Defendant moves for an order of dismissal on speedy trial grounds alleging that the People's superseding information (SSI) contains a facially insufficient charge thereby rendering the People's statement of readiness illusory. Additionally, the defendant challenges the sufficiency of the People's statement notice pursuant to CPL § 710.30(1)(a) and moves for preclusion.

The People oppose.

For the reasons explained more fully herein, defendant's motion to dismiss for facial insufficiency is GRANTED. Defendant's motion to preclude is rendered moot.

Defendant was arraigned on a misdemeanor complaint on March 18, 2024, charging Driving While Under the Influence of Alcohol and Drugs and related charges. This commenced the running of the ninety-day period, less excludable time, within which the People must be ready for trial pursuant to the requirements of CPL § 30.30(1)(b). On April 22, 2024, the People filed their COC and SOR. On October 17, 2024, the People filed a superseding instrument and a statement of readiness, off-calendar, adding the charge of Obstructing Governmental Administration in the Second Degree (P.L. 195.05). On this same day the People also filed new statement notice off-calendar.

To be deemed facially sufficient a misdemeanor information must contain non-hearsay allegations of an evidentiary nature that provide reasonable cause to believe that the defendant committed the offenses charged and, if true, the allegations must establish every element of each offense (See, People v Alejandro, 70 NY2d 133, 137 [1987]; and CPL § 100.40[1]). Facial sufficiency is determined by reviewing the factual portion of the accusatory instrument in conjunction with any supporting depositions. However, the prima facie requirement for the facial sufficiency of an information "is not the same as the burden of proof beyond a reasonable doubt required at trial, nor does it rise to the level of legally sufficient evidence that is necessary to survive a motion to dismiss based upon the proof presented at trial" (People v. Smalls, 26 [*2]NY3d 1064, 1066 [2015]). "So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading" (People v. Casey, 95 NY2d 354, 360 [2000]). The court must assume that the factual allegations are true and must consider all reasonable inferences that may be drawn from the allegations (CPL § 100.15; Alejandro, 70 NY2d at 135; People v Henderson, 92 NY2d 677 [1999]). The court need not negate every other plausible theory when a reasonable view of the facts establishes the offense charged (People v Dumay, 23 NY3d 518, 525-526 [2014]).

Once a defendant alleges that the People have failed to announce their trial readiness within the statutory speedy trial time, the People must demonstrate that the disputed adjournments are excludable by reference to a statutory provision. People v. Luperon, 85 NY2d 71, 77-78 (1995); People v. Cortes, 80 NY2d 201 (1992); People v. Santos, 68 NY2d 859 (1986); People v. Berkowitz, 50 NY2d 333 (1980).

The prosecution also bears the burden to clarify, on the record, the basis for an adjournment so that the motion court can determine to whom the adjournment should be charged. People v. Cortes, supra, at 215-216; People v. Liotta, 79 NY2d 841 (1992); People v. Berkowitz, supra.

The People have a corresponding obligation regarding their Certificate of Readiness, as a "statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of section 245 of this chapter and the defense shall be afforded an opportunity to be heard on the record as to whether the disclosure requirements have been met." CPL § 30.30(5).

CPL § 245.20(1) provides that, as part of initial discovery, the "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." This statute then provides a non-exhaustive list of categories of materials that are subject to disclosure. The COC "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." CPL § 245.50.

The People are required to disclose documents "concerning physical or mental examinations . . . relating to the criminal action or proceeding which were made by or at the request or direction of a public servant engaged in law enforcement activity, or which were made by a person whom the prosecutor intends to call as a witness at trial or a pre-trial hearing, or which the prosecution intends to introduce at trial or a pre-trial hearing" CPL § 245.20[1][j].

The People have a continuing duty to disclose material and, if they subsequently learn of material that should have been turned over, they are required to turn it over "expeditiously" pursuant to CPL § 245.60. The court, in its discretion, has a vast array of remedies or sanctions for failure to comply with discovery, including preclusion of evidence, an adverse instruction to the jury or dismissal (see CPL § 245.80[2]). Where the People acted with due diligence but nevertheless disclosed material belatedly, the court shall impose an appropriate sanction if the party entitled to disclosure makes a showing of prejudice (see CPL § 245.80[1]). Additionally, "no adverse consequence . . . shall result from the filing of a certificate of compliance in good [*3]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." CPL § 245.60.

In any challenge to the People's certification of compliance, the key question is whether the People exercised the requisite level of diligence and made reasonable inquiries to ascertain the existence of the materials. People v. Bay, 41 NY3d 200, 232 N.E.3d 168, 208 N.Y.S.3d 490, 2023 NY Slip Op. 06407 (2023). "There is no rule of "strict liability"; that is, the statute does not require or anticipate a "perfect prosecutor." Id. at 212. In this case-specific analysis, the court will consider, among other factors: the prosecutor's efforts "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 the prosecutor exercising due diligence, the explanation for any discovery lapse, and the People's response when apprised of any missing discovery." Id. at 212. Further, a subsequent filing of a supplemental certificate of compliance cannot cure a discovery failure where the People did not exercise due diligence before the initial certificate was filed. Id. at 212. Finally, when a certificate of compliance is found to be invalid for a lack of due diligence, a defendant need not demonstrate prejudice to obtain a speedy trial dismissal based on untimely discovery compliance. Id. at 213.

The defendant moves to dismiss on speedy trial grounds claiming that the charge of Obstructing Governmental Administration in the Second Degree is facially insufficient thereby rendering the People's statement of readiness illusory. The People argue that the charge is legally sufficient, but that even if this court holds otherwise, the court is nonetheless compelled to strike the offending charge and uphold the remainder of the accusatory instrument since they filed their SSI and SOR in good faith. Additionally, the People proffer that that even if this court invalidates the SSI, the People should be able to resurrect the original instrument — which no longer exists — and to proceed to trial on that. The People's arguments are without merit.

Penal Law § 190.05 provides in pertinent part the following:

A person is guilty of obstructing governmental administration when he intentionally obstructs, impairs or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act, or by means of interfering, whether or not physical force is involved, with radio, telephone, television or other communications systems owned or operated by the state, or a county, city, town, village, fire district or emergency medical service or by means of releasing a dangerous animal under circumstances evincing the actor's intent that the animal obstruct governmental administration.

The facts allegedly supporting this charge are as follows:

The deponent is further informed by the informant that, after the above-described motor vehicle collision and before the police arrived at the above place, the defendant got out of the driver's seat of the above-mentioned KIA vehicle and sat in the passenger side of the KIA vehicle while the passenger in the above-mentioned KIA then sat in the driver's seat.

In cases where the facial insufficiency of a single count is not readily apparent and the People announce ready in good faith, the court may strike the offending count while salvaging the remainder of the information (see, People v. Williams, 2024 NY Slip Op 24059 [App Term [*4]2nd Dept 2024] and People v. Robinson, 129[A] [App Term 2d Dept 2024]). This is not one of those cases.

To commit obstruction of governmental administration a person must prevent a lawful duty through "(1) 'intimidation,' (2) 'physical force or interference,' or (3) 'any independently unlawful act.'" People v. Case, 42 NY2d 98, 103 (1977). In addition, the physical force or interference of the lawful act by the investigating party must be disruptive in nature. People v. Dumay, 23 NY3d 518 (2014). The alleged conduct must also be physical in nature, whichever category the alleged behavior fits within. Otherwise, as the Court of Appeals held in People v. Case, 42 NY2d 98, 103 (1977), there is no limit to the potentially offending conduct that might fall within the purview of the statute:

Under the express provisions of the statute, the interference would have to be, in part at least, physical in nature. The line is so drawn. To interpret and apply section 195.05, as suggested by the prosecution, would mean that there would be no outer limits to the statute. Under such a notion, the imparting of information as to location of the radar speed checkpoint would be penally condemned without physical interference and irrespective of whether the recipients of the messages were violating or were about to violate the law. A casual meeting of two travelers at a rest stop along a thoroughfare followed by a casual remark by one that a radar setup had been seen, with nothing more, would be enough to mark the author of the remark as a criminal.

Here the inadequacy of the charged count is so conspicuous it should have been patently obvious to a diligent prosecutor familiar with the relevant law. The offending driver of the vehicle switching seats with the passenger is clearly not intimidation of the police officers investigating the incident. The switching of seats did not disturb the investigating officer's ability to investigate the incident. Certainly, not in a way envisioned by the statute and the defining case law. Finally, nothing in the law prohibits two occupants in the same vehicle from switching seats, and it is axiomatic that to interfere with a public servant that individual must be physically present at the time of the alleged interference.

As to the People's argument that if this court invalidates the SSI, they should be allowed to proceed to trial on the prior accusatory instrument — nothing in the law allows for this. The court's jurisdiction is limited to the accusatory instrument that is before it. Once an accusatory instrument is superseded the prior accusatory instrument ceases to exist.

The court finds that the underlying accusatory instrument is defective pursuant to CPL § 100.40(1) and that this defect should have been obvious to a diligent prosecutor. Accordingly, the People are charged with the entire period from the defendant's arraignment on March 18, 2024, through the filing of the underlying motion on October 30, 2024 — a total of 226 days. As the People have exceeded their ninety-day speedy-trial time limitation, the defendant's motion to dismiss is GRANTED.

This constitutes the Decision and Order of the court.