Defendant is charged with Penal Law §120.14 (1), Menacing in the Second Degree, among other charges. Defendant moves for an order deeming the Prosecution's Certificate of Compliance, ("COC") invalid because the prosecution failed to fulfill their initial discovery obligation under CPL §245.20 (1) and dismissing the accusatory instrument pursuant to CPL §170. 30.30 (1) (b).

For the reasons set forth below, the defendant's motion to dismiss the accusatory instrument is granted.

On March 20, 2024, Defendant was arraigned on a misdemeanor complaint charging CPL §120.14 (1), Menacing in the Second Degree, among other charges. Since the top count charged in the information was a class A misdemeanor punishable by up to a year in jail the People were required to be ready for trial within 90 days. See CPL 30.30 (1) (b).

On June 18, 2024, the 90th day of speedy trial time, the People served and filed off-calendar a Certificate of Compliance ("COC"), Statement of Readiness, ("SOR"), and a Notice of Disclosure Form ("NDF"). On June 20, 2024, the 92nd day of speedy trial time, the People filed a Supplemental COC disclosing 911 calls, 911 certification, 911 heading, Four Activity logs, three Body Worn Camera footage, and three AXON Datasheets. The People's explanation for the discovery lapse was that the additional discovery was not provided to them prior to filing their original COC on June 18, 2024.

On July 2, 2024, the Court set a motion schedule, defense to file motion by August 2, 2024, and the People to file their response by September 2, 2024.

On August 2, 2024, the defense served and filed the instant motion.

On September 4, 2024, the People filed their opposition to the defendant's motion to dismiss. However, their opposition was not timely since they exceeded the Court's scheduled date of September 2, 2024.

Article 245 links the People's discovery obligations with readiness for trial under CPL 30.30. "Any statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements" (CPL §30.30 [5]). "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" (People v England, 84 NY2d 1, 4 [1994]). Therefore, the filing of a proper certificate of compliance is a prerequisite to the People being deemed ready for trial.

Pursuant to CPL §245.10 (1) the People are required, within specified time periods to "make diligent, good faith efforts to ascertain the existence of material or information" that is subject to automatic discovery. Pursuant to CPL §245.20 (1), the People shall disclose "all items and information that relate to the subject matter of the case" including but not limited to, the items outlined in CPL §245.20 (1) (a — u). CPL §245.20 (2) directs the People to "make a diligent, good faith effort to ascertain the existence of material or information discoverable . . . 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 . . . ". A COC is not proper unless the prosecutor has disclosed to the defense all known material subject to discovery after having exercised due diligence and made reasonable inquiries to find out what discovery existed. People v Hutchins, 74 Misc 3d 1234 (A) [Sup. Ct., Kings County 2022]. People v. Valdez, 80 Misc 3d 544 (Crim. Ct., Kings County 2023); People v. Markovtsii, 81 Misc 3d 225 (Crim. Ct., Kings County 2023); People v McKinney, 71 Misc 3d 1221(A) (Crim. Ct., Kings County 2021); People v Adrovic, 69 Misc 3d 563(Crim. Ct., Kings County 2020).

If the People provide additional discovery after filing their certificate of compliance (CPL §245.60), they must serve and file a supplemental certificate identifying the additional material and information provided (CPL §245.50 [1]). Additionally, "[a]ny supplemental certificate of compliance 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." (CPL §245.50 [1-a]). The filing of a supplemental COC should not impact the validity of the People's original certificate, if such certificate was filed in good faith after the People have exercised due diligence in accordance with CPL §245.20, or if the additional discovery did not exist at the time of the filing of the original COC. See CPL §245.50.

Where the defendant challenges the validity of the People's certificate of compliance and, thus, their statement of readiness based on the People's alleged failure to exercise due diligence, "the People bear the burden of establishing that they did, in fact, exercised due diligence and made reasonable inquiries prior to filing the initial COC despite a belated or missing disclosure." People v. Bay, 41 NY3d 200 (2023).

Under CPL §245.50 (1) a COC/SOR can be found valid even if the discovery is still outstanding if the People can demonstrate that they acted in good faith with due diligence. Article 245 does not define due diligence. However, the Court of Appeals in People v. Bay, 41 NY3d 200 (2023), set forth a number of factors a court can consider when assessing due diligence. These factors include, but are not limited to, efforts made by the prosecution and the prosecutor's office to comply with the statutory requirements; the volume of discovery provided and outstanding; the complexity of the case; how obvious any missing material would likely have been to a prosecutor exercising due diligence; the explanation for the discovery lapse; and the People's response when apprised of any missing discovery. Id at 212.

The defense challenged the People's COC and SOR for their purported discovery [*2]deficiencies in failing to disclose: 911 Certification; 911 Calls; Activity Logs; Body Worn Camera Footage ("BWC"); BWC Audit Trails; Police Disciplinary Records regarding IAB log #24-664 and civil case for Officer Baluzy; IAB log # 21-23863 for Officer Xie; DAS Snapshot/Entity Report; EMS Reports, ACR and CAD; Property Invoices; I/NET Dispatcher Information Printout.

The People submitted an affirmation in opposition to the motion, asserting that their June 18, 2024, COC should not be invalidated for failing to turn over items listed by the defendant as a basis for invalidating the People's COC because the items are either not relevant to the subject matter of the case, were disclosed to the defense, are items that do not exist or were not created for this case. The People contend that the defense did not file their motion as soon as practicable in violation of CPL §245.50 (4), and their motion should be dismissed as untimely. The People further argue that their good faith efforts to comply with their discovery obligations show that "special circumstances" exist in the instant case to deem the People ready for trial despite their disclosure delays.

The People's good faith argument is in contravention to their due diligence efforts. In their affirmation the People admitted that on June 11, 2024, they realized that they did not have all the discovery material for the officers who were present at the arrest and requested additional information from the arresting officer. On June 12, 2024, the People requested BWC footage and Giglio material. On June 13, 2024, the People requested activity logs. On June 18,2024, the People followed up with phone calls for BWC and activity logs not yet received. On June 18, 2024, the People realized that they had not requested 911 calls, ordered them for the first time and requested that they be expedited. On June 18, 2024, the People filed a COC knowing the outstanding discovery material had not yet been disclosed.

The People admit that it is standard practice to allow some time to process discovery requests. However, in this instant the People's due diligence began barely six days before the 90th day of speedy trial time. As to the BWC the People followed up on June 18, 2024, and received the BWC on June 19, 2024. As to the activity logs, the People followed up multiple times with the desk sergeant of the 70th precinct and received them on June 19, 2024. As to the 911 calls the People explained that they must be requested and processed from a third party, that the People believed they had been requested but when they were made aware that the 911 information had not been requested, the People requested them on June 18, 2024.

On June 20, 2024, the 92nd day of speedy trial time, the People filed a Supplemental COC disclosing 911 calls, 911 certification, 911 heading, Four Activity logs, three Body Worn Camera footage, and three AXON Datasheets. The People's explanation for the discovery lapse was that the additional discovery was not provided to them prior to filing their original COC on June 18, 2024.

The People supplemental COC was not filed in good faith and with due diligence. The People conceded they commenced their due diligence efforts to obtain discovery material on June 11, 2024, which was a mere 7 days from the expiration of the People's speedy trial time. The People' explanation in filing their supplemental COC on the 92nd day was the discovery was not provided to their office prior to filing their COC. Obviously, the delayed discovery disclosure was due to the People and not to some unforeseen circumstance. The People Commenced discovery collection late. Therefore, the People's explanation does not establish good faith or due diligence. As a result, the Court finds the People COC and supplemental COC illusory.

The People explained that they disclosed to the defense body worn camera video footage and metadata summary sheets which contained similar information in the BWC audit trails that are discoverable pursuant to CPL 245.20 (1) (e), such as notations, categories, tags, or markers applied to the video file by law enforcement officers or other users. The People concede that they did not disclose electronically stored data that is automatically generated by Axon, a third-party contractor.

This Court follows the rationale in People v. Ballard, 82 Misc 3d 403 (Crim. Ct., Queens County 2023) and People v. Torres, 2023 NY Slip Op 50532 (Crim. Ct. , New York County 2023) in finding that these materials are discoverable, as the information is electronically created on behalf of law enforcement pursuant to C.P.L. §245.20(1)(u)(i)(B). See People v Champion, 81 Misc 3d 292 (Crim. Ct., New York County, 2023). Thus, audit trails should have been disclosed.

The BWC summary metadata sheets created by the People are insufficient to satisfy the requirements of CPL 245.20 (1). "Under the statute, discovery "should not be filtered through the prosecution." (See People v. Goggins, 76 Misc 3d 898, 901 [Crim. Ct., Bronx County 2022]). It "leaves no room for the People to pick and choose which documents in their case file, or the police's case file, to disclose." (People v. Amir, 76 Misc 3d 1209[(A]), at *5 [Crim. Ct., Bronx County 2022]). Therefore, "it is not for the People to determine what is relevant." (People v. Kennedy, 79 Misc 3d 973 (Crim. Ct., Kings County 2023).

Moreover, Article 245 encourages and promotes a presumption of openness in favor of discovery. See CPL §245.20(7). Thus, material in the People's file would most likely be related to defendant's case and as a result need to be disclosed. See People v Lustig, 68 Misc 3d 234 (Sup. Ct., Queens County 2020). As the Court in Lustig stated that CPL §245.20 was " . . . so expansive as to "virtually constitute 'open file' discovery, or at least make 'open file' discovery the far better course of action to assure compliance." Lustig at 238.

Records pertaining to lawsuits of testifying law enforcement are public records that can easily be obtained by the defense. See People v Lustig 68 Misc 3d 234 (Sup Ct 2020). Counsel for the defense is well aware that such records can be obtained electronically via the New York State Courts Electronic Filing known as NYSCEF or for federal court cases via the Public Access to Court Electronic Records known as PACER. Thus, relieving the People of the responsibility of obtaining these records.

The defense also alleged that the People failed to automatically disclose underlying disciplinary records related to Giglio disclosure IAB log #24-664 and civil case for Officer Baluzy and IAB log # 21-23863 for Officer Xie and that the People's COC should be invalidated for this disclosure failure.

The defense failed to provide facts explaining their conclusion that the underlying disciplinary records for IAB Log #24-664 for Officer Baluzy and IAB Log #21-23863 for Officer Xie are related to the subject matter of the case and therefore subject to automatic [*4]disclosure. The People were not required to disclose underlying police disciplinary records or IAB records if they were not related to the case. See, People v Jawad, 202 NY Slip Op 24236 (App. Term, 2nd, 11th & 13th Jud. Dist., August 13, 2024); People v Earl, 2024 NY Slip Op 24237, (App. Term, 2nd, 11th & 13th Jud. Dist., August 20, 2024, at 3). The People alleged that the records were not related to the subject matter of the case. Thus, the People's COC will not be affected by their failure to disclose underlying police disciplinary records.

For the foregoing reasons, the Court finds that the People did not act with good faith and due diligence in failing to disclose discoverable materials. Therefore, the People's COC and SOR are invalid. The Court's decision will not address the defendant's remaining contentions, as they are rendered moot.

The People in their defense to the lack of due diligence and good faith in obtaining discovery material alleged the defense waited 45 days, from June 18, 2024, to August 1, 2024, to file their motion. The People further state that the defense motion to dismiss should be denied because it was not filed as soon as practical under CPL 245.50 (4) and cite to People v Seymour, 2024 NY Slip Op 24234 (App. Term, 9th & 10th Jud. Dist., August 12, 2024) for support. The People's claim is meritless.

In Seymour, the Court emphasized that the defendant's first notification of any deficiency to the sufficiency of the People's COC was when they filed their motion 72 days after the People filed their COPC. Under the circumstances the Court deemed that defendant's motion was not filed as soon as practical.

The circumstances in this case are far different from Seymour. In the instant case the People filed their COC off-calendar on June 18, 2024. On the July 2, 2024, which was the first scheduled court appearance after the People served their COC on June 18, 2024, the People informed the Court that their Coc was filed. As a result, the Court direct the parties to confer with each other under CPL§ 245.35 and set a motion schedule for any COC challenges. Unlike Seymour, the defense alerted the People to their deficiencies with their COC on July 8, 2024, which was a mere 20 days from the filing of the People 's COC. In addition, the defense filed their motion on August 2, 2024, as set by the Court. Thus, the conditions that existed in Seymour did not exist in this case. Under the circumstances of this case the court finds that the defense filed their motion timely.

In sum, the People failed to disclose mandatory discovery including body worn camera footage, activity logs, 911 calls, and BWC Audit Trails prior to filing their COC. As to the delayed discovery the People failed to make a showing that they acted with due diligence prior to certifying compliance. Viewing the People's conduct in their totality, the Court finds that the People did not act with good faith and due diligence prior to certifying their compliance with their discovery obligations and thus the COC will be invalidated. People v. Bay, 41 NY3d 200 (2023).

The People's CPL §30.30 time commenced on March 21, 2024, the day after the commencement of the criminal action. People v Stiles, 70 NY2d 765, 767 (1987). When the [*5]People filed their COC and SOR on June 18, 2024, 90 days of speedy trial time were chargeable to the People. However, the People's COC was improper and did not stop the CPL §30.30 time. The CPL §30.30 time was not effectively stopped until August 2, 2024, when defendant filed the instant motion. CPL §30.30 (4) (a). The People were charged 135 days of speedy trial time from March 21, 2024, to August 2, 2024, when defendant filed the instant motion. CPL (4) (a).

On July 2, 2024, the Court set a motion schedule ordering the defendant to file motions by August 2, 2024, and ordering the People to file their response by September 2, 2024. On August 2, 2024, the defense filed the instant motion. However, the People failed to submit their response by September 2, 2024, and failed to request an extension prior to the due date. This is a delay period of two days. Generally, adjournments for motion practice are excludable. However, when the People ignore an Order to file a response in accordance with court-imposed deadline, that time is chargeable to the People. People v ex rel. Ferro Brann, 197 AD3d 787, 788. People v Morgan 83 Misc 3d 1221(A) (Crim. Ct., Queens County 2024). Thus, People are charged a total of 137 days. Accordingly, the defendant's motion to dismiss pursuant to CPL §30.30 [1] [b] is granted.

The foregoing constitutes the opinion, decision, and order of the Court.