The defendant is charged by information with two counts of Driving While Intoxicated (Vehicle and Traffic Law §§ 1192[2] and [3]) and Driving While Ability Impaired (Vehicle and Traffic Law § 1192[1]). The defendant moves, inter alia, to dismiss the information on speedy trial grounds (CPL 170.30[1][e]; 30.30). The People opposed this motion. For the reasons stated below, the defendant's motion is granted.

The top charges, Driving While Intoxicated Driving While Intoxicated (Vehicle and Traffic Law §§ 1192[2] and [3]) are unclassified misdemeanors punishable by up to three hundred sixty-four days in prison (Penal Law § 70.15[3]). Accordingly, a motion to dismiss must be granted when the People are not ready for trial "within 90 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); 170.30(1)(e). The ninety-day period commences with the filing of the accusatory instrument. CPL 1.20(17); People v Stirrup, 91 NY2d 434, 438 (1998).

The defendant was arraigned on April 20, 2023. On July 12, 2023, the People served and filed an off-calendar Certificate of Trial Readiness ("CTR") and Certificate of Compliance ("COC"), which included body worn camera recordings and New York City Police Department ("NYPD") paperwork. On the following court date of July 14, 2023, the People served defense counsel with a property clerk invoice, which was not included among the July 12th COC, and stated ready.

During such appearance, defense counsel objected to the validity of the July 12th COC, arguing that the People had not yet disclosed any 911 or radio run recordings related to the incident, which were detailed in several pieces of NYPD paperwork disclosed to the defendant, as well as the identity of and adequate contact information for a tow truck driver who appeared in body-worn camera ("BWC") recordings disclosed to the defendant. The NYPD paperwork further indicates that police officers arrived at the alleged date, time and location because the defendant was refusing a tow service. On the BWC recordings produced to the defendant and the Court, a tow truck driver is observed on the scene prior to the officers' arrival. During said BWC recordings, the officers and tow truck driver attempt to help the defendant affix a tire to his vehicle. At one point during their attempts to assist the defendant in repairing his vehicle, the arresting officer and the tow truck driver appear to be in agreement that the defendant is intoxicated.

The matter was adjourned to August 9, 2023 for hearings and trial. Subsequently, on July 18, 2023, the People served and filed a CTR along with a Supplemental Certificate of Compliance (hereinafter, "the July 18th SCOC"), which included the aforementioned voucher. Neither the COC nor the SCOC discussed the tow truck driver, efforts to identify him or provided any information regarding a witness to the alleged incident.

On August 7, 2023, the defendant filed the instant motion defense counsel, seeking dismissal of the accusatory instrument on statutory speedy trial grounds (CPL 170.30[1][e]; 30.30), asserting, inter alia, that the COC and SCOC filed by the People are invalid due to the People's failure to disclose the name of and adequate contact information for the tow truck driver, rendering the COC and SCOC illusory. The People responded in writing on August 21, 2023 that, at the time of the COC and SCOC, the People did not have any contact information for the tow truck driver, and, therefore, did not include him in either the COC or SCOC. Furthermore, the People are unaware of any evidence that the tow truck driver may provide regarding the allegations. Accordingly, the tow truck driver does not bear any relevance to the charged offenses. On August 29, 2023, the People produced a copy of the discovery turned over to the defendant at that point in time to the Court.

On September 6, 2023, the Court held a hearing to gather further information regarding the People's efforts to obtain and disclose all discoverable items. With regards to the tow truck driver, the People stated that no efforts were made to identify the tow truck driver because the arresting officer's observations formed the basis of the allegations, they did not possess any contact information for the tow truck driver, and the People did not intend to call the tow truck driver as a witness. The People further stated that the People only became aware of the name of the company for which the driver worked in August upon interviewing the arresting officer and, at that time, assigned a detective investigator to identify the tow truck driver thereafter. The People further stated that they now had contact information for the tow truck driver but had not yet attempted to contact the driver nor had they turned over any such information to the defendant.

On September 14, 2023, the Court contacted defense counsel and the assigned prosecutor and provided the People with the opportunity to supply any additional information regarding the People's efforts to obtain any discoverable information or materials. On the same date, the People served and filed a second SCOC (hereinafter, "the September 14th SCOC"), which now included the name and contact information for the tow truck driver. As with the July 18th SCOC, the September 14th SCOC did not include any information regarding the basis of the delayed disclosure.

Before answering ready for trial, the People must have "done all that is required of them to bring the case to a point where it may be tried." People v England, 84 NY2d 1, 4 (1994). Once a statement of readiness is filed, the People are only charged for adjournments when the delay is solely and exclusively the fault of the prosecution, and the time cannot otherwise be excluded under CPL 30.30(4). See People v Brown, 28 NY3d 392, 404 (2016); People v Cortes, 80 NY2d 201, 210 (1992). Conversely, "A statement of readiness at a time when the People are not actually ready is illusory and insufficient to stop the running of the speedy trial clock." England, 84 NY2d at 4. With the enactment of Article 245, discovery must be completed before the People can announce their readiness for trial (CPL 30.30[5]). "The provisions of CPL 245.50 and 30.30 interlace discovery compliance and trial readiness, such that discovery compliance is a condition precedent to a valid announcement of readiness for trial, absent 'exceptional circumstances' on a particular case." People v Lobato, 66 Misc 3d 1230(A), 2020 NY Slip Op 50322(U), at *3 (Crim Ct, Kings County 2020) (quoting CPL 245.50[3]); see also People v Berkowitz, 68 Misc 3d 1222(A), 2020 NY Slip Op 51044(U) (Crim Ct, Kings County 2020). "To interpret CPL 245.50(1) and 30.30 together, in the context of a motion to dismiss on speedy trial grounds, the Court first examines the People's 'actual readiness' (CPL 30.30[5]); that is, whether the prosecution has 'done all that is required of them to bring the case to a point where it may be tried,' including filing a valid COC." People v Winston, 78 Misc 3d 1201(A), 2023 NY Slip Op 50130(U), at*6 (Crim Ct, Bronx County 2023) (quoting England, 84 NY2d at 4 1994).

Article 245 of the Criminal Procedure Law requires that the People "actually produce[ ]" automatic discovery to the defense before stating ready for trial. People ex rel. Ferro v Brann, 197 AD3d 787, 787-88 (2d Dept 2021); see CPL 245.20(1), 245.50(1), 245.50(3), 30.30(5). Automatic discovery includes "all" items and information in the People's possession that "relate to the subject matter of the case." CPL 245.20(1). The People's "possession" includes discoverable material that is in their actual possession, (id.), and the possession of the police (CPL 245.20[2]). However, the People's discovery obligations extend beyond those in their actual possession or deemed to be in their possession. Rather, the discovery statute requires that the People to make "diligent, good faith effort[s]" to "ascertain the existence" of discoverable material, and "cause" it to "be made available for discovery" even where it is not within their possession. Id.

Upon completion of discovery, the People must serve upon defendant and file with the court a "certificate of compliance" affirming 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 [*2]discovery." CPL 245.50(1). The certificate must also include a list of the discovery materials provided. Id. Thus, after the People have "actually turn[ed] over all known material and information," they must affirm it in a "proper" certificate of discovery compliance. People v Quinlan, 71 Misc 3d 266, 271 (Crim Ct, Bronx County 2021); People v Adrovic, 69 Misc 3d 563, 574 (Crim. Ct., Kings County 2020); see also CPL 245.50(1), (3). A certificate of compliance is "proper" if it is filed "[w]hen the prosecution has provided the discovery required by subdivision one of section 245.20," except for materials that are lost, destroyed, or under a protective order. CPL 245.50(1). However, "What the People may not do is file a Certificate of Compliance in which they claim to have exercised due diligence and turned over 'all known material and information,' (CPL 245.50[1]), while at the same time not actually turning over all known material and information, without the express permission of the Court." Adrovic, 69 Misc 3d at 574.

Indeed, that is precisely what the statute directs the People to do in their certificate of compliance: they must certify 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). Alongside this plain text, courts hold that a certificate of compliance "[can]not be deemed complete" until discovery is "actually produced" to the defense. Ferro, 197 AD3d at 787-88; Quinlan, 71 Misc 3d at 271 (requiring that the People file a certificate of compliance only after they "actually turn[ed] over all known material and information"); Adrovic, 69 Misc 3d at 574 (same).

Additionally, if the People subsequently provide additional discovery, they must serve upon defendant and file with the court a supplemental certificate of compliance identifying the additional material and information provided (CPL 245.50[1]. The statute specifically provides that "[n]o adverse consequences to the prosecution or the prosecutor shall result from the filing of a certificate of compliance in good faith and reasonable under the circumstances; but the court may grant a remedy or sanction for a discovery violation as provided in section 245.80 of this article." CPL 245.50(1). The supplemental certificate of compliance must also "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. The filing of a supplemental certificate of compliance shall not impact the validity of the original certificate of compliance if filed in good faith and after exercising due diligence pursuant to section 245.20 of this article, or if the additional discovery did not exist at the time of the filing of the original certificate of compliance." CPL 245.50(1-a).

"In a challenge to the validity of a certificate of compliance, the court must determine whether the People exercised the requisite level of diligence in obtaining the materials and whether their certification was filed in good faith and was reasonable under the circumstances." People v Hooks, 78 Misc 3d 398, 401 (Crim Ct, Kings County 2023); see also People v Erby, 68 Misc 3d 625 (Sup Ct, Bronx County 2020); People v Knight, 69 Misc 3d 546, 552 (Sup Ct, Kings County 2020); People v McKinney, 71 Misc 3d 1221(A), 2021 NY Slip Op. 50456(U) (Crim Ct, Kings County 2021); Adrovic, 69 Misc 3d 563. "If any known discoverable materials were not exchanged prior to the filing of the COC, the prosecution must demonstrate how due diligence was exercised with regard to those items not exchanged." Winston, 78 Misc 3d 1201(A) at *6 (citing People v Pierna, 74 Misc 3d 1072, 1088 [Crim Ct, Bronx County 2022]). Crucially, "They must detail the reasonable inquiries made to obtain these discoverable [*3]materials." Winston, 78 Misc 3d 1201(A) at *6.

In the instant matter, the defense alleges that when the People filed their initial COC on July 14, 2023 and the July 18th SCOC, the People failed to exercise due diligence in obtaining adequate contact information for the tow truck driver. In response, the People argue that they did not possess any contact information for the tow truck driver and, accordingly, did not disclose the existence of the tow truck driver. In any event, the arresting officer's observations of the defendant form the basis of the charges against the defendant, and, as such, any information that could be provided by the tow truck driver is irrelevant to the instant prosecution.

Here, the People have failed to understand their duties. "The duties of the prosecution" expressly require that the People "make a diligent, good faith effort to ascertain the existence of material or information discoverable under subdivision one of this section and to cause such material or information to be made available for discovery where it exists but is not within the prosecutor's possession, custody or control " CPL 245.20(2). Among those materials automatically discoverable are "[t]he names and adequate contact information for all persons other than law enforcement personnel whom the prosecutor knows to have evidence or information relevant to any offense charged or to any potential defense thereto, including a designation by the prosecutor as to which of those persons may be called as witnesses." CPL 245.20(1)(c).

"When a defendant challenges a certificate of compliance on the ground that discoverable material was provided after the certificate of compliance was filed, the prosecutor must account for the belated disclosure and provide the court with sworn allegations of fact that allow the court to determine whether the prosecutor exercised due diligence and made reasonable inquires to provide the defendant with all known discovery material." People v Hutchins, 74 Misc 3d 1234(A), *1 (Sup Ct, Kings County 2022) (citing People v Perez, 73 Misc 3d 171, 177 [Sup Ct, Queens County 2021] ["upon a challenge to a certificate of compliance, the People must articulate their efforts to comply with CPL 245.20(1) with respect to the statutory subsections or specific items of discovery at issue"]). Therefore, when the validity of a COC or SCOC are challenged, the Court must determine whether the People exercised the requisite level of diligence in obtaining the materials, whether their certification was filed in good faith and was reasonable under the circumstances. See People v McKinney, 71 Misc 3d 1221(A) (Crim Ct, Kings County 2021); Adrovic, 69 Misc 3d 563.

In the instant matter, the People have failed to exercise due diligence and make reasonable inquiries to identify the tow truck driver or disclose his existence at all before filing the COC or the July 18th SCOC. To this date, the People have failed to explain the reason for the belated disclosure of the tow truck driver's name or contact information or state what efforts, if any, had been made to acquire it before the COC or either of the SCOCs were filed. Indeed, when pressed upon what efforts had been made, the People stated that they only endeavored to identify the driver in August, well after the People had certified they exercised due diligence and made reasonable efforts to ascertain the existence of all discoverable materials.

While CPL 245.50(1) permits a prosecutor to file a supplemental certificate of compliance when additional discovery is later provided, the People may only do so when the prosecutor "subsequently learns" that additional discovery material exists but has not been disclosed (see CPL 245.60). Here, the People do not allege that they learned of the existence of a non-law enforcement witness after certifying the compliance. Rather, the People's response and [*4]own discovery make clear that a person with information relevant to the offenses charged existed when they filed their initial COC, yet they failed to make any efforts to ascertain this information. When information is not in the People's possession, however, Article 245 does not permit the People to do nothing. Instead, the law requires the People "make a diligent, good faith effort to ascertain the existence" of discoverable materials and information and "cause such material or information to be made available for discovery." CPL 245.20(2). In the absence of any information to explain the belated disclosure of this material and the efforts made to locate it, the People have failed to defend their COC, and this Court has no basis to find that the People exercised due diligence to find this material.

Here, the People fail to articulate any efforts to ascertain the existence of the tow truck driver's contact information and make it available for discovery. The People generally assert that the arresting officer's observations form the basis of the charges and that the tow truck driver is irrelevant to the charges. The People's conclusion, however, belies their duties. Such contact information is discoverable as it relates to the subject matter of the case. CPL 245.20(1). Accordingly, the People were required to make reasonable, diligent efforts to ascertain its existence and make it available. CPL 245.20(2); see People v Francis, 75 Misc 3d 1224(A), 2022 NY Slip Op 50655(U) *4 - *5 (holding that the People's failure to make any efforts to identity the identity of FDNY members invalidated their COC); People v Todd, 67 Misc 3d 566 (Sup Ct, Queens County 2020) (CPL 245 requires that, at a minimum, the People must attempt to ascertain the names and contact information of witnesses); c.f. People v Edwards, 74 Misc 3d 433, 437 (Crim Ct, NY County 2021) (the People's detailed efforts to find the names and contact information for security personnel demonstrated diligent, good faith efforts).

To be sure, this Court is aware of the substantial obligations that Article 245 has placed on prosecutors. However, the People must recognize that discovery reform has placed an affirmative duty onto them. The People's reliance on their unilateral conclusion that the identity and contact information of the tow truck driver is misplaced. Whether the People intend to call a potential witness is irrelevant to their discovery obligations to obtain contact information and does not relieve the People of their duty under the discovery statute. Failing to make any efforts to ascertain the witness's information until a month after the initial COC was filed is not an exercise of due diligence.

In any event, it is clear from a simple review of all the discovery the People had in their actual possession that a witness with information relevant to the charged offenses existed, and the tow truck driver is wholly relevant to the charges. Based on a review of the materials submitted to the defendant and the Court, the tow truck driver is the first person on the scene, appears to be the person who actually called 911 to report that the defendant refused tow services prompting the police interaction at issue and makes his own observations of the defendant. Because the People have failed to demonstrate any efforts to identify this person, the COC and July 18th SCOC are invalid.

The same conclusion applies to the People's efforts to obtain the recordings of any 911 calls or radio runs in the instant matter. The People assert that they requested all electronic recordings of 911 telephone calls made or received in connection with the alleged incident, including the ICAD, radio run and sprint reports, however, said searched have yielded a negative search result. In support of their assertion, the People attached a screenshot of an electronic message sent from the assigned prosecutor to a staff member at the Richmond County District Attorney's Office with instructions to request such recordings.

However, the People have failed to produce the negative search results to the Court or the defendant, nor have they have provided any additional details regarding such request, such as the search parameters or details, whether the staff member actually received the instructions, questioning the witnesses to the incident on the existence of a 911 call or radio run, or what, if any, follow up was performed. Indeed, the lack of efforts to find any 911 calls or radio runs belies the discovery produced to defendant, several items of which expressly state that the police were responding to a 911 call for a driver refusing tow services. Accordingly, it cannot be said here that the People have demonstrated to the Court and the defendant that they have exercised due diligence in attempting to ascertain the existence of discoverable materials and information. See People v Audino, 75 Misc 3d 969 (Crim Ct, NY County 2022) (invalidating the People's COC where the People inadvertently and incorrectly requested the wrong date of the 911 call and radio runs and failed to remedy it for several months); People v Aquino, 72 Misc 3d 518 (Crim Ct, Kings County 2021) (People's delayed efforts to obtain the 911 call and radio run before filing their COC was neither diligent nor reasonable); cf. People v Leonardo, 75 Misc 3d 1237(A) 2022 NY Slip Op 50755(U) (Crim Ct, Queens County 2022) (COC was valid where the prosecutor demonstrated due diligence in producing 911 recordings where the prosecutor had made multiple attempts to ascertain its existence).

In this case, the People have not presented any factual basis that special circumstances exist under CPL 245.50(3) for the People to be deemed ready without meeting their discovery requirements, nor that diligent efforts were made to obtain discovery or that all discoverable material was actually produced to the defendant before filing a certificate of compliance affirming that all such material had been provided. Moreover, the People have not shown there was an obstacle to obtaining the discoverable material that might qualify for a "good cause" extension under CPL 245.70(2) or to toll speedy trial under CPL 30.30(4)(g). Additionally, defense immediately brought the missing discovery to the People's attention on July 14, 2023, two days after the filing of the COC in satisfaction of CPL 245.50(4). As such, the People's the July 12th COC and CTR and July 18th SCOC and CTR were illusory. The speedy trial clock, therefore, continued to run until August 7, 2023 when the defendant filed the instant motion in excess of the 90 day allotment to prosecute this case under CPL 30.30.

April 20, 2023 to June 6, 2023. The defendant was arraigned on an information on April 20, 2023. The case was adjourned to June 6, 2023 for the People to comply with their discovery obligations and trial. The People are charged 47 days for this adjournment.

June 6, 2023 to July 14, 2023. On July 12, 2023, the People served a COC and CTR on defense via email and filed the same with the court by uploading the documents to the New York Unified Court System's Electronic Document Delivery System ("EDDS"). On July 14, 2023, the People served the defendant with additional discovery and stated ready on the record. However, the People's failure to obtain discoverable information rendered the July 12th COC invalid. The People are charged 38 days for this adjournment.

July 14, 2023 to August 9, 2023. On July 18, 2023, the People served a SCOC and CTR on defense via email and filed the same with the court by uploading the documents to EDDS, which contained the above-mentioned property clerk invoice. As explained above, the People's continued failure to make diligent, good faith efforts to ascertain the identity and contact information of the tow truck driver have rendered the July 18th SCOC and CTR illusory. Having [*5]not stopped the speedy trial clock or demonstrated an excludable adjournment, 30.30 continued to run until the defendant filed the instant motion on August 7, 2023. Accordingly, the People are charged 24 days for this adjournment.

The Court's decision will not address the defendant's remaining contentions, as they are rendered moot.

The People had 90 days from commencing this case to validly state ready for trial. CPL 30.30(1)(b). The People commenced this case on April 20, 2023. As explained above, the People's July 12th and July 18th CTRs were not valid, as neither was preceded by a proper certificate of discovery compliance (CPL 245.50[3], 30.30[5]). Therefore, each were illusory, and time continued to accrue until a valid COC were filed or other excludable time period is deemed applicable. See CPL 245.50(3); England, 84 NY2d at 4 (1994) ("A statement of readiness at a time when the People are not actually ready is illusory and insufficient to stop the running of the speedy trial clock."). Here, the speedy trial clock continued to run until August 7, 2023 when the defendant filed the instant motion, and, therefore, there is a total of 109 days chargeable to the People, more than the maximum time allotted by law. CPL 30.30(1)(b). Therefore, the defense's motion to dismiss must be granted.

The foregoing constitutes the order and decision of the court.