Defendant moves for an order of dismissal on speedy trial grounds alleging that the Prosecution did not serve discovery until May 6, 2024, the 91st day of the speedy trial clock and that the omissions in the People's discovery render their certificate of compliance (COC) invalid and their statement of readiness (SOR) illusory.

Defendant's motion to dismiss is GRANTED.

On February 5, 2024, defendant was arraigned on a misdemeanor complaint charging Penal Law §165.40, Criminal Possession of Stolen Property in the Fifth degree, a class A misdemeanor. This commenced the running of the ninety-day period, less excludable time, within which the People must be ready for trial pursuant to the requirement of CPL §30.30 (1) (b). Therefore, the People's COC and SOR was due on or before Sunday, May 5, 2024, the 90th day of speedy trial time.

On Monday May 6, 2024, the 91st day of speedy trial time, the People served and filed off-calendar the following: Certificate of Compliance ("COC"), Statement of Readiness, ("SOR"), Notice of Disclosure Form ("NDF") for Initial Discovery, Inventory of Discovery Provided Under CPL 245.20 and a Superseding Information.

On May 21, 2024, the case was advanced for non-compliance with BJI supervised release. A bench warrant was stayed, and the case was adjourned to May 23, 2024.

On May 23, 2024, the case was adjourned to July 15, 2024. On July 15, 2024, the Court set a motion schedule and adjourned to September 16, 2024, in part AP2.

On July 31, 2024, the defense served and filed the instant motion to invalidate the People's COC, deeming the People's SOR's illusory, or in the alternative failed to file their COC within 90 days in violation of CPL §30.30(1)(b).

On September 6, 2024, the 214th day of speedy trial time, the People filed a Supplemental COC attaching a Revised Addendum to Notice of Disclosure Form disclosing the name and contact information for civilian witness, pursuant to CPL 245.20 (1) (c). The Supplemental COC failed to detail the basis for the delayed disclosure.

On September 6, 2024, the People, also filed their response in opposition to the defense motion to dismiss. On September 20, 2024, the defense filed a reply.

The defense asserts that the Prosecution's COC and discovery was untimely filed as they were served on Monday, May 6, 2024, the 91st day of the speedy trial clock. The defense further challenged the People's COC and SOR as illusory for their purported discovery deficiencies.

The People conceded that although they did not turn over items listed by the defense, their COC should not be invalidated because the items are either not relevant to the subject matter of the case, not subject to automatic discovery, are items that are not in the control of the People or are items that do not exist. The People further contend that their COC was timely filed because the 90th day fell on a Sunday, and they subsequently filed on the next business day.

The defense contends that the People's filing of their COC and SOR on Monday May 6, 2024, the 91st day, via the EDDS system was untimely filed. The People claimed that their COC, filed on Monday May 6, 2024, via the EDDS system on the 91st day, was timely filed because the due date fell on a Sunday and therefore their due date was automatically moved to the next business day, Monday May 6, 2024, pursuant to General Construction Law §25-A.

The Criminal Procedure Law contains no indication as to the effect of the last day of the CPL § 30.30 falling on a weekend. People v. Mandela, 142 AD3d 81 (3d Dep't 2016). The court looks to other statutes for guidance to determine whether the CPL § 30.30 time is affected if the deadline falls on a weekend. Notably, New York General Construction Law mandates that it must be applied "to every statute unless its general object, or the context of the language construed, or other provisions of law indicate that a different meaning or application was intended from that required to be given by this chapter." NY Gen Const Law § 110. Accordingly, the General Construction Law should be used to interpret the Criminal Procedure Law unless it would contradict the statute's language or provisions. See People v. Powell, 179 Misc 2d 1047 (App. Term 2nd Dep't 1999) leave to appeal denied 93 NY2d 928 (1999).

General Construction Law §25-a, was added in 1952 and amended in 1964 and 1965. It provides that when the filing date falls on a "Saturday, Sunday, or public holiday, such act may be done on the next succeeding business day." NY Gen Const L § 25-a. When the current version of the speedy trial statute was first enacted in 1970, electronic filing did not exist. Thus, the courts, applying, General Construction Law, §25-a, extended the CPL § 30.30 speedy trial time to the next business day when the deadline fell on a weekend or holiday. See People v. Mandela, 142 AD3d 81 (3rd Dep't. 2016) (extending the CPL § 30.30 deadline to Tuesday while excluding Saturday, Sunday, and President's Day); People v. Powell, 179 Misc 2d 1047 (App. Term 2nd Dep't 1999) leave to appeal denied 93 NY2d 928 (extending CPL § 30.30 time from Sunday to Monday); People v. Turner, 71 Misc 3d 1219 (A) (Sup. Ct., Monroe County 2021) (excluding Saturday and Sunday from the CPL § 30.30 time); People v. Obey, 80 Misc 3d 1223(A) (Crim. Ct., Bronx County 2023) (extending CPL § 30.30 from Sunday to Monday).

Here, the issue presented is whether the People can validly announce their readiness when they file their SOR via EDDS on the first business day after the last day of statutorily required time period under CPL §30.30, (90th day) falls on a Saturday, Sunday, or holiday, when the court is presumably closed.

"[P]rior to EDDS there was no mechanism for filing SOR when court was not actually open for business." People v Kinch, 75 Misc 3d 741, 744 (Crim. Ct., Kings County 2022). To be [*2]ready for trial under speedy trial the People were required to answer ready in open court or file a notice of their readiness during business hours. Id at 744.

"The EDDS was established to safely ensure the proper delivery and filing of motions, documents, and notices with the court during the COVID19- pandemic. EDDS was created to fill the gap created by the absence of e-filing through New York State Courts Electronic Filing (NYSCEF). See 2024 Report of the Chief Administrative Judge to the Legislature, The Governor, and the Chief Judge of the State of New York; https:/iappscontent.courts.state.ny.us/NYSCEF/Live/Help/EFileReport.pdf. Electronic filing may be new to criminal court, but it has been in existence for about 25 years. Id. Unlike the prior-in -person system of filing with the court, this new electronic method does not require in-person filing with the court clerk, and thus, allows for submissions to be filed at any hour." People v McLean, 77 Misc 3d 492 (Crim. Ct., Kings County 2022)

In McLean the Court ruled that although the People filed their COC through EDDS after 5 pm when the courts are closed, "[g]iven the technology and resources available to parties today via EDDS, the concept of having a document filed with the court by 5:00 p.m., is in essence, an outdated legacy of prior practice when People v Kendzia, 64 NY2d 331, 337 (1985) was decided." People v McLean, 77 Misc 3d 492 (Crim. Ct., Kings County 2022).

Thus, " . . . historically, an SOR could only be filed with the court clerk during the court's business hours; however, since the implementation of the EDDS, documents can now be submitted throughout the day and later be "deemed filed" by the clerk (see Uniform Rules for Trial Cts. [22 NYCRR] §202.5c [c] [3]).People v Licius, 82 Misc 3d 18, 21 (Sup. Ct., App. Term, 2nd Dept., 2, 11, 13 Jud Dist., 2023). "Thus, the People's announcement of readiness is valid at the time of filing in EDDS." People v Palma-Amaya, 80 Misc 3d 897 (Crim. Ct., Kings County 2023).

EDDS allows the People's COC and SOR documents to now be submitted throughout the weekend and holidays and later be deemed filed. Thus, with the advent of EDDS, the concept of having a document filed with the court on the next business day, rather than the due date, "is in essence an outdated legacy of a prior practice which may have had more relevance when Kendzia was decided. Thus, if an in-person filing of a SOR can take several days to be reviewed, accepted, and placed in the court file, deemed filed the day it is stamped, then placed in the court clerk's bin and deemed to fulfill the requirements of readiness in Kendzia, therefore, an electronic filing via EDDS should be treated no differently." People v McLean,77 Misc 3d 492, 503 (Crim. Ct., Kings County, 2022).

"CPL 30.30 only requires that the People be ready for trial within a specified time period, here 90 days; the statute does not require that a trial be held within this time period. The court's inability to commence a trial does not excuse the People from timely declaring their readiness for trial." People v Licius, 82 Misc 3d 18 (Sup. Ct., App. Term, 2nd Dept., 2, 11, 13 Jud Dist., 2023)

In the instant matter, the People's CPL § 30.30 time began to run after defendant was arraigned and the 90th day fell on Sunday, May 5, 2024. Under current case law, the People were entitled to file their COC on the following business day even though they had the ability to file their COC and SOR through the EDDS system and thus comply with the 90-day mandate of CPL 30.30. See O'Leary v. NYCTA , 97 Ad.2d 789 (2nd Dept 1983); People v Powell 179 Misc 2d 1047 (App. Term 2nd Dep't 1999). In this circumstance with the advent of electronic filing providing an extra day for the weekend and holiday appears to be an outdated legacy that should [*3]be revisited. Regardless, the People's COC/SOR filed on Monday May 6, 2024, was timely.

In any event, the omissions in the People's discovery rendered their COC invalid and their (SOR) illusory.

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.

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 alleged that the People failed to disclose civilian witness information related to a 911 call on January 11, 2024, with two men on the call reporting a burglary.

On September 6, 2024, which was 123 days after filing their COC, the People filed a Supplemental COC attaching a Revised Addendum to Notice of Disclosure Form referencing the name and contact information for civilian witnesses, pursuant to CPL 245.20 (1) (c). The Supplemental COC failed to detail the basis for the delayed disclosure. The People conceded that civilian witness contact information for the two witnesses should have been turned over. The People further acknowledged that on April 26, 2024, for the first time and barely ten days prior to the expiration of the speedy trial time, they ordered 911 calls. The People neglected to explain why they waited to September 6, 2024, to disclose the missing 911 civilian witness name and contact information. The Court finds that the People's supplemental COC was not filed in good faith and with due diligence. Based upon the record before the Court, the People failed to exercise due diligence with respect to the witness contact information prior to filing their COC and after they were alerted that it was missing.

Defendant argued that the People failed to disclose DAS reports generated for this case. The People contend that DAS reports are not discoverable, and thus, did not need to be [*4]turned over to defendant. However, the People also admit that some DAS results may be discoverable under CPL 245.20(1).

While the People claimed that they opted not to disclose the DAS Reports because they were internal NYPD documents. The People, however, failed to demonstrate why these documents, which relate to the subject matter of the case, would be excluded from the automatic discovery delineated in CPL §245.20 (2). This Court is not inclined to deem material used as an investigative tool on defendant is not related to the subject matter of the case simply based on the People's assessment that the material is of little value. See People v Lustig, 68 Misc 3d 284 (Sup. Ct Quens County 2020). If the People believed that the DAS Reports contained confidential information that was not discoverable or required redaction, the People could have sought a protective order from the Court. Based upon the record before the Court, the People failed to exercise due diligence with respect to the DAS Report.

The defense alleged that the People failed to disclose the command log. The People explained that the command log memorializes the dates, times, and results of activities, such as inspections, conducted by the desk officer, tour start and end times for officers, among other administrative information. The People contend that the command log is administrative in nature and not subject to automatic discovery as it does not contain "statements relevant to any offense charged or to any potential defense thereto." CPL 245. 20 (1) (e). The People claimed that the command log is duplicative of pedigree information already disclosed to the defense. This argument is unavailing. There is no statutory provision authorizing the People to belatedly turn over discovery or withhold relevant, discoverable information merely because a similar or summary thereof was disclosed in another document. People v Cartagena, 76 Misc 3d 1214 (A) (Crim. Ct., Bronx County 2022).

Command logs note the defendant's physical and mental well-being, property recovered, arresting officer information as well as an officer's handwritten notes of the defendant all of which relates to the offense charges as well as any potential defense. People v J.M.W. 83 Misc 3d 1289 (A) (Sup. Ct., Kings County 2024). Thus, command logs contain more material than just pedigree information and contradicts the administrative in nature concept advanced by the People.

The People further stated that they requested the command log from Officer Salome who claimed to not have access to the document. However, Officer Salome was not involved in the instant case and his name appears to have been mentioned in error. The People failed to demonstrate diligent efforts to obtain the command logs prior to filing their COC or show a good faith basis why this material was not discoverable.

The defense stated that pursuant to CPL 245.20 (1) (e) the People were obligated to disclose body worn camera ("BWC") audit trails. The People in response explained that they did not disclose electronically stored data that was automatically generated by Axon, a third-party contractor. The People further claimed that the audit trails did not contained factual assertions underlying the charged crimes, and was not related to the subject matter of the case and therefore not discoverable under CPL 245.20 (1) (e). The People erroneously submit that CPL §245.20(1)(e) "contemplates electronic data stored on devices that are seized by law [*5]enforcement pursuant to, say, a search warrant;". However, the People's neglected to provide the court with the statutory or legislative authority for this conclusion.

Contrary to the People's assertions, BWC audit trails are discoverable. See People v Ballard, 82 Misc 3d 403 (Crim. Ct., Queens County, 2023). The Ballard Court held an evidentiary hearing where a representative from the NYPD's BWC unit Legal Bureau testified that, an NYPD officer records what type of arrest and level of investigation they performed digitally. The NYPD Legal Bureau representative stated that the comments and categorization of the video can be changed by the officer and even allow another officer to add information. Clearly this is a writing and does relate to the case. The testimony further elucidated that Axon was a third party contracted "on behalf of" the NYPD to store BWC information created by officers. "Although the software automatically records the information in audit trails, the substance of that information is created, stored, and obtained by or on behalf of law enforcement." Id at 6.

During the evidentiary hearing the NYPD Legal Bureau representative explained that audit trails contain technical information such as when video was uploaded and deleted, battery life of the camera and who the officer shared the authority to view the video including the prosecutor's office. Therefore, body worn camera audit trails are an element of the body worn camera.

The Ballard Court reasoned that audit trails contained written statements by law enforcement (CPL 245.20 [1][e]). Further the Ballard Court reasoned that audit trails may have a basis to impeach testifying witnesses (CPL 245.20 [1][k][iv]). It is this court's position that impeachment material used to test credibility should always be deemed related to the subject matter of the case. People v. Hamizane 80 Misc 3d 7, 11 (App. Term 2nd Dept., 9 & 10 Jud. Dist. 2023); People v. Silva-Torres, 2023 WL 7502493 (Crim. Ct., New York County 2023); People v. Pardo, 2023 NY Slip Op 23337 (Crim. Ct., Bronx County 2023); People v Edwards, 74 Misc 3d 433, 440 (Crim. Ct., New York County 2021); People v. Soto, 72 Misc 3d 1153,1159 (Crim. Ct., New York County 2021).

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). Therefore, audit trails are discoverable and the failure to disclose the said audit trails will affect the COC.

The defense argued that the People failed to disclose photos of alleged stolen items shown to defendant during a custodial interrogation.

The People conceded that they "mistakenly" failed to disclose the photographs but failed explain how the mistake occurred. The People contend that the COC was valid notwithstanding the photos were missing because the defense had constructive notice of these photographs that they were "fully visible in the interrogation videos" disclosed to the defense. In support of this assertion the People attached snapshots from the video that purportedly show photos. The People's argument is unavailing. A review of these snapshots did not disclose items visible in the image.

The People in the alternative argued that once they were made aware that the photos were missing, they made diligent and good faith efforts to obtain and disclose them to the defense but [*6]without success. The People explained that on July 31, 2024, August 7, 2024, August 15, 2024, August 19, 2024, and September 3, 2024, they reached out to Detective Durante for the photos. On September 6, 2024, Detective Durante confirmed that he did not have access to the photos the defendant viewed during the interrogation. Detective Durante's response was vague and failed to clarify the whereabouts of the photographs or who within the department had access to the photographs.

In sum, the People failed to disclose mandatory discovery including witness contact information, DAS reports, command log, body worn camera audit trails, 911 calls, and photos 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 Court's decision will not address the defendant's remaining contentions, as they are rendered moot.

The People's CPL §30.30 time commenced on February 5, 2024, the day after the commencement of the criminal action. People v Stiles, 70 NY2d 765, 767 (1987). 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 May 21, 2024, when a bench warrant was Ordered and Stayed. See CPL §30.30 (4)(b)(c). The Stay continued until July 15, 2024, when the Court set a motion schedule. Thus, this time was not chargeable to the People. See CPL §30.30 (4) (a).

The People were from February 5, 2024, to May 21, 2024, when the Court issued a bench warrant was Ordered and Stayed. Thus, People are charged a total of 106 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.