Criminal Court of the City of New York, New York County, October 11, 2023

The Legal Aid Society (Tyler Ross, Shanti Narra and Seth Gross of counsel) for defendant.

Alvin Bragg, District Attorney (Michael Castrovilla of counsel), for the People.

By motion of August 15, 2023, defendant moves for an order deeming invalid the People's certificate of compliance (COC) and dismissing the accusatory instrument pursuant to Criminal Procedure Law § 30.30 (1) (b), for suppression of statements made by defendant, and various other forms of relief. The People responded on September 11, 2023. Defendant replied on September 18, 2023. After a review of the motion papers, exhibits, and NYPD manuals, defendant's motion to dismiss is granted, and his other motions are rendered moot.

Relevant Facts and Procedural History

On March 5, 2023, defendant was arraigned on an accusatory instrument charging him with operating a vehicle while impaired by drugs (Vehicle and Traffic Law § 1192 [4]), an unclassified misdemeanor.

On June 1, 2023, the 88th day after arraignment, the People filed and served a certificate of compliance (COC), a certificate of readiness (COR), and an automatic discovery form, off-calendar. The disclosures included items labeled as body-worn camera (BWC) "metadata."

On July 19, 2023, the defense sent an email to the assigned Assistant District Attorney (ADA) requesting, inter alia, BWC audit trails and time series GPS data. The ADA informed the defense that the People became aware of GPS time series data in mid-May, but they were not able to obtain the information in readable form until July 6, 2023.

On August 11, 2023, the People disclosed GPS time series data for the officers' BWC and filed a supplemental COC. To{**81 Misc 3d at 294} date, the People have not disclosed BWC audit trails, also known as audit logs, to defendant.

On August 15, 2023, defendant filed the instant motion. Defendant argues that the COC of June 1, 2023, should be deemed invalid for failure to timely disclose the GPS data, and for failure to disclose the audit logs.

On September 21, 2023, the court requested copies of both device audit logs and video audit logs from the People for in camera review. The People provided copies the following day. [*2]On September 28, 2023, the court requested copies of the BWC metadata that was disclosed with automatic discovery. The People provided copies the following day.

Law

Defendant is accused of a misdemeanor offense punishable by a sentence of imprisonment of more than three months. Accordingly, the People must be ready for trial within 90 days of the commencement of the criminal action, less any excludable time (CPL 30.30 [1] [b]; [4]). Computation for speedy trial purposes begins on the day after the commencement of the criminal action (see CPL 30.30 [1] [b]; People v Stiles, 70 NY2d 765 [1987]). Once a defendant has alleged an unexcused delay greater than the statutory allowance, the burden shifts to the People to demonstrate that specific periods of delay should be excluded (People v Santos, 68 NY2d 859 [1986]; People v Berkowitz, 50 NY2d 333 [1980]).

Pursuant to CPL 245.20 (1), the People must automatically disclose to defendant "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." "[A]ll 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" (CPL 245.20 [2]). Further, the People must make a diligent, good-faith effort to ascertain the existence of such information, and when it exists, make it available for discovery, even if the material is not within their possession, custody, or control, provided that the prosecutor shall not be required to obtain by subpoena duces tecum material which the defendant may thereby obtain (CPL 245.20 [2]).

Once the People have satisfied their automatic discovery requirements, they must file and serve a COC pursuant to{**81 Misc 3d at 295} CPL 245.50. The COC shall identify the items provided and shall state that, "after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery, the prosecutor has disclosed and made available all known material and information subject to discovery" (CPL 245.50 [1]). The filing of a COC cannot be deemed complete "until all of the material and information identified in the certificate as subject to discovery . . . was actually produced to the defendant, pursuant to CPL 245.50 (1) and (3)" (People ex rel. Ferro v Brann, 197 AD3d 787, 787-788 [2d Dept 2021], citing People v Aquino, 72 Misc 3d 518, 523 [Crim Ct, Kings County 2021]).

The People cannot be deemed ready for trial until a proper COC is filed with the court and served upon the defense (CPL 30.30 [5]). Additionally, pursuant to CPL 245.50 (3), "the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper certificate pursuant to subdivision one of this section."

Discussion

Body-worn camera recordings generate two types of audit logs—device logs and video/evidence logs. These logs contain technical information about the use of the camera (including when the camera was used, volume changes, buffering, when the video was uploaded and deleted, and battery life) as well as information about when officers viewed recordings and when recordings were sent to the prosecutor's office. The logs also contain notes, comments, and categorizations that police officers are required to enter into them during the course of an investigation, as well as when those notes, comments, and categorizations were entered or [*3]modified.^[FN1] Examples of these categorizations or comments by officers in this case include "arrest," {**81 Misc 3d at 296}"blood case," "evidence," "medical facility," "dangerous condition," and "IDTU case."

The question presented in this motion is whether body-worn camera audit logs are discoverable. The matter turns, however, not on the form of the material at issue (electronically stored information), but rather on the substance of that material. Pursuant to CPL 245.20 (1) (e), the People are required to disclose "[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 police reports, notes of police and other investigators, and law enforcement agency reports." Accordingly, the notes, comments, and categorizations of police officers entered into the device and evidence logs are expressly discoverable under this paragraph^[FN2] (see People v Torres, 79 Misc 3d 1204[A], 2023 NY Slip Op [*4]50532[U], *4 [Crim Ct, Queens County 2023] [noting audit logs contain statements made by law enforcement]).

In this case, the People disclosed what they refer to as "BWC metadata," a screenshot summary of the officers' entries. But that summary does not provide the identity of the author of each entry, when each was entered, and if or when statements{**81 Misc 3d at 297} were modified or removed.^[FN3] In comparing the audit logs with the disclosed metadata, for example, the court found several instances in which higher ranking officers or supervisors added entries. These officers' names are not included in the final metadata summaries. Thus, the summaries fall short of what is required by statute.

The People argue that the audit logs are not in their actual possession because they are maintained by a private entity, Evidence.com, which is not under the People's control. The People argue also that a subpoena for the logs is required; thus, the logs are not subject to discovery pursuant to CPL 245.20 (2). These arguments fail for several reasons. First, it appears that the New York County District Attorney's Office does in fact have access to Evidence.com. This court requested the audit logs for in camera review from both the ADA assigned to this case, as well as from an ADA in another case for which the court is considering a similar motion. In both cases, the prosecutors provided the logs within one day. It seems evident that a subpoena was not required.^[FN4] Second, the Axon body-worn camera manual states that when sharing BWC recordings with the prosecutor, it is "mandatory" for the NYPD to share the audit logs (MuckRock, Body camera user manual and supplemental records [New York City Police Department] at 83, available at https://www.muckrock.com/foi/new-york-city-17/body-camera-user-manual-and-supplemental-records-new-york-city-police-department-79305/#files). Thus, assuming mandatory procedures are followed, the People are in actual possession of this material. Third, that the NYPD uses Evidence.com, a private company, to maintain evidence does not absolve the People of their discovery obligations (see People v Gutierrez, 78 Misc 3d 411, 423 [Sup Ct, Bronx County 2023] [People must make diligent, good-faith effort to obtain discovery related to ShotSpotter gunshot detection technology, regularly utilized by the NYPD in shooting investigations]). And, actual possession is not the basis for the People's discovery obligation. Material in the possession of the NYPD is{**81 Misc 3d at 298} deemed to be in the possession of the prosecutor (CPL 245.20 [2]).

Had the People encountered difficulty in obtaining these records, they could have sought relief from the court under CPL 245.10 (1) (a) (where discovery material is exceptionally voluminous) or CPL 245.70 (2) (permitting modification of discovery periods for good cause). The People opted instead to claim that audit logs were not discoverable. This was not the People's determination to make. The list of what types of evidence must be disclosed was determined by the Legislature. To the extent necessary, that list may be refined or interpreted by the court. Thus, the People must diligently ascertain the existence of and disclose the items on [*5]the list—not choose what categories of evidence should be included on it (People v Soto, 72 Misc 3d 1153, 1162 [Crim Ct, NY County 2021]; see also People v Palaguachi, CR-002307-21NY, slip op at 6-7). The People did not meet that obligation here.

As the audit logs contain statements made by law enforcement, discoverable under CPL 245.20 (1) (e), and the People did not exercise diligence to obtain and disclose them, their original COC was not valid, and, therefore, they could not properly answer ready for trial.^[FN5]

Speedy Trial Calculation

For the reasons stated above, the COC and COR of June 1, 2023, did not stop the speedy trial clock. The People are therefore charged from the day after the commencement of the criminal action on March 5, 2023, through August 15, 2023, when defendant stopped the clock by filing the instant motion (see CPL 30.30 [4] [a]) (163 days). As the People have exceeded the 90-day speedy trial period, defendant's motion to dismiss the accusatory instrument pursuant to CPL 30.30 (1) (b) is granted.

The descriptions in this paragraph are based on the court's review of the audit logs disclosed to the court by the People.

This clause might include ESI from a police source, but unless the substance of the information relates to the subject matter of the case or constitutes necessary discovery for other statutory reasons (i.e., statements subject to CPL 245.20 [1] [e]), it is not discoverable. Circumstances that might warrant disclosure of ESI under this clause are, for example, evidence of tampering with the BWC (see e.g. People v Larkin, 72 Misc 3d 663, 669 [Sup Ct, Kings County 2021]) or other concerns for the authenticity of the BWC recordings (Larkin, 72 Misc 3d at 667; Matter of Irwin v Onondaga County Resource Recovery Agency, 72 AD3d 314, 321 [4th Dept 2010]). Otherwise, body-worn camera footage is self-authenticating and speaks for itself.