Upon review and consideration of the submissions, court file and relevant law, defendant's motion for an order finding that, inter alia, the People's certificate of compliance and subsequent certificates of compliance were improper under CPL § 245.50 (1) and dismissing the accusatory instrument on speedy trial grounds pursuant to CPL §§ 30.30 and 170.30 (1)(e), or in the alternative, for omnibus relief is granted in part, and denied in part, as follows: the portion of the motion which seeks to invalidate the certificates of compliance is denied; dismissal on speedy trial grounds is also denied. However, discovery sanctions are imposed under CPL § 245.80. Pre-trial hearings are granted to the extent that certain hearings are ordered and others are referred to the trial court as provided herein. The reasons for the court's decision are explained below.

On May 6, 2024, defendant Manuel Pena-Hernandez was arrested and arraigned on charges of violating Vehicle and Traffic Law ("VTL") § 1192 (1) and (3) (operating a motor vehicle while under the influence of alcohol or drug). At his arraignment, the complaint was deemed an information, defendant was released on his own recognizance, and the matter was adjourned to June 7, 2024 for the People to file a certificate of compliance ("COC").

At the June 7, 2024 court appearance, a COC had not been filed and therefore the matter was adjourned to August 9, 2024 for the People to file a COC.

On August 1, 2024, the People served and filed (off calendar) a COC and statement of readiness, and shared discovery with the defense.

On August 6, 2024, the defense notified the People of missing discovery specifically, three (3) activity logs for officers involved in the case, photographs of defendant taken at the scene of his arrest by the arresting officer (including photos of defendant's hands and face), and arrest photographs. Also on that date, the People served and filed (off calendar) a supplemental COC and statement of readiness, after supplying two of the missing activity logs.

At the August 9, 2024 court appearance, the parties were directed to confer about any remaining outstanding discovery and the matter was adjourned to August 16, 2024 for a discovery conference.

At the August 16, 2024 court appearance, a discovery conference was held and the matter was adjourned to August 21, 2024 for a second discovery conference.

At the August 21, 2024 court appearance, the prosecution served upon the defense the remaining outstanding activity log, a motion schedule was set, and the matter was adjourned for decision.^[FN1]

On August 27, 2024, the People served and filed (off-calendar) another supplemental COC and statement of readiness.

By notice of motion dated September 10, 2024, the defense moved for an order: (1) finding the prosecution's COC filed on August 1, 2024 and subsequent supplemental COCs (filed on August 6, 2024 and August 27, 2024) were improper under CPL § 245.50 (1) based on the People's failure to timely disclose the activity logs and photographs (discoverable under CPL § 245.20 [1]); (2) deeming the prosecution was not ready for trial pursuant to CPL § 245.50; (3) dismissing the accusatory instrument on speedy trial grounds pursuant to CPL §§ 170.30 (1)(e) and 30.30. In the alternative, the defense sought an order: (1) precluding the prosecution from introducing at trial evidence for which it failed to give timely notice pursuant to CPL § 710.30; (2) suppressing statements taken from defendant for which the prosecution served proper notice pursuant to CPL § 710.30, or granting a hearing pursuant to People v Huntley (15 NY2d 72 [1965]) and Dunaway v State of NY (442 US 200); (3) suppressing evidence relating to defendant's alleged refusal to submit to a chemical test, or granting a refusal hearing under People v Odum (31 NY3d 344 [2018]), VTL § 1194, Dunaway, and People v Ingle (36 NY2d 413 [1975]); (4) suppressing physical evidence seized from defendant and observations made of him including all photographs, body-worn camera footage, and the Intoxicated Driver Testing Unit ("IDTU") video, or granting a hearing under People v Hinshaw (35 NY3d 427 [2020]), Mapp v Ohio (367 US 643 [1961]), Dunaway and, People v Rossi (80 NY2d 952 [1992]); and (5) granting a pre-trial hearing pursuant to People v Sandoval (34 NY2d 33371 [1974]), People v Molineux (168 NY 265 [1901]), and People v Ventimiglia (52 NY2d 350 [1981]), as to evidence related to defendant's prior convictions, uncharged criminal conduct, and/or vicious or immoral conduct that the People intend to introduce at trial.

By affirmation dated October 8, 2024, the People opposed the motion.

Reply papers were filed by the defense on October 25, 2024.

Under the "initial discovery" provision of CPL § 245.20 (1), soon after the commencement of an action, "[t]he prosecution shall disclose to the defendant and permit the defendant to discover, inspect, copy, photograph and test, all items and information that relate to the subject matter of the case and are in the possession, custody or control of the prosecution or persons under the prosecution's direction or control, including but not limited to" a non-exhaustive list of materials.

The prosecution is to make a diligent and good faith effort to ascertain the existence of [*2]the discovery materials and make them available to the defense, even if the information is not in the prosecution's physical possession, except for lost or destroyed material, and materials subject to a protective order (see CPL §§ 245.20 [2]; 245.70 [1]; 245.80 [1][b]). For CPL §245.20 (1) purposes, "all items and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency shall be deemed in the possession of the prosecution" (CPL § 245.20 [2]). "CPL 245.55 mandates a 'flow of information' between the prosecution and law enforcement 'sufficient to place within [the prosecution's] possession or control all material and information pertinent to the defendant and the offense or offenses charged . . . '" (People v Audino, 75 Misc 3d 969, 975 (Crim Ct, New York County 2022).

Unless the court has made "an individualized finding of special circumstances . . . the prosecution shall not be deemed ready for trial for purposes of section 30.30 . . . until it has [fulfilled its discovery obligations under CPL §§ 245.20 (1) and] filed a proper certificate [of compliance]" (CPL § 245.50 [3]; see also People v Aquino, 72 Misc 3d 518, 520 [Crim Ct, Kings County 2021]). Further, under CPL § 245.20 (7), "[t]here shall be a presumption in favor of disclosure" and "openness" when interpreting the disclosure provisions (see also People v Randolph, 69 Misc 3d 770, 772 [Sup Ct, Suffolk County 2020]).

CPL § 245.50 (1) sets for the requirements for a COC as follows:

[t]he certificate of compliance shall state that, after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery, the prosecutor has disclosed and made available all known material and information subject to discovery. It shall also identify the items provided.

The statute further states that where "additional discovery is subsequently provided prior to trial pursuant to section 245.60 [under the prosecution's continuing duty to disclose material discovered after the initial discovery has been exchanged and a COC filed], a supplemental certificate shall be served . . . identifying the additional material and information provided" (CPL § 245.50 [1]). "Any 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 certificate of compliance shall not impact the validity of the original certificate of compliance if filed in good faith and after exercising due diligence . . . or if the additional discovery did not exist at the time of the filing of the original certificate of compliance" (CPL § 245.50 [1-a]).

The last sentence of CPL § 245.50 (1) states: "No adverse consequence to the prosecution or the prosecutor 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 section 245.80 of this article."^[FN2]

To interpret CPL §§ 245.50(1) and 30.30 together, in the context of a motion to dismiss [*3]on speedy trial grounds, the Court first examines the People's "actual readiness" (CPL § 30.30 [5]); that is, whether the prosecution has "done all that is required of them to bring the case to a point where it may be tried," including filing a valid COC (People v England, 84 NY2d at 4). In order to find the COC to be valid, the Court must be satisfied that it was filed in "good faith and reasonable under the circumstances" (CPL§ 245.50 [1]).

The Court of Appeals has held that if any known discoverable materials were not exchanged prior to the filing of the COC, the prosecution bears the burden of establishing that it exercised due diligence and made reasonable inquiries to comply with Article 245, prior to filing its COC (People v Bay, 41 NY3d 200, 211 [2023]). In evaluating whether the People exercised due diligence, a court "should generally consider, among other things, the 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 any discovery lapse, and the People's response when apprised of any missing discovery" (id. at 212). "[B]elated disclosure will not necessarily establish a lack of due diligence or render an initial COC improper" (id.).

If after review of the details provided by the prosecution, the court is satisfied that the COC was filed in good faith despite the discovery that was not exchanged, it may consider appropriate sanctions pursuant to CPL § 245.80, the severity of which may depend on the prejudice suffered by the defendant as a result of the discovery that was not exchanged prior to the filing of the COC (see CPL § 245.50 [1]).

However, if the court finds that the COC was not filed in good faith or was not reasonable under the circumstances, the COC shall be deemed improper and the statement of readiness stricken, and there is no need to consider the sanctions under CPL § 245.80, or to consider if the defendant was prejudiced (see People v Bay, supra at 213; People v. Perez, 75 Misc 3d 1205 [A], *3 [Crim Ct, Bronx County 2022]; see also People v Georgiopoulos, 71 Misc 3d 1215 [A], *3 [Sup Ct, Queens County 2021]; People v Adrovic, 69 Misc 3d at 574).

Thus, "discovery compliance is a question of diligence and reasonableness given the particular facts of the case: neither a claim of good faith nor an absence of bad faith, standing alone, can exempt the People from these requirements" (People v Aquino, 72 Misc 3d at 5; People v Georgiopoulos, 71 Misc 3d 1215[A], *3 ["good faith and due diligence are the touchstones by which a certificate of compliance must be evaluated"]). Rather, "[w]hen the People submit documentation to the court certifying their compliance with their statutory obligation, they must do more than merely mouth the words" (People v Adrovic, 69 Misc 3d at 574-75).

Here, the court finds that, as detailed below, the People's COC was filed in good faith, after the exercise of due diligence and the disclosures made after the initial COC was filed did not impact its validity (see CPL § 245.50 [1][a]; People v Bay, supra. at 213 ["'due diligence' . . . is a . . . flexible standard that requires the People 'to make reasonable efforts' to comply with statutory directives" [citations omitted]; People v Knight, 69 Misc 3d 546, 552 [Sup Ct, Kings County 2020] [COC not vitiated by disclosure provided to defense after its filing where filed in good faith and reasonable under the circumstances]; People v Lustig, 68 Misc 3d 234, 247 [Sup Ct, Queens County 2020] [COC valid despite subsequent disclosure of certain search results, where they were filed in good faith]).

The court makes this determination taking into account that, at the time the People filed [*4]their initial COC, they had exchanged a volume of information with the requisite due diligence including: the complaint report, arrest packet, arrest report, accident report, affidavit, arraignment card, case summary, statement notice, refusal report, DOH Health Card Permit, Notice Summary, three (3) videos in Spanish, activity log (of PO Robinson), eight (8) body-worn camera videos, 911 calls (including radio run log and radio run), Giglio materials (see People v Bay, supra. at 213). Moreover, according to the defense, at the time the People filed their initial COC, only the three (3) activity logs and photographs were outstanding, which the court finds minimal, compared to the amount of discovery that was timely exchanged.

Activity Logs

The People do not dispute that the activity logs are subject to automatic disclosure under CPL § 245.20 (1)(e).^[FN3] It is also undisputed that to date, all activity logs have been exchanged. Additionally, the People supplied considerable details of their efforts and numerous attempts at obtaining the logs prior to filing the initial COC, beginning soon after defendant's May 6, 2024 arraignment and included in their August 1, 2024 automatic disclosure form, that the logs were in fact missing. Moreover, after the defense emailed the People (on August 6, 2024), that logs had not been exchanged, the People immediately responded (on that same day), by providing two (2) of the three (3) missing logs (and served and filed a corresponding supplemental COC and statement of readiness). The People continued their efforts to obtain the remaining log, which was ultimately given to the defense in court on August 21, 2024, and filed a second supplemental COC on Augst 27, 2024. Under the circumstances here, the court finds that the People adequately explained the discovery lapse as to the activity logs in in the corresponding supplemental COCs, namely that the materials were requested numerous times, and despite those attempts, were not received by the prosecution until August 2, 2024 and August 21, 2024; once the materials were obtained by the People, the documents were promptly supplied to the defense. Since the court is satisfied that the COC was filed in good faith and there has been no showing of prejudice to defendant because of the delayed disclosure of the activity logs, sanctions will not be imposed (see CPL § 245.80).

Photographs

The People do not dispute that the arrest photographs and those taken at the scene of defendant's arrest are subject to automatic disclosure under CPL § 245.20 (1)(h).^[FN4] It is also undisputed that to date, the photographs remain outstanding. While the People supplied details of their efforts to obtain the arrest photos and included in their automatic disclosure form that those photos were missing, the arrest photos nonetheless, inexplicably remain outstanding. Additionally, the People offered no details or explanation of any attempts at obtaining the photos taken at the scene (neither before nor after the COC was filed), even after the defense alerted the People of the missing photos. In fact, the emails supplied by the prosecution to establish their [*5]alleged efforts to obtain the missing discovery, fail to show that the People ever requested the photos taken by the arresting officer. Moreover, the People have not asserted that any of the missing photos do not exist, were destroyed, or for any other reason are unavailable.^[FN5] Under these circumstances, given that the photographs remain outstanding, the defense is clearly prejudiced. The court therefore finds that sanctions under CPL§ 245.80 are warranted.^[FN6] It is therefore ordered that the People are precluded from using at the trial of this matter, the photos which have not been exchanged. It is further ordered that, at trial, defendant is entitled to an adverse inference charge as to those missing photos.^[FN7]

Pursuant to CPL § 30.30 (1), a motion to dismiss must be granted when the prosecution is not ready for trial within the time set forth by the relevant speedy trial provision. To satisfy the initial burden under CPL § 30.30, a defendant need allege "only that the prosecution failed to declare readiness within the statutorily prescribed time period" (People v Luperon, 85 NY2d 71, 77-78 [1995]). Once a defendant has alleged that more than the statutorily prescribed time period has elapsed since the commencement of the action, without a declaration of readiness, the prosecution bears the burden of establishing sufficient excludable delay (see People v Berkowitz, 50 NY2d 333, 349 [1980]). The time within which the prosecution must be ready is computed by subtracting any periods of delay that are excludable under the statute (see People v Cortes, 80 NY2d 201, 208 [1992]).

It is undisputed that in this case, the prosecution must be ready for trial within ninety (90) days of the commencement of the action. Trial readiness means that the prosecution must 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]) and a proper certificate of compliance with the disclosure requirements of CPL § 245.20 must have been filed (see CPL § § 245.50 [3]; 30.30 [5]; People v Adrovic, 69 Misc 3d 563, 575 [Crim Ct, Kings County 2020]).

Since the People's August 1, 2024 COC has been deemed valid, the People's corresponding statement of readiness stopped the speedy trial clock under CPL § 30.30 (see People v Carter, 91 NY2d 795, 798 [1998] [statement of readiness stops the speedy trial clock]). The court finds a total of 87 days are chargeable to the prosecution for the time from arraignment (May 6, 2024), to date.^[FN8] As the prosecution was ready for trial within 90 days of commencement of this criminal action, defendant's motion to dismiss pursuant to CPL § 30.30 is denied at this time.

The portion of defendant's motion which sought to preclude the prosecution from introducing evidence at trial for which proper notice has not been given pursuant to CPL § 710.30 is denied at this time as no argument to support the granting of this relief was supplied in the moving papers.

That branch of defendant's motion which sought to suppress statements made by defendant to the police for which the People served notice pursuant to CPL § 710.30 (1)(a) is referred for a hearing to be conducted prior to trial, in accordance with People v Huntley (15 NY2d 72 [1965]) and Dunaway v State of New York (442 US 200 [1979], as factual issues were raised as to the voluntariness of defendant's alleged statements.

That branch of defendant's motion which sought to suppress evidence relating to defendant's alleged refusal to submit to a chemical test is referred for a refusal hearing to be conducted prior to trial in accordance with VTL § 1194 and People v Odum (31 NY3d 344 [2018]), as factual issues were raised as to whether the alleged refusal was illegally obtained.

The branch of defendant's motion which sought to suppress all seized physical evidence [*6]and observations of defendant, including body-worn camera footage, and the IDTU video is referred for a hearing to be conducted prior to trial in accordance with Mapp v Ohio (367 US 643 [1961]), Dunaway v State of New York (442 US 200 [1979], People v Ingle (36 NY2d 413 [1975]), People v Hinshaw (35 NY3d 427 [2020]) and, People v Rossi (80 NY2d 952 [1992]), as factual issues were raised as to the legality of the police actions including defendant's arrest and whether any evidence obtained from that arrest was unlawfully obtained.

The branch of defendant's motion which sought a hearing pursuant to People v Sandoval (34 NY2d 371 [1974]), People v Molineux (168 NY 265 [1901]), and People v Ventimiglia (52 NY2d 350 [1981]), as to evidence related to defendant's prior arrests, convictions, or bad acts, is referred to the trial court for resolution.

The branch of defendant's motion which sought to reserve the right to make additional motions is denied at this time, subject to the rights under CPL § 255.20 (3) to move for leave upon good cause shown.

Based upon the above, the portion of the defense's motion which sought to deem the People's COC and supplemental COCs improper is denied but sanctions are imposed; dismissal on speedy trial grounds is denied; the pre-trial hearings ordered are as follows: Huntley/ Mapp/Dunaway/Ingle/Hinshaw/Rossi/Refusa/VTL § 1194/Odum; relief pursuant to Sandoval/ Molineux/Ventimiglia is referred to the trial court; and the right to make additional motions is denied at this time.

1. Need for remedy or sanction. (a) When material or information is discoverable under [article 245] but is disclosed belatedly, the court shall impose a remedy or sanction that is appropriate and proportionate to the prejudice suffered by the party entitled to disclosure. Regardless of a showing of prejudice the party entitled to disclosure shall be given reasonable time to prepare and respond to the new material . . .

Under our law, when the government is in possession of evidence which is reasonably likely to be of material importance, and the defense, using reasonable diligence, requests that evidence, the government is required to preserve that evidence.

In this case, on or about (date) [specify government agent or agency] was in possession of (specify), which constituted evidence reasonably likely to be of material importance.

On or about (date), the defense requested that evidence. Thereafter, the agents of the government [destroyed/lost] it. As a result, you may, but are not required to, infer that the destroyed evidence would have been favorable to the defense.