Supreme Court, Kings County, January 28, 2022

Rosenberg Law Firm, Brooklyn (Jonathan Rosenberg of counsel), for defendant.

Eric Gonzalez, District Attorney (Kevin O'Donnell of counsel), for plaintiff.

On August 2, 2021, pursuant to Criminal Procedure Law § 245.50 (1), the defendant moved to challenge the People's February 24, 2020 certificate of compliance and statement of readiness, and to dismiss the indictment pursuant to CPL 30.30. The People opposed the motion on September 12, 2021. The defendant filed a surreply on September 27, 2021, and, on December 1, 2021, filed an amended motion. Based upon a review of the Supreme Court file, relevant transcripts, and the papers filed by the parties, the motion is denied.

This action commenced on September 20, 2018, when the defendant was charged with attempted rape in the first degree, and related offenses, for allegedly following a woman from the subway to her place of business, where, once there, he threw her up against the wall, put his hand over her mouth, exposed his penis, grabbed her breasts, and tried to pull her pants down, all while stating "you know what I want." As the six-month period in which the People are required to be ready for trial is measured by the number of days in the intervening calendar months, the People here are allotted 181 days to be ready for trial (see People v Cortes, 80 NY2d 201 [1992]). This court makes the following findings of fact and conclusions of law.

September 20, 2018, to November 9, 2018, to November 28, 2018

The defendant was arraigned on the felony complaint in Criminal Court on September 20, 2018. On November 9, 2018, the People filed the indictment and a statement of readiness. The case was subsequently adjourned to November 28, 2018,{**74 Misc 3d at 599} for Supreme Court arraignment. The People concede that the time period from September 20, 2018, to November 9, 2018, is charged to the People.^[FN1]

50 days

November 28, 2018, to January 29, 2019, to March 21, 2019, to May 16, 2019

On November 28, 2018, the defendant was arraigned in Supreme Court. The case was adjourned to January 29, 2019, for open file discovery and grand jury minutes.

The grand jury minutes were not yet available on January 29, 2019, and the case was adjourned to March 21, 2019, for them.

On March 21, 2019, the grand jury minutes were provided to the TAP Part for review, and the case was adjourned to May 16, 2019, for decision. The defendant does not contest this time period—it is excluded (see People v Codrington, 222 AD2d 692 [2d Dept 1995]; People v Harris, 82 NY2d 409 [1993]).

0 days

May 16, 2019, to December 11, 2019

On May 16, 2019, the TAP Part issued a decision finding the grand jury minutes sufficient. The case was adjourned several times between June 19, 2019, and December 11, 2019, for discovery. These adjournments, all for discovery, are excluded (see People v Ocasio, 39 Misc 3d 465 [Sup Ct, Bronx County 2013]; People v Holden, 260 AD2d 233 [1st Dept 1999]; People v Anderson, 66 NY2d 529 [1985]).^[FN2]

0 days

December 11, 2019, to January 29, 2020

On December 11, 2019, the case was adjourned to January 29, 2020, for additional discovery.

On January 1, 2020, sweeping discovery reforms went into effect, repealing CPL article 240 and replacing it with an entirely new article—CPL article 245. Under the newly enacted statute, the People cannot be deemed ready for trial until they file a certificate of compliance and statement of readiness. Although courts have wrestled with whether the People are entitled to a reasonable period of time to certify compliance under the new law (see People v Nge, 67 Misc 3d 650 [Crim Ct, {**74 Misc 3d at 600}Kings County 2020]; People v Roland, 67 Misc 3d 330 [Crim Ct, Kings County 2020]; People v Adrovic, 69 Misc 3d 563 [Crim Ct, Kings County 2020]; People v Dobrzenski, 69 Misc 3d 333 [Utica City Ct 2020]; People v Napolitano, 67 Misc 3d 1241[A], 2020 NY Slip Op 50802[U] [Sup Ct, NY County 2020]; but see People ex rel. Ferro v Brann, 197 AD3d 787 [2d Dept 2021]), here, where the People failed to supply discovery from May 16, 2019, to January 29, 2020, despite repeated requests, including the failure to turn over surveillance video that was introduced at the grand jury proceeding months earlier, and where they have provided no reason for said prolonged delay, an exclusion cannot be countenanced. The People, therefore, are charged with the time period from January 1, 2020, to January 29, 2020.

28 days

[*2]January 29, 2020, to February 18, 2020

On January 29, 2020, the case was on for the People to complete discovery. The People had not yet certified compliance under the new law, and the case was adjourned to February 18, 2020. This time period is charged to the People.

20 days

February 18, 2020, to March 11, 2020

On February 18, 2020, the case was on again to complete discovery and for the People to file a certificate of compliance. The People stated that some materials were still outstanding, and the case was adjourned to March 11, 2020, for the People's certificate of compliance.

Off calendar, on February 24, 2020, the People served and filed a certificate of compliance, including a new statement of readiness. The time period from February 18, 2020, to February 24, 2020, is charged to the People.

6 days

March 11, 2020, to March 25, 2020, to July 17, 2020, to November 10, 2020

On March 11, 2020, the defendant requested March 25, 2020, to file a motion challenging the People's certificate of compliance. As this adjournment was made at the defendant's request for motion practice, this time period is excluded (see People v Kopciowski, 68 NY2d 615 [1986]; People v Codrington, 222 AD2d 692 [2d Dept 1995]).

On March 20, 2020, as a result of the COVID-19 pandemic, then Governor Andrew Cuomo issued Executive Order No.{**74 Misc 3d at 601} 202.8 (9 NYCRR 8.202.8) tolling the provisions of CPL 30.30 through April 19, 2020. Due to the ongoing pandemic, successive executive orders extended those tolling provisions through October 19, 2020.^[FN3] Thereafter, the case was administratively adjourned to November 10, 2020, also due to the ongoing COVID-19 pandemic. As such, this period is excluded (see People v Goss, 87 NY2d 792 [1996]).

0 days

November 10, 2020, to February 16, 2021

On November 10, 2020, the case was adjourned to February 16, 2021, on consent, for possible disposition. The defendant does not contest this time period.

0 days

February 16, 2021, to May 20, 2021, to June 14, 2021, to June 28, 2021

On February 16, 2021, the TAP Part inquired as to whether the defendant intended to file a challenge to the People's February 24, 2020 certificate of compliance. The defendant stated, "I am not asking for a motion schedule because I have no specific documents, I can verify that I am missing." The defendant stated he was not interested in any disposition and requested a Huntley/Dunaway/Mapp hearing. The case was adjourned to May 20, 2021, to set a hearing and [*3]trial date.^[FN4] In the interim, the case was administratively adjourned from the TAP Part to this Part for June 14, 2021. As the case was adjourned to set a trial date and was administratively adjourned between Parts, and the pandemic was still shuttering in-person courtroom proceedings, this time period is excluded (see People v Goss, 87 NY2d 792 [1996]; see also People v Robinson, 225 AD2d 407 [1st Dept 1996], lv denied 88 NY2d 884 [1996]).

On June 14, 2021, the case was before this court for the first time. Defense counsel filed an affirmation of engagement and the case was adjourned to June 28, 2021.

0 days

June 28, 2021, to August 2, 2021, to September 8, 2021, to October 19, 2021, to November 18, 2021, to December 2, 2021, to December 17, 2021, to January 5, 2022, to January 28, 2022{**74 Misc 3d at 602}

On June 28, 2021, the defendant requested a motion schedule to file the instant motion.^[FN5] A motion schedule was set—the defendant filed his motion, the People responded, and the defendant filed a surreply. The case was adjourned to October 19, 2021, for decision on the motion. On October 19, 2021, the court was in the midst of reviewing the voluminous submissions by the parties and the case was adjourned to November 18, 2021, for decision. On November 18, 2021, the court, having myriad questions about the parties' submissions, held a discovery conference pursuant to CPL 245.35 (2). In response to the court's inquiries regarding the defendant's request for several items of discovery, items of which this court was entirely unfamiliar, defense counsel replied, "I don't have the ability to answer [your] question[s]," "I don't know what that is" (inter alia). As a result, defense counsel requested time to file an amended motion addressing the court's questions and the case was adjourned to December 2, 2021, for that amended motion. The People filed their reply on January 5, 2022, and the matter was adjourned to January 28, 2022, for decision. This time period, from June 28, 2021, through January 28, 2022, occasioned by the defendant's motion, is excluded (see People v Kanter, 173 AD2d 560 [2d Dept 1991]; People v Brown, 136 AD2d 715 [2d Dept 1988]).

0 days

The defendant argues that the People's February 24, 2020 certificate of compliance is invalid. To begin, the People provided discovery to the defendant on June 19, 2019, October 1, 2019, January 29, 2020, February 10, 2020, February 11, 2020, and February 19, 2020. Notwithstanding, by motion dated August 2, 2021, the defendant indicated that he was still missing certain discoverable items. Among the missing items were

"a FETI interview and cognitive reenactment, all videos and notes taken in relation to said FETI interview, copies of any policy or procedure guides for FETI interviewing and cognitive reenactments, Blue DD5s, court attendance records, command log,{**74 Misc 3d at 603} I-Cad event information, housing report #5814, [*4]prisoner holding pen roster, interrupted patrol log," and dozens and dozens of other items, many of which were either unfamiliar to the court or seemingly had no relationship to the case.

In an effort to understand the discovery concerns raised by the defendant, on November 18, 2021, the court, as stated above, attempted to determine what, if any, discovery remained outstanding (see CPL 245.35 [2]). As the defendant was unable to provide any substantive answers to the court's inquiries, he requested an opportunity to review his motion and file an amended motion, which he did on December 1, 2021. In his amended motion, defendant asserts that he is only missing: (1) 911 calls and radio runs from September 16, 2018; (2) memo books from Officers Albert, Walker, Guess, Hughes and Tsourovakas; and (3) a substantiated Civilian Complaint Review Board complaint from 1994 against Detective Niurca Quinones, the detective in this case.

The People state that 911 calls and radio runs from September 16, 2018, were erased by the time they were requested, and they acknowledged as much prior to filing their certificate of compliance on February 24, 2020. Sprint reports for these calls, however, were turned over to the defendant on February 11, 2020. Defendant now argues that the People's failure to obtain these items renders their certificate of compliance invalid, thereby mandating dismissal of the indictment pursuant to CPL 30.30. Not so. To be clear, CPL article 245 allows the People to file a valid certificate of compliance even where discovery items are lost or destroyed, and an appropriate remedy or sanction regarding any such missing or destroyed discovery items may be sought by the defendant at the appropriate time.^[FN6]

As for defendant's concerns that he may be missing memo books for Police Officers Albert, Walker, Guess, and Hughes,{**74 Misc 3d at 604} said memo books do not exist. As the People explained, all of these "white shield" investigators were awaiting their "gold shield" promotions to Detective at the time of the incident, and as such, were not required to record memo book entries.

With respect to Police Officer Tsourovakas, he was assigned to the Office of the Deputy Commissioner at the time of this incident, in an administrative role, and as such, he too, was not required to record memo book entries.

With respect to Detective Niurca Quinones, the People, on October 1, 2019, provided the defendant with an extensive Brady disclosure letter and, in an effort to resolve all outstanding discovery, disclosed five unsubstantiated allegations of police misconduct related to Detective Quinones.^[FN7] So, too, the People turned over additional and extensive Giglio disclosures pursuant [*5]to CPL 245.20 (1) (k) on February 19, 2020, and January 14, 2022, which included information pertaining to 19 police officers. Notwithstanding, the defendant claims that the failure to turn over a single 27-plus-year-old 1994 substantiated CCRB discourtesy complaint, of which the People were not in possession at the time they certified compliance despite having requested all such records, renders the People's certificate of compliance invalid, mandating dismissal of the indictment. Not so. That the People belatedly disclosed a 27-plus-year-old complaint regarding a discourtesy by Detective Quinones does not, in and of itself, render their compliance invalid.

Based on the foregoing, the court concludes that the certificate of compliance filed in this matter is valid.{**74 Misc 3d at 605}

The certificate of compliance filed on February 24, 2020, is valid, and the People are charged with 104 days.

The People have agreed to provide the defendant with color copies of all photographs as requested.

Based on the foregoing, the defendant's motion is denied in its entirety.