Criminal Court of the City of New York, Kings County, March 1, 2023

The Legal Aid Society (Samantha Paulraj of counsel) for defendant.

Eric Gonzalez, District Attorney (Daniella Haviv of counsel), for the People.

M.V. was arraigned on May 2, 2022, on a felony complaint alleging one count each of Penal Law § 140.30 (2) (burglary in the first degree), Penal Law § 140.25 (1) (b) (burglary in the second degree), Penal Law § 140.25 (2) (burglary in the second degree), Penal Law § 140.20 (burglary in the third degree), Penal Law §§ 110.00 and 120.05 (2) (attempted assault in the second degree), Penal Law § 120.00 (1) (assault in the third degree), Penal Law § 120.14 (1) (menacing in the second degree), Penal Law § 265.01 (2) (criminal possession of a weapon in the fourth degree), Penal Law §§ 110.00 and 120.00 (1) (attempted assault in the third degree), Penal Law § 120.15 (menacing in the third degree), and Penal Law § 240.26 (1) (harassment in the second degree).

Off-calendar on August 29, 2022, the People filed a motion to dismiss the felony charges contained in the accusatory instrument. The case was next heard in AP1F on September 15, 2022, where the felony charges were dismissed from the accusatory instrument. Notably, the People did not attempt to advance the matter for dismissal of the felony counts, nor request a motion schedule. The case was then adjourned to Part DV1 on October 12, 2022, and proceeded through Criminal Court as a misdemeanor complaint. On November 6, 2022, the People filed a certificate of compliance (COC) and statement of readiness (SOR) for the remaining charges.

Defense counsel filed the instant motion to dismiss on January 3, 2023, requesting that the court find the People's COC and SOR illusory and dismiss the accusatory instrument pursuant to CPL 245.50 (1) and 30.30. M.V.'s motion first argues that underlying Giglio material was not disclosed before the People filed a COC, and second, that the People's COC was filed past the statutory deadline for a misdemeanor complaint that previously contained felony charges. The court has reviewed M.V.'s moving papers, the People's response, and all the relevant facts and case law. For the reasons stated below, M.V.'s motion to controvert the prosecutor's certificate of compliance and to dismiss the case pursuant to CPL 30.30 is granted.{**79 Misc 3d at 450}

1. Giglio Materials

M.V. argues that CPL 245.20 (1) (k) requires the People to produce all underlying records related to complaints against law enforcement officers that the People intend to call as testifying witnesses at trial as part of the initial discovery that is produced to the defense. The court disagrees.

CPL 245.20 (1) (k) requires the People to disclose, during the "initial" phase of discovery,

"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, including but not limited to: . . .

"All evidence and information, including that which is known to police or other law enforcement agencies acting on the government's behalf in the case, that tends to: (i) negate the defendant's guilt as to a charged offense; (ii) reduce the degree of or mitigate the defendant's culpability as to a charged offense; (iii) support a potential defense to a charged offense; (iv) impeach the credibility of a testifying prosecution witness; (v) undermine evidence of the defendant's identity as a perpetrator of a charged offense; (vi) provide a basis for a motion to suppress evidence; or (vii) mitigate punishment. Information under this subdivision shall be disclosed whether or not such information is recorded in tangible form and irrespective of whether the prosecutor credits the information." (CPL 245.20 [1] [k].)

Here, the court finds that the People's initially disclosed Giglio letters, which only included substantiated claims of officer misconduct and no underlying materials, were sufficient for purposes of meeting their automatic discovery requirements. (See People v Douglas, Sup Ct, Kings County, Dec. 1, 2020, Hecht, J., ind. No. 6660/2019, slip op at 3 [rejecting the defense's claim that the People must produce underlying records and stating that "although the defense acknowledges its power of subpoena, it rejects its obligation to make use of that power, despite a specific statutory directive (see CPL § 245.20 [2])"]; People v Davis, 70 Misc 3d 467, 476 [Crim Ct, Bronx County 2020] ["(T)he plain language of the new discovery statute only requires the People to disclose the information that is{**79 Misc 3d at 451} favorable to the defendant, but not necessarily the underlying material as well. . . . This is especially so when, with the repeal of (Civil Rights Law §) 50-a, the information is equally accessible to the defense" (emphasis omitted)]; see also People v Gonzalez, 68 Misc 3d 1213[A], 2020 NY Slip Op 50924[U], *2-3 [Sup Ct, Kings County, Aug. 19, 2020, Hecht, J.]; People v Johnson, Sup Ct, Kings County, Mar. 4, 2021, Leo, J., ind. No. 1642/2019, slip op at 3; People v Knight, 69 Misc 3d 546 [Sup Ct, Kings County 2020, Hecht, J.].)

2. Motion to Dismiss Felony Counts

CPL 30.30 (7) (c) enumerates the applicable speedy trial period for the instant matter, a case that began with a felony complaint and was later reduced to a misdemeanor complaint in the same criminal action:

"the period applicable for the purposes of subdivision one must be the period applicable to the charges in the new accusatory instrument, calculated from the date of the filing of such new accusatory instrument; provided, however, that when the aggregate of such period and the period of time, excluding the periods provided in subdivision four, already elapsed from the date of the filing of the felony complaint to the date of the filing of the new accusatory instrument exceeds six months, the period applicable to the charges in the felony complaint must remain applicable and continue as if the new accusatory instrument had not been filed."

The parties do not dispute that the speedy trial time limit applicable to this matter, which was commenced by the filing of a felony complaint, is 184 days. The only dispute is whether the People have exceeded this time period by filing their COC and SOR on November 6, 2022, which falls 188 days after M.V.'s arraignment.

Defense counsel argues that there are no periods of excludable time prior to the filing of the COC and SOR, and that the People must be charged for all 188 days by the time the initial COC was filed. The People refute this by claiming that their motion to dismiss counts, filed on August 29, 2022, stopped the clock as a pretrial motion until September 15, 2022, when the felony counts were dismissed in court. This purported "motion practice" under the People's reading of section 30.30 (4) (a) would bring the total number of excludable days to 17 days{**79 Misc 3d at 452} and result in only 171 days charged to the People. However, the court disagrees with the People's reading of section 30.30 (4) (a) in this matter and grants M.V.'s motion to dismiss. The 17-day period after the filing of the motion to dismiss the felony counts must be charged to the People—bringing the total number of chargeable days to 188 days.

It is true that specific periods of delay precipitated by pretrial motions are not chargeable to the People. CPL 30.30 (4) (a) excludes from speedy trial calculations "a reasonable period of delay resulting from other proceedings concerning the defendant, including but not limited to . . . pre-trial motions . . . and the period during which such matters are under consideration by the court." The People's motion papers cite to numerous examples where courts have carved out excludable time for the People's pretrial motion practice, such as motions for protective order,^[FN1] motions to modify timelines for discovery disclosures,^[FN2] motions to reargue,^[FN3] motions to amend a count on an indictment,^[FN4] and motions to consolidate an indictment.^[FN5] However, these contested motions are fundamentally different from a purely summary motion to dismiss counts on a complaint, and the court does not find these citations persuasive.

The purported motion to dismiss counts in the present case does not fall within the exceptions enumerated under CPL 30.30 (4) (a). (See People v Collins, 82 NY2d 177, 181 [1993] [holding that the carveout for pretrial motions under CPL 30.30 (4) (a) "generally refers to delays attributable to responding to and deciding motions actually made"]; People v Thomas, 59 Misc 3d 64 [App Term, 1st Dept 2018] [determining that a motion to dismiss felony counts is not a "pretrial motion" under CPL 30.30 (4) (a) and charging the People for time accordingly]; see also People v Saavedra, 76 Misc 3d 626 [Crim Ct, Bronx County 2022].)

The People's purported motion did not contain any return date, nor did the People's motion to dismiss counts necessitate any response from the defense—unlike a motion for protective order, to reargue, to amend an indictment, or to consolidate an{**79 Misc 3d at 453} indictment. (See Collins, 82 NY2d at 181; Thomas, 59 Misc 3d at 66.) In fact, upon review, the motion to dismiss the felony counts in this matter is only ministerial for the matter to be adjudicated in Criminal Court. The court did not even set a motion schedule, as the matter did not require any [*4]deliberation whatsoever. (Id.)

The People had also several available remedies to declare their readiness without needing to cause any undue delay for M.V. For example, under CPL 180.40 or 180.50, the People may submit an ex parte application to dismiss or reduce counts. (See Thomas, 59 Misc 3d at 66.) Further, the People could have mitigated any undue delay by requesting that the matter be advanced for the dismissal of counts, and no record is before this court about whether the People made any attempts to do so. (Id.)

3. Applicable Speedy Trial Time

Therefore, the court makes the following findings:

M.V. was arraigned on May 2, 2022, and the matter was adjourned to June 10, 2022, for grand jury action. 39 days charged.

No grand jury action took place on June 10, 2022, so the matter was adjourned again to August 4, 2022, for grand jury action in AP1F. 55 days charged.

On August 29, 2022, the People filed a motion to dismiss the felony counts contained in the accusatory instrument, and the matter was next heard in AP1F on September 15, 2022, where the felony charges were dismissed. The matter was adjourned to October 12, 2022, for COC. 42 days charged.

The People stated not ready on October 12, and the case was adjourned to November 21, 2022, for final. The People filed their COC/SOR off-calendar on November 6, 2022. 52 days charged.

Total: 188 days charged.

The People have exceeded the 184 days permitted under CPL 30.30.

Accordingly, it is hereby ordered that M.V.'s motion to dismiss is granted. The case is ordered dismissed and sealed, with sealing stayed for 30 days.