Defendant is charged with Vehicle and Traffic Law §1192 (3), Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs among other charges. Defendant moves for an order deeming the Prosecution's Certificate of Compliance, ("COC") invalid because the prosecution failed to fulfill their discovery obligation under CPL 245.20 (1) and dismissing the accusatory instrument pursuant to CPL §§30.30 (1) (b), 30.30 (5) and 170.30 (1) (e).

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

On December 28, 2020, defendant was arraigned on a misdemeanor complaint charging him with Vehicle and Traffic Law §1192 (3), Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs among other charges. Since the top count charged in the information was an unclassified 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); Vehicle & Traffic Law § 1193 (1) (b) (i).

On March 12, 2021, the 75th day of speedy trial time, the People filed their Notice and Disclosure Form for initial discovery; Inventory of Discovery Provided under CPL 245; Certificate of Compliance (COC), and Statement of Readiness, (SOR).

On March 19, 2021, the People served and filed their first Supplemental COC ("SCOC 3/19/24") with an updated Inventory of Discovery Provided under CPL 245 which contained an additional entry date of "March 2021 new Calibration Docs; 90-002042 2021-03-08, NYSP -Lot 20430 and NYSP Lot 20430 Data."

On May 10, 2021, the defendant failed to appear to a scheduled court date and a Warrant Order was issued and stayed. The court adjourned the case to June 7, 2021.

On June 7, 2021, the defendant failed to appear again, and the bench warrant was stayed again. The court adjourned the case to June 14, 2021.

On June 14. 2021, the defendant failed to appear to the scheduled court date, and the [*2]Court issued a bench warrant.

On May 20, 2024, the defendant returned on the warrant that was issued on June 14, 2021. As a result, the bench warrant was vacated.

On June 6, 2024, and July 11, 2024, the defense sent conferral emails to the People advising them of missing discovery.

On July 14, 2024, the defense served and filed the instant motion.

On August 12, 2024, the People served and filed their second Supplemental COC ("SCOC 8/12/24") which contained in relevant part the command log.

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]. In a challenge to the validity of a COC 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 whether it was reasonable under the circumstances. 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).

The defendant seeks to invalidate the People's COC based on the prosecution's failure to fulfill their discovery obligation under CPL 245.20 (1). The People argued that defendant's motion of July 14, 2024, which was more than 3 years after the People filed their COC, was not timely. The Court agrees and for the reasons stated below deny defendant's motion to dismiss as untimely.

CPL § 245 was amended in May 2022 in several respects. CPL 245.50 requires a defendant to notify the People of alleged deficiencies related to the COC "as soon as practical". CPL §245.50 [4] [a] [b] [c] states "(a) Challenges to, or questions related to a certificate of compliance shall be addressed by motion; (b) to the extent that the party is aware of a potential defect or deficiency related to a certificate of compliance or supplemental certificate of compliance, the party entitled to disclosure shall notify or alert the opposing party as soon as practicable; and (c) Challenges related to the sufficiency of a certificate of compliance or supplemental certificate of compliance shall be addressed as soon as practicable . . . "

In this case, the People filed their COC on March 12, 2021. The first time the defense conferred with the People regarding the COC deficiency occurred on June 6, 2024. The delay in notification of the People's deficiency was a result of defendant's failure to a appear from May 10, 2021, to May 20, 2024, which was a little over 3 years. Thus, the defendant's first notification to the People's COC defects occurred approximately 1,182 days after the People filed their COC. The notification was not as soon as practical as the statute demands. Nor was defendant's motion to dismiss filed on July 14, 2024, approximately 1,236 days after the COC was filed, timely. Under the circumstances in this case the motion to dismiss is denied, as not being filed as soon as practicable. See People v Seymour, 2024 NY Slip Op 24234 (App. Term 9th & 10th Jud. Dists. August 12, 2024). Any other result would reward the defendant for his [*3]decision to intentionally avoid the judicial process. Further, the People in this instance would be prejudiced in excusing defendant's failure to notify the People of defects in a timely manner. See People v Valdez, 80 Misc 3d 544, 553-54 (Crim Ct Kings County 2023).

In any event the defense in their motion listed several items that were allegedly not disclosed such as calibration reports, police misconduct records, certain lawsuits against police officers, activity logs, BWC audit trails, Photos, contact information of potential eyewitnesses, prisoner pedigree cards and arrest photographs. Some of the defense claims will need to be disclosed but will not affect the People's COC/SOR.

The defense alleged that the People failed to provide complete calibration reports for the Intoxilyzer 9000 Serial Number 90-002042, the machine used to conduct the breath test on the defendant on December 27, 2020. Specifically, the defense contends that the People provided calibration reports dated October 5, 2020, and March 8, 2021. The defense asserts that the People failed to provide the simulator solution records for lots 20430 and 20240. The defense points out that the document provided by the People regarding lot 20240 states a test date of October 5, 2020, with an expiration date of November 26, 2020, thus the solution expired prior to defendant's breathalyzer test. In addition, none of the solution lots in the October 5, 2020, report include lot numbers 20430 and 20240. The defense asserts that the People did not disclose the Guth Lab report and Gas Chromatography data for simulation solution lot 19050 and 19080.

The People stated that they disclosed the Guth Lab Report for all solutions including number 20430. The People state that the calibration records from October 5, 2020, in a document titled "Intoxilyzer 9000 Serial Number 90-002042_10-05-2020" were disclosed, along with a COC on March 12, 2021. The People further contend that they disclosed to the defense the calibration records for the six months after the defendant's breadth test with their Supplemental COC on March 19, 2021, in a document titled "90-002042 2021-03-08." This document refers to the calibration records completed on March 8, 2021.

The People further explained that Guth Laboratories, is an outside agency, not in the control of the People, similar to OCME. See People v Washington 86 NY2d 189, 192-193 (1995). The simulator solutions used in this case were manufactured and certified as accurate by Guth Laboratories, Inc., a Pennsylvania corporation that has no ties to New York. See People v Colon, 80 Misc 3d 1219[A], 6 (Crim Ct, NY County 2023). These simulator solutions are purchased through a third-party company, CMI, Inc., a Kentucky corporation that manufactures and services the Intoxilyzer 9000 machines (see People v Colon, 80 Misc 3d 1219[A], 6 (Crim Ct, NY County 2023). As to the solutions the People explained that the NYS Crime Laboratory only performs Gas Chromatography on the.10% solutions used, and the People disclosed to the defense gas chromatography records for all solutions with their respective certifications.

According to the People, the .10% solution that is used to calibrate every breathalyzer machine is re-analyzed by the NYS Crime Laboratory. As a result of analyzing the .10% solution, the NYS Crime Laboratory generates a set of chromatography records that were disclosed to the defense. See People v Sanchez, 83 Misc 3d 671, 677 (Crim Ct. NY County 2024). The People claimed that gas chromatography records for solutions 20240 and 20430 were disclosed to the defense. Any other solutions used in the semi-annual calibration of the breadth machine were not analyzed by the NYS Crime Laboratory. See Id. at 677. Those gas [*4]chromatography records are in the possession of Guth Laboratories in Pennsylvania.

Clearly the People nor law enforcement possess the gas chromatography records not disclosed to the defendant, nor are they in their constructive possession (see e.g. People v Washington, 86 NY2d 189, 192-93 [1995]). The gas chromatography records are possessed by Guth Laboratories, an out-of-state laboratory with no meaningful ties to New York.

In this matter the defense conceded that solution 20430 was used to calibrate Intoxilyzer 9000. Thus, the People are directed to provide the gas chromatography records for solutions 20430 and 20240 if they have not done so.

The People were not required to disclose police disciplinary records if they were not related to the case. A recent decision, People v Jawad, 2024 NY Slip Op 24236 (App Term, 2d Dept, 2d, 11th & 13th Jud Dists. Aug. 13, 2024) held that the police officer's disciplinary records that were not related to the case were not subject to automatic discovery and did not need to be disclosed citing to People v McCarthy, 221 AD3d 1360, 1362 (3rd Dept. 2023); People v Johnson, 218 AD3d 1347, 1350 (App, Div., 4th Dept. 2023);People v. Fuentes, 81 Misc 3d 136 (A) (App. Term, 9th & 10th Jud. Dist. Dec. 14, 2023); People v Woerner, 81 Misc 3d 136(A), (App. Term 2nd Dept., 9th & 10th Jud. Dist. Dec. 14, 2023); and People v Weisman, 81 Misc 3d 129(A) (App Term, 2d Dep 9th, 10th Jud. Dist. 2023). A week later another Appellate Term decision was issued regarding police records. In People v Earl, 2024 NY Slip Op 24237 (App Term, 2d Dept, 2d, 11th & 13th Jud Dists, Aug. 20, 2024) the court, citing to McCarty and Johnson, held that the People were not obligated to provide the underlying IAB disciplinary records that were not related to the subject matter of the case. In the instant case the defense did not make the case that the requested disciplinary records nor the central personnel index for each officer were related to the case. Therefore, the underlying disciplinary records and the central personnel index of each officer were not subject to automatic discovery.

The People are not, however, required to obtain Civilian Complaint Review Board (" CCRB") records that are not already in their possession. The CCRB is an agency not in the control of the Office of the District Attorney. See People v Gonzalez, 83 Misc 3d 1260(a) (Sup Ct. Queens County 20204); People v Valdez 80 Misc 3d 544 (Crim. Ct., Kings County 2023); People v. Godfred, 77 Misc 3d 1119 (Crim. Ct., Bronx County 2022). While the CCRB is an independent agency, any underlying documentation in the possession or control of the People relating to the substantiated and unsubstantiated claims against a testifying officer must be turned over to the defendant. People v Castellanos, 72 Misc 3d 371, 374 (Sup. Ct., Bronx County 2021); citing People v Randolph, 69 Misc 3d 770 (Sup. Ct., Suffolk County 2022); see also, People v Akhlaq, 71 Misc 3d 823 (Sup. Ct., Kings County 2021). Regardless, CCRB records not in the People's possession can be subpoenaed by the defense or retrieved from the CCRB website that contain complaints filed since the year 2000. See People v McKinney 71 Misc 3d 1221(A) (Crim. Ct., Kings County 2021).

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., Queens County, [*5]2020). 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 People concede that they did not disclose to the defense the activity log for Officer Saeed. The People explained that Officer Saeed was not involved in this arrest and the People's disclosure of this record was an error as it referenced a totally different case with a different date and was unrelated to the instant matter. Further, the defense did not make a showing that Officer Saeed was involved in the instant case in any capacity. Thus, the People were not required to turn over the activity log of Officer Saeed since the officer was not involved in the arrest of this defendant.

The People explained that they made diligent good faith efforts to obtain Officer Keane's activity logs prior to filing their COC but due to an inadvertent error did not properly upload the activity log. In any event, Officer Keane's activity logs were disclosed along with the SCOC on August 12, 2024.

The defense claimed that the activity log for Officer Lambert was missing information and therefore it was an incomplete document. The People explained that once alerted by the defense as to an allegedly incomplete activity log they contacted Officer Lambert who provided a copy of the exact same document previously provided to the defense. The People provided to the defense the same document received from Officer Lambert as part of their SCOC filed on August 12, 2024. Thus, the activity was disclosed.

The defense alleged that the People failed to disclose a complete copy of Officer Maranzano's activity log because one of the 2 pages provided was totally blank. The People clarified that Officer Maranzano's activity log consisted of only one page which contained all the activities of Officer Maranzano for the relevant date. Thus, the defense had the corrected activity log of Officer Maranzano.

The People admitted that they did not disclose Officer Calderon's activity log. The People concede that Officer Kamboj assisted in the booking of the defendant in the 88th precinct as depicted in body worn camera footage. Officer Kamboj listed in his activity log that Officer Calderon was his partner. The People argue that the body worn camera does not show that Officer Calderon was involved in defendant's case and therefore his activity log was irrelevant. In this instant, the Court Orders the People to obtain and disclose the activity log of Officer Calderon within 30 days of this opinion.

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 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.

Thus, the Court Orders the People to produce the evidence and device audit trails for all officers to the defense. The People are directed to make a diligent and good faith effort to ascertain whether this material exist, and to disclose it to the defense within 30 days of this decision.

The defense asserted that the command log, also known as police blotter, contains written entries made by the desk sergeant during stationhouse intake process, based upon information about the arrest provided by the arresting officer and are discoverable under CPL 245.20(1) (e).The People believed that this material is not discoverable is since the command log was an administrative document that contained nothing but duplicative information that was found in numerous other documents disclosed to the defendant as part of the original COC.

However, 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 the administrative in nature concept advanced by the People. Moreover, in an arrest such as one involving Driving While Intoxicated, information as to defendant's appearance might be relevant to the issue of intoxication and should be disclosed. In any event the People disclosed the command log with their supplemental COC filed on August 12, 2024.

The defense alleged that a prisoner pedigree card is created in every case where a defendant is brought to a stationhouse and have their arrest processed. The defense further stated that this is an NYPD routinely created document in the possession of the People as mandated by the NYPD Patrol Guide regarding arrests, and that the People's failure to disclose it affects their COC.

The People explained that in response to the defense conferral, on June 24, 2024, they reached out to their NYPD liaison to ascertain the existence of the prisoner pedigree card. On July 8, 2024, the NYPD discovery liaison advised the People that they were still working on obtaining the prisoner pedigree card. On August 8, 2024, the People submitted a renewed request to the NYPD again asking for the prisoner pedigree card in this case. The People stated that as of the date of their response to the instant motion, August 12, 2024, they had not received the document from the NYPD. The People did establish their effort to obtain the prisoner pedigree card after being notified by the defense of the missing card. In any event, the People are directed to investigate whether the prisoner pedigree card exists, if the card exists, the people are to disclose with a supplemental COC within 30 days.

The defense argued that "all photos taken by police are discoverable under CPL 245.20 (1) (h) as it requires the disclosure of photographs and drawings made by any public servant that relate to the subject matter of the case even if the prosecution does not intend to introduce them into evidence." However, the defense failed to specify what arrest photos are being sought from the People in this case. The defense merely demanded "arrest photos." The People are directed to investigate, within 30 days, whether any photo exist, if the photos exist, the people are to disclose with a supplemental COC.

The defense claimed that the BWC footage shows that there was a co-arrestee in this case, that the co-arrestee is a civilian witness to the events in this case, that the People failed to disclose the witness contact information, including NYPD generated documentation and notes [*6]concerning the witness and that the People have to disclose evidence only known to the People pursuant to CPL 245.20 (1) (a), (c), (e), (h) and (m).

The People explained that the other individual was arrested under charges completely unrelated to the issues at hand in the instant matter. Moreover, the defense would not be entitled to contact information on the co-arrestee since the co-arrestee would be represented by counsel. Counsel's attempt to contact a co-arrestee who is represented by counsel would be a violation of professional rules conduct rule 4.2. Thus the defense would not be entitled to contact information of co-arrestee. The defense under this scenario could probably request co-arrestee's attorney information.

Finally, the defendant claimed that the People's COC was invalid since the COC of March 12, 2021, was not served on the original defense attorney. However, the People produced an Affidavit of Service showing that the COC/SOR was served to the original defense attorney on March 12, 2021. Thus, refuting defendant's claim.

The People's CPL § 30.30 time commenced on December 29, 2020, the day after the commencement of the criminal action. People v Stiles, 70 NY2d 765, 767 [1987]. When the People filed their COC and SOR on March 12, 2021, 75 days of speedy trial time were chargeable to the People. The People's COC was deemed valid. Consequently, defendant's motion to dismiss the accusatory instrument is denied since the People have not exceeded their CPL § 30.30 time.

ORDERS

The People are directed to make a diligent and good faith effort to ascertain whether evidence and device audit trails exist for the police officers listed on their NFD, to obtain this material and to disclose it to the defense if they have not done so; and

In addition, the People are directed to make a diligent and good faith effort to ascertain whether photos, prisoner pedigree card and contact information for civilian witness arrested with defendant exist, to obtain this material and to disclose it to the defense; and

Lastly, the People are directed to provide the activity log of officer Calderon and provide the gas chromatography records for solutions 20430 and 20240 if they have not done so; and

the above items of discovery should be served with a supplemental COC and SOR to the defense within 30 days of the date of this order unless a motion to extend the time is filed explaining in detail the efforts made to obtain the discovery with an expected disclosure date.

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