Defendant is charged with one count of Vehicle & Traffic Law § 1192 (1) Operating a Motor Vehicle Under the Influence of Alcohol or Drugs, and one count of Vehicle & Traffic Law §1192 (3) Operating a Motor Vehicle Under the Influence of Alcohol or Drugs. Defendant moves for an order (i) finding the superseding information to be defective pursuant to CPL §170.65 and CPL §100.40, and dismissing the accusatory instrument pursuant to CPL§§ 30.30, 30.30 (5-a), 170.30 (1) & (e ), and 170.35 (1) and (2); (ii) 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 [CPL 30.30, 170.20 (1) ( e), 245.20 (1)].

For the reasons set forth below, the People failed to provide discovery under CPL 245.20 and the motion to dismiss the accusatory instrument is granted.

On November 11, 2023, defendant was arraigned on a misdemeanor complaint charging him with Vehicle & Traffic Law § 1192 (3) Operating a Motor Vehicle Under the Influence of Alcohol or Drugs; and Vehicle & Traffic Law §1192 (1) Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs. 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 February 8, 2024, the People on the 88th day of CPL Speedy Trial calculation, filed their Statement of Readiness, ("SOR"), Certificate of Compliance, ("COC"), and Inventory of Discovery Provided Under CPL 245 ("2/8/24 Inventory"). In addition, the People also filed a Superseding Information. The SSI charged defendant with the two previously charged offenses and added one count of Vehicle & Traffic Law § 1192 (2), Operating a Motor Vehicle Under the Influence of Alcohol or Drugs. The People attached to the SSI a Blood Analysis Report dated January 30, 2024, without an attestation.

On February 15, 2024, the People refiled an SSI with its attachments and added an OCME Business Record Certification that certified the Chief Medical Examiner results.

On March 14, 2024, 35 days after the People filed their COC, the defense notified the People of a laundry list of missing mandatory discovery material was not disclosed.

On April 4, 2024, the defense filed the instant motion contending that the SOR of February 8, 2024, was illusory and ineffective, due to a defective SSI in addition to a failure to disclose mandatory discovery material that rendered their COC/SOR invalid.

On May 17, 2024, the People filed their affirmation in opposition to defense motion to dismiss.

The defense argued that the SOR filed on February 8, 2024, was invalid because the People failed to attach to the SSI, a chemical analysis certificate. The defense further contends that the 2nd SSI filed on February 15, 2024, was beyond speedy trial.

The People's attempt to file an SSI on February 8, 2024, remained an unconverted information and did not replace the November 11, 2023, complaint that was converted to an information on February 8, 2024. "Here, the People's superseding instrument contained hearsay and was therefore, a misdemeanor complaint that could not and did not replace the first information. As a result, the People's attempt to supersede the information with an accusatory instrument containing uncorroborated hearsay, another misdemeanor complaint is a nullity." People v Diaz, 63 Misc 3d 1211(A) (Crim. Ct., Bronx County 2019); People v Simmons 62 Misc 3d 1205(A) (Crim Ct. Kings County 2018). "An individual's blood alcohol level is an element of the offense under section 1192 (2) and its omission from the chemical test analysis rendered that portion of the accusatory instrument jurisdictionally defective." People v Lopez,170 Misc 2d 278, 280 (Crim. Ct., New York County 1996). Thus, the People's bid to file the SSI of February 8, 2024, was a nullity.

However, the People's COC/SOR filed on February 8, 2024, using the complaint of November 11, 2023, complaint that was converted to an information on February 8, 2024, was valid information The SSI that was filed on same day that the November 11, 2023 was converted to an information, sought to replace the original information was a nullity and as a result did not affect the People's COC/SOR. The test on February 8, 2024, when the People filed their SOR was whether the People "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). The People by filing the original information and making timely record of their statement of present readiness have satisfied that requirement (see, People v. Kendzia, 64 NY2d 331, 337, (1985).

The defense mistakenly claimed that the second SSI filed by the People on February 15, 2024, was beyond the speedy trial time and not valid. Under CPL 100.50(1) " at any time before entry of a plea of guilty to or commencement of a trial of an information or a prosecutor's information, another information or, as the case may be, another prosecutor's information is filed with the same local criminal court charging the defendant with an offense charged in the first instrument is, with respect to such offense, superseded by the second and, upon the defendant's arraignment upon the latter, the count of the first instrument charging such offense must be [*2]dismissed by the court." Thus, the People were not prohibited from filing an SSI after filing their COC/SOR. "The People's filing of the second information to add a new charge and supplement factual allegations of the first information does not establish that the People were not ready to timely proceed to trial on the original charge, nor does it retroactively invalidate the People's declaration of readiness." People v Armstrong, 163 Misc 2d 588, (Sup. Ct., App. Term, 1st Dept. ,1994). In sum the People's COC/SOR of February 8, 2024, and subsequent filing of the additional SSI of February 15, 2024, which replaced the information of February 8, 2024, was valid.

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 has the initial burden of identifying a specific defect with the People's COC. (People v Brown, 74 Misc 3d 1227 [A] [City Ct, Albany County 2022]).

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]).

"[W]hen a COC is challenged, it is incumbent upon the People to demonstrate that they operated in good faith, exercised due diligence, and expeditiously provided any missing materials. They must sufficiently articulate their efforts to comply with the statute and explain how the error occurred and was detected, and when it was remedied" (People v. Pondexter, 76 Misc 3d 349, 353, 173 N.Y.S.3d 420 [Crim Ct., Bronx County 2022]).

Due diligence has not been defined in Article 245. However, the Court of Appeals in People v. Bay, 41 NY3d 200, 212 (2023), set forth a number of factors to consider when assessing due diligence. These factors include but 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; the People's response when apprised of any missing discovery are some of the factors a court can consider.

The defense asserts a laundry list of items that were not disclosed in accordance with the requirements of automatic discovery which included: (i) All required material for an unidentified police officer who was present at the scene; (ii) notes taken by NYPD Officer Kim; (iii) ambulance call reports; (iv) underlying 911 calls; (v) defendant's medical records (vi) the Z [*3]Finest print out; (vii) photos that NYPD Officer Martinez took at the scene of the other driver's insurance information and of the Portable Breadth Test (PBT); (viii) Calibration Reports for both the PBT and the Draeger; (ix) audit trail logs for all NYPD Officers; (x) underlying Giglio and IAB attachments for NYPD Officers Caine, Martinez, and Myers; (xi) NYPD Officer Martinez' activity log; (xii) finalized activity log for NYPD Officer Myers; (xiii) NYC OCME documents withheld by the prosecution,

The defense argued that the People failed to disclose underlying police disciplinary records related to complaints against law enforcement officers whom the People intend to call as witnesses, NYPD Officers Caine, Martinez, Kim, and Myers.

The People aver that CPL 245.20 (1) (k) does not require the People to disclose underlying police disciplinary records and that their obligation under this section is satisfied when they provided to the defendant KCDA summary disclosure letters for each of the officers who may be called upon by the People to testify.

KCDA Giglio summary disciplinary letters are insufficient to satisfy the requirements of CPL 245.20 (1) (k). As a practical matter, the People should not be cast as the gatekeeper in determining impeachment material for the defense. People v Markovtsii 81 Misc 3d 225 (Crim Ct. Kings County 2023). Thus, "[c]ase summaries prepared by the People are insufficient to satisfy the mandates imposed by CPL 245.20, as such evidence and information, which may ultimately be employed by the defense to impeach the credibility of the People's testifying witnesses, should not be filtered through the prosecution." People v. Goggins, 76 Misc 3d 898, 901, 173 N.Y.S.3d 901 (Crim. Ct., Bronx County 2022). See Also People v. Pennant, 73 Misc 3d 753, 156 N.Y.S.3d 690 (Crim Ct., Nassau County 2021). In sum, summary letters are not sufficient to satisfy CPL 245.20 (1) (k).

The People further asserted that they made a good faith legal interpretation of the law, and they were not required to disclose underlying records of police misconduct for testifying officers citing to People v. Johnson 218 AD3d 1347, 1350 (App. Div., 4th Dept. 2023), People v Weisman, (2023 NY Slip Op 51248 [U] [App Term, 2d Dep 2023]), People v. Fuentes, 81 Misc 3d 136 (A) (App. Term, 9th & 10th Jud. Dist. Dec. 14, 2023) and People v Woerner, 81 Misc 3d 136(A), (App. Term 2nd Dept., 9th & 10th Jud. Dist. Dec. 14, 2023)

Contrary to the People's argument the 4th Department case of People v. Johnson 218 AD3d 1347, 1350 (App. Div., 4th Dept. 2023) is not binding within the Second Department in light of the conflicting determination reached by the Hamizane court in the Appellate Term, Second Department as well as the case of Matter of Jayson C., 200 AD3d 447 (1st Dept., 2021). Absent a determination by the Court of Appeals, the criminal courts of the Second Department are bound to follow the determinations of the Appellate Term, Second Department when in conflict with the decisions of the Appellate Division of another department. People v. Graham, 177 Misc 2d 542, 543-544 (App. Term 2d Dept. 1998); People v. Pardo, 81 Misc 3d 858 (Crim. Ct., Bronx County, 2023).Thus, the 4th Department case of People v. Johnson, 218 AD3d 1347, 1350 (App. Div., 4th Dept. 2023) is not binding within the Second Department. Moreover, in People v Weisman, 81 Misc 3d 129(A) [App Term, 2d Dep 2023]) the court noted in its decision that the lack of disclosure of Giglio materials was not preserved for review and, the Court's discussion of IAB records were dicta.

In Hamizane the Court held, " with respect to every listed potential police witness, it was the People's obligation to disclose whether or not disciplinary records exist, and to provide the defense with copies of any existing records." People v. Hamizane, 80 Misc 3d 7, 11 (App. Term, 2nd Dept 9 & 10 Jud. Dist. 2023) Thus, under Hamizane, the People are required to provide the defense with the underlying records of substantiated and unsubstantiated allegations of misconduct.

The cases of Hamizane, supra along with Weisman, supra with the recent cases of People v. Fuentes, 81 Misc 3d 136 (A) (App. Term, 9th & 10th Jud. Dist. Dec. 14, 2023) and People v Woerner, 81 Misc 3d 136(A), (App. Term 2nd Dept., 9th & 10th Jud. Dist. Dec. 14, 2023) have failed to clarify whether disclosing police disciplinary records have to be related to the case.

Fuentes, and Woerner, stand in contrast to Hamizane, in that those cases held that IAB records of testifying law enforcement witnesses need not be disclosed because the records did not relate to the subject matter of the case while Hamizane, had no such limitation. Neither of the cases expressly overruled Hamizane. Notwithstanding, the scope of the People's disclosure obligations under CPL 245.20 (1) (k) is an issue that has yet to be settled within the Appellate Division, Second Department. As a result, there is no well-defined binding appellate authority.

This Court follows the rationale in People v Gelhaus, 82 Misc 3d 864, (Dist. Ct., Nassau County January 25, 2024) where the court interpreted the People v. Bay, 41 NY3d 200 (2023) reading of CPL 245.20. The Gelhaus Court stated that "The clear meaning of CPL 245.20 is not that the 21 enumerated categories are limited to what relates to the subject matter of case, but rather that the 21 enumerated categories are related to the subject mat[t]er of the case and the automatic disclosure obligations are not limited to those categories." Id at 867. The People's interpretation of disclosing IAB records that had to be related to the case could have unintended consequences. Under the People's scenario a law enforcement officer having a substantiated allegation of dishonesty or bias on another case would be immune from having his credibility questioned before a jury in this case.

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, 81 Misc 3d 858 (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). Thus, the People are obligated to disclose the underlying substantiated and unsubstantiated disciplinary records. See People v. Bay, 41 NY3d 200 (2023); People v. Hamizane, 80 Misc 3d 7, 11 (App. Term, 2nd Dept 9 & 10 Jud. Dist. 2023). Thus, the People failed to disclose substantiated and unsubstantiated records for testifying police officers.

The People's automatic discovery obligations include underlying records for both substantiated and unsubstantiated complaints for testifying officers, and the Police must produce to the People the underlying records. People v Castellanos, 72 Misc 3d 371 (Sup. Ct., Bronx County 2021)

The People explained that they did not disclose evidence audit trails, device audit trails, and user data trails for NYPD Officers Martinez, Kim, Caine, and Myers, because much of the information was contained in the "metadata sheets" disclosed to the defense. The People [*4]explained that they did not disclose electronically stored data that is automatically generated by Axon, a third-party contractor, and contains no factual assertions underlying the charged crimes, is not related to the subject matter of the case and is therefore not discoverable under CPL 245.20 (1) (e).

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.

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, 81 Misc 3d 858 (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).

The People's justification for not disclosing audit trails because most of the information was contained in the metadata sheet is unavailing. The discovery statute does not suggest or provide for matters which the People believe are duplicative. The People cannot ignore their obligation to provide particular items because they believe they are duplicative. See People v Cartagena, 76 Misc 3d 1214 (A) (Crim. Ct., Bronx County 2022) (the prosecution cannot decline to disclose items of discovery because they claim it is duplicative of other items of discovery). People v Ajunwa, 75 Misc 3d 1220 (A) (Crim. Ct. Bronx County 2022) ("[i]t is not the People's decision to look at two entirely different police reports and decide that they believe one contains information 'duplicative' of the other and so will not be disclosed.").

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 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. Therefore, audit trails were discoverable and the failure to disclose the said audit trails would affect the COC.

The defense alleged that the People failed to disclose names and contact information of two unknown civilian witnesses under CPL 245.20 (1) (c). The People neglected to address the defense assertions regarding the unknown civilian witnesses. As a result, the People should have made a good faith effort to ascertain those witnesses.

The defense claimed, the People failed to disclose an unknown officer's name, memo book, BWC footage, and audit trail. The defense included with their affirmation pictures of the unknown officer taken from NYPD Officer Myers' BWC and two screenshots which show the unknown officer walking up to two officers, leaving them and walking to two others inside of an ambulance. The People again failed to address the defense request regarding the unknown officer and as such affected their COC.

The defense asserted that the People failed to disclose Officer Kim's memo book, activity logs for Officer See CPL 245.20 (1) (e). The People explained that they turned over NYPD Officer Kim's memo book which reflected the notes that were taken approximately at the same time on the BWC. However, the People acknowledged that the finalized activity log for Officer Meyers and the activity log for Officer Martinez activity log have yet to be disclosed.

On this record the court is constrained to conclude that the People were on notice, since March 14, 2024, that the activity logs for Officer Myers and Martinez had not been disclosed. The People failed to detail their due diligence in attempting to obtain these reports and as such does affect their COC.

The defense in their affirmation provided copies of reports that were included in the People's SCOC of March 1, 2024. These reports included the Toxicology Test Record and the OCME Litigation Packet which contained all reports of calibration and testing. The defense attached to their affirmation a copy of the Toxicology Test Record ("TTR") that stated these documents were provided to KCDA via shared drive on February 1, 2024. Thus, these documents were in the People's possession for at least one month prior to disclosing to the defense.

The Court is compelled to follow the reasoning of the defense in claiming the People held on to documents that were in their possession since February 1, 2024. The People failed to disclose them prior to filing their COC on February 8, 2024, and waited until March 1, 2024, to disclose the said documents. Moreover, the People neglected to address the defense assertion that they lacked due diligence in disclosing these documents. The People neglected to explain the delay in disclosure and as a result failed to demonstrate good faith and due diligence in their disclosure obligation.

Viewing the People's conduct in their totality, the Court finds that the People failed to act with good faith and due diligence prior to certifying compliance with their discovery obligations. People v. Bay, 41 NY3d 200 (2023).

The defense remaining claims were deemed moot because of the Court's decision.

The People's CPL § 30.30 time commenced on December 29, 2023, the day after defendant was arraigned. People v. Stiles, 70 NY2d 765 (1987). On February 8, 2024, when the People filed their COC and SOR, 88 days 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 April 4, 2024, when defendant filed the instant motion. CPL § 30.30 (4)(a). The People are charged 144 days of speedy time from November 12, 2023, to April 4, 2024. Consequently, defendant's motion to dismiss the accusatory instrument is granted since the People exceeded their CPL § 30.30 time. 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.