County Court, Orange County, May 28, 2021

LoBiondo Law Offices, Newburgh, for defendant.

David M. Hoovler, District Attorney, Goshen, for plaintiff.

Defendant Jorge Ordonez also known as "King Ecqua" moves for an order granting the following relief:

1. Pursuant to CPL 245.50 (1) and 245.80, striking the People's certificate of compliance for failure to provide discovery;

2. Pursuant to CPL 245.80 (2), imposing appropriate remedies or sanctions for the People's failure to provide discovery; and

3. Pursuant to CPL 210.20, 30.30, and 245.50 (3), dismissal of the indictment for a speedy trial violation.

It is hereby ordered that the defendant's motion is denied in its entirety.

The defendant was indicted on January 2, 2020, on the charges of criminal sale of a firearm in the third degree and criminal possession of a weapon in the second degree. The People filed a certificate of compliance and declared readiness on January 30, 2020. The defendant contends that the People's certificate of readiness should be struck as illusory because the People did not provide: (1) a "bit-for-bit" copy of an electronic recording; (2) a copy of the user manual for the recording device; and (3) a copy of the "proprietary player software." In addition, the defendant argues that the certificate of compliance should be struck because the People failed to comply with this court's December 9, 2020 decision and order. The defendant asserts that the certificate of compliance is invalid. The defendant further contends that the passage of time after the certificate of compliance's filing on January 30, 2020, should be chargeable to the People resulting in a speedy trial violation.

The defendant asserts that the People are obligated to create a particular type of copy ("bit-for-bit") of an electronic recording. However, the People are not obligated to create a recording in a specific format requested by the defendant. The prosecutor has provided defendant with a copy of the video recording in the same format as that received by the prosecutor. It is not the burden of the prosecutor to reformat or recopy recordings in whatever manner a defendant demands. If the defendant's{**72 Misc 3d at 741} expert is not satisfied with the admittedly working copy of the electronic recording with which he was provided, then defendant's expert may inspect the original recording in accordance with CPL 245.20 (1) (g).

It is undisputed that the defendant was able to view and listen to the electronic recording in the manner in which it was provided. Nevertheless, the defendant also demands that the People provide him with specific "proprietary player software." Once again, this is beyond the obligations imposed by article 245 of the CPL. In addition, the defendant demands that he be provided with a user manual for the recording device. However, the providing of user manuals for video camera/recording devices is not required by CPL article 245. The defendant has not provided any case law to support his position that discovery should be expanded to include the user manuals of recording devices. Even the legislature's broad, sweeping expansion of the timing and breadth of discoverable material did not identify or require the material/information demanded by defendant be disclosed or gathered by the prosecution.

Accordingly, the defendant's application to strike the People's certificate of compliance for failure to provide a "bit-for-bit" recording, "proprietary player software," and user manuals must be denied (see e.g. People v Cano, 71 Misc 3d 728 [Sup Ct, Queens County 2020]; People v Adams, 66 Misc 3d 918 [Sup Ct, Queens County 2020]; People v Davis, 70 Misc 3d 467 [2020]; People v Askin, 68 Misc 3d 372 [2020]; People v Nelson, 67 Misc 3d 313 [2020]).

Defendant's counsel contends that the People are in violation of this court's December 9, 2020 decision and order in that the People have failed to provide a summary of any promises, rewards, and inducements made to a now deceased confidential informant. A review of this court's December 9, 2020 decision and order reveals that it directs the People to provide "the information set forth in CPL § 245.20 (1) (1)." CPL 245.20 (1) (l) reads as follows: "A summary of all promises, rewards and inducements made to, or in favor of, persons who may be called as [*3]witnesses" (emphasis added). Since the deceased confidential informant may not be called as a witness, there is no obligation by the People to provide a summary of any promises, rewards and inducements made to this particular individual. It is noted that this individual had died prior to the issuance of the December 9, 2020 decision and order.

Finally, the defendant moves for dismissal pursuant to CPL 30.30 based upon defendant's claim that the People's certificate{**72 Misc 3d at 742} of compliance was illusory and invalid. However, this court finds that the People's certificate of compliance was not illusory and therefore it will not be struck. The defendant was arrested on October 30, 2019, and the certificate of compliance was filed on January 30, 2020, at which time the People stated their readiness for trial. The time period between October 30, 2019, and January 30, 2020, is entirely chargeable to the People. Accordingly, a total of 92 days is chargeable to the People. Any delays after January 30, 2020, are not attributable to the People. Rather, such delays were attributable to motion practice, the COVID-19 pandemic, and adjournments on consent. Pursuant to CPL 30.30 (1) (a), the People had six months from October 30, 2019, to be ready for trial. As this court has found that the People's certificate of compliance and statement of readiness were valid as of January 30, 2020, the defendant's motion to dismiss the indictment for a speedy trial violation must be denied.