On July 13, 2024, defendant was arrested and charged with one count each of Vehicle and Traffic Law ("VTL") §§ 1192 (3) (driving while intoxicated) (common law), a misdemeanor, and 1192 (1) (driving while impaired), a violation. Defendant was arraigned on July 14, 2024, and released on his own recognizance.

Defendant moves, inter alia, for dismissal of the accusatory instrument on statutory speedy trial grounds pursuant to Criminal Procedure Law ("CPL") §§ 30.30 (1) (b), 30.30 (5-a) and 170.30 (1) (3). Specifically, defendant asserts that the People's Certificate of Compliance ("CoC") and Statement of Readiness ("SoR") should be deemed invalid because of their purported failure to comply with their CPL § 245.20 obligations within their allotted time. 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 October 21, 2024, the court noted that the prosecution had filed its CoC and SoR off-calendar on October 7, 2024, and the matter was set for a compliance conference on November 19, 2024. At the next court appearance before Hon. Carmen Pacheco, defendant's motion schedule was set. Defendant filed his motion on December 13, 2024, which the prosecution opposed on January 6, 2025, and defendant replied to on January 17, 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 failed to diligently confer with defense counsel regarding several items which he states were missing from the CoC (affirmation of defendant's counsel at 9). In particular, defendant maintains that the following items were never disclosed nor was an explanation provided for the reason why, to wit: surveillance video, the Witness Contact Information Sheet, underlying IAB logs for Police Officer ("Officer") Philippe Marc and Johnathan Taborda, Log ## 24-15178 and 24-1626, respectively, activity logs for the early hours of July 13, 2024, the Health Permit Card for Officer Taborda, an activity log for Officer Taborda, a medical treatment form, a property voucher and Statement Notice summary (affirmation of defendant's counsel at 6-7). Defendant also moves to suppress evidence of his refusal to submit to a chemical breath test, police observations and physical evidence and statements, and to preclude the People from entering evidence concerning prior convictions and bad acts (memorandum of law of defendant's counsel at 16-19). Defense counsel's reply further asserts that the People failed to demonstrate good faith and due diligence to obtain outstanding materials (reply affirmation of defendant's counsel at 5-6).

The People attach as Exhibits 8, 10 and 11, screenshots of the folders shared via OneDrive which specifically reference surveillance video, names of witnesses (and the phone number for one witness), and statement summary (People's affirmation at 11). The assigned ADA also states that insofar as IAB Log #24-15178 concerned a pending investigation involving Officer Marc, there were no associated logs to disclose- as mentioned in the People's supplemental CoC ("SCoC') filed on January 6, 2025 (People's affirmation at 12). The People contend that nondisclosure of the property voucher was inadvertent since it was received on the same date as their CoC filing, October 7, 2024, but the assigned ADA missed the item in his mailbox (People's affirmation at 13). Concerning a medical treatment form, the People explain that although the item was initially listed in their CoC, they now believe that no form was generated (People's affirmation at 14).

The prosecution concedes that despite following up on July 25, 2024 and January 6, 2025, Log # 24-1626 concerning Officer Taborda is still outstanding (People's affirmation at 12). Additionally, the People claim that although they previously disclosed activity logs to defendant, [*3]they have now attempted to acquire "accurate" activity logs and will disclose them upon receipt (People's affirmation at 14). Lastly, the People oppose defendant's motions to suppress and preclude (People's affirmation at 15-20).

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 record at bar indicates that the People provided defense counsel with surveillance video, witness contact information and a Notice Statement Summary at the time of their CoC filing on October 7, 2024; three screenshots of folders enumerating the supposedly missing items were annexed to their papers. However, the Court has reviewed the submissions and finds no evidence that Officer Taborda's Health Permit Card was disclosed. Next, contrary to defense counsel's assertion, the People filed an SCoC on January 6, 2025, at which time they disclosed the outstanding underlying IAB log for Officer Marc and the property voucher which was inadvertently omitted. The Court credits the assigned ADA's representation that although the People listed a Medical Treatment Form in their CoC, they now have no reason to believe that such a form was generated because there is nothing in the record to indicate that medical treatment was rendered to defendant.

With respect to Giglio information, the record indicates that the People could not disclose underlying IAB records pertaining to Officer Marc because the investigation was still pending at the time of their CoC filing (see People v Polanco, 83 Misc 3d 1287 [A], 2024 NY Slip Op 51235[U], *4 [Crim Ct, Bronx County 2024] ["It must be axiomatic that the People have no duty to disclose evidence which does not exist"]). Moreover, the prosecution exercised due diligence by following up for the underlying IAB log for Officer Taborda on July 25, 2024, and January 6, 2025, and state they are continuing their request for responsive documents.Yet, the record does not demonstrate the prosecution's due diligence concerning the outstanding activity logs, including for Officer Taborda. It does not suffice for the People to contend that they previously disclosed activity logs but only since filing their opposition to the instant motion have they "made a request for accurate activity logs." This bald assertion does not provide the Court with any explanation as to why the initially disclosed logs were unresponsive to defendant's request, or why the People did not make their request for accurate logs prior to motion practice.

However, cumulatively, we find that the prosecution's compliance by producing voluminous discovery including body-worn camera footage for five officers, arrest paperwork, Giglio materials, roll call logs, hearing minutes and complaint report/worksheet, mitigates against invalidating the CoC solely based upon their failure to provide underlying IAB logs for Officer Taborda and relevant activity logs. The People's CoC, filed October 7, 2024, is deemed valid but the People are directed to ascertain whether any underlying files related to IAB Log # 24-1626 exist and to disclose any germane material. The People are further directed to disclose activity logs for Officers Philippe Marc, Agustin Mendoza, Sean O'Meara, Ryan Raggobir and Johnathan Tarboda. Lastly, insofar as the People's exhibits do not confirm that Officer Taborda's Health Permit Card was previously disclosed they are directed to serve another copy on defense [*4]counsel.

The People's 30.30 calculation commenced on July 14, 2024, the day following defendant's arraignment. When the People filed their CoC on October 7, 2024, they declared readiness for trial and stopped their speedy-trial clock (July 14, 2024 — October 7, 2024 = 85 days). Accordingly, with 85 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 October 7, 2024, and January 6, 2025, respectively, are deemed VALID; and

The prosecution, pursuant to CPL §§ 30.30 (1) (b) and 170.30 (1) (3), was TIMELY and defendant's motion to dismiss the accusatory instrument is DENIED; and

The People are DIRECTED to determine whether any underlying IAB files concerning Log # 24-1626 for Officer Taborda exist and to disclose any responsive materials within ten (10) days of this Decision and Order; and

The People are DIRECTED to disclose activity logs for the shift covering July 13, 2024, at approximately 12:45 AM, for Officers Philippe Marc, Agustin Mendoza, Sean O'Meara, Ryan Raggobir and Johnathan Tarboda within ten (10) days of this Decision and Order; and

The People are DIRECTED to serve defendant with a copy of Officer Taborda's Health Permit Card within ten (10) days of this Decision and Order; and

The Court FINDS that there are no unresolved issues which warrant a hearing on the underlying facts pursuant to Luperon, supra and People v Allard, 28 NY3d 41, 45 [2016]; and

The Court GRANTS defendant's request for a hearing pursuant to VTL § 1194/Refusal/Dunaway/Ingle, Mapp/Dunaway/Ingle and Huntley/Dunaway but respectfully refers the issue of preclusion or, alternatively, a Sandoval/Ventimiglia hearing to the trial court; 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.