City Court of Cohoes, January 12, 2023

Stephen W. Herrick, Public Defender (Kelly Vidur of counsel), for defendant.

P. David Soares, District Attorney (Robert Max Beyer of counsel), for the People.

CPL 245.50 is a pivotal statute in the state's discovery laws. It requires the People to certify that they have complied with the discovery requirements of CPL 245.20 before announcing ready for trial under the speedy trial statute. For their part, the defense may challenge the People's position upon written motion establishing that there is some defect in the certification that would, in turn, nullify the People's trial readiness. There was a problem with the scheme for raising the challenges, however. Nowhere did it impart direction as to when the certification challenges should be made. That created an incentive for defendants to stay their challenges in the hopes of running out the speedy trial clock. To discourage such tactics, the Legislature enacted amendments in 2022 setting forth how and when challenges to the certifications should be made. This case requires the court to determine how these amendments should operate in practice.

The defendant was charged in City Court with perjury and related offenses. On August 18, 2022, the People filed their statement of readiness (SOR) and certificate of compliance (CofC) and, following an inquiry pursuant to CPL 30.30 (5), were deemed ready for trial, subject to the defendant's right to file a motion challenging the CofC. (CPL 245.50 [4].) The [*2]defense exercised that right by first alerting the People to deficiencies with the CofC on October 26, 2022, and thereafter{**78 Misc 3d at 373} filing a motion to challenge the original CofC and SOR. In the meantime, the People remedied the errors and, on November 17, 2022, filed a supplemental CofC and SOR.

The defense challenge focuses on two videos that were not disclosed—one from a street camera, the other from the Cohoes Police Station.^[FN*] In response, the People claim that the defense is not entitled to the recordings from the street cameras because the footage did not relate to the subject matter of the case—a position which the court, based on the insufficiency of the papers before it, does not reach, but, for purposes of this motion, will assume is relevant and, therefore, disclosable. (See CPL 245.20 [1].) Less debatable is whether the People should have disclosed the police station recordings capturing the alleged perjured statements—they should have. (See CPL 245.20 [1] [g].) However, both parties concede that, when alerted to the lapse, the People promptly made the appropriate disclosure and filed a supplemental CofC.

On its face, the People's late disclosure of the videos invalidated their original CofC and SOR. CPL 245.50 requires that the People file a CofC affirming that, "after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery," the prosecutor has complied with their discovery obligations under CPL 245.20. (CPL 245.50 [1].) There is no dispute that the People failed to disclose the videos. (CPL 245.20 [1] [g].) Further, the People have not raised any objection to the information being beyond their possession or control or that of any "public servant engaged in law enforcement activity." (CPL 245.20 [1] [j]; see People v Preston, 70 Misc 3d 355 [Cohoes City Ct 2020].) Finally, given this court's precedent (see People v Kaba, 75 Misc 3d 1218[A], 2022 NY Slip Op 50538[U] [Cohoes City Ct 2022]), it cannot be said that the People acted with due diligence in trying to obtain the video; in fact, the street camera video was clearly referenced in a one-page report appended to the People's CPL 710.30 notices that were disclosed at arraignment. (See People v Vasquez, 75 Misc 3d 49 [App Term, 2d Dept, 9th & 10th Jud Dists 2022]; People v Vargas, 76 Misc 3d 646 [Crim Ct, Bronx County 2022]; People v Audino, 75 Misc 3d 969 [Crim Ct, NY County 2022]; People v Diaz, 75 Misc 3d 314{**78 Misc 3d at 374}[Crim Ct, Bronx County 2022].) As a result, the court concludes that the CofC is invalid because the People failed to turn over the video and did not act with due diligence.

Ordinarily, that would end the matter. However, in 2022, the Legislature amended CPL 245.50 (4) to add two components to the CofC challenges. (See L 2022, ch 56, § 1, part UU, § 1, subpart D, § 1.) The first requires the challenging party, to "the extent that [it] is aware" of a discovery issue, to "notify or alert" its adversary "as soon as practicable." (CPL 245.50 [4] [b].) This "duty to notify" requires the challenging party to alert its opponent to the discovery issue before bringing it to the court. The second component requires that a motion challenging a CofC be made "as soon as practicable." (CPL 245.50 [4] [c].) Notably, each requirement is expressed in mandatory language, meaning that a challenging party must comply with both if it wants to succeed in its challenge. Assuming, as the court should, that the Legislature did not insert the new provisions gratuitously, it is clear that the failure to comply with the new requirements forfeits the right to challenge the CofC and SOR. (People v Dethloff, 283 NY 309 [1940]; Orange & Rockland Util. v Hess Corp., 59 AD2d 110 [2d Dept 1977]; Held v Hall, 191 Misc 2d 427 [Sup Ct, Westchester County 2002].)

Not defined in the 2022 legislation, however, are two concepts integral to the amendment. First, the Legislature did not specify what "as soon as practicable" meant. To be sure, the reference to motion practice, for which there is a statutory deadline of 45 days (see CPL 255.20 [1]), suggests that there may be an outside parameter for what is considered "practicable." (See People ex rel. Std. Oil Co. of N.Y. v Saxe, 179 App Div 721, 725 [3d Dept 1917] [in construing a statute, a court must consider its meaning in light of the larger statutory scheme of which it is a part, and that statutes relating to a "common subject must be read as a whole and construed together"].) But, aside from the allusion to the deadline for omnibus motions, the statute does not contain an explicit timeframe for filing a CofC motion or notifying the People of a defect. This legislative silence is significant because it leaves it to judges to define "practicable" according to the circumstances of the case—a decision that is understandable given the myriad of fact-specific reasons for a discovery dispute that the Legislature could not possibly have anticipated. (McKinney's Cons Laws of NY, Statutes § 74; see also People v Garson, 6 NY3d 604, 612 [2006] [legislative decision not to define a particular{**78 Misc 3d at 375} term suggests that meaning is left for factual resolution].)

Of course, what is "practicable" will change from case to case. A two-month delay in a major case may be less severe than a two-week delay in a petty one. Nevertheless, some factors will apply no matter the controversy. These include the length of the delay; the underlying charges; the nature of the discovery violation; whether the violation is obvious, and susceptible to easy detection, or obscure, and more likely to escape notice; whether there is evidence that the defense knew or should have known of the error; the volume of discovery in the case; and the applicability of any statutory deadlines. (See e.g. CPL 245.10, 255.20.) Another factor worth considering is the resources available to the defense attorney; for example, a larger law firm, with superior technologies and more support staff, may be better equipped to unearth a discovery error than an overburdened solo practitioner or legal aid attorney. That certainly is something that this court would consider in assessing whether the defense acted "as soon as practicable" in raising a CofC challenge.

The court believes that these factors reflect a just appraisal of the purpose of the amendments to CPL 245.50 (4). Prior to the amendments, CofCs were vulnerable to manipulation. A party aware of a discovery lapse could jealously guard their secret while the speedy trial clock ran out. Many courts deplored that possibility. (See People v Barralaga, 73 Misc 3d 510, 520 [Crim Ct, NY County 2021]; People v Florez, 74 Misc 3d 1222[A], 2022 NY Slip Op 50202[U] [Sup Ct, Nassau County 2022].) The 2022 amendments, however, ensure against the use of such tactics by imposing on the challenging party a quasi "due diligence" requirement so that they do not exploit delay to their advantage. After all, discovery reforms were intended to "level the playing field"—not encourage gamesmanship. (See Barralaga.)

The purpose of the amendment also affords insight into the second concept that the Legislature left unresolved—namely, to what extent must the challenging party be "aware" of the discovery issue before notifying its adversary. Once again, the statute is not explicit. It simply provides that a challenging party must furnish such notice "[t]o the extent that [it] is aware" of the potential defect or deficiency in the CofC. (CPL 245.50 [4] [b] [emphasis added].) The choice of language, however, is revealing. The Legislature could have provided that the challenging{**78 Misc 3d at 376} party's duty to notify depends on if they knew about the defect. That would indicate that the obligation would [*3]ripen only if it could be proved that the challenging party had actual knowledge of the problem—an impossible task.

But the Legislature chose not to speak in absolutes. Instead, it spoke in terms of "extent" and "awareness"—both of which are more flexible concepts that embrace a range of possibilities. The more nuanced approach indicates that the duty to notify comprises not just parties who knew about the defect and concealed it, but those who, with reasonable diligence, should have known about them. Indeed, awareness can encompass varying degrees of knowledge, from actual knowledge to lesser iterations of cognizance. Further, the "extent of" a party's "awareness" can be determined by applying the factors noted above, including the nature of the discovery violation, the volume of discovery, and the relative capacity of the attorney to process it. For example, the more obvious the discovery error, the more reasonable it is to presume that the challenging party knew about it.

Of course, appeals to generalities, no matter how well-founded, often prove futile. In fact, applying the factors here shows how it can yield two different results in the same case. For example, application of the factors indicates that the challenge to the CofC as it relates to the street camera video was not pursued "as soon as practicable." Among other things, the defense did not prosecute their challenge for over two months despite having clear notice of the video's existence due to its conspicuous inclusion in the CPL 710.30 notice. A simple review of the notice would have disclosed the error. Nor was the volume of discovery in this case, while apparently substantial, so great as to prevent the defense from verifying whether they possessed the video referenced in the notice. Under the circumstances, it cannot be said that the defense acted with due alacrity.

The police station video is another matter. The defense would have no way of knowing about the video until they combed through the discovery. Although the attorney is part of a public defender office, the extent to which investigators or support staff would have been allocated to the task of poring through video on a misdemeanor case is not great. Only with great diligence on the part of the attorney could the error have been uncovered. Moreover, once the defense discovered the error, they notified the People. Thus, with respect to the police station{**78 Misc 3d at 377} video, the court determines that the defense acted "as soon as practicable."

In light of the above, the court determines that the CofC challenge with respect to the street camera video is forfeited, but that it must succeed with respect to the police station video, thereby nullifying the original CofC and SOR. However, given the People's prompt correction of the oversight, the court will accept the supplemental CofC and SOR filed on November 17, 2022, and conduct an appropriate inquiry with respect to the same.

In reaching these outcomes, the court appreciates that its decision has engendered seemingly inconsistent results. In the same case, the court appears to tolerate a defense delay in identifying a discovery lapse without showing the same solicitude to the People who were required to turn the material over in the first place. However, there are reasons for the disparity. For example, the People have access to police departments which presumably have the required material and can promptly provide it, while a defense attorney is often left to their own devices to find it. There is no point in denying that producing the haystack is easier than finding the needle. Even more important, the court is bound to follow the logic and language of the statutes, which impose more stringent requirements on the party making disclosures—in most cases, the People—than the one receiving it. The court cannot, and will not, vary from that clearly expressed intent, even if, as it seems, the Legislature has turned on its head the old saw [*4]about it being better to give than to receive.

The court has considered the remaining contentions. Apart from precluding the introduction of evidence not referenced in the People's CPL 710.30 notice, and granting the request for the Sandoval/Ventimiglia hearing, the court denies the balance of the defense motion.