Defendant moves for an order of dismissal on speedy trial grounds alleging that omissions in the People's discovery as well as belated disclosures renders their certificate of compliance (COC) invalid, and their statement of readiness (SOR) illusory.

The People oppose.

For the reasons explained more fully herein, defendant's motion is GRANTED.

Defendant was arraigned on a misdemeanor complaint which was filed on July 29, 2024, charging Driving While Intoxicated 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). The date by which the People were required to meet this obligation was October 27, 2024. On October 15, 2024, the People filed their COC, SOR, and NDF. Subsequently, the People served additional discovery on defense counsel and filed four supplemental COC's. The first was filed on November 8, 2024, the second was filed on November 12, 2014, the third was also filed on November 12, 2024, and the fourth and final supplemental COC was filed on December 14, 2024. Defense counsel filed the underlying motion on November 25, 2024.

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 [*2]charged. People v. Cortes, supra, at 215-216; People v. Liotta, 79 NY2d 841 (1992); People v. Berkowitz, supra.

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 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).

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 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.

When belatedly disclosing material, the People are required to "detail" via a supplemental certificate of discovery compliance the "basis for the delayed disclosure so that the court may determine whether the disclosure impacts the propriety of the certificate of compliance." C.P.L. § 245.50[1-a].

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 (2023). 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 following items of discovery were either belatedly disclosed or never disclosed thereby rendering the [*3]People's COC and SOR invalid: Giglio materials including CCRB records; health certificate for the IDTU technician; calibration documents for the PBT; certificate of PBT training; BWC video and audit trails for Officer Larregui; activity log for Officer Larregui; and photos taken of defendant's moped, TRI incident report associated with Officer Ullah's use of a taser; prisoner medical treatment form; activity logs for Officer TORBA; motor vehicle accident report; audit trails for all officers; Giglio material for Officer Larregui; interrogation warnings; standardized field sobriety notes; PBT test results printout; photos taken by Sgt. Ullah; Zolpa report; and identifying information as to officer who viewed BWC video and another officer who appears on BWC.

The court will first address one of the undisclosed discovery items—the motor vehicle accident report—because it so germane to the charges that a certificate of compliance cannot be valid without it. The court views discovery, in the light of Bay, to exist upon a spectrum. In the center of this spectrum are items so germane to the subject matter of the case that a certificate of discovery compliance cannot be valid without them. In the instant case the motor vehicle accident report is such a discoverable item.

Defendant is charged with violating VTL §§ 1192.1, Driving While Ability Impaired by Alcohol and 1192.3, Driving While Intoxicated. To convict the defendant of VTL § 1192.1 the prosecution must prove two elements: 1) that defendant operated a motor vehicle; and 2) that the defendant did so while his ability to operate the motor vehicle was impaired by the consumption of alcohol. To convict the defendant of VTL § 1192.3 the prosecution must prove two elements: that the defendant operated a motor vehicle; and 2) That the defendant did so while in an intoxicated condition.

In this case the police officer did not see the defendant operating the moped. It is alleged that the arresting officer heard a collision, went to the scene, and observed defendant on the ground next to a moped with an open White Claw. The collision is how the People will prove operation at trial. The motor vehicle accident report is therefore so germane to the incident that the importance of the document goes well beyond mere relation to the incident. In fact, the document is relevant enough to the charges that it would be admissible at trial. Even if it is not, the motor vehicle accident report speaks directly to an essential element of the People's case—operation. Therefore, the motor vehicle accident report is so interwoven into the case that it must be given more weight when determining the seriousness of the discovery violation.

In opposition to the defendant's motion, the People did not contest that the motor vehicle accident report exists. "Normally what is not disputed is deemed to be conceded" People v Gruden, 42 NY2d 214, 216 (1977); see People v Cole, 73 NY2d 957, 958 (1989). The people bear the burden of proving that they exercised due diligence in ascertaining the existence of the motor vehicle accident report and due diligence in obtaining the report should it exist. Here, the people emailed the arresting officer to ask if the report existed and requested it. The problem is that they did nothing more. They also only emailed the arresting officer on November 8, 2024, and only in response to defense counsel's diligent conferral. This is not due diligence by the People.

Additionally, the People served and filed four supplemental COC's in this case — none of [*4]which provided a reason for the belated disclosure of the IDTU paperwork, photographs of the moped, and body cam of the IDTU officer. The People's COC was filed through EDDS on October 15, 2014. Moreover, each supplemental COC was served and filed after ninety-days had elapsed and the underlying material was only disclosed after defense counsel flagged the same as missing. The missing discovery should have been obvious to a diligent prosecutor familiar with the prosecution of a DWI case.

The third supplemental COC, filed on November 12, 2024, contained the following additional discovery material disclosed to the defense: "1. IDTU OFFICER ACTIVTY LOG RECEIVED ON 11/12/24 2. IDTU BODY WORN CAMERA FOOTAGE (X1) AND METADATAAND EVIDENCE AUDIT TRAIL RECEIVED ON 11/12/24 3. PHOTOS X3, RECEIVED FROM OFFICER ON 11/8/24." The court takes note that this supplemental certificate does not describe the photographs received from the officer. The People disclosed the photos after defense counsel inquired as to the whereabouts of photos taken of the allegedly damaged moped. And such is the reason why supplemental certificates of compliance are required to explain belated discovery—so the court is not required to make assumptions and guesses.

The fourth supplemental COC, filed on December 14, 2024, states that the following documents were disclosed to defense counsel: "Activity Log for Officer Szymon Torbaii" and the "IDTU Packet" (containing "Intoxicated Driver Arrest, Interrogation Warnings to Persons in Police Custody, Report of Refusal to Submit to Chemical Test, and 4. Intoxicated Driver Examination — Blood").

These materials were only disclosed to defense counsel after his diligent conferral email. While it is great that the conferral process envisioned by the legislature worked in this instance, it is not a cure-all for the People's failure to disclose the prescribed material.

The People's third supplemental certificate of compliance lists photographs received from an unnamed officer. The supplemental certificate does not describe what these photographs are of. The People did disclose the photos after defense counsel inquired as to the whereabouts of photos taken of the allegedly damaged moped. The court can guess based on the conferral emails that are in the parties' motion papers but will not. It will not do so because it is the People's responsibility to explain the reason for belated discovery. C.P.L. § 245.50[1-a]. What the court will do is note that defense counsel requested photographs of the moped that was involved in the collision that alerted the police officer to the scene. This alleged accident is how the People would prove operation of the moped, an element of both charges, at trial. Such photographs would be so germane to the subject matter of the case that a certificate of compliance cannot be valid without them.

The People announced "ready" on a DWI case before providing defense counsel with discoverable items form the IDTU. They belatedly disclosed, without explanation, The IDTU packet (consisting of the intoxicated driver arrest, the interrogation warnings, the report of defendant's refusal to submit to a chemical test, and the intoxicated driver examination including the testing of defendant's blood), IDTU Officer Activity Log, IDTU Body Worn Camera Footage, and BWC metadata. These materials were not given to defense counsel until 45 days [*5]after the People announced ready. The defendant is charged with operating a motor vehicle under the influence of alcohol. Therefore, anything associated with the NYPD Intoxicated Driver Testing Unit is squarely in the middle of the spectrum of discoverable material. Yet, the People did not disclose these materials until after defense counsel conferred with the People. This is not due diligence by the People.

Additionally, the People's supplemental certificates of discovery compliance provide no explanation for this delay. Under C.P.L. § 245.50[1-a], the People's four supplemental certificates of compliance were clearly deficient. "That provision requires the People to "detail" the "basis for the delayed disclosure so that the court may determine whether the disclosure impacts the propriety of the certificate of compliance." (C.P.L. § 245.50[1-a]). However, none of the People's four supplemental certificates provide any explanation for why these materials were belatedly disclosed—whether the information was newly created or whether it was information the NYPD possessed all along. People v Marte, 82 Misc 3d 528, 537 (Crim Ct 2023). In fact, the court can only conclude, based on the sequence of events that the People merely disclosed it because defense counsel asked for it. This is not due diligence by the People.

Applying the factors enumerated in Bay, the court finds that defendant's motion to invalidate the People's certificate of compliance is justified as the People's declaration of readiness was illusory.

The accusatory instrument was filed on July 29, 2024, the People filed their invalid COC and SOR on October 15, 2024, and defense counsel filed the underlying motion on November 25, 2024. As the court finds the People's COC and SOR to be invalid, the People are charged a total of one-hundred-nineteen 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.