County Court, Franklin County, February 10, 2020

Thomas G. Soucia, Public Defender, Malone, for defendant.

Craig P. Carriero, District Attorney, Malone, for plaintiff.

On August 28, 2019, defendant was indicted for aggravated unlicensed operation of a motor vehicle in the first degree, unlicensed operation of a motor vehicle, and moving from a lane unsafely. The People declared readiness for trial by memorandum filed on September 4, 2019. On January 1, 2020, Criminal Procedure Law article 245 became effective. On January 13, 2020, pursuant to Criminal Procedure Law § 245.50, the People filed a certificate of compliance which included a certificate of readiness for trial. The certificate of compliance states that the People have complied with the requirements of the new discovery statute, Criminal Procedure Law § 245.20.

Pursuant to Criminal Procedure Law § 30.30 (5), the court made inquiry, on January 27, 2020, on the record, as to the prosecutor's actual readiness. The People admitted that the New York State Police had not provided the People with certain radio logs, evidence which is required to be disclosed to the defense. The People stated that they previously reached out to the New York State Police regarding that evidence and anticipated the production shortly. The People claimed that they are entitled to a 30 day extension of their discovery obligations pursuant to Criminal Procedure Law § 245.10 (1) (a) which permits an automatic 30 day extension if the prosecution is not in actual possession of discoverable evidence despite diligent, good faith efforts. No motion is necessary. That automatic extension would expire on February 14, 2020.^[FN*]

At the time of the court's inquiry, defendant's counsel moved to strike the certificate of compliance and readiness and subsequently submitted, on January 31, 2020, at the court's invitation, a memorandum of law explaining defendant's position. However, by that time, the People had already, on January 29, 2020, filed a supplemental certificate of compliance pursuant to Criminal Procedure Law § 245.50 (1) in conjunction{**67 Misc 3d at 315} with Criminal Procedure Law § 245.60. Defendant's memorandum does not challenge the sufficiency of the supplemental certificate of compliance. Therefore, the court must conclude that any discovery which was allegedly due at the time of the filing of the first certificate of compliance has now been provided to the defense.

The issue before the court is whether the certificate of compliance and readiness filed on January 13, 2020, is illusory. Defendant makes four separate arguments.

First, he claims that the People are not entitled to the automatic 30 day extension because of an alleged lack of diligence or good faith in obtaining those records. This claim is contradicted by defendant's counsel's own affidavit where he concedes that the People, in their "Notice and Disclosure" filed on January 13, 2020, alerted the defense to the existence of certain evidence and that three emails were exchanged between the District Attorney and the New York State Police between January 1 and 13, 2020, in an effort to obtain that evidence. The court concludes that three emails in 13 days demonstrate good faith and diligence. Therefore, the People are entitled to the automatic 30 day extension provided by Criminal Procedure Law § 245.10 (1) (a).

Secondly, and thirdly, defendant alleges that a certificate of compliance and readiness may not be filed prior to complete compliance with the People's discovery obligations. This is contradicted by Criminal Procedure Law §§ 245.55 ("Flow of information") and 245.60 ("Continuing duty to disclose") which independently and jointly contemplate ongoing disclosure as new information becomes available. Moreover, the imposition of sanctions or remedies for failure to provide discovery in a timely manner is authorized by Criminal Procedure Law § 245.80. Such sanctions may, conceivably, include the striking of the certificates of compliance and trial readiness but only if the defendant shows actual prejudice. Defendant herein has not alleged any prejudice whatsoever.

Defendant's argument is not completely unreasonable. The court notes that the language of the first half of Criminal Procedure Law § 245.50 (1) clearly states that the certificate of compliance "shall state that . . . the prosecutor has disclosed and made available all known material and information subject to discovery."

Here, the prosecutor alerted the defense to the existence of the material and information but did not make it available{**67 Misc 3d at 316} because the prosecution had not yet received it from the New York State Police, despite the three emails.

The second half of Criminal Procedure Law § 245.50 (1) contains language which is contradictory of the first half. It states:

"If additional discovery is subsequently provided prior to trial pursuant to section 245.60 of this article, a supplemental certificate shall be served upon the defendant and filed with the court . . . . No adverse consequence to the prosecution or the prosecutor shall result from the filing of a certificate of compliance in good faith; but the court may grant a remedy or sanction for a discovery violation as provided in section 245.80 of this article."

Most significantly, Criminal Procedure Law § 245.80 (1) is discretionary. It states that belated disclosure of discoverable material or information "shall" result in a remedy or sanction which is "appropriate." The appropriateness is left to the court's discretion. Moreover, such a discretionary remedy or sanction "shall" be imposed only when the defense is "prejudiced." Here, even if the court concludes that the certificate of compliance, filed on January 13, 2020, was premature, no prejudice is alleged by the defense.

Furthermore, Criminal Procedure Law § 245.60 refers to discoverable material or information that the prosecutor (or defense) "learns" of after the filing of the initial certificate of compliance. Such material or information must be disclosed "expeditiously." The defense has taken the narrow position that Criminal Procedure Law § 245.50 (1) does not apply to the present facts because the prosecution was aware of the existence of the material or information at the time of the filing of the original certificate of compliance. Therefore, according to the defense, the only remedy is to strike the original certificate of compliance and the People's readiness for trial as well.

The court concludes that the interpretation of the word "learns," as suggested by the defense, is far too narrow in the context of Criminal Procedure Law article 245. Here, the prosecution disclosed the existence of the material or information on January 13, 2020, and provided the actual material or information only 16 days later, on January 29, 2020, together with a supplemental certificate of compliance. Essentially, if the court accepted the defendant's narrow interpretation, then Criminal Procedure Law § 245.60 could be read to insulate the {**67 Misc 3d at 317}prosecution from any sanction if a police agency concealed information from the People, and then the People subsequently learned of the evidence, while simultaneously exposing the People to a sanction where the People disclose the existence of the evidence, in good faith, prior to actually obtaining a physical copy of it. Even if this court's broader interpretation of the word "learns" would be held to be error, the court would exercise its discretion, pursuant to Criminal Procedure Law § 245.80 (1), and refrain from striking the People's certificate of compliance.

The court notes that the defense is required to comply with its discovery obligations within 30 days of the filing of the People's certificate of compliance. Arguably, the defense has been prejudiced because its discovery obligations must be completed by February 12, 2020, despite the missing materials or information. As a remedy, the court will extend defendant's time to comply with his discovery obligations until 30 days after the January 29, 2020 filing of the People's supplemental certificate of compliance.

Fourth, the defense alleges that seven other categories of discoverable materials are still missing. The prosecution states that certain of the information or materials have been provided and that the others do not exist. The record is insufficient for the court to reach a conclusion regarding those seven categories. Therefore, pursuant to Criminal Procedure Law § 245.35, the court directs the parties to confer diligently to attempt to reach an accommodation as to any dispute concerning discovery. If the parties are not able to resolve their disagreements, then either party may request a discovery conference. Only after diligent efforts have been made, and any discovery conference is unsuccessful, may either party move for an order pursuant to Criminal Procedure Law § 245.30.

Finally, the defense specifically requests that the court strike the People's certificate of readiness. The defense has not stated any reason why the materials and evidence which were identified on January 13, 2020, and provided on January 29, 2020, have any value to either party at trial. Moreover, Criminal Procedure Law §§ 245.30, 245.35, 245.55, and 245.60 all contemplate disclosure of materials and evidence after the filing of the initial certificate of compliance and certificate of readiness. Therefore, delayed disclosure does not, alone, require the striking of a certificate of readiness, especially where the defense has not alleged any prejudice. Even if prejudice is proved, the{**67 Misc 3d at 318} court has other, less extreme, remedies available, such as giving the defense additional time to respond to the new material (see CPL 245.80). The court considers the striking of a certificate of readiness to be a drastic remedy which should be used both sparingly and judiciously.

Now, therefore, for the reasons set forth herein, it is ordered that defendant's motion to strike the People's certificate of compliance, filed on January 13, 2020, be, and the same hereby is, denied; and it is further ordered that defendant's motion to strike the People's certificate of readiness, filed on January 13, 2020, be, and the same hereby is, denied; and it is further ordered that the parties confer diligently to attempt to reach an accommodation as to any dispute concerning discovery; that, if the parties are not able to resolve their disagreements, then either party may request a discovery conference; and that only after diligent efforts have been made, and any discovery conference has been unsuccessful, either party may move for an order pursuant to Criminal Procedure Law § 245.30; and it is further ordered that the time for the defendant to comply with his discovery obligations be, and the same hereby is, extended until February 28, 2020.