On June 8, 2024, defendant was arrested and charged with one count each of Vehicle and Traffic Law ("VTL") §§ 1192 (2) (driving while intoxicated, per se), 1192 (3) (driving while intoxicated) (common law), both misdemeanors, and 1192 (1) (driving while impaired), a violation. Defendant was arraigned on June 9, 2024, and released on his own recognizance.

Defendant moves for dismissal of the accusatory instrument on statutory speedy trial grounds pursuant to Criminal Procedure Law ("CPL") §§ 30.30 (1) (b) and 170.30 (1) (c). Specifically, defendant asserts that the prosecution's Certificate of Compliance ("CoC") and Statement of Readiness ("SoR") should be deemed invalid pursuant to CPL §§ 245.50 (1), 245.50 (4) and 245.20 (1) because of the People's purported failure to comply with their discovery obligations. Upon review and consideration of the submissions, court file and relevant legal authority, the Court finds that the CoC and SoR are both VALID and the prosecution was TIMELY. Defendant's motion to dismiss is DENIED.

At the court appearance held on July 25, 2024, the court noted that the prosecution had filed its CoC and SoR off-calendar on July 22, 2024; after their in-court filing of their Supporting Deposition, the People's complaint was deemed an information. At the appearance held on August 8, 2024, the court noted that defendant had no objection to the People's CoC, which was deemed valid.

On November 21, 2024, the docket was forthwith to a trial part to commence a Dunaway/Huntley/Mapp hearing. However, defense counsel requested a motion schedule to challenge the People's CoC and supplemental CoC ("SCoC") after the assigned ADA advised the Court that the previously designated testifying officer was no longer available due to an [*2]undisclosed disciplinary or personal issue. Defendant filed his motion on December 12, 2024, which the prosecution opposed on January 31, 2025, and defendant replied to on February 14, 2025.

In a motion to dismiss misdemeanor charges pursuant to CPL § 30.30, a defendant has the initial burden to demonstrate that the prosecution failed to declare readiness for trial within ninety days (see CPL § 30.30 [1] [b]); see People v Luperon, 85 NY2d 71, 77-78 [1995]). Generally, a criminal action is commenced by the filing of an accusatory instrument against a defendant, and it is settled law that the date on which the action is commenced is excluded from the CPL § 30.30 computation (see CPL § 1.20 [17]; People v Stiles, 7 NY2d 765, 767 [1987]).

Additionally, the People must also satisfy their statutory obligation pursuant to CPL § 245.50 (3), which provides that "the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper certificate pursuant to subdivision one of this section" (see People v Kendzia, 64 NY2d 331, 337 [1985]).

Defendant argues that the People's failure to identify Police Officer ("Officer") Lehra as a potential witness in their July 22, 2024 CoC filing renders it illusory (affirmation of defendant's counsel at 9). Next, defendant asserts that the prosecution failed to comply with their CPL § 245.20 (1) (c) mandate to provide adequate contact information for the 911 caller (affirmation of defendant's counsel at 9-10). Defendant further avers that the prosecution's SCoC and the accompanying SoR was illusory because the People did not disclose information concerning the unavailability of their initially designated testifying witness, Officer Cruz (affirmation of defendant's counsel at 10-11). Specifically, defense counsel contends that where the People claimed that Officer Cruz was unavailable due to a disciplinary matter, they were obliged to investigate the issue and disclose information pursuant to CPL § 245.20 (1) (k) (affirmation of defendant's counsel at 11-12). In sum, defendant posits that the prosecution must be deemed untimely because the prosecution did not file a valid CoC or SCoC and he moves to preclude statements noticed pursuant to CPL § 710.30 (a) (affirmation of defendant's counsel at 13-15).

The People maintain that Officer Cruz was designated in their July CoC as the testifying witness and they only became aware of his unavailability when the assigned ADA attempted to notify him in November about the impending hearing/trial date (People's affirmation at C). They further assert that they diligently conferred with Officer Cruz's precinct, their Giglio unit/Discovery Compliance Bureau, and Officer Lehra and were thereafter advised that Officer Cruz was unavailable and, sometime in September 2024, placed on restricted firearm duty which could relate to a personal and/or disciplinary matter (People's affirmation at C, D). Thus, the prosecution argues that belated Giglio disclosure for Officer Lehra was reasonable, and the [*3]People contend that designation of their own trial witness is within their prerogative (People's affirmation at E). Lastly, the People aver that the 911 caller was anonymous, but the caller's contact number was disclosed in the ICAD report (People's affirmation at F).

In his reply brief, defendant asserts that the 911 caller provided their last name to the 911 operator (reply affirmation of defendant's counsel at 4). Further, defense counsel maintains that CPL § 245.20 (1) (c) required the prosecution to disclose persons who may be called as witnesses and, thus, the failure to timely provide Giglio information for Officer Lehra demonstrated a lack of prosecutorial due diligence (reply affirmation of defendant's counsel at 5). Lastly, defendant contends that information concerning Officer Cruz's unavailability should be discoverable where the People have failed to move for a protective order pursuant to CPL § 245.70 (1) (reply affirmation of defendant's counsel at 6-7).

In People v Bay, while the Court of Appeals admonished trial courts that "there is no rule of strict compliance," the prosecution must nonetheless demonstrate due diligence in its efforts to comply with CPL § 245.20 (1) (see Bay, 41 NY3d 200, 212 [2023] ["(a)n analysis of whether the People made reasonable efforts sufficient to satisfy CPL article 245 is fundamentally case-specific, as with any question of reasonableness, and will turn on the circumstances presented"]).

The prosecution's CoC identifies Officer Lehra among the law enforcement personnel listed in the People's CPL § 245.20 (1) (d) disclosure. Thus, counsel's suggestion that the defense was ambushed at trial concerning the possibility that he could become a testifying witness strains credulity. The record further demonstrates that the prosecution also duly disclosed Officer Lehra's body-worn camera footage and his activity log. This Court credits the ADA's recitation of the People's efforts to confirm PO Cruz's unavailability as a witness which began when they attempted to notify the officer about the hearing/trial date on or about November 13, 2024, to no avail. After contacting PO Cruz's precinct, their Giglio unit/Discovery Compliance Bureau, and Officer Lehra, the People were apprised- approximately four months after their CoC filing- that their witness had been placed on restrictive firearm duty. The prosecution subsequently filed an SCoC explaining that Officer Lehra had been designated as a testifying officer and disclosing his Giglio material. The record demonstrates that the prosecution did not act dilatorily and, further, the designation of the People's trial witnesses is solely within the prosecution's purview.

Defense counsel avers that Giglio information for Officer Lehra should have been disclosed before the People filed their CoC because he played an integral role in the investigation; however, the Court finds counsel's assertion that "PO Lehra extensively interviewed Mr. Payne" is unavailing (see People v Peralta, 79 Misc 3d 945, 956 [Crim Ct, Bronx County 2023]["In the case at bar, but for Det. Schwartz's arrival, interrogation and administration of the PBT with his personal device, defendant would not have been arrested."] [emphasis added]). Here, having already disclosed PO Lehra as a witness, the People's SCoC accompanied by the officer's Giglio records was a timely supplemental disclosure pursuant to CPL § 245.10 (1) (b).

Additionally, defendant has proffered no meritorious arguments in support of his [*4]contention that information concerning PO Cruz's unavailability for trial falls within the ambit of CPL § 245.20. Initially, defense counsel's suggestion that the People have misrepresented the reason for PO Cruz's absence is belied by the record. At the November 21, 2024 appearance, the assigned ADA advised this Court that the People had received conflicting information about why PO Cruz was placed on modified duty. Whether personal or disciplinary in nature, the prosecution has no indication that the matter has been resolved. Accordingly, the Courts finds that defendant is not entitled to disclosure concerning a pending issue. However, the Court holds that any available Giglio materials related to substantiated or unsubstantiated findings concerning the reason that PO Cruz was placed on modified duty, which occasioned his unavailability for trial, are discoverable pursuant to CPL § 245.20 (1) (k) and the People are directed to disclose any germane materials.

Both sides agree that the information concerning the 911 caller's phone number was disclosed, as is statutorily required. The Court credits the assigned ADA's representation, which is not challenged by defendant, that the People disclosed 911 files, including 911 calls, radio runs and an ICAD report. Consequently, where defense counsel acknowledges that the witness's name can be heard on the 911 call, the Court finds no basis to warrant sanction or remedy pursuant to CPL § 245.80.

The People's 30.30 calculation commenced on June 9, 2024, the day following defendant's arraignment. When the People filed their CoC on July 22, 2024, they declared readiness for trial and stopped their speedy-trial clock (June 9, 2024 — July 22, 2024 = 43 days). At the first scheduled date for hearings and trial on October 30, 2024, the prosecution was not ready, and the docket was adjourned to November 21, 2024 (October 30, 2024 — November 21, 2024 = 22 days). Accordingly, with 65 days chargeable to the People, the prosecution was timely.

Upon review and consideration of the submissions, court file and relevant legal authority, the Court adjudicates defendant's motion to dismiss as follows:

The People's CoC and SCoC, filed and served on July 22, 2024, and November 19, 2024, respectively, were VALID; and

The prosecution, pursuant to CPL § 30.30 (1) and § 170.30 (1) (e) was TIMELY and Defendant's motion to dismiss the accusatory instrument is DENIED; and

Defendant's motion for sanction or remedy pursuant to CPL § 245.80 is DENIED; and

The People's opposition elides any response to defendant's motion to preclude statements noticed pursuant to CPL § 710.30 (1) (a), and we respectfully REFER to the trial court the issue of preclusion; and

The People are DIRECTED to ascertain if there was any disciplinary action taken against PO Cruz concerning the reason that he was placed on modified duty, and to DISCLOSE any available Giglio materials concerning substantiated or unsubstantiated findings within thirty (30) [*5]days of this decision; and

Defendant's application seeking the right to make further motions to the extent provided by CPL § 255.20 (3) is GRANTED; and

Defense counsel is DIRECTED to certify discovery compliance within 30 days of the date of this Decision and Order pursuant to CPL§§ 245.20 (4) and 245.50 (2).

This constitutes the opinion, decision, and the order of the Court.