Criminal Court of the City of New York, Kings County, May 15, 2023

The Legal Aid Society, Brooklyn (Lauren Restivo of counsel), for defendant.

Eric Gonzalez, District Attorney, Brooklyn (Philip Cho of counsel), for the People.

Defendant Tyshawn Kennedy moves this court for an order: (i) deeming the People's certificate of compliance (COC) improper because certain discoverable materials were not disclosed; (ii) deeming the People's COC improper because the prosecution failed to provide adequate notice of a superseding information (SSI); (iii) dismissing the accusatory instrument pursuant to CPL 30.30 and 210.20 (1) (g); and (iv) granting such other and further relief as the court may deem proper.

This court finds that the People's COC is invalid due to the failure to disclose discoverable material prior to filing the COC, failure to file the COC in good faith, and failure to exercise due diligence in ascertaining whether certain discoverable material exists. As such, the People's statement of readiness (SOR) was illusory. Because the applicable statutory period to announce readiness for trial has expired, the accusatory instrument must be dismissed. Accordingly, defendant's motion is granted.{**79 Misc 3d at 975}

Defendant was arraigned on November 27, 2022, on a felony complaint, which charged two counts of each of the following: Penal Law § 120.05 (3) assault in the second degree (a class D felony); Penal Law § 120.00 (1) assault in the third degree (a class A misdemeanor); Penal Law §§ 110.00 and 120.00 (1) attempted assault in the third degree (a class B misdemeanor); and Penal Law § 240.26 (1) harassment in the second degree (a violation). The felony complaint also charged one count each of the following: Penal Law § 145.00 (1) criminal mischief in the fourth degree (a class A misdemeanor); Penal Law § 195.05 obstructing governmental administration in the second degree (a class A misdemeanor); and Penal Law § 205.30 resisting arrest (a class A misdemeanor).

Bail was set at defendant's arraignment, and the matter was adjourned to December 1, 2022, for the parties' first appearance in Part AP1F. On December 1, 2022, the People conceded CPL 180.80, the felony charges were dismissed, and the accusatory instrument was reduced to a misdemeanor complaint. The People answered not ready, and the matter was adjourned to January 18, 2023, for conversion of the accusatory instrument and the People's COC. The People answered not ready at the next court date, and the matter was given a final adjournment for COC and conversion to March 2, 2023.

The People represent that they filed and served their COC and SOR on March 1, 2023, the 90th day after the reduction of the accusatory instrument. On the same date, the People represent that they filed and served the SSI on defendant. Defendant requested a motion schedule to challenge the People's COC at the March 2, 2023 appearance.

CPL 245.20 (1) provides that the People must disclose "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." This subdivision of the statute provides a non-exhaustive list of 21 categories that are included in the types of material required to be disclosed. "The People's 'possession' includes discoverable material that is in the possession of the police" (People v Cartagena, 76 Misc 3d 1214[A], 2022 NY Slip Op 50943[U], *2 [Crim Ct, Bronx County 2022], citing CPL 245.20 [2]).{**79 Misc 3d at 976}

The statute also requires the People to file a COC that certifies, in good faith, that: (1) they have "made available all known material and information subject to discovery" (CPL 245.50 [1]; see also People ex rel. Ferro v Brann, 197 AD3d 787, 787-788 [2d Dept 2021]); and (2) they have exercised "due diligence" and made "reasonable inquiries" to "ascertain the existence" of discoverable material (CPL 245.50 [1]; see also People v Hooks, 78 Misc 3d 398, 400 [Crim Ct, Kings County 2023]).

On a motion to declare a COC invalid, the defendant must first "identify a specific defect with the People's [COC]," then the burden shifts to the People to "demonstrate the propriety of their certification" (People v Brown, 74 Misc 3d 1227[A], 2022 NY Slip Op 50234[U], *2 [Albany City Ct 2022]). The People must explain, in detail, the reasonable inquiries they made to obtain the discoverable materials (People v Winston, 78 Misc 3d 1201[A], 2023 NY Slip Op 50130[U], *7 [Crim Ct, Bronx County 2023]; People v Brown, 74 Misc 3d 1227[A], 2022 NY Slip Op 50234[U], *2).

A. Validity of the People's COC

CPL 245.10 (1) (a) (ii) states that "[w]hen the defendant is not in custody during the pendency of the criminal case, the prosecution shall perform its initial discovery obligations within thirty-five calendar days after the defendant's arraignment on an indictment, superior court information, prosecutor's information, information, [*2]simplified information, misdemeanor complaint or felony complaint."

In this matter, the People's first apparent attempt to obtain discoverable materials was on March 1, 2023 (People's affirmation, mem of law ¶ 11), which was 94 days after defendant's arraignment on the felony complaint and 90 days after the reduction of the accusatory instrument to a misdemeanor complaint. The People reference no other prior attempt to obtain discovery. On that same day, the People provided certain documents and information to defendant (People's exhibit 2). The People do not explain their delay and were not diligent in seeking the discoverable material (People v Diallo, 78 Misc 3d 1218[A], 2023 NY Slip Op 50255[U], *1 [Crim Ct, Bronx County 2023]; Hooks, 78 Misc 3d at 402).

Additionally, CPL 245.20 (2) specifies that "all items and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency shall be deemed to be in the possession of the prosecution." To that end, CPL 245.55 (1) directs the prosecution "to {**79 Misc 3d at 977}ensure that a flow of information is maintained between the police and other investigative personnel and his or her office sufficient to place within his or her possession or control all material and information pertinent to the defendant and the offense or offenses charged."

There is no dispute between the parties that the People did not turn over numerous items before filing their COC on March 1, 2023. Of these items, the People were not required to obtain or produce Giglio materials for 38 responding officers (excluding Officer John Gomez and Officer Chandanie Arjun); or the medical records of complaining witness, Officer John Gomez. Conversely, the People were required to exercise "due diligence" and make "reasonable inquiries" to "ascertain the existence" of certain reports and photographs, activities logs and a mugshot, as explained more fully below.

i. Giglio Materials

With regard to the Giglio materials for 38 of the officers who responded to the incident, the People represent that they will not be calling any of these officers as witnesses. CPL 245.20 (1) (k) (iv) requires the People to produce all evidence and information that tends to "impeach the credibility of a testifying prosecution witness" (emphasis added). Because the officers will not be testifying, the People were not under an obligation to turn over Giglio materials (People v Maldonado, 77 Misc 3d 1232[A], 2023 NY Slip Op 50081[U], *3 [Crim Ct, Bronx County 2023]).

ii. Medical Records

The People were not required to make any effort to obtain, ascertain the existence of, or produce the medical records of the complaining witness, Officer Gomez. The documents were not in the People's possession, custody, or control, and the People were not required to subpoena them.

Defendant contends that the People have a statutory obligation to obtain medical records when they are material to the instant case. Defendant references CPL [*3]245.20 (1) (k), which directs the People to produce all evidence and information that, in short, may help the defendant. While this provision may, in certain circumstances, encompass medical reports, the more apt provision is defendant's reference to CPL 245.20 (1) (j), which directs the People to produce reports and other writings concerning, among other things, physical or mental examinations, when any of the three following conditions are true:{**79 Misc 3d at 978} (1) the documents "were made by or at the request or direction of a public servant engaged in law enforcement activity"; (2) the documents "were made by a person whom the prosecutor intends to call as a witness at trial or a pre-trial hearing"; or (3) the People intend "to introduce [the documents] at trial or a pre-trial hearing."

[1] These provisions notwithstanding, CPL 245.20 (1) requires the People to produce only those things in the "possession, custody or control of the prosecution or persons under the prosecution's direction or control." Assistant District Attorney Philip Cho affirms, in the People's opposition papers, that said medical records are not in the People's possession and control (People's affirmation, mem of law § I at 14). Courts in similar circumstances have held that the People are not required to produce medical records (People v Carter, 76 Misc 3d 1206[A], 2022 NY Slip Op 50837[U], *6 [Crim Ct, Kings County 2022]; People v Pierna, 74 Misc 3d 1072, 1091-1092 [Crim Ct, Bronx County 2022]; People v Alvarez, 71 Misc 3d 1206[A], 2021 NY Slip Op 50292[U], *6 [Sup Ct, Queens County 2021]).

This court notes that CPL 245.20 (2) requires the People to "make a diligent, good faith effort to . . . cause . . . material [from subdivision (1)] . . . to be made available for discovery where it exists but is not within the prosecutor's possession, custody or control" (emphasis added). However, the same statute also states that the People are not "required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain." It is not clear how the People could cause a person's medical records to be made available short of a subpoena, in accordance with the Health Insurance Portability and Accountability Act of 1996 (45 CFR 164.512 [e]; see also Matter of Brown v Simon, 123 AD3d 1120, 1122 [2d Dept 2014]; Matter of Miccoli v W.T., 52 Misc 3d 411, 415 [Sup Ct, NY County 2016]; People v Olsen, 23 Misc 3d 593, 600 [Nassau Dist Ct, 1st Dist 2009]).^[FN*] Accordingly, the People were not required to provide the medical records, and their omission did not invalidate their COC.

iii. Reports and Photographs

The People represent that the failure to produce the photographs of Officer Gomez's injuries, the aided reports for{**79 Misc 3d at 979} Officer Gomez and Officer Arjun, the Prisoner Movement Slip, the Medical Treatment of Prisoner form, the scratch arrest report and the Threat, Resistance and Injury Report did not render their COC invalid. The People imply that the materials are "non-existent" because they did not receive them from the police (People's [*4]mem of law § III at 29); however, the People identify only a single attempt to obtain the documents from the police on March 2, 2023, in their response papers.

[2] The People's memorandum of law states, "[t]he undersigned exercised due diligence and made reasonable inquiries to ascertain the existence of material and information subject to discovery. On March 1, 2023, the undersigned asked Officer Belfon to turn over any missing items not included in the arrest paperwork. (See Exhibit 7)" (People's mem of law § III at 28-29). However, People's exhibit 7 shows that the email to Officer Belfon was sent on March 2, 2023—the 91st day after the reduction of the complaint. Further, the email did not detail the missing documents and vaguely requested that Officer Belfon "double check that [the People] are not missing anything . . . such as photos and activity log reports." The People do not attach as an exhibit any response received from Officer Belfon. The People's inquiry directed at Officer Belfon 91 days after the reduction of the accusatory instrument does not reflect due diligence by the People.

iv. Activity Logs and Mugshot

The People do not address their failure to produce the activity logs of 38 responding officers and claim that they are not obligated to produce the defendant's mugshot because it is "not relevant to the subject matter of the incident" (People's affirmation ¶ 15 [c]).

The disclosure of the officers' activity logs is mandated by CPL 245.20 (1) (e), which states that initial discovery includes "[a]ll statements, written or recorded or summarized in any writing or recording, made by persons who have evidence or information relevant to any offense charged or to any potential defense thereto, including all . . . notes of police." Similarly, the disclosure of defendant's mugshot is required by CPL 245.20 (1) (h), which mandates that the People turn over "[a]ll photographs . . . made or completed by a public servant engaged in law enforcement activity."

Further, it is not for the People to determine what is relevant and discoverable (People v Cartagena, 76 Misc 3d 1214[A], 2022 NY Slip Op 50943[U], *1 [Crim Ct, Bronx County 2022]; {**79 Misc 3d at 980}People v Eleazer, 78 Misc 3d 1222[A], 2023 NY Slip Op 50316[U], *2 [Crim Ct, NY County 2023]). Defendant's mugshot as well as the activity logs of the officers relate to the subject matter of the case, as the activity logs likely contain information about the incident, and defendant's mugshot was generated after defendant was taken into custody for the alleged offenses. Accordingly, the People were required to seek out and turn over these materials to satisfy their discovery obligations (2022 NY Slip Op 50943[U], *3-4).

v. Belated Disclosures

The People disclosed a photograph of the police tablet allegedly damaged by the defendant on March 2, 2023, as well as the activity log of Officer Arjun on March 17, 2023. CPL 245.50 (1) provides that if the People provide additional discovery after their [*5]initial disclosure, "a supplemental certificate shall be served upon the defendant and filed with the court identifying the additional material and information provided." Further, CPL 245.50 (1-a) provides that any such supplemental COC "shall detail the basis for the delayed disclosure so that the court may determine whether the delayed disclosure impacts the propriety of the certificate of compliance" (Hooks, 78 Misc 3d at 401). Here, the People have neither filed nor served a supplemental COC with regard to the belatedly disclosed materials and have provided no explanation as to the delay or their efforts to obtain the materials within the statutorily prescribed time.

Given the People's lack of due diligence in ascertaining the existence of and obtaining several discoverable documents as detailed above, the People's filing of the COC was not in good faith and was not reasonable under the circumstances. Accordingly, this court finds the People's COC invalid. It follows that the People's SOR was illusory because they were not ready for trial when it was filed on March 1, 2023.

B. Notice of SSI

Defendant also asks this court to deem the People's COC improper pursuant to CPL 170.10 because the People did not provide sufficient notice of the SSI in this matter in accordance with CPL 210.10. However, CPL 210.10 applies to actions in superior court involving a felony indictment. The statute does not appear to apply to misdemeanor actions in criminal court (see e.g. People v Santos, 165 Misc 2d 950, 952 [Crim Ct, Bronx County 1995]). Notwithstanding the above, defendant's arguments in this regard are rendered moot by this court's determination{**79 Misc 3d at 981} that the People's COC was invalid for failure to comply with the discovery obligations imposed under CPL article 245.

C. CPL 30.30 Calculation

Because the top charge in this matter is a class A misdemeanor, this case must be dismissed when the prosecution is not ready for trial within 90 days of the commencement of a criminal action (CPL 30.30 [1] [b]).

Here, there are at least 91 days charged to the People:

Defendant was arraigned on the felony complaint on November 27, 2022. At the following appearance on December 1, 2022, the accusatory instrument was reduced to a misdemeanor complaint. Zero days charged.

At the January 18, 2023 appearance, the People were not ready for trial and had not filed a COC or SOR. 48 days charged.

The People filed and served their COC and SOR on March 1, 2023. 42 days charged.

The court finds that the SOR was illusory given the People's failure to comply with their discovery obligations pursuant to CPL 245.20. As such, the filing of the COC and SOR was not sufficient to stop the CPL 30.30 clock. The parties next appeared in Part AP2 on March 2, 2023, at which appearance defendant requested a motion [*6]schedule to challenge the COC. One day charged.

91 days charged.

The People have exceeded the 90 days permitted by CPL 30.30 to declare readiness for trial.

Accordingly, it is hereby: ordered, that defendant's motion to dismiss the accusatory instrument is granted. The matter is ordered dismissed and sealed. The remainder of defendant's arguments are rendered moot by the dismissal of the action pursuant to CPL 30.30.