Criminal Court of the City of New York, Bronx County, August 5, 2022

The Bronx Defenders (Sara Wolovick, admitted pro hac vice, of counsel)^[FN1] for defendant.

Darcel D. Clark, District Attorney (Zachary Emil Gregoric of counsel), for plaintiff.

Upon review and consideration of the submissions, court file and relevant law, defendant's omnibus motion to deem the People's certificate of compliance filed on May 6, 2022, invalid and to dismiss the information on speedy trial grounds, pursuant to CPL 30.30 (1) (b) and 170.30 (1) (e), is denied; the request for an order directing the prosecution to comply with its Brady/Giglio obligations is granted; and the request for an order precluding the introduction at trial of evidence of defendant's prior convictions and/or bad acts under Sandoval/Ventimiglia is referred to the trial court. The reasons for the court's decision are explained below.

On March 6, 2022, defendant Dwight Hall was arrested and charged with assault in the third degree (Penal Law § 120.00 [1]) and harassment in the second degree (Penal Law § 240.26 [1]). He was arraigned on the same day and released on his own recognizance. The matter was [*2]adjourned to April 12, 2022, for the People to file a supporting deposition and certificate of compliance (COC) with their discovery obligations.

On April 10, 2022, the People filed a supporting deposition and the complaint was converted to an information.

At the court appearance on April 12, 2022, the People were not yet in compliance with their discovery obligations under CPL article 245, and the case was adjourned to May 6, 2022, for the People to file a COC.

On May 3, 2022, the People served and filed an automatic disclosure form.

At the May 6, 2022 court appearance, the People were not in compliance with their discovery obligations and the case was adjourned to June 9, 2022, for the People to file a COC. Later in the day on May 6th, the People served and filed a certificate of compliance and statement of readiness.{**76 Misc 3d at 806}

At the June 9, 2022 court appearance, the defense objected to the People's readiness because the complaining witness' medical records had not yet been disclosed. The matter was adjourned to June 13, 2022, where the court set a motion schedule.

By notice dated June 29, 2022, defendant moved for an order: (1) deeming the prosecution's May 6, 2022 COC and statement of readiness invalid; (2) deeming the prosecution not ready for trial pursuant to CPL 245.50; and (3) dismissing the accusatory instrument on speedy trial grounds, pursuant to CPL 30.30 (1) (b) and 170.30 (1) (e). In the alternative, defendant sought an order: (1) precluding the prosecution from introducing at trial evidence of his prior convictions or bad acts (Sandoval/Ventimiglia); and (2) directing the prosecution to make timely disclosures of information favorable to him, under CPL 245.20, Brady v Maryland (373 US 83 [1963]), Giglio v United States (405 US 150 [1972]), and People v Geaslen (54 NY2d 510 [1981]). Defendant argued, inter alia, that the prosecution failed to comply with its discovery obligations under CPL 245.20 (1) because the complaining witness' dental and medical records (from Saint Barnabas Hospital) were not obtained by the People and disclosed prior to the filing of their COC.

On July 1, 2022, the People served the defense with the complaining witness' medical records from Saint Barnabas Hospital and filed a supplemental COC.

By affirmation dated July 12, 2022, the People opposed defendant's motion arguing that their COC and statement of readiness were filed in compliance with CPL 245.20, in good faith, with due diligence and were reasonable under the circumstances. The People maintained that the medical records at issue were not in their possession, custody or control at the time they filed their COC.

On July 15, 2022, the People served the defense with the complaining witness' dental records and filed a second supplemental COC, along with a notice maintaining readiness.

By reply dated July 22, 2022, the defense urged that the People did not take diligent steps to obtain relevant and material documents, nor did they seek any statutorily allowed extensions or exceptions.

Validity of the Certificate of Compliance/Dismissal on Speedy Trial Grounds{**76 Misc 3d at 807}

Pursuant to CPL 30.30 (1), a motion to dismiss must be granted when the prosecution is not ready for trial within the time period set forth by the relevant speedy trial provision.

In this case, it is undisputed that the prosecution must be ready for trial within 90 [*3]days of the commencement of the action, because defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months (see CPL 30.30 [1] [b]). Although a criminal action commences with the filing of an accusatory instrument, computation for speedy trial purposes commences on the next day (see People v Stiles, 70 NY2d 765, 767 [1987]). Here, the parties do not dispute that the speedy trial clock started on March 7, 2022, the day after defendant's March 6, 2022 arraignment.

To satisfy the initial burden under CPL 30.30, a defendant need allege "only that the prosecution failed to declare readiness within the statutorily prescribed time period" (People v Luperon, 85 NY2d 71, 77-78 [1995]). Once a defendant has alleged that more than the statutorily prescribed time period has elapsed since the commencement of the action without a declaration of readiness, the prosecution bears the burden of establishing sufficient excludable delay (see People v Berkowitz, 50 NY2d 333, 349 [1980]). The time within which the prosecution must be ready is computed by subtracting any periods of delay that are excludable under the statute (see People v Cortes, 80 NY2d 201, 208 [1992]).

Trial readiness means that the prosecutors must have "done all that is required of them to bring the case to a point where it may be tried" (People v England, 84 NY2d 1, 4 [1994]) and a proper certificate of compliance with the disclosure requirements of CPL 245.20 must have been filed (see CPL 245.50 [3]; 30.30 [5]; People v Adrovic, 69 Misc 3d 563, 575 [Crim Ct, Kings County 2020]).

Under the "initial discovery" provision of CPL 245.20 (1), soon after the commencement of an action,

"[t]he prosecution shall disclose to the defendant, and permit the defendant to discover, inspect, copy, photograph and test, 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, including but not limited to" a non-exhaustive list of materials. (Emphasis supplied.){**76 Misc 3d at 808}

The prosecution must also make a diligent and good faith effort to ascertain the existence of discoverable materials and make them available to the defense, even if the information is not in the prosecution's physical possession, except for lost or destroyed material, and materials subject to a protective order (see CPL 245.20 [2]; 245.70 [1]; 245.80 [1] [b]). For CPL 245.20 (1) purposes, "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]).

Unless the court has made "an individualized finding of special circumstances . . . the prosecution shall not be deemed ready for trial for purposes of section 30.30 . . . until it has [fulfilled its discovery obligations under CPL 245.20 (1) and] filed a proper certificate [of compliance]" (CPL 245.50 [3]; see also People v Aquino, 72 Misc 3d 518, 520 [Crim Ct, Kings County 2021]).

CPL 245.50 (1) sets forth the requirements for a COC as follows: "[t]he certificate of compliance 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." The statute further states that where "additional discovery is subsequently provided prior to trial pursuant to section 245.60 [under the prosecution's continuing duty to disclose material discovered after the initial discovery has been exchanged and a COC filed], a supplemental [*4]certificate shall be served . . . identifying the additional material and information provided" (CPL 245.50 [1]). The last sentence of CPL 245.50 (1) states: "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."

To interpret CPL 245.50 (1) and 30.30 together, in the context of a motion to dismiss on speedy trial grounds, the court must first examine the People's "actual readiness" (CPL 30.30 [5]); that is, whether the prosecution has "done all that is required of them to bring the case to a point where it may be tried," including filing a valid COC (People v England, 84 NY2d at 4). In order to find the COC to be valid, the court must be satisfied{**76 Misc 3d at 809} that it was filed in "good faith and reasonable under the circumstances" (CPL 245.50 [1]). If any known discoverable materials were not exchanged prior to the filing of the COC, the prosecution must demonstrate how due diligence was exercised with regard to those items not exchanged (see People v Pierna, 74 Misc 3d 1072, 1088 [Crim Ct, Bronx County 2022]). They must detail the reasonable inquiries made to obtain these discoverable materials (see id.; CPL 245.50 [1]). If after review of the details provided by the prosecution, the court is satisfied that the COC was filed in good faith despite the discovery that was not exchanged, it may consider appropriate sanctions pursuant to CPL 245.80, the severity of which may depend on the prejudice suffered by the defendant as a result of the discovery that was not exchanged prior to the filing of the COC (see CPL 245.50 [1]).

However, if the court finds that the COC was not filed in good faith or was not reasonable under the circumstances, the COC shall be deemed invalid and there is no need to consider the sanctions under CPL 245.80, or to consider if the defendant was prejudiced (People v Perez, 75 Misc 3d 1205[A], 2022 NY Slip Op 50387[U], *3 [Crim Ct, Bronx County 2022]; see also People v Georgiopoulos, 71 Misc 3d 1215[A], 2021 NY Slip Op 50380[U], *3 [Sup Ct, Queens County 2021]; People v Adrovic, 69 Misc 3d at 574).

Thus, "discovery compliance is a question of diligence and reasonableness given the particular facts of the case: neither a claim of good faith nor the absence of bad faith, standing alone, can exempt the People from these requirements" (People v Aquino, 72 Misc 3d at 525; People v Georgiopoulos, 71 Misc 3d 1215[A], 2021 NY Slip Op 50380[U], *3 ["good faith and due diligence are the touchstones by which a certificate of compliance must be evaluated"]).

Here, the court finds that the People's May 6, 2022 COC was made in good faith, after the exercise of due diligence, and was reasonable under the circumstances. The disclosure of the complaining witness' medical records after the initial COC was filed did not serve as a basis to invalidate it, since the records were not in the People's possession or control when the initial COC was filed (see People v Francisco-Argueta, Sup Ct, Queens County, July 5, 2022, Johnson, J., indictment No. 88-20 [the failure to disclose medical records not yet in the People's possession did not invalidate the COC]; People v Askin, 68 Misc 3d 372, 380-381 [Nassau County Ct 2020] [filing of medical records{**76 Misc 3d at 810} not in the People's control after receipt did not negate the People's COC and statement of readiness]; People v Gonzalez, 68 Misc 3d 1213[A], 2020 NY Slip Op 50924[U], *2 [Sup Ct, Kings County 2020] [COC not invalidated where discovery at issue did not exist or was not in the People's control]; People v Erby, 68 Misc 3d 625, 633 [Sup Ct, Bronx County 2020] [rejected the defendant's argument that absent total compliance with article 245's automatic discovery rules the prosecution is precluded from filing a COC]). Notably, with respect to the dental records, not only were they not in the People's possession, they did not exist [*5]when the initial COC was filed (see CPL 245.20 [2] [requiring the prosecution to "make a diligent, good faith effort to ascertain the existence of material . . . discoverable under (CPL 245.20 [1]) and to cause such material . . . to be made available . . . where it exists but is not within the prosecutor's possession, custody or control" (emphasis supplied)]). The People supplied a detailed explanation as to their due diligence in determining the existence of and disclosing the medical records which included that when they filed their initial COC, while they were aware the complaining witness required dental treatment, the treatment had not yet commenced. Once the complaining witness secured a dental appointment (in mid-May of 2022), the People promptly sent HIPAA release forms to the witness for his signature by certified mail on May 20, 2022. As to the Saint Barnabas Hospital records, the People explained that they were not initially disclosed because the complaining witness had left the emergency room (after waiting a lengthy period of time when he was transported to the hospital on the day of the incident), and failed to receive any significant treatment. The witness signed the HIPAA forms on May 26, 2022, and on June 7, 2022, the People drafted corresponding subpoenas and mailed them to the medical providers on June 9, 2022.

Moreover, under CPL 245.60, the prosecution is under a "[c]ontinuing duty to disclose." Should the prosecutor learn of additional discovery, it must be expeditiously disclosed, which is precisely what happened here. When the People obtained the medical records, they promptly disclosed them to the defense and filed supplemental COCs.

As the court stated in People v Erby (68 Misc 3d at 633),

"the legislative history of article 245 indicates, . . . [while] designed as it was to be remedial in nature, [it] should not be construed as an inescapable trap{**76 Misc 3d at 811} for the diligent prosecutor who professionally, assiduously and in good faith attempts to comply with [the] 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."

Additionally, since the court is satisfied that the COC was filed in good faith and there has been no showing of prejudice to defendant as a result of any delay in obtaining the medical records, sanctions will not be imposed (see CPL 245.80).

As the May 6, 2022 COC has been deemed valid, the People's statement of readiness also filed on that day stopped the speedy trial clock under CPL 30.30 (see People v Carter, 91 NY2d 795, 798 [1998] [statement of readiness stops the speedy trial clock]). The court finds a total of 61 days are chargeable to the prosecution for the time period from arraignment (Mar. 6, 2022), through the People's filing of their COC (May 6, 2022).^[FN2] Since the prosecution was ready for trial within 90 days of commencement of this criminal action, defendant's motion to dismiss pursuant to CPL 30.30 is denied.

Disclosure of Prior Convictions/Bad Acts

Defendant's motion to preclude the prosecution from introducing at trial any evidence of defendant's prior convictions or bad acts is referred to the trial court (see People v Sandoval, 34 [*6]NY2d 371 [1974]; People v Ventimiglia, 52 NY2d 350 [1981]).

Disclosure of Information Favorable to the Defense

Defendant's motion directing the prosecution to make disclosures of information favorable to the defense is granted (see CPL 245.20 [1] [k]; Brady v Maryland, 373 US 83 [1963]; Giglio v United States, 405 US 150 [1972]). The People are reminded of their continuing obligation to timely supply all Brady/Giglio materials to the defense.