By notice of omnibus motion dated April 14, 2023, defendant moves for an order dismissing misdemeanor charges on statutory speedy trial grounds pursuant to Criminal Procedure Law ("CPL") §§ 30.30 (1) (b) and 170.30 (1) (e). Specifically, defendant contests the validity of the People's certificate of compliance ("COC") due to the prosecution's failure to comply with disclosure obligations pursuant to CPL §§§ 245.20, 245.50 (1) and 245.50 (3) within their prescribed speedy trial time. Defendant also seeks an order: suppressing evidence related to his identification pursuant to CPL § 710.30, or in the alternative, a Wade/Crews/Rodriguez ^[FN1] hearing; and precluding any evidence of defendant's prior convictions or bad acts, or in the alternative, a Sandoval/Ventimiglia hearing ^[FN2] ; and a hearing on the underlying facts in accordance with the holding in People v Allard, 28 NY3d 41, 41 NYS3d 196 [2016]. The People oppose the motion in its entirety.

Upon review and consideration of the submissions, court file and relevant legal authority, defendant's motion is GRANTED in part and DENIED in part, as follows: the People's COC filed January 31, 2023 is deemed VALID; the People's CPL § 245.20 disclosures were timely and properly served; dismissal pursuant to CPL § 30.30 (1) (b) is DENIED; suppression of evidence pursuant to CPL § 710.30 is DENIED; pre-trial hearings are ORDERED as provided herein; and Sandoval/Ventimiglia issues are referred to the trial court.

On October 14, 2022, defendant Arthur Nichols was arrested and issued a desk appearance ticket ("DAT") pursuant to CPL § 150.10 for allegations that he violated Penal Law ("P.L.") § 120.00 (1) (assault in the third degree) and CPL § 240.26 (1) (harassment in the second degree). On November 3, 2022, defendant was arraigned on the DAT.

On January 31, 2023, the People filed their Automatic Disclosure Form ("ADF"), COC and statement of readiness ("SOR") off-calendar, which represented, in relevant part, that the prosecution had contemporaneously provided discovery materials via OneDrive and Evidence.com, including the complaining witness' contact information, body-worn camera footage from six officers, the NYPD Sprint report and file, one CCRB history and seven IAB logs for testifying witness, Police Officer Paul Tambe ("PO Tambe"), and one CCRB history and three IAB logs for testifying witness Police Officer Dieunane Vansoest ("PO Vansoest").

At a conference held on February 2, 2023, before Hon. Christopher Chin, the parties were directed to diligently confer regarding discovery issues before the next appearance.

On March 16, 2023, a discovery conference was held before this court, at which time defense counsel claimed that several discovery items were missing from the People's disclosure: 1) the complainant's medical records, 2) adequate contact information for the complainant, 3) contact information for FDNY/EMS responders, 4) FDNY/EMS paperwork related to the incident, 5) various police documents, including warrant check and ICAD printout, 6) the photograph used to identify defendant, 7) underlying IAB records to the logs previously disclosed, 8) underlying CCRB files, 9) records pertaining to any criminal actions or judgments against defendant, and 10) Brady information contained in the complainant's sealed arrest record. ^[FN3]

The People averred that 1) they were still waiting for a response to their HIPAA request for the complainant's records, 2) their disclosure of the complainant's email address was adequate, 3) they had already disclosed unredacted 911 and Sprint reports, 4) neither FDNY nor EMS is an agency within the People's control, 5) they had disclosed unredacted ICAD, Sprint and 911 reports, 6) the assigned ADA had no information about a photograph identification of defendant, 7) the IAB logs provided to defendant satisfied their Giglio obligations ^[FN4] , 8) the CCRB is not an agency within the prosecution's control, 9) their ADF already disclosed that no record of convictions or judgments exist, and 10) they had no duty to move to unseal the complainant's records after declining to prosecute the cross-complaint against him.

The following disputed issues were resolved at the discovery conference when the court held that:

1. The People had complied with their obligations to disclose medical records for the complainant insofar as they had processed his HIPAA form and were still waiting for said records to be produced (Exhibit 11, pg. 37, annexed to the affirmation in support of People's opposition);

2. The People disclosed adequate contact information for witnesses in their ADF as well as an unredacted 911 report (Id. at pg. 38);

3. The People disclosed police documents, including a warrant check and printout command log, and stated that no other requested documents [ICAD] exist (Id.);

4. The People had no obligation concerning the CCRB because it is not an agency within their control (Id. at pg. 39);

5. The People had no information about judgments and convictions concerning defendant (Id.); and

6. Defense counsel was given leave to make an application to the court to unseal the complainant's DP file (Id.).

Following the court rulings, the parties filed their respective motion papers. Accordingly, with respect to the People's discharge of their CPL § 245.20 automatic discovery obligations, and consistent with the oral findings issued on March 16, 2023, the court will only address the discoverability of the following issues: i) FDNY/EMS records, ii) photograph identification of defendant and iii) underlying IAB records.^[FN5] Additionally, although the court had already made a determination concerning the unsealing of the complainant's DP file, the issue will nonetheless be addressed herein to clarify a misstatement in the record.

Where defendant alleges that the accusatory instrument should be dismissed because the People's COC is illusory based upon the prosecution's failure to discharge their automatic disclosure obligations pursuant to CPL § 245.20, the People must establish that they have met their discovery burden (see e.g., People v Adrovic, 69 Misc 3d 563, 572, 130 NYS3d 614 [Crim Ct, Kings County 2020]; CPL § 245.50 [3]).

Courts will then conduct an inquiry to determine whether the People are in compliance by examining the prosecution's efforts to obtain outstanding discovery materials (see People v Quinlan, 71 Misc 3d 266, 271, 142 NYS3d 305 [Crim Ct, Bronx County 2021]; People v Pierna, 74 Misc 3d 1072, 1088, 163 NYS3d 897 [Crim Ct, Bronx County 2022]).

Where the prosecution has demonstrated due diligence and a good faith effort to discharge their discovery obligations although items remain unavailable, a court can deem the COC to be valid and the People ready for trial (see People v Diaz, 77 Misc 3d 727, 733, 178 NYS3d 912 [Crim Ct, Bronx County 2022]). Additionally, pursuant to CPL § 245.80, a court may impose a remedy or sanction where discoverable information is disclosed belatedly if warranted, which is appropriate and proportionate to the prejudice suffered by the party entitled to the discovery (CPL § 245.80 [1] [emphasis added]). However, where the People fail to detail their efforts to obtain discoverable items such that a court cannot make a finding that the prosecution acted in good faith, their COC will be deemed invalid (see People v Perez, 75 Misc 3d 1205 [A], *3, 2022 NY Slip Op. 50387 [U] [Crim Ct, Bronx County 2022]).

As a threshold matter, defense counsel maintains that although the People served their [*2]ADF, COC, and SOR on January 31, 2023, a review of the discovery folder indicated that some of the enumerated items were not attached. (affirmation of defendant's counsel at 6). On February 1, 2023, following an email exchange with the assigned ADA, who represented that a 250-page file had been uploaded to OneDrive at 5:10pm, defense counsel received an email with four attachments: a 911 call report, a disclosure letter, a radio run, and a redacted discovery packet. (affirmation of defendant's counsel at 8). On February 2, 2023, defense counsel asserted that The Bronx Defenders Discovery Team advised her that the People's disclosures had not been shared to their "Discovery Inbox" until that morning at 10:33 a.m. (affirmation of defendant's counsel at 8). Accordingly, defendant argues that the prosecution had not actually served their disclosures until the 91st day following arraignment.

Defense counsel then argues that the People's COC should be deemed invalid because several items remain outstanding and that the People should be charged CPL §30.30 speedy trial time for their purported non-compliance. Specifically, defendant asserts that while the People's COC claims that photographs of defendant were disclosed, the actual images provided by the People depict the complainant and a copy of defendant's driver's license rather than the "single photograph" allegedly used by the complainant to identify defendant. (affirmation of defendant's counsel at 10).

Additionally, defense counsel argues that the People had an affirmative duty to inquire about the existence of FDNY [and EMS] records relative to defendant's treatment at the police precinct but had failed to disclose these materials.

Defendant also asserts that the People failed to disclose Giglio materials for PO Tambe and PO Vansoest. (affirmation of defendant's counsel at 11). Specifically, although defendant acknowledges receipt of IAB logs for PO Tambe and CCRB Histories for PO Vansoest, defense counsel maintains that the prosecution's Giglio disclosures are incomplete without the underlying records, such as documents attached to the logs and reports. (affirmation of defendant's counsel at 11).

Initially, the People contend that their 250-page disclosure was served via OneDrive to defense counsel's email and The Bronx Defenders' institutional discovery email on January 31, 2023, concurrent with their ADF, COC, and SOR filings. (memorandum in support of the People's opposition at 1). The People also claim that after defense counsel emailed the assigned ADA on February 1, 2023, to advise that she was having difficulty accessing the disclosure materials, the People promptly re-shared their OneDrive discovery folder and emailed it to defense counsel; however, the assigned ADA received a delivery failure notice within minutes due to the size of the message, so the discovery was instead resent by emailing attachments the same day at 5:09 p.m. (memorandum in support of the People's opposition at 2, 9).

The People further claim that the validity of their COC should not be impugned because of technical issues at the defense counsel's office, and that their efforts to serve discovery after 5:00 p.m. were nonetheless timely because CPL § 30.30 defines speedy trial time in days rather than hours. (memorandum in support of the People's opposition at 10).

The prosecution maintains that despite their due diligence- following up with the arresting officer- they concluded that defendant was identified through a "point-out" not a single photograph. (memorandum in support of the People's opposition at 17).

Next, the People assert that they are under no duty to procure FDNY/EMS records because neither is a law enforcement agency within their control. (memorandum in support of the People's opposition at 18).

Lastly, the People further aver that they have discharged their CPL § 245.20 disclosure obligations by providing defendant with Giglio records pertaining to both substantiated and unsubstantiated IAB complaints, and that what defense counsel is really asking for is underlying materials to the underlying case files- an untenably broad and onerous request given that the People do not actually possess those items. (memorandum in support of the People's opposition at 20-21, 25-26).

While CPL § 245.50 (1) mandates that the prosecution file a COC after complying with their discovery obligations, CPL § 245.20 (1) unambiguously qualifies the People's duty to disclose discoverable information which is in the "possession, custody or control of the prosecution, [or] under the prosecution's direction or control" (CPL § 245.20 [1] [emphasis added]; see also People v Lustig, 68 Misc 3d 234, 241-42 [Sup Ct, Queens County 2020]).

Moreover, CPL § 245.20 (2) provides that where the prosecution is not in possession, custody or control of discoverable material, they shall make a diligent, good faith effort to ascertain the existence of discoverable material and "cause such material or information to be made available for discovery" (CPL § 245.20 [2] [emphasis added]).

A. The People's Service of their CPL 245.20 Disclosures was Neither Improper nor Untimely

Defendant's contention that the prosecution did not timely serve its disclosure until the 91st day following arraignment because the People did not reshare their discovery materials in response to counsel's request until 5:10 p.m. on February 1, 2023, is wholly meritless.

Criminal Procedure Law § 30.30 (1) (b) provides, in pertinent part, that "except as otherwise provided [ ], a motion made pursuant to paragraph (e) of subdivision one of section 170.30 or paragraph (g) of subdivision one of section 210.20 of this chapter must be granted where the people are not ready for trial within ninety days of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony" (CPL § 30.30 (1) (b) [emphasis added]).

Moreover, General Construction Law § 19 provides that "[a] calendar day includes the time from midnight to midnight. Sunday or any day of the week specifically mentioned means a calendar day" (see McKinney's Gen Cons Law, § 19).

By comparison, as other courts have noted, CPL § 180.80 determines the time beyond which a defendant held in custody pending disposition of a felony complaint must be freed in hours rather than days (see People v McLean, 77 Misc 3d 492, 177 NYS3d 837 [Crim Ct, Bronx County 2022]; People v Middleton, 187 NYS3d 552 [Crim Ct, NY County 2023]). This is not an issue of first impression, although courts of concomitant jurisdiction have differed as to the consequence of filing a COC and SOR after "close of business" on the ninetieth day following arraignment (see People v Kinch, 75 Misc 3d 741, 167 NYS3d 746 [Crim Ct, Kings County 2022]). In this case, however, defendant does not contend that the People's COC and SOR were untimely, but rather that the prosecution's CPL § 245.20 disclosures were served after their speedy trial time had expired. Nevertheless, the court finds the analogy appropriate for its analysis.

In McLean, supra, the defendant's motion to dismiss was partly premised on the fact that the prosecution had filed its COC, SOR (and discovery materials) on the ninetieth day at 5:12 p.m., and defendant argued that the documents could not have actually been filed with the court until the next day (see McLean, 77 Misc 3d at 497). The court noted that the Legislature drafted CPL § 30.30 (1) (b) to quantify the applicable time period in days, and reasoned that "[u]nlike the prior in-person system of filing with the court, this new electronic method [EDDS] does not require in-person filing with the court clerk and, thus, allows for submissions to be filed at any hour (see Id. at 498, 501 [emphasis added]).^[FN6] The court further rejected the premise that courts are "only open during business hours (i.e. 9:00 a.m. to 5:00 p.m.)" as inaccurate and held that CPL § 30.30 (1) (b) does not entitle a defendant to the commencement of a trial within ninety days but, instead, requires the People to announce their readiness for trial within 90 days (see Id. at 503-504 citing People v Kendzia, 64 NY2d 331, 486 NYS3d 888 [Ct of App 1985] [internal citations omitted]).

In Middleton, supra, the defendant argued that the prosecution's filing of its COC and SOR did not stop their speedy trial clock because they were filed after 5:00 p.m. on the ninetieth day of their speedy trial clock (see Middleton, 187 NYS3d at 554). The Middleton court rejected this argument finding "[no] specific statutory requirement that a statement of readiness must be made during business hours" (see Id. at 555 citing Kendzia, supra, ["when the People communicate their readiness for trial, they need to make an affirmative representation [that they are] in fact ready to proceed"][internal citations omitted]).

However, in Kinch, supra, the court held that a COC and SOR filed via EDDS at 11:35 p.m. was untimely because "[b]oth the letter and the spirit of CPL 30.30 require that the People be capable of actually beginning a trial when they announce readiness" (see Kinch, 75 Misc 3d at 749). The Kinch court further reasoned that "it remains impossible to commence a trial after court has closed for the day" (see Id.). This court respectfully declines to follow this reasoning.

The McLean and Middleton holdings are instructive for their exposition of how to consider the timeliness of the People's disclosures. Defendant acknowledges receipt of the discovery on February 1, 2023, and it is of no legal import that counsel could not avail herself of the 250-page discovery packet until 5:10 p.m. on the ninetieth day following arraignment. This court submits that defining "close of business" as 5:00 p.m. is an anachronism where EDDS filings and email confirmations have supplanted in-person filings with the clerk's office. Moreover, the facts at bar, even as recited by defense counsel, demonstrate that the prosecution endeavored to cooperate with her to make sure that the evidence had been received.^[FN7]

Accordingly, the court finds that the People timely served their disclosures.

Defense counsel avers that the People did not properly serve their disclosures because "proper service requires the prosecution to email the Bronx Defender Discovery team, cc'ing the [*3]counsel assigned to the case and attaching or sharing the discovery packet." (memorandum of defendant's counsel at 22, n 5). Defendant further claims that the People's disclosures were not received by the discovery team at The Bronx Defenders until February 2, 2023, the ninety-first day after arraignment. (affirmation of defendant's counsel at 8).

However, defense counsel's institutional email procedures should not be confused with any obligation set forth in the Criminal Procedure Law, which is silent on what constitutes proper service (see People v Godoy, 180 Misc 2d 771, 773, 698 NYS2d 390 [Crim Ct, NY County 1999] ["courts have looked to provisions of the Civil Practice Law and Rule [ ] for guidance, including CPLR 2103, which discusses service of papers"]). The Godoy court, guided by CPLR § 2103, held that "[w]hen a criminal defendant is represented by counsel, the counsel acts as the agent for the defendant and the People can properly rely on service upon counsel to constitute service upon the defendant"] (see Godoy at 773-774; CPLR § 2103 [b]).

To be clear, this court does not find any statutory authority that precludes defense counsel from implementing an institutional email policy to receive and marshal voluminous documents for innumerable legal matters. However, there is also no statutory authority to find that the People have improperly served their disclosures where the record demonstrates that the prosecution endeavored to and did serve discovery to the assigned defense counsel's email on February 1, 2023.

This court finds that the People properly served their discovery on February 1, 2023.^[FN8]

B. The People Properly Discharged their CPL 245.20 Obligations

The Complainant's DP Records

This court addressed the issue of whether the People had a duty, or standing, to request that the complainant's DP records be unsealed on March 16, 2023, when the court determined that defendant had leave to file his own application. The court did not conclude that the DP records were not in the People's custody and control, as stated in the People's memorandum in response to the motion. Defendant's motion does not seek an order to unseal the complainant's DP file, but rather requests that this court find that the People were non-compliant in failing to make the request themselves.

As a threshold matter, the court is cognizant of the balance of equities to consider where CPL § 160.50 narrowly prescribes the circumstances that may warrant unsealing of a record which has been favorably disposed for the complainant, but which may include exculpatory information for a defendant. The People have no standing to make an application to unseal records except where the accused has moved for an order to seal charges pursuant to either CPL §§170.56 or 210.46, both of which concern adjournments in contemplation of dismissal of cases involving marijuana (see CPL §160.50 [d] [i]).

Additionally, in the absence of any evidence that the complainant has waived his right to confidentiality, he is entitled to the privacy inherent to CPL § 160.50 (see People v Taveras, 78 Misc 3d 1221(a), *6 [Crim Ct, Bronx County 2023]["When a statutory privilege is designed to protect an individual by keeping certain information or conduct secret, that protection may be deemed waived where the individual affirmatively places the information or conduct in issue"]). [*4]Nor has defense counsel put forth any compelling arguments that go beyond conjecture why the court should issue an order, in the interest of justice, unsealing the complainant's DP file (see People v Veliz, 54 Misc 3d 1205 (A), *2 [Sup Ct, Kings County 2017]["Counsel's application does not demonstrate that there is a particular necessity for the sealed records or that this is an unusual case in any way as would warrant such exceptional relief"]).

Moreover, the facts at bar do not suggest a prior judicial determination involving the complainant, indicating possible Brady material and implicating defendant's constitutional right to confrontation (see People v Davis, 67 Misc 3d 391, 396, 120 NYS3d 740, 744 [Crim Ct, Bronx County 2020]["a defendant has a constitutional right to confront witnesses about their prior incredible testimony given under oath"][emphasis added]).

Accordingly, the court declines, sua sponte, to issue an order directing the unsealing of material regarding the complainant's DP record.

Notwithstanding this court's ruling, the People are reminded of their ongoing and continuing obligations under Brady and both the United States and New York State Constitutions, and to the extent that information regarding the complainant's DP is already in the People's possession, custody and control and it contains exculpatory material beneficial to defendant, they are required to turn said information over to defendant.

The People aver that they were under no obligation to disclose records generated by the FDNY or EMS, and this court determined the same at the March 16, 2023 discovery conference, although contrary to the prosecution's assertion, CPL § 245.20 (2) does not entirely relieve the People of any duty to obtain records which are not within their possession, custody or control (see CPL § 245.20 [2]).

However, because the statute expressly states that the prosecutor is not required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain, and absent a compelling argument by counsel that, for instance, she had endeavored but was unable to obtain the records relating to defendant's medical treatment at the precinct, this court again finds that the People had no duty to procure FDNY/EMS materials (see Id.).

Despite serving defendant with CPL § 710.30 (1) (b) notice at his arraignment that the prosecution intended to offer evidence of a "single photo" at a suppression hearing and/or at trial, the People now assert that defendant was identified through a "point-out," and that despite their due diligence in following up with the arresting officer, there are no other police documents, including the single photo, which exist. The People's attempt to clarify is belated, but this court holds that the issue of how defendant was identified is more appropriately decided by a pre-trial hearing rather than by motion.

As a threshold matter, absent some compelling and particularized finding based upon the circumstances of the case, this court declines to hold that a defendant is entitled to disclosure related to an IAB investigation where the police officer was exonerated of the charges. Defense counsel has asserted no articulable facts to support the proposition that files related to exonerated charges, as opposed to unsubstantiated or substantiated allegations, could implicate the People's duty to disclose pursuant to CPL § 245.20 (1) (k).

Defense counsel correctly asserts that "the People's summaries do not suffice" as responsive to the prosecution's statutory obligations. However, in the instant matter, the [*5]prosecution has not disclosed summaries, but rather the actual IAB logs for the one testifying witness for whom unsubstantiated or substantiated allegations exist, PO Tambe. The court finds that the prosecution has discharged its Giglio obligations.

For all of these reasons, the court holds that the People's COC, properly and timely served, is valid.

Defendant moves alternatively for orders suppressing evidence pursuant to CPL § 710.30 and preluding the prosecution from introducing Sandoval/Ventimiglia evidence at trial, or granting a pre-trial Wade/Crews/Rodriguez hearing. If his motion to dismiss is denied, defendant also seeks a hearing on the underlying facts according to People v Allard, 28 NY3d 41, 41 NYS3d 196 [2016]. In Allard, the court held that "CPL 210.45 furnishes the general procedure applicable to all motions to dismiss an indictment- including, among others, motions based on defective grand jury proceedings, untimely prosecutions, a defendant's immunity, and CPL 30.30 grounds" (see Allard at 45-46 [emphasis added]).

However, insofar as defendant has been charged with two misdemeanors, neither the Allard holding nor CPL § 210.45 (4) apply to the facts at bar. In any event, even if defendant was not charged with misdemeanors, the court would still find that the People's opposition has settled all factual disputes and, thus, there are no unresolved disputes which require a hearing.

Accordingly, the court denies that part of defendant's motion which seeks an order suppressing evidence pursuant to CPL § 710.30 but grants his request for a Wade/Crews/Rodriguez pre-trial hearing, and refers any Sandoval/Ventimiglia issues to the trial court.

Criminal Procedure Law § 245.50 (3) provides that "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" (see Pierna, 74 Misc 3d at 1087 [internal quotation marks omitted]; People v Aquino, 72 Misc 3d 518, 520, 146 NYS3d 906 [Crim Ct, Kings County 2021]).

In a motion to dismiss misdemeanor charges pursuant to CPL § 30.30 (1), the defendant has the initial burden to demonstrate that the prosecution failed to declare readiness for trial within the statutorily prescribed time, 90 days (see CPL § 30.30 [1] [b]); People v Luperon, 85 NY2d 71, 77-78, 623 NY2d 735 [1995]). The burden then shifts to the prosecution to identify excludable delays (see Id. at 78).

In the case at bar, the People's 30.30 calculation commenced the day after defendant's arraignment on November 3, 2022. The People were not converted and were not ready for trial when they appeared in court on December 15, 2022 (November 4, 2022 to December 15, 2022: 42 days charged to the People). On January 27, 2023, the People converted the complaint when they filed and served, off-calendar, a Supporting Deposition and Affidavit of Translation via EDDS and email to defense counsel (December 16, 2022 to January 27, 2023: 43 days charged to the People). On January 31, 2023, the People filed and served their COC and SOR on via EDDS and email to defense counsel (January 27, 2023 — January 31, 2023: 4 days charged to the People).

On January 31, 2023, the People filed a valid COC, declared their readiness for trial and stopped their speedy-trial clock on the 89th day following arraignment, within their statutorily prescribed time (see CPL § 30.30 [1] [b]).

Based upon the foregoing, the People's COC filed January 31, 2023 is deemed VALID; the People's CPL § 245.20 disclosures were timely and properly served; dismissal pursuant to CPL § 30.30 is DENIED; suppression of evidence pursuant to CPL § 710.30 is DENIED; a pre-trial Wade/Crews/Rodriguez hearing is ORDERED; and Sandoval/Ventimiglia issues are referred to the trial court.

This constitutes the opinion, decision, and order of the court.