The defendant was arraigned in Criminal Court on November 7, 2022 on charges of NY Penal Law §§260.10(1) and 240.26(1). The People filed and served on defense a Certificate of Compliance ("COC") and Statement of Readiness ("SOR") on December 5, 2022. The defendant now moves for an order (i) suppressing any and all statements taken from the defendant for which the prosecution served proper notice pursuant to CPL §710.30, or in the alternative, granting a Huntley/Dunaway hearing; (ii) suppressing any and all evidence and testimony relating to identifications made of the defendant for which the prosecution served proper notice pursuant to CPL §710.30, or in the alternative, granting a Wade/Crews/Gethers hearing; (iii) precluding the prosecution from introducing at trial any evidence of the defendant's prior convictions or bad acts; (iv) deeming the People's COC invalid because certain materials discoverable under CPL §245.20(1) were not disclosed. After review of the motion papers, exhibits and court file, and for the reasons discussed herein, the defendant's motion is decided as follows:

(1) Defendant's motion to suppress statements is granted to the extent of granting a Huntley/Dunaway hearing.

(2) Defendant's motion to suppress identification evidence is granted to the extent of granting a Wade/Crews/Gethers hearing.

(3) Defendant's motion for a Sandoval/Ventimiglia hearing is referred to the trial court.

(4) Defendant's motion to reserve the right to make additional motions as necessary is denied.

(5) Defendant's motion for an order deeming the prosecution's COC invalid is denied.

The defendant moves for an order suppressing statement and identification evidence. The People oppose the defendant's motion for suppression of evidence but do consent to a Huntley hearing. While the court declines to suppress such evidence at this time, sufficient factual questions exist regarding the circumstances surrounding the statements made by the defendant, and the identification of the defendant, to warrant hearings on these matters. See CPL §710.60. Accordingly, the Court grants a Huntley/Dunaway/Wade/Crews/Gethers hearing to be conducted prior to trial.

The defendant's motion for a Sandoval/Ventimiglia hearing is respectfully referred to the trial court. The defendant's reservation of his right to make further motions is denied. Any future motions shall be summarily denied absent a showing that any such motion is based on new facts or law that the "defendant could not, with due diligence, have been previously aware, or which, for other good cause, could not reasonably have been raised" within 45 days after defendant's arraignment and before trial. CPL §255.20(3).

Effective January 1, 2020, the New York State Legislature modified the prosecution's discovery obligations applicable to all pending cases. See generally CPL Article 245. Once the People have provided automatic discovery, they shall serve and file a COC, stating 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 People cannot be deemed ready for trial until a valid COC is filed. See CPL §§30.30(5), 245.50(3). If the People fail to meet their obligations and defendant demonstrates prejudice, the Court may grant defendant a remedy or sanction the People. See CPL §245.80.

In his motion, the defendant argues that the People failed to provide materials discoverable under CPL §245.20(1), despite having meaningfully conferred about the same. Specifically, that the People failed to provide (i) any records relating to substantiated or unsubstantiated allegations of misconduct for NYPD Officers Andreu, Hirschi, Marmolejos, Mejia, or Cuevas; (ii) the name, rank, and precinct of a supervising NYPD officer who responded to the scene on June 2, 2022, and who can be seen on Officer Andreu's body worn camera ("BWC") interviewing the complaining witness in this case, as well his/her BWC footage, memo books, activity logs, and records relating to substantiated or unsubstantiated allegations of misconduct for said NYPD supervisor; (iii) adequate contact information for R.R., an individual present with the complainant on both June 22, 2022 and November 6, 2022, who has information relevant to the subject matter of this case, (iv) Giglio material for non-testifying NYPD witnesses; and (v) scratch paperwork from June 22, 2022, which was lost.

The defense maintains that on December 5, 2022, and again on December 15, 2022, the parties spoke over the phone about missing discovery. The defense further maintains that on December 22, 2022, counsel requested, via email, that the prosecution provide the missing discovery, and that the assigned district attorney responded that same day indicating that there was no outstanding BWC footage for the incident. Additionally, the defense maintains that the [*2]parties exchanged three more emails regarding discovery between December 28, 2022 and January 2, 2023, and then nine additional emails thereafter. Despite these exchanges, the defense maintain that the previously itemized materials remain outstanding.

The People maintain, in opposition, that the bulk of discovery in this matter was initially served on defense on November 11, 2022, and that additional discovery was served on November 18, 2022 and December 4, 2022, followed by the filing of the COC on December 5, 2022. The People further maintain that the assigned district attorney received a copy of defense's motion on January 13, 2023, and that on January 18, 2023, one of the memo books in controversy was served on defense counsel.

As for the identity, BWC, and memo book for the unidentified NYPD supervisor on scene, the People maintain, in opposition, that after reviewing, downloading and serving all relevant BWC footage for this case, they were notified by defense counsel on December 22, 2022 of the unidentified supervisor seen in the final 44 seconds of PO Andreu's 39-minute BWC video. The People maintain that, within 6 days, they were able to identify the supervisor as Lt. Patrick Douglas and reach out to the 44th Precinct. The People maintain that they obtained and served on defense Lt. Douglas' memo book on January 18, 2022, but learned that Lt. Douglas did not activate his BWC, and as such, this footage does not exist. The People argue that this comports with their prior understanding from searching through contemporaneous uploads on Evidence.com, as well as conversing with PO Andreu about what BWC he believed to have existed. The People argue that the delayed disclosure of a single memo book does not invalidate the People's COC, where they were initially unaware that this material existed, as Lt. Douglas' name did not appear on the BWC checklist, his BWC did not appear in the Evidence.com index, and neither PO Andreu, nor the 44th Precinct discovery liaison, named Lt. Douglas as a member of service who was on scene.

The People argue that the posture of this case demonstrates the intended workings of the discovery law, where the defense fulfilled his duty to notify the People of missing discovery, and the People, in turn, investigated, notified defense counsel of additional material, and served the same on defense. The People further argue that their initial disclosure was reasonable and that the People appropriately discharged their continuing duty to disclose once they were made aware of the missing discovery.

As for the contact information for witness R.R., the People maintain, in opposition, that such information is not within the custody and control of the prosecution and that the People do not intend to call R.R. as a witness, as exhibited by the omission of his name on the witness list served on defense on December 4, 2022. The People argue that they are under no obligation to provide further forms of contact, where they have already provided the name and contact for J.M. in their witness list.

As for the scratch paperwork from June 22, 2022, the People maintain, in opposition, that on November 16, 2022, the People disclosed as Brady material to defense counsel the fact that this discoverable information had been lost and could not be located. The People argue that it is illogical to penalize the prosecution for admitting that certain discoverable information is lost, especially where this disclosure was made timely to defense counsel and in line with the People's duty of candor in rendering discovery.

As for the Giglio material for non-testifying officers, the People maintain, in opposition, [*3]that such material is factually unrelated to the subject matter of the case, and not discoverable or required under CPL §245.20(1) and (2). In addition to outlining a very detailed and extensive background to their office's Giglio policy and procedure, the People argue that all pending, substantiated, and unsubstantiated allegations for testifying officers have been disclosed upon defense, and that should any new allegations arise, they will also be provided.

CPL Article 245, as twice amended, dictates that courts' guiding principles when evaluating the validity of a COC is not whether discoverable items are missing, but whether the People have acted diligently, in good faith, and reasonably under the circumstances. People v Perez, 73 Misc 3d 171 (Sup. Ct., Queens County 2021). If they have, the only question is what, if any, remedies or sanctions are appropriate and proportionate to the prejudice suffered by the defense due to the delayed or missing discovery, (CPL § 245.80(2)) with dismissal being the rare and extreme result.

The Court finds that the People, acting in their understanding of the law, made good faith efforts and exercised due diligence in obtaining and providing discovery materials to the defendant. The Court finds that no provision of Article 245 expressly requires the People to disclose disciplinary records or other materials tending to impeach the credibility of non-testifying prosecution witnesses, and further finds that the delayed disclosure of a single memo book does not invalidate the COC. Nowhere does the statute indicate that continuing disclosure by the People invalidates a previously filed COC after the People had exercised due diligence and made reasonable inquiries to ascertain the existence of material and information subject to discovery before filing it. See CPL §245.20(1); see also People v. Perez, 73 Misc 3d 171 (noting "numerous courts have found that belated disclosures should not invalidate a certificate of compliance that was made in good faith after the exercise of due diligence" and that in the Court's view, "good faith, due diligence, and reasonableness under the circumstances are the touchstones by which a certificate of compliance must be evaluated.").^[FN1] If the defendant has been prejudiced by the People's belated disclosure of discovery materials, he may seek an appropriate remedy or sanction at trial. See CPL §245.80(1)(a). Further, as for the proposed discovery sanction for the lost scratch paperwork from June 22, 2022, the determination of such sanction is respectfully referred to the trial court. The People are reminded of their continuing discovery obligations under Article 245 and are directed to disclose any additional existing material of which they learn and receive going forward.

(1) Defendant's motion to suppress statements is granted to the extent of granting a Huntley/Dunaway hearing.

(2) Defendant's motion to suppress identification evidence is granted to the extent of granting a Wade/Crews/Gethers hearing.

(3) Defendant's motion for a Sandoval/Ventimiglia hearing is referred to the trial court.

(4) Defendant's motion to reserve the right to make additional motions as necessary is [*4]denied.

(5) Defendant's motion for an order deeming the prosecution's COC invalid is denied.

This constitutes the decision and order of the Court.