Criminal Court of the City of New York, Bronx County, March 2, 2022

Bronx Defenders, Bronx (Falon Rainer of counsel), for defendant.

Darcel D. Clark, District Attorney, Bronx (Michael McConnell of counsel), for plaintiff.

Defendant was originally charged in a felony complaint with one count of assault in the second degree (Penal Law § 120.05{**74 Misc 3d at 1074}[3]), a class D violent felony, one count of assault in the third degree (Penal Law § 120.00 [1]), a class A misdemeanor, one count of resisting arrest (Penal Law § 205.30), a class A misdemeanor, one count of operating a motor vehicle while intoxicated (Vehicle and Traffic Law § 1192 [3]), an unclassified misdemeanor, and one count of operating a motor vehicle while ability impaired (Vehicle and Traffic Law § 1192 [1]), a traffic infraction. It is alleged that defendant was operating a motor vehicle while he was intoxicated and upon his arrest he punched a police officer and refused to be handcuffed.

On October 26, 2021, in Part FA, the court granted the People's application to dismiss the sole felony count in the criminal court complaint, assault in the second degree, a class D violent felony, and reduce the case. The court adjourned the matter to November 30, 2021, in [*2]Part AP-2 for the People to file a discovery certificate of compliance (COC) pursuant to CPL 245.50 with respect to the remaining misdemeanor charges. On November 15, 2021, the People filed with the court and served upon defense counsel a COC and a statement of trial readiness. On November 30, 2021, in Part AP-2, defendant challenged the validity of the People's COC and claimed that the speedy trial time pursuant to CPL 30.30 expired. As such, the court set a motion schedule.

Defendant now moves this court for an order dismissing the accusatory instrument on the ground that he has been denied his right to a speedy trial pursuant to CPL 30.30 (5) (c).^[FN1]

Defendant claims that the six month time period within which the People must be ready for trial has expired and therefore the felony complaint must be dismissed.

The People, in opposition to defendant's motion, contend that only 175 days of chargeable time have elapsed, which is within the six month speedy trial time period pursuant to CPL 30.30 (1) (a).

Defendant has satisfied his initial burden under the speedy trial statute by alleging that the People failed to declare their readiness within the prescribed time period. The burden is now on the prosecution to identify the exclusions on which it intends to rely (see People v Luperon, 85 NY2d 71 [1995]; People v Drummond, 215 AD2d 579 [1995]).{**74 Misc 3d at 1075}

Both sides have submitted papers with respect to the motion. The court has determined that the motion can be decided on the basis of the submissions and the court file (see People v Lomax, 50 NY2d 351 [1980]; People v Varela, 164 AD2d 924 [1990]).

Defendant's motion is decided as follows:

The speedy trial time in this case commenced on December 7, 2020, the date that the felony complaint was filed in criminal court (see CPL 100.05, 30.30 [1] [a]; People v Lomax; People v Osgood, 52 NY2d 37 [1980]).

CPL 30.30 (7) (c) sets forth that

"where a criminal action is commenced by the filing of a felony complaint, and thereafter, in the course of the same criminal action either the felony complaint is replaced with or converted to an information, prosecutor's information or misdemeanor complaint pursuant to article one hundred eighty of this chapter or a prosecutor's information is filed pursuant to section 190.70 of this chapter, the period applicable for the purposes of subdivision one must be the period applicable to the charges in the new accusatory instrument, calculated from the date of the filing of such new accusatory instrument; provided, however, that when the aggregate of such period and the period of time, excluding the periods provided in subdivision four, already elapsed from the date of the filing of the felony complaint to the date of the filing of the new accusatory instrument exceeds six months, the period applicable to the charges in the felony complaint must remain applicable and continue as if the new accusatory instrument had not been filed."

The CPL 30.30 (7) (c) formula considers two time periods. The first is the CPL 30.30 time period applicable to the highest charge in the newly reduced accusatory instrument that was [*3]filed, calculated from the date of reduction. Here, the highest charge in the new misdemeanor complaint is assault in the third degree, a class A misdemeanor which has a 90 day speedy trial time period pursuant to CPL 30.30 (1) (b). As such, the 90 day period would be calculated from the date of reduction on October 26, 2021.

The second time period contemplated by the statute is the period elapsed from the filing of the original felony complaint to the date of reduction or filing of the new accusatory instrument{**74 Misc 3d at 1076} plus the CPL 30.30 (1) speedy trial time period associated with the most serious charge in the newly filed or reduced accusatory instrument (see People v Cooper, 98 NY2d 541 [2002]). In the event that this combined total amount of time is greater than six months, then the applicable speedy trial time frame is the six month felony clock pursuant to CPL 30.30 (1) (a), which is calculated from the date of the filing of the felony complaint, rather than from the date of reduction of the felony complaint.

In this case, the People filed their felony complaint on December 7, 2020, and it was reduced to a misdemeanor complaint on October 26, 2021, which is a total of 323 days. Added to this number (323 days) is the 90 day speedy trial time period associated with the most serious charge in the reduced accusatory instrument (assault in the third degree) which equals an aggregate total of 413 days. Inasmuch as this 413 day time period is greater than the six month time period applicable in this case (182 days), the relevant CPL 30.30 time clock is the six month (182 day) period commencing on December 7, 2020, the date the People filed the felony complaint (see CPL 30.30 [7] [c]; People v Cooper; People v Tychanski, 78 NY2d 909 [1991]; People v Osgood; People v Sommersell, 166 Misc 2d 774 [1995]).

The court will now address each court adjournment period seriatim.

On March 7, 2020, due to the growing concern over the global COVID-19 health crisis, former Governor Andrew Cuomo issued Executive Order (A. Cuomo) No. 202 (9 NYCRR 8.202) declaring a "Disaster Emergency in the State of New York" pursuant to Executive Law § 28, article 2-B. The Governor directed implementation of the "State Comprehensive Emergency Management Plan" and authorized "state agencies to take appropriate action to assist local government" in managing the COVID-19 pandemic (Executive Order 202).

On March 20, 2020, Governor Cuomo issued Executive Order (A. Cuomo) No. 202.8 (9 NYCRR 8.202.8), effective until April 19, 2020, which states, in relevant part:

"I hereby temporarily suspend or modify, for the {**74 Misc 3d at 1077}period from the date of this Executive Order through April 19, 2020 the following:

"In accordance with the directive of the Chief Judge of the State to limit court operations to essential matters during the pendency of the COVID-19 health crisis, any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law . . . is hereby tolled from the date of this executive order." (Emphasis added.)

Here, inasmuch as the speedy trial statute is contained within "the criminal procedure law," it follows that the Governor's order to toll "any specific time limit for the commencement, filing, or service of any legal action" applies to this statute, CPL 30.30.

Thereafter, Executive Order (A. Cuomo) Nos. 202.14 (9 NYCRR 8.202.14) and 202.18 (9 NYCRR 8.202.18) extended the provisions of Executive Order 202.8 to May 7, 2020, and May 16, 2020, respectively.

On May 7, 2020, in response to the continuing COVID-19 global health pandemic, former Governor Andrew Cuomo issued Executive Order (A. Cuomo) No. 202.28 (9 NYCRR 8.202.28) which slightly amended Executive Order 202.8 in that it extended the tolling of "any specific time limit for the commencement, filing, or service of any legal action" under the Criminal Procedure Law, with exceptions (including CPL 180.80), to June 6, 2020. Subsequently, Executive Order (A. Cuomo) No. 202.38 (9 NYCRR 8.202.38) extended the provisions of Executive Order 202.28 until July 6, 2020.

On July 6, 2020, in response to the continuing COVID-19 global health pandemic, former Governor Andrew Cuomo issued Executive Order (A. Cuomo) No. 202.48 (9 NYCRR 8.202.48), expiring on August 5, 2020, which stated, in pertinent part: "Section 30.30 of the Criminal Procedure Law, is hereby modified to require that speedy trial time limitations remain suspended until such time as petit criminal juries are reconvened or thirty days, whichever is later."

Here, inasmuch as petit criminal juries^[FN2] were not reconvened in Bronx County from July 6, 2020, to August 5, 2020,CPL{**74 Misc 3d at 1078}30.30 remained suspended pursuant to Executive Order 202.48. Subsequently, Executive Order (A. Cuomo) Nos. 202.55 (9 NYCRR 8.202.55) and 202.60 (9 NYCRR 8.202.60) extended the provisions of Executive Order 202.48 to October 4, 2020.

On October 4, 2020, in response to the COVID-19 global health pandemic, former Governor Andrew Cuomo issued Executive Order (A. Cuomo) No. 202.67 (9 NYCRR 8.202.67), expiring on November 3, 2020, which states, in relevant part:

"The suspension and modification of section 30.30 of the criminal procedure law, as continued and modified in EO 202.60, is hereby no longer in effect, except for felony charges entered in the counties of New York, Kings, Queens, Bronx, and Richmond, where such suspension and modification continues to be effective through October 19, 2020; thereafter for these named counties the suspension is no longer effective on such date or upon the defendant's arraignment on an indictment, whichever is later, for indicted felony matters, otherwise for these named counties the suspension and modification of Section 30.30 of the criminal procedure law for all criminal actions proceeding on the basis of a felony complaint shall no longer be effective, irrespective, 90 days from the signing of this Executive Order on January 2, 2021."

Thereafter, Executive Order (A. Cuomo) No. 202.72 (9 NYCRR 8.202.72) and Executive Order (A. Cuomo) No. 202.79 (9 NYCRR 8.202.79) extended the provisions of Executive Order 202.67 to January 1, 2021.

In the instant matter, on December 7, 2020, defendant was arraigned on the felony complaint in Part AR-3 and the case was adjourned to February 22, 2021, for grand jury action in Part FA.

In the interim, on December 30, 2020, former Governor Andrew Cuomo issued Executive Order (A. Cuomo) No. 202.87 (9 NYCRR 8.202.87), expiring January 29, 2021, which states, in pertinent part, that{**74 Misc 3d at 1079}

"[s]ection 30.30 and Section 190.80 of the criminal procedure law are suspended to the extent necessary to toll any time periods contained therein for the period during which the criminal action is proceeding on the basis of a felony complaint through arraignment on the indictment or on a superior court information and thereafter shall not be tolled." (Emphasis added.)

In the interim, on January 23, 2021, former Governor Andrew Cuomo issued Executive Order (A. Cuomo) No. 202.91 (9 NYCRR 8.202.91) which extended the provisions of Executive Order 202.87 until February 22, 2021.

With respect to the first portion of this adjournment, namely between December 7, 2020, and December 30, 2020, defendant concedes it is not chargeable pursuant to Executive Order 202.67. However, regarding the remaining period of the adjournment time period between December 30, 2020, and February 22, 2021, defendant claims that it is chargeable to the People pursuant to Executive Order 202.87 and the subsequent executive order that extended it to February 22, 2021. Specifically, defendant argues that Executive Order 202.87 limited the tolling of CPL 30.30 speedy trial time pertaining to felony complaints only to "the extent necessary" and here, the People did not cite any unusual circumstances related to the COVID-19 pandemic that necessitated a delay in presenting this case to a grand jury. As such, defendant asserts that with respect to the first adjournment between December 7, 2020, and February 22, 2021, the entire time period while Executive Order 202.87 was in effect, i.e. from December 30, 2020, to February 22, 2021, should be chargeable to the People.

The People, in response to defendant's motion, do not address the first adjournment period between December 7, 2020, and February 22, 2021. Instead, the People reference Executive Order 202.8^[FN3] which earlier had temporarily suspended CPL 30.30 for all criminal cases.

The relevant executive order which pertains to the particular period between December 30, 2020, and February 22, 2021,{**74 Misc 3d at 1080}is Executive Order 202.87 which limited the tolling of CPL 30.30 "to the extent necessary."

It is well-established that with respect to executive orders, as with statutes, when the language is clear and unambiguous, it should be construed as to give effect to the plain meaning of the words used (see Colon v Martin, 35 NY3d 75 [2020]; Matter of Walsh v New York State Comptroller, 34 NY3d 520 [2019]; People v Francis, 30 NY3d 737 [2018]; People v Finnegan, 85 NY2d 53 [1995]).

"A review of the numerous Executive Orders clearly indicates that while the initial toll of CPL § 30.30 was a blanket toll of speedy trial time given the extreme circumstances during the [*6]height of the COVID-19 pandemic and its detrimental effects upon the functioning of the criminal justice system as the court system adapted to the challenges presented by COVID-19, over time the executive orders gradually narrowed the parameters of the CPL § 30.30 speedy trial time toll" (People v Williams, 73 Misc 3d 1205[A], 2021 NY Slip Op 50924[U], *4 [Mount Vernon City Ct 2021]).

Significantly, Executive Order 202.87 included, for the first time, the modifying language "to the extent necessary" for unindicted felonies through arraignment on indictment. Thus, when giving effect to the plain meaning of the specific words used in Executive Order 202.87,

"[c]learly, the CPL § 30.30 speedy trial time toll prescribed in [it] was narrowly tailored to encompass those situations where it was actually necessary for the time to be tolled by virtue of extraordinary circumstances, i.e. a grand jury forced to quarantine[ ] due to COVID-19 exposure thereby preventing an indictment from being voted, and for no period thereafter" (People v Williams, 2021 NY Slip Op 50924[U], *4; see also People v Taback, 74 Misc 3d 303, 308 [Orange County Ct 2021] [in interpreting the language "to the extent necessary" in Executive Order 202.87 the court held that the People failed to provide any information as to why it was "necessary" that the adjournment time period should be tolled]).

[1] Here, the People have failed to demonstrate that it was "necessary" to toll CPL 30.30 during this time period. Indeed, the People have not offered any reason whatsoever to the court{**74 Misc 3d at 1081} as to why they could not present their case to a grand jury during this adjournment period.

Thus, the 54 day time period between December 30, 2020, and February 22, 2021, is chargeable to the People (see People v Taback; People v Williams).

On February 11, 2021, former Governor Andrew Cuomo issued Executive Order (A. Cuomo) No. 202.93 (9 NYCRR 8.202.93) which continued the provisions of Executive Order 202.87 until March 13, 2021. On February 22, 2021, in Part FA, the People reported that there was no grand jury action and the case was adjourned to April 21, 2021, for grand jury action. Executive Order (A. Cuomo) Nos. 202.96, 202.97, 202.98 and 202.99 (9 NYCRR 8.202.96, 8.202.97, 8.202.98, 8.202.99) extended the provisions of Executive Order 202.87 until April 25, 2021. Inasmuch as the People offered no reason as to why it was "necessary" to toll CPL 30.30 speedy trial time during this time period, the entire 58 day time period from February 22, 2021, to April 21, 2021, is chargeable to the People.

On April 21, 2021, in Part FA, the People reported that there was no grand jury action and the case was adjourned to June 23, 2021, for grand jury action. Executive Order (A. Cuomo) Nos. 202.100 (9 NYCRR 8.202.100) and 202.101 (9 NYCRR 8.202.101) extended the provisions of Executive Order 202.87 until May 6, 2021.

On May 6, 2021, former Governor Andrew Cuomo issued Executive Order (A. Cuomo) No. 202.106 (9 NYCRR 8.202.106) which states, in pertinent part, that "[t]he current suspensions and modifications of Criminal Procedure Law sections 30.30 and 190.80 remain in effect through and including May 23, 2021 and are thereafter rescinded." As such, this executive order made clear that CPL 30.30 returned to its pre-pandemic status and no extensions of CPL 30.30 pursuant to the Governor's executive orders would be granted after May 23, 2021, even to the "extent necessary." Therefore, inasmuch as the People offer no reason why it was "necessary" to toll CPL 30.30 between April 21, 2021, and May 23, 2021, and subsequently between May 23, 2021, and June 23, 2021, there was{**74 Misc 3d at 1082} no grand jury action, the entire 63 day time period from April 21, [*7]2021, to June 23, 2021, is chargeable to the People.

On June 23, 2021, in Part FA, the People stated there was no grand jury action and the case was adjourned to August 25, 2021, in Part FA for grand jury action. Inasmuch as there was no grand jury action between June 23, 2021, and August 25, 2021, that 63 day time period is chargeable to the People (see People v England, 84 NY2d 1 [1994]; People v Babcock, 86 AD2d 979 [1982]).

On August 25, 2021, in Part FA, the People reported that there was no grand jury action and the case was adjourned to Part FA on October 26, 2021, for grand jury action. Inasmuch as there was no grand jury action between August 25, 2021, and October 26, 2021, that 62 day time period is chargeable to the People (see People v England, 84 NY2d 1 [1994]; People v Babcock, 86 AD2d 979 [1982]).

On October 26, 2021, in Part FA, the court granted the People's application to dismiss the sole felony count in the accusatory instrument (assault in the second degree) and proceed with the remaining misdemeanor charges in the complaint. The People conceded that they were not ready for trial regarding the misdemeanor complaint since they needed to file a certificate of compliance (COC) with the court pursuant to CPL 245.50. The case was adjourned to November 30, 2021, in Part AP-2 for the People to file their COC and statement of trial readiness.

In the interim, on November 15, 2021, the People filed with the court and served upon defense counsel a certificate of compliance and a statement of trial readiness. On November 30, 2021, in Part AP-2 defense counsel claimed that the People's COC was invalid because there were many items of outstanding discovery. The court set a motion schedule for defense counsel to file motions regarding her COC challenge and the case was adjourned to January 20, 2022, for decision. On{**74 Misc 3d at 1083} December 7, 2021, defendant filed a motion pursuant to CPL 245.50 (4) and to dismiss the criminal court information pursuant to CPL 30.30. On January 3, 2022, the People filed their opposition to defendant's motion.

In support of defendant's motion to invalidate the People's COC, he claims that the People failed to provide him with the following discoverable items:

1. the memo books for all officers involved in the investigation of this case (CPL 245.20 [1] [e]). Specifically, defense counsel asserts that she only received memo books for Police Officer Ricardo Padilla even though body worn camera footage places dozens of additional officers on the scene of defendant's arrest;

2. the use of force report with respect to arresting officer Ricardo Padilla, who indicated in his arrest report that force was used in the arrest of defendant (CPL 245.20 [1] [e]);

3. the medical treatment of prisoner form since defendant was taken to Montefiore Hospital to receive treatment for injuries he allegedly sustained during the arrest process (CPL 245.20 [1] [e]);

4. the line of duty injury report from two officers who claimed to have been physically assaulted and injured by defendant during the arrest process (CPL 245.20 [1] [e]);

5. the names and adequate contact information for medical personnel who treated defendant at Montefiore Hospital (CPL 245.20 [1] [c]);

6. a list of tangible items recovered from defendant's vehicle by a public servant (CPL 245.20 [1] [m]); and

7. photographs of injuries allegedly sustained by arresting officers during defendant's arrest (CPL 245.20 [1] [h]).

Defendant claims that the People's failure to provide him with the aforementioned missing items of discovery renders their November 15, 2021 COC invalid and thus, their November 15, 2021 statement of trial readiness was illusory. Specifically, defendant argues that the People, pursuant to CPL 245.50 (1), must provide him with all items of discovery materials before they can file a valid COC. Defendant further contends that even if the People exercised "due diligence" and made reasonable efforts to obtain the discovery materials, they cannot file a valid COC until they "actually obtained this material and disclosed it to the defense" (Rainer affirmation at 11).

{**74 Misc 3d at 1084}The People, in opposition to defendant's motion, acknowledge that although certain items of discovery materials remained outstanding when they filed their November 15, 2021 COC, it was proper and filed in good faith based upon their subsequent^[FN4] "diligent efforts to obtain additional documentation from the NYPD" (McConnell affirmation at 8).

Now turning to the list of the alleged outstanding discovery, with respect to the memo books, the People claim that once defense counsel brought to their attention that multiple officers' memo books were not provided, they sent several emails to their discovery liaison at the 52nd Precinct and subsequently, on December 13, 2021, the People turned over all memo book entries except for those of Police Officer Sawai. As such, the People state that they have satisfied their discovery obligation and argue that they should not be penalized for Officer Sawai's outstanding memo book since they "turned over Officer Sawai's body worn camera footage from the incident which is a more accurate representation of the events that transpired than any memo book entry would be" (McConnell affirmation at 9). The People further contend that defendant must allege that he was prejudiced in some way in order to obtain a remedy from the court regarding the People's belated discovery of the memo books and that he has not done so in the instant matter.

As to the use of force report, the medical treatment of prisoner form and the line of duty injury report, the People state that neither the arresting officer nor his partner made reference to such documents when they discussed the case with the assigned assistant district attorney and, further, after defense counsel alerted the People of these reports, they requested such items from their discovery liaison at the 52nd Precinct. Additionally, with respect to the [*9]medical treatment of prisoner form, the People state that defendant has the ability to request his own medical records.

Regarding the names and contact information of the individuals who treated defendant at Montefiore Hospital following his arrest, the People represent that this is not in their possession and in any event, defendant has the ability to obtain information in his own medical records.

With respect to the list of property recovered from the defendant's vehicle, the People represent that they were not{**74 Misc 3d at 1085} provided with the vouchering paper work but have since requested it from their 52nd Precinct liaison.

Finally, with respect to the photographs of the police officer injuries, the People maintain that none were provided to them and the arresting officer and his partner did not mention that any such photographs existed during their discussions with the assigned assistant district attorney.

Based on all of the above, the People argue that since their November 15, 2021 COC was proper and filed in good faith, their November 15, 2021 statement of trial readiness was valid and they should not be charged with CPL 30.30 time after that date.

Effective January 1, 2020, the New York State Legislature substantially expanded the discovery requirements of the prosecution by repealing CPL article 240 and enacting CPL article 245. This statute

"evinces a legislative determination that the trial of a criminal charge should not be a sporting event where each side remains ignorant of facts in the hands of the adversary until events unfold at trial. Broader pretrial discovery enables the defendant to make a more informed plea decision, minimizes the tactical and often unfair advantage to one side, and increases to some degree the opportunity for an accurate determination of guilt or innocence" (People v Copicotto, 50 NY2d 222, 226 [1980]).

This change was profound because, fundamentally, instead of previously requiring defense counsel to make written demands for discovery materials under article 240, the new statute now places the burden of timely disclosure of discovery materials solely upon the People (see People ex rel. Ferro v Brann, 197 AD3d 787 [2021]). As such, pursuant to CPL 245.20 (1), under "[a]utomatic discovery," the People are 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 or control."

In making their disclosures, pursuant to CPL 245.20 (2), the People must also:

"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{**74 Misc 3d at 1086} 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."

With respect to items deemed in the prosecution's "possession, custody or control," CPL 245.20 (2) specifies that "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."

In order to facilitate timely disclosure of materials from the police CPL 245.55 (1) stipulates that

"[t]he 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."

When the People have provided all requisite discovery to defendant, CPL 245.50 (1) mandates that they must file a "certificate of compliance" which

"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. It shall also identify the items provided. If additional discovery is subsequently provided prior to trial pursuant to section 245.60 [additional material discovered after the filing of the initial COC] of this article, a supplemental certificate shall be served upon the defendant and filed with the court identifying the additional material and information provided. No 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; but the court may grant a remedy or sanction for a discovery violation as provided in section 245.80 of this article."

{**74 Misc 3d at 1087}In the event that the People are not able to comply with their discovery obligations in a timely manner, CPL article 245 provides them with several different opportunities to seek accommodation or relief. Notably, CPL 245.70 (2) allows for modification of discovery periods when good cause is shown.

Significantly, CPL article 245 now ties the People's good faith compliance with their discovery obligations to the calculation of speedy trial time pursuant to CPL 30.30. CPL 245.50 (3) sets forth, in pertinent part, 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. 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 paragraph (b) of subdivision one of section 245.80 of this article, despite diligent and good faith efforts, reasonable under the circumstances. Provided, however, that the court may grant a remedy or sanction for a discovery violation as provided by section 245.80 of this article."

The speedy trial statute, CPL 30.30 (5), reiterates this requirement by stating that "[a]ny statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of section 245.20."

"The obligation is inflexible. No trial ready statement is valid unless the People file a [proper] C[O]C that truthfully asserts that the People have 'exercised due diligence and made reasonable inquiries to ascertain the existence of material and information subject to discovery' " (People v Surgick, 73 Misc 3d 1212[A], 2021 NY Slip Op 51007[U], *4 [Albany City Ct 2021], quoting CPL 30.30 [5]; 245.50 [1], [3]; see also People v Barnett, 68 Misc 3d 1000 [2020]; People v Piasecki, 66 Misc 3d 1231[A], 2020 NY Slip Op 50335[U] [Crim Ct, Kings County 2020]; People v Freeman, 67 Misc 3d 1205[A], 2020 NY Slip Op 50398[U] [Crim Ct, Bronx County 2020]; People v Salters, 72 Misc 3d 1219[A], 2021 NY Slip Op 50800[U] [Nassau Dist Ct 2021]).

Notwithstanding the aforementioned discovery rules, and contrary to defendant's contention, "[n]owhere within CPL {**74 Misc 3d at 1088}article 245, nor within CPL 30.30 (5), is there a requirement that the People disclose every discovery item under CPL 245.20 (1) prior to the valid filing of a [COC]." (People v Bruni, 71 Misc 3d 913, 917 [2021] [emphasis added]; see also People v Barralaga, 73 Misc 3d 510 [2021]; People v Erby, 68 Misc 3d 625 [2020]; People v Gonzalez, 68 Misc 3d 1213[A], 2020 NY Slip Op 50924[U] [Sup Ct, King County 2020].) Rather, the statute requires "the People [to] establish that they exercised due diligence and acted in good faith in filing their certificate" (People v Georgiopoulos, 71 Misc 3d 1215[A], 2021 NY Slip Op 50380[U], *3 [Sup Ct, Queens County 2021] [emphasis added]; see also People v Perez, 73 Misc 3d 171, 176 [2021] ["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 . . . or a good faith position that the material in question was not discoverable"]; People v Bruni at 917 ["On the contrary, CPL article 245 and CPL 30.30 (5) both present a theme emphasizing the importance of good faith efforts by the People, and reasonableness under the circumstances, as it relates to discovery compliance"]).

[2] Therefore, the crux of any challenge to a certificate of compliance is whether the People acted in "good faith" and with "due diligence" by conducting "reasonable inquiries" to obtain discovery materials when they filed their COC. 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" (People v Rodriguez, 73 Misc 3d 411, 417 [2021]). "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" (People v Rodriguez at 417; see also People v Pennant, 73 Misc 3d 753 [2021]; People v Surgick; People v Salters; People v Williams, 72 Misc 3d 1214[A], 2021 NY Slip Op 50743[U] [Crim Ct, NY County 2021]; People v Georgiopoulos). "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" (People v Knorr, 73 Misc 3d 285, 290 [Henrietta Just Ct 2021], citing People v {**74 Misc 3d at 1089}Perez, 73 Misc 3d 171, 177 [2021]; People v Adrovic, 69 Misc 3d 563 [2020]).

Applying the above legal principles, the court will now address each item of the alleged missing discovery in the instant matter:

Memo books are discoverable pursuant to CPL 245.20 (1) (e) as "all statements, written or recorded or summarized . . . , made by persons who have evidence or information relevant to [*11]any offense charged or to any potential defense thereto, including all police reports, notes of police and other investigators, and law enforcement agency reports."

The People do not dispute defense counsel's assertion that at the time of the filing of the People's COC, she only received the memo book of Police Officer Ricardo Padilla, even though "body worn camera footage places dozens of additional officers on the scene" (Rainer affirmation at 13). Nevertheless, the People claim that they demonstrated due diligence by subsequently obtaining the remaining memo books (except for Officer Sawai's memo book, which remains outstanding), after defense counsel brought the missing memo books to their attention. However, significantly, CPL 245.50 (1) clearly requires the People to exercise "due diligence" in obtaining and disclosing discovery materials before they file their COC. In this regard, the People have not provided any information whatsoever as to what, if any, efforts they made to obtain the missing memo books before they filed their COC.

Thus, "the People clearly overlook[ed] their statutory obligations to seek out discoverable evidence and information in their possession and/or in the possession of the . . . [p]olice, and to make such evidence and information available to the defendant before filing their COC" (People v Pennant at 764; see also People v Ramirez, 73 Misc 3d 664 [Crim Ct, NY County 2021]; People v Surgick; People v Barralaga; People v Salters; People v Ryklin, 72 Misc 3d 1208[A], 2021 NY Slip Op 50678[U] [Sup Ct, Kings County 2021]; People v Georgiopoulos; People v Rosario, 70 Misc 3d 753 [2020]; People v Adrovic; CPL 245.50 [1]; 245.20 [2]).

Additionally, the People's assertion that absent a showing of prejudice by defendant, their COC should be deemed valid is without merit.

"Prejudice to the defendant is not a factor in this{**74 Misc 3d at 1090} analysis; the People's obligation to provide discovery, and to certify compliance with that obligation, is not relieved by an absence of prejudice to the defendant. . . . Therefore, while a defendant must show some prejudice in order to obtain a sanction against the People under CPL 245.80, the burden is not lifted from the People to comply with their obligation in the first instance. . . . Because a 'proper' certificate of compliance—that is, one filed in good faith asserting that the prosecution has exercised the necessary due diligence in complying with their obligations—is now a prerequisite before the People may legally be deemed ready for trial, previous case law holding that discovery failures do not impact the People's readiness have now been abrogated by statute and are no longer controlling" (People v Adrovic at 574-575).

Due to the nature of the charges in this case, which involve assaulting a police officer and resisting arrest, the use of force report, medical treatment of prisoner form and line of duty injury report are police reports that "relate to the subject matter of the case and are in the possession, custody or control of the prosecution" (CPL 245.20 [1]). As such, under "automatic discovery" the People were obligated to disclose these items to defendant or to at least make reasonable inquiries to ascertain their existence (see CPL 245.20 [1], [2]; People v Pennant; People v Surgick; People v Salters; People v Knorr; People v Williams; People v Georgiopoulos).

Here, the People were particularly placed on alert from the time of defendant's arraignment that these documents would relate to the subject matter of the case inasmuch as the [*12]criminal court complaint alleges, in relevant part, that

"at the above time and place, upon removing defendant from the aforementioned vehicle, defendant struck deponent [police officer] on the right side of deponent's face with a closed fist . . . as a result of defendant's aforementioned actions, deponent suffered substantial pain, soreness, redness and{**74 Misc 3d at 1091} bruising to deponent's right cheek . . . upon attempting to arrest defendant for the aforementioned conduct, [defendant] twisted his hands and body, locked his arms refusing to be handcuffed."

Further, the People were on notice of the probable existence of these materials prior to the filing of their COC since they do not dispute defense counsel's assertion that Police Officer Padilla indicated in his arrest report that "force" was used during the arrest process. Indeed, it was only after defense counsel notified the People of the potential existence of such documents and subsequent to the filing of the COC, did the People request these items from the 52nd Precinct. However, again, the new discovery statute imposes an affirmative duty on the People to conduct "reasonable inquiries" in a timely manner in an effort to obtain and disclose discoverable material before they file their COC rather than waiting for the defense to request it (see CPL 245.50 [1]; 245.20 [1], [2]; People ex rel. Ferro v Brann; People v Rodriguez; People v Mashiyach, 70 Misc 3d 456 [2020]).

As to the People's explanation that they were never provided with these documents or informed about them from their police officers, it is unavailing since there is no evidence that the prosecution ever asked the officers about their likely existence in the first place. Thus, with respect to these missing items, it cannot be reasonably said that the People exercised "due diligence" in complying with their discovery obligations when they filed their COC on November 15, 2021 (see CPL 245.20, 245.50; People v Ryklin, 72 Misc 3d 1208[A], 2021 NY Slip Op 50678[U] [Although the People claimed that they were unaware of a 911 call at the time the certificate of compliance was filed, the People concede that paper work prepared at the very onset of the case explicitly referenced the 911 call; therefore, the People failed to demonstrate due diligence which invalidated their certificate of compliance]; see also People v Ramirez; People v Surgick; People v Barralaga; People v Salters; People v Ryklin; People v Georgiopoulos; People v Rosario; People v Adrovic).

Medical personnel at Montefiore Hospital are not "law enforcement" members and thus, the People are not deemed to be in possession of materials related to defendant's hospital stay (see CPL 245.20 [2]; People v Alvarez, 71 Misc 3d 1206[A],{**74 Misc 3d at 1092}2021 NY Slip Op 50292[U] [Sup Ct, Queens County 2021]). Moreover, CPL 245.20 (2) makes it clear that the "prosecutor shall not be required to obtain by subpoena duces tecum material . . . which the defendant may thereby obtain." Thus, the People were not required to provide defense counsel with such information.

Defendant contends that police officer body worn camera footage shows that officers conducted a search of his vehicle while he was in police custody. As a result of this search, defendant alleges he should have received vouchering documentation for the vehicle and the items found within it. The People do not dispute defense counsel's assertion or that vouchering [*13]paper work is discoverable pursuant to CPL 245.20 (1) (m) as "a list of all tangible objects obtained from, or allegedly possessed by, the defendant or a co-defendant." Instead, they claim that they were "never provided with the vouchering paperwork," but subsequently have requested it from the 52nd Precinct after they filed their COC. However, inasmuch as the People failed to articulate any efforts they made in obtaining the vouchering paper work or determining its existence before they filed their November 15, 2021 COC, it cannot be said that they exercised "due diligence" in complying with their discovery obligations (see CPL 245.20, 245.50; People v Ramirez; People v Surgick; People v Barralaga; People v Salters; People v Ryklin; People v Georgiopoulos; People v Rosario; People v Adrovic).

It is unclear from the submissions of the parties whether any photographs of the police officer's alleged injuries were actually taken. However, inasmuch as it is alleged in the criminal court complaint that the officer sustained physical injuries, the People were on reasonable notice of the potential existence of the photographs (see CPL 245.20, 245.20 [1] [h], [i]). Although the People contend that they were never provided with photographs of the police officer's injuries, there is no indication that they ever inquired about their existence. Thus, in the absence of any explanation by the People as to whether any efforts were made in this regard, they have not demonstrated that they exercised "due diligence" before they filed their COC (see CPL 245.20, 245.20 [1] [h], [i]).

Additionally, the court notes that, with respect to all of the missing discovery material, the People never indicated that it{**74 Misc 3d at 1093} was "lost [or] destroyed" (see CPL 245.50 [3]) or sought a good cause extension to comply with their discovery obligations (see CPL 245.70 [2]).

Finally, the court is cognizant that the new discovery statute imposes a heavy burden on the District Attorney's Office. However, based upon the totality of the circumstances in this particular case, the prosecution's failure to make any efforts to ascertain the existence of the multitude of missing discoverable material prior to the filing of their COC cannot be excused as a "mere oversight." To hold otherwise would essentially ignore the legislative mandates in CPL article 245 which were enacted in the spirit to reform the discovery process in criminal cases in the State of New York.

In conclusion, based on all the foregoing, the defendant's motion to invalidate the People's certificate of compliance that was filed on November 15, 2021, and to deem the statement of readiness that they filed on that same date to be illusory is granted (see CPL 245.50, 30.30 [5]; People v Ramirez; People v Knorr; People v Ryklin; People v Adrovic). Therefore, with respect to the adjournment period between October 26, 2021, and November 30, 2021, inasmuch as the People were not ready for trial on October 26, 2021, and their subsequent statement of readiness filed on November 15, 2021, was illusory, the People are charged with this 35 day time period.

Thus, a total of 335 days are chargeable to the People. Accordingly, inasmuch as this period of time is greater than the six month (182 day) statutory limit in which the People must be ready for trial, defendant's motion to dismiss the information pursuant to CPL 30.30 (7) (c) is granted.

Defendant's remaining motions are rendered moot.

"decides whether the defendant committed the crime as charged in a criminal case, or whether the defendant injured the plaintiff in a civil case. . . . [A petit jury is not a grand jury which] determines whether there is 'probable cause' to believe the individual has committed a crime and should be put on trial" (United States Courts, Types of Juries, https://www.uscourts.gov/services-forms/jury-service/types-juries).