The defendant, Nick Georgiopoulos, is charged with Driving While Intoxicated (VTL § 1192[3]), as a class E felony, Aggravated Unlicensed Operation of a Motor Vehicle in the First Degree (VTL § 511[3][a][i]), Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree (VTL § 511[2][a][ii]), Operating a Motor Vehicle Without a License (VTL § 509[1]), Driving in Excess of the Maximum Speed Limit (VTL § 1180[d][1]), and Operating a Motor Vehicle Without an Ignition Interlock Device (VTL § 1198[9][d]).

The People filed a certificate of compliance, pursuant to CPL § 245.50[1], on October 30, 2020. The defendant now moves for a ruling deeming the People's certificate improper, arguing that the People failed to provide certain discoverable materials. The People oppose the defendant's motion.

On January 1, 2020, Article 245 replaced Article 240 of the Criminal Procedure Law. This change was a part of a package of criminal justice reforms intended to, inter alia, expand discovery in criminal cases. Shortly after these changes became effective, several amendments were made to the new law. (See NY Legis 56 (2020), 2020 Sess Law News of NY Ch 56 [S 7506-B] Part HHH [McKinney's].)

Pursuant to CPL § 245.20, prosecutors are now required to disclose "all items and information that relate to the subject matter of the case and are in the possession, custody or control of the prosecution or persons under the prosecution's direction and control." The statute further provides a non-exhaustive list of materials subject to disclosure under this provision. (CPL § 245.20[1].) CPL § 245.10 sets forth a timeline for these disclosures, requiring the People to comply with this automatic discovery obligation within a certain period of time, except in cases with "exceptionally voluminous" discovery materials, where initial automatic discovery may be stayed for an additional thirty days without the need for a motion.

In making such disclosures, the statute explains:

The prosecutor shall make a diligent, good faith effort to ascertain the existence of material or information discoverable under [CPL § 245.20(1)] and to cause such material or information to be made available for discovery where it exists but is not within the prosecutor's possession, custody, or control; provided that the prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain.

(CPL § 245.20[2].) And, importantly, "all items and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency shall be deemed to be in the possession of the prosecution." (CPL § 245.20[2].) Congruent with that provision, CPL § 245.55(1) directs that, "The district attorney and the assistant responsible for the case, . . . shall endeavor to ensure that a flow of information is maintained between the police and other investigative personnel and his or her office sufficient to place within his or her possession or control all material and information pertinent to the defendant and the offense or offenses charged . . . ." The statute also explicitly dictates that "[t]here shall be a presumption in favor of disclosure" in interpreting Article 245 (CPL § 245.20[7].)

In keeping with this principle, the People's discovery obligations are ongoing. Should the prosecution learn of additional material or information that it would have been required to disclose pursuant to CPL § 245.20, "it shall expeditiously notify the other party and disclose the additional material and information as required for initial discovery under this article." (CPL § 245.60.)

The new discovery law also, for the first time, ties the People's compliance with their discovery obligations to the calculation of speedy trial time pursuant to CPL § 30.30. Now, the People must file a certificate of compliance upon satisfaction of their discovery obligations under CPL § 245.20[1]. (CPL § 245.50[1].) Therein, the People must affirm 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." (Id.) In addition to this statement, the certificate must include a list of the discovery materials provided. (Id.) Moreover, if the People provide additional discovery in connection with their ongoing obligations outlined in CPL 245.60, they must file a supplemental certificate "identifying the additional material and information [*2]provided." (CPL § 245.50[1].) Notably, the statute also specifies, "No adverse consequence to the prosecutor 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 of this article." (CPL § 245.50[1].)

At the same time, the law makes the certificate of compliance a prerequisite to the People's trial readiness within the meaning of CPL § 30.30. Pursuant to CPL § 245.50(3), "absent an individualized finding of special circumstances in the instant case by the court before which the charge is pending, the prosecution shall not be deemed ready for trial for the purposes of section 30.30 of this chapter until it has filed a proper certificate pursuant to subdivision one of this section." The statute further clarifies that, "[a] court may deem the prosecution ready for trial pursuant to section 30.30 of this chapter where information that might be considered discoverable under this article cannot be disclosed because it has been lost, destroyed, or otherwise unavailable as provided by [CPL § 245.80(b)], despite diligent and good faith efforts, reasonable under the circumstances."^[FN1] And CPL § 30.30 also now reflects this change, stating, "Any statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of section 245.20 . . . ." (CPL § 30.30[5]).

An order deeming a certificate of compliance improper, then, necessarily amounts to a determination that the People's statement of readiness for trial is illusory. (See CPL § 30.30[5]; People v Barnett, 68 Misc 3d 1000, 1002 [Sup Ct NY Co 2020].) And the statute requires that "[c]hallenges to, or questions related to a certificate of compliance shall be addressed by motion." (CPL § 245.50[4].) However, for the purposes of evaluating a claim concerning the validity of a certificate of compliance, the statutory scheme does not define what constitutes a "proper" certificate, which it makes the prerequisite to an announcement of trial readiness. (CPL § 245.50[3].) Given that the statute specifies that "[n]o adverse consequences" shall adhere to the People based on the filing of a certificate that is filed "in good faith and reasonable under the circumstances," (CPL § 245.50[1]), the most reasonable inference is that such a certificate is "proper" within the meaning of CPL § 245.50[3] and, thus, fulfills that section's prerequisite to any valid statement of readiness by the People.

In this regard, numerous courts have found that belated disclosures should not invalidate a certificate of compliance that was made in good faith after the exercise of due diligence where the delay resulted from, for example, minor oversights in the production of material, delayed discovery of the existence of certain items, or a good faith position that the material in question was not discoverable. (See People v Erby, 68 Misc 3d 625, 633 [Sup Ct Bronx Co 2020]; People v Gonzalez, 68 Misc 3d 1213(A), *1, 3 [Sup Ct Kings Co 2020]; People v Knight, 69 Misc 3d 546, 552 [Sup Ct Kings Co 2020]; People v Lustig, 68 Misc 3d 234, 247 [Sup Ct Queens Co 2020]; People v Randolph, 69 Misc 3d 770, 770 [Sup Ct Suffolk Co 2020]; People v Davis, __ [*3]NYS3d__, 2020 NY Slip Op 20298, 2020 WL 6576095, at *5-7 [Crim Ct Bronx Co, October 9, 2020].) Indeed, in People v Erby, 68 Misc 3d at 633, a court of coordinate jurisdiction addressing a discovery challenge observed:

As the legislative history of Article 245 indicates, and as the Article's sanctions and remedies provisions suggest, the 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.

Similarly, in People v Knight, another court addressed a situation in which the People had provided "a very few [additional] discovery items" to the defendant after filing their certificate of compliance. (69 Misc 3d at 552.) The court concluded that "[t]heir absence from the original certificate of compliance does not vitiate it," reasoning that, "[b]y any measure it was filed 'in good faith' and 'reasonable under the circumstances'" and, thus, was "valid." (Id.)

In this court's view, good faith and due diligence are the touchstones by which a certificate of compliance must be evaluated. Accordingly, upon a challenge to a certificate of compliance, the People must articulate their efforts to comply with CPL § 245.20(1) with respect to the statutory subsections or specific items of discovery at issue. If the People establish that they exercised due diligence and acted in good faith in filing their certificate, their certificate of compliance shall be deemed valid. This may be accomplished by recounting the steps they took to obtain certain materials or ascertain the existence thereof, explaining the reasons why particular items are outstanding, lost or destroyed, and submitting their good-faith arguments for why certain materials are not discoverable under the statute. On the other hand, where the People fail to set forth their efforts to locate items of discovery or determine that they do not exist, or the efforts they describe do not amount to due diligence, their certificate may be invalidated.

In his motion, the defendant claims that the People's certificate of compliance is invalid, because the People failed to provide a number of items under three categories of discovery required by CPL § 245.20(1): police paperwork (CPL § 245.20[1][e]), reports and other paperwork concerning scientific tests (CPL § 245.20[1][j]), and certain reports and other evidence required for Vehicle and Traffic Law offenses (CPL § 245.20[1][s]). In the People's response, they address each item in turn.

The People's opposition papers, however, only describe their efforts to obtain the missing materials with respect to a few items. And, even for these items, they provide little information about the steps they took to obtain the necessary materials before filing their certificate of compliance. Further, for many items, the People's explanation for the absence of discoverable material is merely that it was not or is not in their actual possession. In relying on this argument, however, the People repeatedly overlook the statutory provision (CPL § 245.20[2]) that deems all police paperwork to be in the possession of the prosecution. Thus, the assertion that known discovery materials are not in their physical possession does not in any way excuse their failure to provide them. For the reasons that follow, this court can only conclude that the certificate filed by the People in this case was inadequate.

First, addressing several missing items in their opposition to the defendant's challenge, the People state only, "No such evidence or information is known at this time." (See People's [*4]Opposition, ¶ 2 [handwritten complaint worksheet], ¶ 3 [typed complaint report], ¶ 4 [handwritten arrest report].) This bare assertion does not provide the court with any information from which it can assess the People's due diligence and good faith in filing their certificate. It is entirely possible that these items do not exist in this case. The People, however, cannot merely rely on the fact that they do not know whether such material exists without articulating their attempts to discern whether the items exist and obtain them. If the People determine that certain material does not, in fact, exist, they should explain the inquiries they made that led to that conclusion. For example, if the prosecutor had a conversation with the arresting officer and the arresting officer advised them that he did not fill out a hand-written complaint, the People should say as much in their affirmation. On the other hand, if their search for the material was ultimately inconclusive, they should describe the search itself.

By itself, a failure to locate discovery material that may or may not exist would not invalidate a certificate of compliance, so long as the People demonstrated that they exercised due diligence and good faith in seeking to find it. Indeed, in many cases a simple oversight may also be excusable, so long as it is corrected and addressed with due diligence once it is brought to the prosecutor's attention. As discussed above, the absence of a few discovery items does not vitiate an otherwise-valid certificate of compliance. Consistent with that reasoning, it is not the absence of these materials on its own that this court finds inadequate, but rather, the People's failure to provide even a cursory explanation of why they are absent and how they sought to obtain them. Without that information, the People have not provided the court with any basis on which it could determine whether they exercised the requisite diligence.

Similarly, in the instances where the People do provide some explanation for missing discovery items in this case, it still falls short of evincing the diligence required by CPL § 245. For example, the People address their failure to provide the command log from the 112th Precinct as follows: "The People are not in possession of the command log from the 112th Precinct and the People last requested the command log from PO Lewis on 4/16/21. Once the People receive the command log, the People will file a supplemental certificate of compliance and will turn over the command log." The People do not detail or even outline in summary fashion their attempts, if any, to locate and disclose this material before filing their certificate of compliance. Indeed, the People do not describe any such attempts at any point in their entire response with respect to any item. Nor do they offer some reason here why the command log was not provided at the time they filed their certificate — such as a lack of awareness that this material even existed — that would excuse or mitigate the lapse. Further, they do not offer any legal argument that the material sought is outside the ambit of CPL § 245.20(1)(e). Again, from this sparse description, it is impossible for the court to find that the People exercised due diligence with respect to obtaining this material.

Importantly, this is not to say that this specific item is in fact discoverable, though the People's response seems to concede that it is. Moreover, this determination should not be read to amount to a finding that a certificate of compliance should always be nullified because the People failed to provide something like a command log. On the contrary, in this court's view, that would rarely, if ever, be the case. Instead, the problem is not the missing material itself, but the People's cumulative failure to provide explanations of their efforts to comply with their discovery obligations.

In that respect, they provide similarly meager explanations for the absence of two other items. (See People's Opposition, ¶ 1 [Report of Refusal], ¶ 7 [IDTU unit log]). While one such [*5]instance might not be an issue in the context of an otherwise-sufficient response, the People's repeated failure to illuminate this court as to their efforts in the furtherance of discovery compliance leaves the court without any basis on which it could find that this certificate met the standard set forth in CPL § 245.50.

As alluded to above, another recurring problem in the People's papers is their reliance on the assertion that certain materials are not in their possession. They do so with respect to nine of the fourteen items at issue in this challenge. (See People's Opposition, ¶ 1 [Report of Refusal]; ¶ 6 [command log from the 112th Precinct]; ¶ 7 [IDTU unit log]; ¶ 9 [tow receipts and paperwork for the vehicle]; ¶ 10 [dashboard camera video of the incident]; ¶ a [bench notes and laboratory information management system records for the portable breath test]; ¶ b[i] [maintenance and repair records and records of calibration for the portable breath test]; ¶ b [ii] [maintenance and repair records and records of calibration for moving radar instrument]; ¶ b [iii] [proof of certification for Police Officer Lewis]). This argument is misguided.

As noted above, CPL § 245.20(2) states, "all items and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency shall be deemed to be in the possession of the prosecution." Dovetailing with that provision, CPL § 245.55(1) dictates that, "The district attorney and the assistant responsible for the case, . . . shall endeavor to ensure that a flow of information is maintained between the police and other investigative personnel and his or her office sufficient to place within his or her possession or control all material and information pertinent to the defendant and the offense or offenses charged . . . ." Accordingly, all police paperwork is imputed to be in the People's control and it is the prosecutor's duty to work with the police to obtain such materials. As a result, it is never sufficient for the People to affirm that an item is not in their physical possession to defeat a certificate of compliance challenge. If the item at issue is police paperwork, that argument must always fail. If it is not, the People should explain the nature of the material sought and make some legal argument for why the material is not in their constructive control. Here, the failure to do either renders this explanation insufficient.

With respect to two other items at issue, the People explain that they obtained them in the course of answering the defendant's motion and disclosed them in a supplemental certificate of compliance filed April 19, 2021, the same day the People filed their opposition papers. (See People's Opposition, ¶ 5 [memo book of Police Officer Carney]; ¶ 8 [voucher for vehicle]). Under certain circumstances, this could be an entirely appropriate response, if the People demonstrated that they exercised due diligence but for some articulable reason could not obtain the specific materials before that point. Here, that is not the case. Once again, the People's opposition papers are bereft of any explanation of why these materials were not provided with original certificate of compliance. Nor do they provide an account of their efforts to get these items before filing their certificate. Even assuming that for some legitimate reason the People could not obtain these materials before filing their certificate, they fail to give any reason why it took so long thereafter for them to disclose these materials. The People filed their original certificate on October 30, 2020, some six months ago, and supplemented it with these materials just last week. Although such a lag in disclosure could have a valid explanation in some scenarios, the People provide none here. This unexplained inaction invites the inference that the People made no attempt to obtain these items, which are not uncommon in any type of prosecution, until faced with a certificate of compliance challenge and, even then, only did so more than two months after the defendant's motion challenging the certificate was filed. In any [*6]event, People have failed to establish that they exercised due diligence with respect to these items.

One final item that bears discussion is the dashboard-mounted camera video of the stop of the vehicle in this case. This evidence is not only undeniably discoverable, but also potentially extremely significant evidence for the defense at both the suppression hearing and trial. Nonetheless, in an apparent typo, the People offered only this as their explanation for its non-disclosure: "The People are not in possession of a dash cam video of the incident. As per the People's Certificate of Compliance dated October 30, 2020, the dash cam video from February 28, 2019."

The sentence intended to explain the absence of this important evidence cuts off mid-thought. But in the People's original certificate of compliance, they designate the dashboard camera video under the category of "[c]ertain materials [that] have been lost or destroyed." Neither in the certificate itself, nor in their motion response do the People explain how this undoubtedly relevant evidence was either lost or destroyed. To be sure, as discussed above, a court may find the People ready even where evidence has been lost or destroyed, "despite diligent and good faith efforts, reasonable under the circumstances." (CPL § 245.50[3].) That standard was not met here. Because the validity of a certificate depends on its good faith as well as due diligence, the People should have provided some explanation for this loss or destruction of evidence, especially considering the evidentiary value of a dashboard camera video in a driving while intoxicated case. Under these facts, the People's complete failure to address this issue also undermines the validity of their certificate.

Finally, the certificate itself raises a number of concerns. Most troubling, the certificate of compliance repeatedly refers to a list of all materials disclosed to defense counsel, but the People failed to attach either the referenced list or a computer print-out logging their disclosures, as is common practice, to the certificate. This is a significant omission. CPL § 245.50(1) specifically requires that a certificate of compliance must "identify the items provided." Here, the People have failed to do so. Moreover, there are serious discrepancies between the certificate and the People's assertions in their opposition to the challenge. In the People's certificate, they affirmed that they had electronically provided the defense with both "Complaint Report typed" and "Refusal Paperwork." In their opposition papers, however, the People state that they are not aware of the existence of a complaint report and that they do not possess the Report of Refusal. These inconsistencies cast serious doubt upon the accuracy of their certificate.

As discussed in detail above, by filing a certificate of compliance, a prosecutor is averring that "after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery, [he or she] has disclosed and made available all known material and information subject to discovery." (CPL § 245.50[1].) In this case, the court cannot conclude that the People exercised due diligence and made reasonable inquiries to ascertain the existence of material and information subject to discovery. Given the serious deficiencies in both the certificate of compliance and the People's explanation thereof, the court finds that it was not reasonable under the circumstances. Further, the court does not have sufficient information to determine whether it was filed in good faith. Indeed, the People have not provided an adequate explanation for a single one of the missing items at issue. Accordingly, the court must conclude that the certificate is invalid and the People's concurrent statement of readiness was illusory.

For all these reasons, the defendant's motion to challenge the certificate of compliance is [*7]granted and the People are directed to comply with their discovery obligations pursuant to CPL § 245.20(1) and file a new certificate as soon as practicable.

This constitutes the decision and order of the court.

The Clerk of the court is directed to distribute copies of this decision and order to the attorney for the defendant and to the District Attorney.