a motion schedule to challenge the COC. This tolls speedy-trial time. (See C.P.L. § 30.30[4][a]).

In sum, 94 days passed from arraignment without a valid statement of readiness from the People. This amount of time exceeds the People's 90-day speedy trial period. (C.P.L. § 30.30[1][b]). Therefore, the defense's motion to dismiss is GRANTED.

The defense's remaining motions are moot.

The foregoing constitutes the Decision and Order of the Court.