Defendant moves for an order of dismissal on speedy trial grounds alleging that the accusatory instrument is facially insufficient, and the Prosecution's Certificate of Compliance (COC) and Statement of Readiness (SOR) were illusory.

The Prosecution opposes.

For the reasons explained more fully herein, Defendant's motion is GRANTED.

Defendant was arraigned on a misdemeanor complaint on October 13, 2023, charging two counts of Aggravated Harassment in the Second Degree, Menacing in the Third Degree, and Harassment in the Second Degree (PL §§ 240.30[1][a], 240.30[1][b], 120.15, 240.26[1]). This commenced the running of the ninety-day period, less excludable time, within which the Prosecution must be ready for trial pursuant to CPL §30.30(1)(b). On November 14, 2023, the Prosecution served and filed a Superseding Information (SSI) charging Coercion in the Third Degree and Criminal Nuisance in the Second Degree (PL §§ 135.60[1], 240.45[1]). On December 5, 2023, parties appeared in Part DV1; the Prosecution withdrew the first SSI, and served and filed a second SSI charging Coercion in the Third Degree and Harassment in the Second Degree (PL §§ 135.60[1], 240.26[1]). On January 4, 2024, the Prosecution served and filed a COC and SOR; attached to the COC, they included a motion to dismiss both counts of Aggravated Harassment in the Second Degree, Menacing in the Third Degree, and Criminal Nuisance in the Second Degree (PL §§ 240.30[1][a], 240.30[1][b], 120.15, 240.45[1]). On January 11, 2024, the Prosecution served and filed a Supplemental Certificate of Compliance (SCOC) with additional discovery. On January 12, 2024, the Prosecution filed a second SCOC with additional discovery. On January 18, 2024, the parties appeared in Part DV1. On February 6, 2024, the Prosecution filed a third SCOC with additional discovery. All three of the SCOCs [*2]stated, "The People certify that all counts in the accusatory instrument filed in the above action meet the requirements of CPL §§ 100.15 and 100.40. Those counts not meeting the requirement of those sections have been dismissed." On February 27, 2024, Defendant filed the instant motion to dismiss.

Defendant argues that the accusatory instrument is facially insufficient as to the charge of Coercion in the Third Degree because it fails to allege that Defendant's statements actually compelled or induced any conduct by the complainant. Defendant further argues that the Prosecution's SOR was illusory because it did not reflect present readiness; rather, it included a motion to dismiss counts upon which their readiness depended. Finally, Defendant argues that the COC and SOR were illusory because the Prosecution omitted the following discovery: three Bureau of Criminal Information (BCI) photographs; two DD5s (one entirely omitted, the other impermissibly redacted); Officer Eric Mack's activity log; body-worn camera (BWC) audit trails for all officers; impeachment materials for Detective Asim Karim, and Officers Melanie Ortiz, Jumania Ahmend, Ahmed Abdulla, and Eric Mack; and BWC from the officers who responded to the 911 call on October 12, 2023.

The Prosecution argues that the accusatory instrument is facially sufficient as to the charge of Coercion in the Third Degree because Defendant's threat was enough to make the complainant comply with Defendant's demand out of fear. However, even if the accusatory instruction is insufficient, the Prosecution argues that their certification of facial sufficiency was made in good faith and therefore does not invalidate their COC and SOR. The Prosecution argues that their COC and SOR were filed in good faith and valid under CPL §245.50. They assert that the BWC from October 12 that Defendant seeks does not exist. They argue that their failure to turn over the three BCI photos and activity log were benign error resulting from an unknown technological problem. They also assert that they disclosed the materials the same day Defendant alerted them to the oversight, an act that demonstrates due diligence. The Prosecution argues that the BWC audit trails, the two DD5s, and the impeachment materials Defendant seeks are not subject to automatic discovery.

To be deemed facially sufficient, a misdemeanor information must contain non-hearsay allegations of an evidentiary nature that provide reasonable cause to believe that the defendant committed the offenses charged and, if true, the allegations must establish every element of each offense (see People v Alejandro, 70 NY2d 133, 137 [1987]; CPL § 100.40[1]). Facial sufficiency is determined by reviewing the factual portion of the accusatory instrument in conjunction with any supporting depositions. However, the prima facie requirement for the facial sufficiency of an information "is not the same as the burden of proof beyond a reasonable doubt required at trial, nor does it rise to the level of legally sufficient evidence that is necessary to survive a motion to dismiss based upon the proof presented at trial" (People v. Smalls, 26 NY3d 1064, 1066 [2015]). "So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading" (People v. Casey, 95 NY2d 354, 360 [2000]). The court must assume that the factual allegations are true and must consider all reasonable inferences that may be drawn from the allegations (CPL §100.15; Alejandro, 70 NY2d at 135; People v Henderson, 92 NY2d 677 [1999]). The court need not negate every other plausible theory when a reasonable view of the [*3]facts establishes the offense charged (People v Dumay, 23 NY3d 518, 525-526 [2014]).

"A person is guilty of coercion in the third degree when he or she compels or induces a person to engage in conduct which the latter has a legal right to abstain from engaging in, or to abstain from engaging in conduct in which he or she has a legal right to engage . . . by means of instilling in him or her a fear that, if the demand is not complied with, the actor or another will cause physical injury to a person" (PL §135.60[1]).

Pursuant to the automatic discovery provisions of CPL §245.20(1), the prosecution is required to disclose to the defendant, without motion, a list of enumerated items. Disclosure under this section is limited to "all items and information that relate to the subject matter of the case and are in possession, custody or control of the prosecution or persons under the prosecution's direction and control" (CPL §245.20[1]).

Once such disclosure is made, the prosecution must certify compliance with these discovery obligations by the service and filing of a COC (CPL §245.50[1]). The statute further provides that "[n]o adverse consequences to the prosecution . . . 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 245.80 of this Article" (Id.).

A statement of readiness is valid only if the prosecution certifies that all counts in the accusatory instrument meet the requirements of CPL §§ 100.15 and 100.40, and those that do not have been dismissed (CPL §30.30[5-a]).

If the prosecution provides additional discovery after filing their COC but prior to trial, they must file a SCOC, detailing the additional materials (CPL §245.50[1]). In the SCOC, the prosecution must also detail the basis for the delayed disclosure so the court may evaluate whether the late disclosure affects the validity of the original COC (CPL §245.50[1-a]; see also People v Bay, 2023 NY Slip Op. 06407 [2023]). The filing of a SCOC shall not affect the validity of the original COC if the COC was filed in good faith after exercising due diligence (id.).

Pursuant to CPL §30.30[1][b], the prosecution must declare trial readiness within ninety days from the date of commencement of a misdemeanor criminal action. To properly announce trial readiness, the prosecution must certify in good faith compliance with their discovery obligations pursuant to CPL §245.20 (CPL §30.30[5]). "Absent an individualized finding of special circumstances in the instant case by the court before which the charge is pending, the prosecution shall not be deemed ready for trial . . . until it has filed a proper certificate [of compliance]" (CPL §245.50[3]). A defendant seeking dismissal pursuant to CPL §30.30 meets their initial burden by alleging that the prosecution has failed to declare readiness within the statutorily prescribed period (People v Beasley, 16 NY3d 289, 292 [2011]).

Once the defendant has shown that there is more than ninety days of delay, the burden of proving the existence of excludable periods falls upon the prosecution (People v Berkowitz, 50 NY2d 333, 349 [1980]). The prosecution must demonstrate that the disputed adjournments are excludable by reference to a statutory provision (People v. Luperon, 85 NY2d 71, 77-78 [1995]; People v. Cortes, 80 NY2d 201 [1992]; People v. Santos, 68 NY2d 859 [1986]; Berkowitz, 50 NY2d at 348-350). The prosecution also bears the burden to clarify, on the record, the basis for an adjournment so that the motion court can determine to whom the adjournment should be charged (Cortes, 80 NY2d at 215-216; People v Liotta, 79 NY2d 841 [1992]; Berkowitz).

Facial Sufficiency

Defendant correctly argues that the accusatory instrument fails to allege facts sufficient to sustain a charge of Coercion in the Third Degree under PL §135.60(1). The SSI alleges that Defendant sent text messages to the complainant threatening, "Hang up on me again and I'll pull up and beat you up" and that, as a result, the complainant was fearful of physical injury if he did not comply with the demand (Prosecution's SSI, filed December 12, 2023). It does not, however, allege that the complainant actually complied. The Prosecution's argument — that allegations of a threat to commit a crime and resulting fear are sufficient to make out the charge — is meritless (CPL §§ 100.15[3], 100.40[1][c]; People v Jackson, 18 NY3d 738, 741 [2012]). An essential element of coercion is that the defendant's conduct compelled or induced a person to act or abstain from acting in a manner to which he had a legal right. That the complainant was fearful because of Defendant's threat is insufficient absent an allegation that he, in fact, did or did not do some action to which he had a legal right (see People v McClendon, 199 AD3d 1233 [2021]).

This leaves the question of whether the accusatory instrument should be dismissed under §30.30(5-a) where the Prosecution filed multiple SORs ^[FN1] with an insufficient charge.

The Prosecution's COC and SOR is invalid because it does not reflect present readiness; instead, it conditions readiness on an unrealized event (see People v Kendzia, 64 NY2d 331, 337 [1985] ["the prosecutor must make his statement of readiness when the people are in fact ready to proceed. The statute contemplates an indication of present readiness, not a prediction of future readiness."]). The COC does not certify that all counts in the accusatory instrument meet the requirements of CPL §§ 100.15 and 100.40, and those that do not have been dismissed, as required by CPL §30.30(5-a).; instead, it includes a motion to dismiss counts, after which they may properly certify. Their certification thus depends on the Court's action in dismissing counts, an event that could not have happened in time to validate their COC given that the motion was first raised in the COC. The Prosecution was not, in fact, ready when they filed their COC and SOR. As such, the COC and SOR failed to stop the speedy trial clock.^[FN2] Moreover, after attaching the motion to dismiss counts to their COC, the Prosecution never made any follow-up efforts to ensure the counts had indeed been dismissed, such as petitioning the Court on the record at a subsequent appearance.

Similarly, none of the Prosecution's three SCOCs was sufficient to stop the speedy trial clock. Each SCOC contained SORs with identical CPL §30.30(5-a) certifications, which the Prosecution contends were made in good faith. However, they fail to describe what, if any, good faith efforts were made to evaluate the facial sufficiency of the charges, or upon what good faith basis they understood the complaint to be facially sufficient. They offer no case law to support their contention that the charge of Coercion in the Third Degree is established by the factual [*4]allegations. With each of the three SCOCs, the Prosecution forwent the opportunity to submit an SSI with sufficient factual pleadings. Indeed, they assert that they exercised good faith with nothing more. In the absence of any support where the allegations overlook an element of the charged crime, the Court cannot agree that the CPL §30.30(5-a) certification was made in good faith. Each of the SORs was illusory and invalid under CPL §30.30(5-a).

Defendant was arraigned on October 13, 2023. Because the Prosecution never made a valid SOR, the speedy trial clock ran until the instant motion was filed on February 27, 2024. The Prosecution is charged one hundred and thirty-seven days. Accordingly, Defendant's motion to dismiss pursuant to CPL §30.30 is granted. Defendant's contentions regarding incomplete discovery are rendered moot.

This constitutes the decision and order of the Court.