Justice Court of the Town of Henrietta, Monroe County, October 4, 2024

Brandy L. Shafer for defendant.

Sandra Doorley, District Attorney (Kaleigh Wurz of counsel), for the People.

Defendant Jason A. Bresnan was arraigned on December 12, 2023, on a single count of criminal obstruction of breathing/blood circulation in violation of Penal Law § 121.11. He entered a plea of not guilty and was released on recognizance.

On August 12, 2024, defendant filed a motion requesting invalidation of the prosecution's certificate of compliance, supplemental certificates of compliance, and statements of readiness, and dismissal of the information on the basis of CPL{**85 Misc 3d at 281} article 245 and CPL 30.30. The People filed a response and cross-motion in opposition to defendant's motion on September 10, 2024. Argument on the motion was held on that date.

This decision and order constitute the court's findings of fact and conclusions of law.

Although the Monroe County Public Defender's Office represented defendant at his arraignment on December 12, 2023, they withdrew due to a conflict. Assigned counsel was appointed on December 15, 2023, and appeared on behalf of defendant at his next court appearance on January 4, 2024. On that date, the People filed a certificate of compliance (COC) and statement of readiness for trial (SOR). Upon review of the COC, defendant protested that discovery was not complete and indicated that an appropriate motion might be filed in the future. Specifically, defendant reported that 911 calls and the potential prosecution witness/alleged victim's arrest report had not been provided. The court noted that, with incomplete discovery, the COC/SOR may be illusory, but reserved decision on the issue and instructed the People to complete mandatory discovery. The case was adjourned to February 12, 2024.

On January 16, 2024, the People provided the defendant with the 911 calls and related records and filed a supplemental COC/SOR. At the February 12, 2024 appearance, the defendant acknowledged receipt of the 911 calls and related records, but again protested that the victim's arrest report was outstanding. The People explained that the 911 calls were forwarded to the defendant as soon as they were received. The People thought the victim's arrest report had been provided. The case was adjourned to February 28, 2024, for completion of discovery and a screen by the People for a potential plea.

On February 14, 2024, the People produced the victim's arrest report and filed a supplemental COC/SOR.

On February 28, 2024, prior to the time to appear, defendant requested an adjournment due to counsel's illness, which was granted to March 19, 2024. On February 29, 2024, the People made an offer to the defendant to plead to the charge in exchange for one year of interim probation with domestic violence conditions. If the interim probation were successful, the defendant could withdraw the plea and plead to harassment in the second degree with the promise of a one-year conditional discharge and two-year no contact order of protection.{**85 Misc 3d at 282} If unsuccessful, the original plea would stand and the court would sentence at its discretion.

At the March 19, 2024 return date, the defendant acknowledged receipt of the People's screen and the supplemental COC, waived CPL article 245 and CPL 30.30 time and requested an adjournment to consider the People's offer and the filing of a dismissal motion if the offer were rejected. The case was adjourned to April 25, 2024. On the afternoon of April 25, 2024, defendant again waived time and requested a further adjournment of the matter to provide the People with a video recording of defendant's upcoming visitation with his daughter and to engage in further discussions with the People concerning the case. The case was adjourned to May 22, 2024. Due to counsel's conflict with an out of town court appearance, the case was further adjourned at defendant's request to June 18, 2024.

At the June 18, 2024 appearance, the People's offer was rejected and defendant advised that a dismissal motion likely would be filed if a new screen were not offered. The case was adjourned to July 11, 2024, for possible submission of the motion or a new screen. At the July 11, 2024 appearance, defendant indicated that progress was being made and that with a week's adjournment the case might be able to be resolved. Defendant waived time and the case was adjourned to July 18, 2024.

Prior to the July 18, 2024 appearance, the defendant advised the court that the People had confirmed that a new screen was not forthcoming. Defendant requested a final adjournment to decide whether interim probation was acceptable or the case should be scheduled for trial. A final adjournment to August 12, 2024, was granted. At the August 12, 2024 return date, defendant advised that they expected to request a trial, but first would seek to invalidate the COC and seek dismissal due to discovery violations. They thereupon filed the dismissal motion, citing as discovery violations the late-filed 911 calls, late-filed victim's arrest report, and the lack of submission of body worn camera (BWC) audit logs. The court granted the People until August 26, 2024, to respond to the motion and scheduled argument for September 3, 2024.

On August 26, 2024, the People advised the court that their written motion response was complete, but requested BWC audit logs had not yet been received. They asked if the response should be submitted without the logs, with the logs to{**85 Misc 3d at 283} follow, or delayed until submitted with the attached logs. The court, under the impression that the response with logs would be filed prior to the return date, advised the People that everything should be filed together.

At the September 3, 2024 return date for motion argument, the People's response still had not been filed. The People requested additional time to file its response with the audit logs. The defendant moved for immediate dismissal due to the People's failure to respond by the court's deadline. However, due to the apparent miscommunication between the court and People concerning the timing of the response submission, the court granted one week's adjournment for the filing of the People's response, with or without the audit logs. The People's response, with attached BWC audit logs, was filed on September 10, 2024, argument was held on that date, and the court reserved decision.

It is settled law that to ensure a defendant's right to a speedy trial, a valid COC is requisite for the filing of a non-illusory SOR, which must be filed within 90 days of a defendant's misdemeanor arraignment. Initial discovery must be completed within 35 days. Delayed discovery must include an explanation for the delay. Without a valid COC, the SOR is deemed illusory and if the speedy trial clock has run, the case must be dismissed pursuant to CPL 30.30. (People v Bay, 41 NY3d 200, 210 [2023].) A COC is invalid if the People have not exercised due diligence and reasonable efforts in obtaining and producing discovery dictated by CPL 245.20. (Id. at 213.) If the speedy trial clock has not run, sanctions pursuant to CPL 245.80, proportionate to the prejudice suffered by the defendant, rather than dismissal, may be warranted. (Id. at 214.)

Defendant contends that the belated delivery of the 911 calls and victim's arrest report were without an adequate explanation, which should invalidate the initial COC and supplementals, rendering the initial and subsequent SORs illusory. The People argue that both items were provided within the 90-day readiness period. They further argue, without conceding that the initial COC/SOR and supplementals were invalid, that, if found so by the court, sanctions pursuant to CPL 245.80 might be warranted, rather than dismissal, because dismissal would{**85 Misc 3d at 284} be disproportionate to the prejudice, if any, suffered by the defendant.

The court finds that the initial COC was invalid and the SOR illusory. The 911 calls and the victim's arrest report were clearly pertinent to the case and should have been provided prior to the filing of the COC. Likewise, the supplemental COC and SOR filed on January 16, 2024, were invalid and illusory, respectively. Although the People's explanation that delay in receiving the 911 calls caused the short delay in producing them may have been an adequate explanation for that delay, they had no excuse for the still missing victim's arrest report that defendant had previously alerted them to on the record.

But for the issue of the missing BWC audit logs, which will be addressed next, upon production of the victim's arrest report and filing of the second supplemental COC/SOR on February 14, 2024, discovery could be considered complete within the 90-day speedy trial window. That would uphold the validity of the second supplemental COC and SOR. Sanctions for the delayed discovery could be considered, pursuant to CPL 245.80, if the delayed discovery had prejudiced defendant's case, but no prejudice was cited by defendant. In fact, defendant argued that they were seeking dismissal only and had no interest in sanctions. Accordingly, the validity of the People's COCs and SORs hinges on whether the BWC audit logs needed to be provided pursuant to the automatic discovery provisions of CPL article 245.

Although the question of whether BWC audit logs are discoverable pursuant to CPL article 245 is a matter of first impression in this Department, it has been the subject of frequent litigation in New York City's criminal courts, resulting in two opposing camps. To date, no clarifying appellate decisions have been issued.

Defendant argues that BWC audit logs are discoverable as "electronically created or stored information seized or obtained by or on behalf of law enforcement from . . . (B) a source other than the defendant which relates to the subject matter of the case" (CPL 245.20 [1] [u] [i]), which is possessed or constructively possessed by the People (CPL 245.20 [2]), or contains information the People are duty bound to obtain and disclose. (CPL 245.55, 245.20 [1] [k].)

The majority of courts that have addressed this issue agree with defendant that CPL 245.20 dictates that BWC audit logs{**85 Misc 3d at 285} be produced by the People as part of their automatic discovery responsibility. (People v Torres, 79 Misc 3d 1204[A], 2023 NY Slip Op 50532[U], *1 [Crim Ct, Queens County 2023]; People v Champion, 81 Misc 3d 292, 298 [Crim Ct, NY County 2023]; People v Ballard, 82 Misc 3d 403, 405 [Crim Ct, Queens County 2023]; People v Rollerson, 82 Misc 3d 1212[A], 2024 NY Slip Op 50291[U], *4 [Crim Ct, Bronx County 2024]; People v Cumbe, 82 Misc 3d 1242[A], 2024 NY Slip Op 50524[U], *6 [Crim Ct, Kings County 2024]; People v Shar, 82 Misc 3d 1251[A], 2024 NY Slip Op 50589[U], *10 [Crim Ct, Richmond County 2024]; People v Duran, 83 Misc 3d 1007, 1010-1012 [Crim Ct, Bronx County 2024]; People v Budhu, 83 Misc 3d 1273[A], 2024 NY Slip Op 51086[U], *2 [Crim Ct, Queens County 2024]; People v J.M.W., 83 Misc 3d 1289[A], 2024 NY Slip Op 51249[U], *4 [Sup Ct, Kings County 2024]; People v Robert K., 83 Misc 3d 1229[A], 2024 NY Slip Op 50838[U], *5 [Crim Ct, NY County 2024]; People v Gourdine, 83 Misc 3d 1264[A], 2024 NY Slip Op 51031[U], *3 [Sup Ct, Kings County 2024].)

The minority view, advanced by the People in this case, is that the BWC audit logs are not subject to automatic discovery, but may be discoverable upon a showing of a compelling rationale for their production. They argue that the logs provide only "metadata" and no information beyond that provided by other discoverable material; are generated and maintained by a private company outside the direction and control of law enforcement and the People; contain little more than chain of custody information; and do not contain information electronically generated by law enforcement personnel. (People v Larkin, 72 Misc 3d 663, 668 [Sup Ct, Kings County 2021]; People v Williams, 73 Misc 3d 1091, 1110 [Sup Ct, Kings County 2021]; People v Rodriguez, 84 Misc 3d 685, 691 [Sup Ct, Kings County 2024]; People v Vargas, 78 Misc 3d 1235[A], 2023 NY Slip Op 50425[U],{**85 Misc 3d at 5} *5 [Crim Ct, Bronx County 2023].)^[FN1] The People further argue that even if there were discovery violations in this case, the defendant must show prejudice to their defense was caused by the violations to obtain dismissal pursuant to CPL 30.30.

The People's arguments are belied by the findings in the majority's cases, particularly those from the evidentiary hearing{**85 Misc 3d at 286} held in Ballard concerning the NYPD's BWC system, protocols and audit logs.^[FN2] "BWC audit trails (also known as 'audit logs') are automatically discoverable pursuant to CPL 245.20 (1) (e), (k), (u) (i) (B)." (Ballard at 405.)

BWC audit logs often contain notes and comments of police, that are discoverable under CPL 245.20 (1) (e). (Id. at 410-411.) They contain electronic information concerning the subject matter of the case created and obtained on behalf of law enforcement. Although stored by a third-party contractor, "the software automatically records the information in audit trails, [*5]the substance of that information is created, stored, and obtained by or on behalf of law enforcement. Law enforcement agencies regularly contract with other companies to process and store electronic information" (id. at 413) which has been deemed discoverable by the courts as information obtained for and under the control of law enforcement. By the same rationale, BWC audit log information is discoverable under CPL 245.20 (1) (u) (i) (B). (Id. at 411-414.) BWC audit logs may contain information that could be used to impeach testifying law enforcement witnesses. Impeachment information is automatically discoverable pursuant to CPL 245.20 (1) (k) (iv). (Id. at 412-413.) BWC audit logs contain more than metadata and chain of custody information. "Therefore, the trial-level case law the People rely upon is not supported by the hearing record and audit trails are clearly not limited to 'system metadata' or chain of custody information." (Id. at 414.)

"In addition to paragraphs (e), (k), and (u) in CPL 245.20 (1), audit trails are discoverable evidence because they relate to the subject matter of the case. The legislature instructed courts and litigants alike to interpret 'sections 245.10 and 245.25, and subdivision one of section 245.20' through a presumption of openness (CPL 245.20 [7]"). (Id. at 414.)

The court concurs with the prevailing view that BWC audit logs are subject to automatic discovery. The discovery statute is to be liberally construed with a presumption in favor of disclosure. It is not up to the People to decide what information{**85 Misc 3d at 287} about the case is relevant and needed for an accused's defense.

"Body-worn camera audit trail logs contain information that is distinct from metadata and body-worn camera footage. It stands to reason that the audit trail logs may reveal information that will aid in the defendant's defense and further, the logs may contain information that could be used to impeach testifying officers. Moreover, the presumption in favor of disclosure and free flow of information mandate militates in favor of the People disclosing, rather than withholding and/or filtering information, based on their own assessment of its viability." (Cumbe, 82 Misc 3d 1242[A], 2024 NY Slip Op 50524[U], *7.)

Despite having determined that the BWC audit logs were subject to automatic discovery, the court is troubled by defendant's tardiness in alerting the People that they were missing. Defendant had an affirmative duty under CPL 245.50 (4) (b) and (c) to do so, as it did with respect to the missing 911 calls and victim's arrest report. However, failure to report a discovery deficiency does not waive a defendant's right to further challenge a COC or file a CPL 30.30 motion. (CPL 245.50 [4] [c].) Furthermore,

"(s)hould a defendant bring a CPL 30.30 motion to dismiss on the ground that the People failed to exercise due diligence and therefore improperly filed a COC, the People bear the burden of establishing that they did, in fact, exercise due diligence and made reasonable inquiries prior to filing the initial COC despite a belated or missing disclosure. If the prosecution fails to make such a showing, the COC should be deemed improper, the readiness statement stricken as illusory, and—so long as the time chargeable to the People exceeds the applicable CPL 30.30 period—the case dismissed.

"Contrary to the People's contentions, a defendant need not demonstrate prejudice to obtain speedy trial dismissal based on a failure to timely comply with discovery obligations." (Bay at 213 [citations omitted].)

Due diligence and reasonable inquiry required the People, at a minimum, to explore whether the automatic discovery provisions of CPL article 245 mandated production of the BWC audit logs and to err on the side of disclosure.{**85 Misc 3d at 288}

"But the statutory presumption means the People should not withhold evidence just because they can make a 'colorable legal argument' [in this case, the minority opinion on discoverability] that it does not fall within the statute. Instead, the People should disclose evidence any time there is a 'colorable legal argument' that it does fall [*6]within the statute." (Torres, 79 Misc 3d 1204[A], 2023 NY Slip Op 50532[U], *8 [emphasis omitted].)

The plethora of cases establishing discoverability reflect much more than a "colorable legal argument" that disclosure was required.

In the alternative, if troubled by the conflicting, nonbinding authority concerning automatic discoverability of BWC audit logs, the People could have sought a protective order under CPL 245.70 to obtain a court determination of whether the BWC audit logs were subject to automatic discovery. (2023 NY Slip Op 50532[U], *8 n 13.)

Prior to responding to this dismissal motion, the People neither disclosed the BWC audit logs nor sought a protective order. They made no effort to distinguish the Torres/Ballard majority line of cases from the Larkin minority line of cases. There being no indication that the People did anything to assess whether any arguably discoverable materials were outstanding beyond those they did disclose, they have not met their burden of demonstrating due diligence and reasonable efforts to locate and produce all discoverable materials prior to the filing of their COC/SOR and supplementals. Accordingly, the court finds that the initial COC, first supplemental COC, and second supplemental COC were invalid and the SORs illusory.

Two hundred seventy two days elapsed from the date of defendant's arraignment to the motion hearing date and disclosure of the BWC audit logs. The People did not request any exclusions from their chargeable time. Nevertheless, the court has calculated excludable time for defendant adjournment requests and offer consideration time (Feb. 28, 2024-June 18, 2024, 110 days) and time requested for discussions with the People and motion time (July 11, 2024-Sept. 3, 2024, 54 days), resulting in 108 days chargeable to the People.

As noted above, the People's contention that the defendant must demonstrate prejudice to their defense to obtain dismissal{**85 Misc 3d at 289} after the speedy trial clock has run has been directly contradicted by the Court of Appeals. (Bay at 213.) The time chargeable to the People exceeding 90 days, the defendant's motion is granted and the case is dismissed pursuant to CPL 30.30.