Criminal Court of the City of New York, Bronx County, October 9, 2020

The Legal Aid Society (Willoughby Jenett of counsel) for defendant.

Darcel D. Clark, District Attorney (Madeline Smith of counsel), for plaintiff.

On June 12, 2020, Governor Cuomo signed a bill repealing Civil Rights Law § 50-a, which protected police officers' personnel records from public inspection without court approval or, in narrow circumstances, a prosecutor's subpoena (L 2020, ch 96, § 1 [2020 NY Senate-Assembly Bill S8496, A10611]). In light of this legislative change, the defendant filed the instant motion to ask the court to reconsider its earlier decision holding that the People had no obligation to turn over their witness' disciplinary records from an internal investigation by the police department (67 Misc 3d 391 [Crim Ct, Bronx County 2020]). In addition, the defendant contends that the People's failure to serve maintenance records for the breathalyzer machine that was used in this case invalidates their certificate of compliance (COC). Finally, he argues that his statutory speedy trial right was violated by the ineffective COC and moves for dismissal under CPL 30.30.

Based upon the recent legislative changes, the court grants the defendant's motion to renew (CPLR 2221 [e]). Upon reconsideration, the court adheres to its ruling from February 20, 2020. For the reasons stated below, the court also rejects the defendant's motion to deem the COC invalid for the prosecution's failure to provide maintenance records. As for the defendant's motion to dismiss, the court concludes that 64 days{**70 Misc 3d at 470} are chargeable. Accordingly, the defendant's motion is denied in its entirety.

The defendant was arrested on March 15, 2019, and charged with two counts of driving while intoxicated (DWI) (Vehicle and Traffic Law § 1192 [2], [3]) and one count of driving while ability impaired (Vehicle and Traffic Law § 1192 [1]). On January 20, 2020, the People filed and served off-calendar their automatic disclosure form. They also filed and served a COC and a statement of readiness during the defendant's court appearance on January 23, 2020. A one-page document titled "Giglio Material" was attached to the COC and it provided, in relevant portions, "PO Lyubchenko [*2]received a partially substantiated IAB, where no action was taken for an incomplete/inaccurate property clerk invoice on 08/05/2019."

On January 23, 2020, defense counsel challenged the validity of the COC on several grounds. As relevant to the decision here, he argued that the People's disclosure of Officer Lyubchenko's partially substantiated complaint without also providing the underlying reports fell short of meeting their Brady and discovery obligations (see Giglio v United States, 405 US 150 [1972]; Brady v Maryland, 373 US 83, 87 [1963]; CPL 245.20 [1] [k]). He maintained that at a minimum, the People needed to provide substantive materials from the Internal Affairs Bureau (IAB) investigation to the court for an in camera review.

On the other hand, the People opposed by claiming that the IAB records sought by the defense were privileged internal police agency documents that may not be accessed without a subpoena or an order by the court. They further objected on relevance grounds because there were no issues relating to accuracy of the property invoice in this case. Defense counsel rebutted generally by pointing out that most of the DWI cases involve challenging police paperwork at trial.

After oral argument, the court directed the People to provide all of the IAB documents in their possession for an in camera review. The People promptly provided a two-page document titled, "New York City Police Department Central Personnel Index." The court then adjourned the case for further written submissions by the parties and adjourned the case for decision to February 20, 2020.

On February 20, the court issued a written decision (February 20 decision) holding, in part, that the People were not{**70 Misc 3d at 471} required to provide any more records from the IAB investigation. During the court appearance, defense counsel informed the court that he was made aware during the appearance of an unrelated case that the Intoxilyzer machine that was used in this case had been taken out of service in July and August 2019. He further stated that he did not have any maintenance records related to this. The People stated that they did not know that the machine was taken out of service, but they agreed that if the out-of-service documents existed, they would be discoverable pursuant to CPL 245.20 (1) (s).

Based on this new development, the court directed the People to provide the records to the defense immediately and to file a supplemental COC. The defense objected, arguing that the COC has been invalidated based on the People's failure to furnish all of the required discovery materials. The court rejected that argument and held that the COC from January 23 was valid. The case was then adjourned to March 26 for hearings and trial. It is undisputed that the People provided the maintenance records to the defense counsel on February 20. They also filed a supplemental COC on the following day, February 21.

Prior to the next scheduled court date, the entire court system in New York had to shut down the administration of nonessential services due to the COVID-19 pandemic. As such, this case has not been heard on the record since February 20. In the meantime, on June 12, 2020, a bill repealing Civil Rights Law § 50-a was signed into law, effective immediately (L 2020, ch 96, § 1 [2020 NY Senate-Assembly Bill S8496, A10611]). Defense counsel emailed the court on June 17, 2020, asking for reconsideration of the February 20 decision as the now-repealed statute was a part of the basis for why his motion for the underlying IAB records was denied. The court invited a formal written submission by the defense, but none was received.

Subsequently, during a virtual Skype meeting with the court on August 7, 2020, defense counsel renewed his motion orally. The court once again invited written submissions [*3]from the parties. The defense filed the instant motion on August 22, 2020; the People timely responded on September 14, 2020.

1. The People have no obligation to provide documents from the IAB investigation.{**70 Misc 3d at 472}

After the oral argument on January 23, 2020, the People provided a two-page document titled "New York City Police Department Central Personnel Index" for Officer Lyubchenko (CPI). They also represented that this document constituted all of the records in their possession related to the partially substantiated complaint against the officer. This document listed the charges filed against the officer and the results of the investigation. At the same time, it did not have any attached reports nor contain information about the underlying facts.

In the February 20 decision, the court held that CPL 245.20 (1) (k) is a codification of existing Brady case law and did not expand the prosecutor's duties (67 Misc 3d at 397; see also William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, CPL 245.10). In other words, if something is Brady material, not only do the Federal and New York State Constitutions require the prosecution to disclose it, but the discovery statute does so as well—and it must be disclosed as part of the "automatic discovery" without a specific demand from the defendant (CPL 245.20 [1] [k]).^[FN1] By the same token, if something is not Brady material, the new discovery statute does not mandate more from the prosecutor and there is no added duty to disclose.

Under this framework, since the People would have no obligation to disclose the exonerated claims against the officers to the defense under the traditional Brady analysis, the court held that "the District Attorney had no duty [under the new discovery statute] to disclose the unsubstantiated allegations of misconduct that had been filed against the officers" (67 Misc 3d at 401, citing People v Ortega, 12 Misc 3d 1182[A], 2006 NY {**70 Misc 3d at 473}Slip Op 51381[U], *5 [Sup Ct, NY County 2006]).^[FN2] As for the partially [*4]substantiated charge of incomplete/inaccurate property clerk invoice, the court conducted a balancing test between the interest in protecting the confidentiality of personnel and disciplinary records of law enforcement officers against the defendant's Sixth Amendment right to confront and cross-examine adverse witnesses (see id.). Ultimately, the court ruled that the defendant failed to make a "clear showing of facts sufficient to warrant the judge to request records for review" and denied the defendant's motion (id., citing Civil Rights Law § 50-a [2], [3] [repealed June 12, 2020]).

In the instant motion, the defendant asks the court to reconsider the February 20 decision based on the repeal of section 50-a. Because Officer Lyubchenko's privacy interests are not protected by the statute anymore (subject to Public Officers Law §§ 86 and 87 in the case of requests arising under the Freedom of Information Law), the defendant contends that the balancing test is no longer required and the only reigning consideration is his constitutional right to confront and cross-examine witnesses. In that regard, the defendant claims that only the broad mandate of the discovery statute is controlling, and it extends to the underlying materials from the investigation. In addition, he argues that under People v Smith (27 NY3d 652 [2016]), even the unsubstantiated claims of misconduct give him a good faith basis to ask questions about them. If he can ask questions about them, he maintains, he is entitled to obtain such records from the prosecution. Finally, the defendant argues that the CPI is merely a summary, and the People must review all of the documents related to the investigation to meet their Brady and discovery obligations.

On the other hand, the People urge the court to uphold its earlier decision. They argue that the repeal of section 50-a did little to change the legal analysis contained in the February 20 decision. They cite several recent trial court cases that have held that the prosecutor's Brady obligation was fully discharged by disclosing information regarding the officer's misconduct without also having to obtain and produce the underlying records.{**70 Misc 3d at 474} Further, the People contend that because section 50-a has been repealed, the defense is now able to request and obtain the disciplinary records as well.

[1] Having carefully reconsidered the issues presented herein in light of the repeal of Civil Rights Law § 50-a, the court once again rejects the defendant's motion. The prosecution's Brady obligation extends to the information that is "favorable to the defense, material either to guilt or punishment, or affecting the credibility of prosecution witnesses" (People v Baxley, 84 NY2d 208, 213 [1994]). Since they have no effect on the witness's credibility, unfounded or exonerated claims do not fall within the category of favorable information that must be disclosed regardless of whether section 50-a protects the officer's personnel records (see also People v Randolph, 69 Misc 3d 770, 772 [Sup Ct, Suffolk County 2020] ["IAB files involving allegations that have been determined to be exonerated or unfounded are not required to be provided as part of automatic discovery"]). Nor does the discovery statute require more disclosure.

The defendant's reliance on Smith is misplaced as well. The central issue in Smith was "whether the trial courts abused their discretion in precluding any cross-examination into allegations of a law enforcement officer's prior misconduct made in an unrelated federal lawsuit" (27 NY3d at 659). After deciding that civil lawsuits could provide a good faith basis for cross-examination at trial, the Court of Appeals held that the trial courts' preclusion of the defense from asking questions about them was an abuse of discretion. At the same time, the Court cautioned that "the specific [*5]allegations must be relevant to that witness's credibility" and "whether to permit inquiry into such prior bad acts for impeachment purposes are discretionary calls" for the trial courts (id. at 662-663).

In the instant case, by arguing that Smith mandates the prosecutor to provide the underlying IAB materials, the defendant conflates the issues of his right to cross-examine and the prosecutor's duty to disclose. As noted above, the People are not required to produce any documents related to the claims of misconduct in which the officer was exonerated as they do not constitute Brady material. In addition, because the officer was exonerated, the defendant has no good faith basis for cross-examination about those claims (Randolph at 772).{**70 Misc 3d at 475}

With regards to the partially substantiated complaint,^[FN3] the court once again determines that the prosecutor has fully and adequately discharged her duties. A recent case, People v Suprenant (69 Misc 3d 685 [Glen Falls City Ct 2020]), is directly on point. In that case, the defendant was charged with several misdemeanor crimes of criminal mischief and petit larceny. The People filed a COC on April 3, 2020. Following the repeal of section 50-a, defense counsel challenged the COC's validity by claiming, among others, that the police officer witnesses' internal disciplinary records were not produced. The People asserted that they met both their Brady and discovery obligations by providing to defense counsel information about the disciplinary actions and a method to obtain them directly from the police agency.

The Suprenant court agreed with the People. It concluded that "contrary to the defendant's assertion, CPL article 245 does not mandate the People to obtain the police officer's disciplinary files for the defendant and produce those files to defense counsel" (id. at 693). Instead, the court pointed to the language of the statute, which "clearly provides that the 'prosecutor shall make a diligent, good faith effort to ascertain the existence of material or information discoverable . . . and to cause such material or information to be made available for discovery' " (id., citing CPL 245.20 [2]). Based on this language, the court determined that the People's discovery obligation was satisfied "where they disclose the existence of the officer's disciplinary records and either produce copies of the records or cause the material or information to be made available to defense counsel" (id.).

The reasoning and holding in Suprenant are persuasive. To begin, as in the February 20 decision, the court once again finds that the defendant has failed to provide a compelling reason for why the incomplete property invoice claim is relevant and material to his guilt or innocence or the officer's credibility in this case. It is well-settled that nondisclosure of the evidence that has "mere general impeachment value" does not constitute a Brady violation (Martin, 240 AD2d at 9; People v Fernandez, 249 AD2d 3, 5 [1st Dept 1998] ["where the impeachment information has no bearing on defendant's guilt or innocence, such as where the prosecution witness's misconduct is{**70 Misc 3d at 476} completely unrelated to the trial at which he is testifying and the witness's testimony is not crucial to the prosecution's case, its nondisclosure does not constitute a Brady violation"]). Furthermore, the plain language of the new discovery statute only requires the People to disclose the information that is favorable to the defendant, but not necessarily the underlying material as well. Requiring the People to produce the underlying records would be "an onerous requirement" that "would go far beyond 'a diligent, good faith effort' on the People's part to provide the defendant with impeachment [*6]material related to one of their witnesses" (People v Lustig, 68 Misc 3d 234, 243-244 [Sup Ct, Queens County 2020] [citation omitted]; see also People v Knight, 69 Misc 3d 546 [Sup Ct, Kings County 2020] [rejecting the defendant's claim that the prosecution must produce underlying records in addition to the disclosure of alleged misconduct by the police witnesses to satisfy their obligation under CPL 245.20 (1) (k) (iv)]; People v Gonzalez, 68 Misc 3d 1213[A], 2020 NY Slip Op 50924[U] [Sup Ct, Kings County 2020] [holding that the People's disclosure that a potential witness had two substantiated allegations and one pending allegation of misconduct unrelated to the case satisfied their obligation under CPL 245.20 (1) (k) (iv)]). This is especially so when, with the repeal of section 50-a, the information is equally accessible to the defense.

Finally, the court also rejects the defendant's argument that the assigned prosecutor must review all of the underlying documentation from the IAB investigation rather than relying on the CPI. Since the defendant has been made aware of the partially substantiated complaint, nondisclosure of the underlying materials cannot be considered a Brady violation (People v Wade, 166 AD3d 912, 913 [2d Dept 2018]). Even assuming, arguendo, that there is more favorable information in the form of impeachment materials, a prosecutor's " 'duty to learn' of favorable evidence known to those 'acting on the government's behalf' has generally been held to include information that directly relates to the prosecution or investigation of the defendant's case" (People v Garrett, 23 NY3d 878, 888 [2014]). The materials at issue are from different incidents and bear "no relationship to the case against the defendant, except insofar as it would be used for impeachment purposes" (id. at 889). Accordingly, any knowledge may not be imputed to the prosecutor, nor is there a "rule that would impose an affirmative duty upon the police to obtain potentially exculpatory evidence{**70 Misc 3d at 477} for the benefit of a criminal defendant" (People v Hayes, 17 NY3d 46, 51 [2011]).

For the foregoing reasons, the defendant's motion to direct the People to disclose materials related to Officer Lyubchenko's IAB investigation is denied.

2. Defendant's challenge to the COC's validity is denied.

In a criminal case, a prosecutor has a duty to disclose certain items in their possession, custody or control to the defendant before a case may be brought to trial. New discovery laws that became effective on January 1, 2020, provided a non-exclusive list of items that must be disclosed "automatically," without a specific demand from the defendant (CPL 245.20 [1]). The timing of the automatic discovery and what may be held back by the prosecution without a protective order were subsequently amended (see e.g. CPL 245.10, 245.20, as amended by L 2020, ch 56, § 1, part HHH, § 2 [eff May 3, 2020]).

Under either iteration of the discovery statute, when the prosecution has provided discovery required by the statute, they must file and serve a COC pursuant to CPL 245.50 (1). The COC must 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 [1]). The statute also requires the COC to identify the items provided (id.).

The prosecutor also has a continuing duty to disclose (CPL 245.60). If the People learn of additional material or information which should have been disclosed under CPL 245.50 (1), they must "expeditiously notify the other party and disclose the additional material and information" (id.). In such an event, the People must also file and serve a supplemental certificate of compliance, which must list the additional material and information provided (CPL 245.50 [1]). Finally, "[n]o adverse consequence to the prosecution or the prosecutor shall result from the filing of a certificate of compliance in good faith and reasonable under the circumstances" although the court "may grant a remedy or sanction for a discovery violation" (id.).

The defendant challenges the validity of the People's COC from January 23, 2020 (January 23 COC) on the grounds that they did not disclose nor produce out-of-service records for the breathalyzer machine that was used during his arrest (Intoxilyzer 9000 instrument No. 90-002040). More specifically, a field{**70 Misc 3d at 478} inspection report dated July 26, 2019, states that the breathalyzer was "taken out of service 7/25/19 at 2200 hrs due to simulator overheating. Simulator MP4514 has been replaced by simulator MP4515. Simulator solution was changed with new solution, same lot 19090. Upon inspection instrument was found to be in proper working order and placed back in service" (People's exhibit 6). In addition, there is a handwritten note from Highway Officer Coffey from August 5, 2019, which states that "INTOXILYZER 9000 SERIAL NUMBER 90-002040 IS OUT OF SERVICE DUE TO SIMULATOR SOLUTION FAILURE" (People's exhibit 4). It is undisputed that these documents would have been discoverable under CPL 245.20 (1) (s), and that they had not been furnished prior to February 20, 2020. It is further undisputed that the prosecutor immediately provided the items in question on February 20 after the defense counsel's demand on the record. A supplemental COC was filed on February 21, 2020.

On the one hand, the defense claims that the January 23 COC cannot be deemed valid as the People failed to provide all of the items that should have been disclosed prior to its filing. On the other, the People assert that they were unaware of the existence of these materials and they had made a good faith effort to obtain and furnish all of the discoverable items prior to their January 23 COC. Furthermore, they argue that the maintenance records at issue were obtained and provided to the defense counsel as soon as their existence was learned, and that the defense suffered no prejudice as a result of this nondisclosure. The defendant does not challenge the prosecutor's assertion that she was unaware of these documents (tr at 3, lines 9-10 [Feb. 20, 2020]). At the same time, he contends that even if the assigned prosecutor did not know about the existence of these materials, it was still within the general knowledge of the New York City Police Department and the Bronx District Attorney's Office.

[2] The court orally accepted the People's January 23 COC and again in its written decision on February 20, 2020, and sees no reason to disturb them. First and foremost, the court finds that the People exercised due diligence and made a good faith effort to obtain and provide all of the discoverable items to the defense in a timely fashion. A quick inspection of the January 23 COC reveals that the People have provided the following items: arrest report, sprint/radio run reports, DA summary, prisoner movement slip, NYSPIN records, IDTU{**70 Misc 3d at 479} video, calibration reports, breath analysis test report, chemical test analysis, intoxicated driver arrest report, interrogation warnings to persons in police custody, highway district intoxicated driver examination, Intoxilyzer 9000 NHTSA approved, gas chromatography data, IDTU officer's health cards, calibration reports for PBT, dash camera footage, calibration reports, field unit inspection reports, simulator solution records, IDTU roll call logs, IDTU command logs, PO Lyubchenko's memo book, radio run audio, PO Vitale's memo book, and Giglio material. The COC further states that the People have disclosed these items over multiple dates: May 13, 2019, December 12, 2019, January 21, 2020, and January 22, 2020.

Under such circumstances, although the maintenance records may have been within the general knowledge of the police department and/or the prosecutor's office, Justice Hornstein's language in People v Erby resonates with the court:

"[T]he new discovery law, designed as it was to be remedial in nature, should not be construed as an inescapable trap for the diligent prosecutor who professionally, assiduously and in good faith attempts to comply with their new and extensive requirements under the discovery statute, but through no fault of his or her own, is unable to comply with every aspect of the automatic discovery rules specified in CPL 245.20" (68 Misc 3d 625, 633 [Sup Ct, Bronx County 2020]).

The court finds that the prosecutor's initial disclosures were reasonable and made after exercising due diligence (CPL 245.50 [1]).

Moreover, it is clear that the prosecutor has appropriately discharged her continuing duty to disclose under CPL 245.60. As soon as she learned of the materials that should have been disclosed, she obtained and made them available to the defense expeditiously. As a result, the defendant did not suffer any prejudice. Thus, the branch of the defendant's motion that seeks to have the January 23 COC invalidated by the People's subsequent disclosure of the breathalyzer's out-of-service records is denied (see also People v Nelson, 67 Misc 3d 313, 314 [Franklin County Ct 2020]; Knight at 552 ["very few discovery items were provided to defendant after the People's certificate of compliance dated February 21, 2020. Their absence from the original certificate of compliance does not vitiate it"]; cf. People v Adrovic, 69 Misc 3d 563 [Crim Ct, Kings County 2020] [COC{**70 Misc 3d at 480} deemed invalid in a drug possession case where the People did not disclose necessary lab reports, police officer memo books, names and affiliations, and provided no reasonable explanation for failure to disclose the materials]).

3. Defendant's motion to dismiss is denied.

The People have a duty to bring a case to trial within the authorized speedy trial time. Their failure to do so results in dismissal of the charges against the defendant. Under CPL 30.30, the People satisfy their obligation once they declare their readiness for trial (People v Giordano, 56 NY2d 524 [1982]). The People are "ready" for trial when they serve "either a statement of readiness by the prosecutor in open court, transcribed by a stenographer, or recorded by the clerk or a written notice of readiness sent by the prosecutor to both defense counsel and the appropriate court clerk" (People v Chavis, 91 NY2d 500, 505 [1998]). The People must "in fact be ready to proceed at the time they declare readiness" (id.). The People's declaration of readiness is "presumed truthful and accurate" and "a defendant who challenges such a statement must demonstrate that it is illusory" (People v Brown, 28 NY3d 392, 405 [2016]).

In a motion to dismiss pursuant to CPL 30.30, the initial burden rests on the defendant to allege that his right to speedy trial has been violated (see People v Luperon, 85 NY2d 71, 77-78 [1995]). Then, the burden shifts to the People to identify "the exclusions on which they intend to rely" (id. at 78). If the defendant disagrees, she "must identify any legal or factual impediments to the use of these exclusions" (id.).

In this case, the defendant is charged with Vehicle and Traffic Law § 1192 (2) and (3), and the applicable speedy trial time is 90 days (CPL 30.30 [1] [b]). The parties do not dispute, and the court agrees, that a total of 41 days are chargeable from the date of arraignment to December 16, 2019. What is disputed is whether the period from January 23, 2020, is chargeable based on the defendant's challenge to the People's COC. The following constitutes the court's analysis:

[*8]December 16, 2019—January 23, 2020

On December 16, 2019, the People answered ready for trial. The case was adjourned to January 23, 2020, at the defense request. On January 1, 2020, a new procedural framework for discovery compliance and trial readiness went into effect. Among those was CPL 245.50 (3), which provides, "absent an individualized finding of special circumstances," the People {**70 Misc 3d at 481}cannot be deemed ready for trial purposes unless a proper COC has been filed. As the procedural changes apply to all pending matters, the People in the instant case must also file a COC before they may announce ready for trial (People v Berkowitz, 68 Misc 3d 1222 [A], 2020 NY Slip Op 51044[U], *3 [Crim Ct, Kings County 2020] ["The statutory amendments concerning the speedy trial and discovery law apply to all pending proceedings as of the January 1, 2020 effective date"], citing McKinney's Cons Laws of NY, Book 1, Statutes § 55; Wade v Byung Yang Kim, 250 AD2d 323 [2d Dept 1998]; People v Lobato, 66 Misc 3d 1230[A], 2020 NY Slip Op 50322[U] [Crim Ct, Kings County 2020]). Accordingly, the period from January 1, 2020, until January 23, 2020, when the COC was filed is chargeable (see People v Villamar, 69 Misc 3d 842, 848 [Crim Ct, NY County 2020] [prosecution may not answer ready for trial until it has filed a proper COC]; People v Adrovic, 69 Misc 3d 563, 575 [Crim Ct, Kings County 2020]; People v Barnett, 68 Misc 3d 1000, 1002 [Sup Ct, NY County 2020]; cf. People v Roland, 67 Misc 3d 330 [Crim Ct, Kings County 2020] [first 15 days from January 1, 2020, are excluded for the purposes of speedy trial calculations]; People v Dobrzenski, 69 Misc 3d 333 [Utica City Ct 2020]).

For the reasons discussed in the February 20 decision as well as the previous section of this decision (see 1. The People have no obligation to provide documents from the IAB investigation, supra), the court rejects the defendant's argument that the COC was invalid. Twenty-three days are charged.

January 23, 2020—February 20, 2020

On January 23, 2020, the People announced ready for hearings and trial. The defendant was on alert but was directed to appear as the case was being sent to a trial part. When the case was received by the court in TP6, the People informed the court and the defense that the precinct's roll call had released the officers. The defendant did not appear as he could not leave work.

During the court appearance, defense counsel raised various issues with the validity of the People's COC from January 23 and their statement of readiness. The court set a motion schedule at the defense request and adjourned the case for a decision on February 20, 2020. This period is not chargeable pursuant to CPL 30.30 (4) (a) (see also People v Douglas, 209 AD2d 161, 162 [1st Dept 1994]). Zero days are charged.{**70 Misc 3d at 482}

February 20, 2020—Now

Both the defense and the prosecution filed their motions timely on February 10, 2020. The court issued a written decision on February 20, 2020. As relevant to the instant decision, and discussed above (2. Defendant's challenge to the COC's validity is denied, supra), the court accepts the COC and the People's trial readiness from January 23. The case was adjourned to March 26, 2020, for hearings and trial.

On March 7, 2020, due to the pandemic, Governor Cuomo issued Executive Order No. 202 and declared a state of emergency for the entire State of New York (Executive Order [A. Cuomo] No. 202 [9 NYCRR 8.202]). On March 20, 2020, he issued Executive Order No. 202.8, which suspended criminal procedure law until April 19, 2020 (Executive Order [A. Cuomo] No. 202.8 [9 NYCRR 8.202.8]). There have been consecutive executive orders and the statutory speedy trial statute has remained suspended since.^[FN4] The Bronx Criminal Court suspended its nonessential services around this time as well and the case was administratively adjourned from March 26 to June 26; and from June 26 to October 9, 2020. This period is not chargeable because the People's COC was valid and the court is satisfied with the People's statement of readiness from January 23. Zero days are charged.

[3] Based on the foregoing reasons, the courts finds that a total of 64 days are chargeable. Accordingly, the defendant's motion to dismiss pursuant to CPL 30.30 (1) (b) is denied.

"[t]he general standard to measure the materiality of the failure to disclose Brady material, where there was no specific defense request for information in question, is whether there was a 'reasonable probability' that, had the evidence been disclosed to the defense, the result of the prosecution would have been different" (People v Vasquez, 214 AD2d 93, 101 [1st Dept 1995] [internal quotation marks and citations omitted]).

In comparison, where the prosecution fails to disclose material specifically requested by the defense, the standard changes to the "reasonable possibility" standard (id. [citation omitted]). Moreover, this legislative change may affect the question of whether the defendant has the right to challenge the validity of a guilty plea when postplea Brady information becomes known (see e.g. People v Martin, 240 AD2d 5 [1st Dept 1998]; People v Day, 150 AD2d 595 [2d Dept 1989]).