Before validly stating ready for trial, the prosecution must certify they have exercised "due diligence" and made "reasonable inquiries" to ascertain the existence of discoverable material. (C.P.L. § 245.50[1]). Where, as here, a C.P.L. § 30.30 motion calls that certificate into question, the prosecution "bear[s] the burden of establishing that they did, in fact, exercise due diligence and made reasonable inquiries prior to filing" the certificate. (People v. Bay, 41 NY3d 200, 213 [2023]). To meet that burden, the prosecution must provide the "necessary factual basis" on which a court could find "due diligence." (People v. McKinney, 71 Misc 3d 1221[A], at *7 [Crim. Ct., Kings County 2021]; see also People v. Critten, 77 Misc 3d 1219[A], at *3 [Crim. Ct., NY County 2022] [assessing "due diligence requires the People to show how due diligence was exercised"]). "If the prosecution fails to make such a showing, the [certificate] should be deemed improper, the readiness statement stricken as illusory, and—so long as the time chargeable to the People exceeds the applicable CPL 30.30 period—the case dismissed." (Bay, 41 NY3d at 213).

The prosecution commenced this case on June 16, 2023. Eighty days later (far beyond the thirty-five-day deadline for discovery, see C.P.L. § 245.10), the prosecution filed a certificate of compliance and stated ready for trial. However, the prosecution had failed to ascertain the existence of all the NYPD laboratory materials relating to this case, including the associated lab report, case report, chain of custody documents, images, and the resume of the testing witness. The prosecution had also failed to ascertain the existence of body-worn camera audit logs. And they had only disclosed redacted NYPD and CCRB misconduct records for their testifying police witnesses, suggesting that they failed to ascertain the existence of what lay under those redactions.

The prosecution's papers do not establish that they nonetheless exercised due diligence to ascertain the existence of discoverable material in this case. One of this case's most serious charges is P.L. § 220.03, criminal possession of a controlled substance in the seventh degree. That is a simple and common charge in our criminal courts. A critical and obvious piece of any [*2]such charge is often (if not always) the NYPD laboratory analysis testing the alleged substance at issue. Here, the NYPD had finished its tests and issued its reports by August 28, 2023. Nonetheless, the prosecution filed their certificate of compliance one week later without first ascertaining the existence of the NYPD's laboratory material. When prosecutors fail to ascertain and disclose such an obvious part of a simple misdemeanor charge, they cannot be said to have exercised the requisite due diligence. To make matters worse, though, the prosecution's papers provide zero explanation of why they certified "compliance" without first ascertaining the existence of these laboratory materials. Instead, they simply state that they "did not have" them. This explanation evinces a lack of diligence—that the prosecutors believed their sole responsibility was only to disclose what they had, and not to diligently ascertain the existence of discoverable information held by the police. But the statute, (C.P.L. § 245.50[1]), and the certificate that the prosecutors filed, states otherwise, (Cert. of Compl. at 1 ["I . . . hereby certify that after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery "]; see also C.P.L. § 245.20[2] [defining material in the police's possession as in the constructive possession of the prosecution]). In fact, after receiving the report a few days later, the prosecution then failed to disclose it for another two months. That the prosecution acted so lethargically after receiving the laboratory materials further confirms their general lack of reasonable diligence in this case.

But this was not the only problem evincing a lack of due diligence here. The prosecution also apparently refused to ascertain the existence of (and disclose) the body-worn camera audit logs in this case. They did so despite the benefit of receiving this court's thorough decision in People v. Torres nearly two weeks before they even commenced this case. (See People v. Torres, 79 Misc 3d 1204[A] [Crim. Ct., Queens County 2023]). In their response here, the prosecutors hand-wave the audit logs away as "consist[ing] largely of short, concise tags and categories that are not relevant to the underlying facts of the case." That is an odd statement. Even if one adopted the prosecution's limited understanding of the logs, police officers are not writing "short, concise tags and categories" about a different case—they are writing about what happened in this case. In any event, in addition to Torres, multiple other courts have explained in detail why these audit logs are plainly discoverable. (E.g., People v. Shar, 2024 NY Slip Op. 50589[U] [Crim. Ct., Richmond County 2024] [Rajeswari, J.]; People v. James, 82 Misc 3d 1248[A] [Crim. Ct., Kings County 2024] [Robinson, J.]; People v. Cumbe, 82 Misc 3d 1242[A] [Crim. Ct., Kings County 2024] [Mimes, J.]; People v. Ballard, 82 Misc 3d 403 [Crim. Ct., Queens County 2023] [Gershuny, J.]; People v. Champion, 81 Misc 3d 292 [Crim. Ct., NY County 2023] [Rosenthal, J.]). The court encourages readers of this opinion to refer to Torres and these other opinions in detail.

Even without the benefit of these decisions, though, the prosecution cannot reasonably claim to have diligently ascertained the existence of discoverable information when they have knowingly and intentionally refused to review police material about this case in their actual or constructive possession. If a prosecutor is faced with a situation where they are unsure whether something is discoverable, the statute mandates that they presume disclosure, period. (C.P.L. § 245.20[7]). As this court explained to the prosecution in Torres:

[T]he statutory presumption means the People should not withhold evidence just because they can make a "colorable legal argument" that it does not fall within the statute. Instead, the People should disclose evidence any time there is a "colorable legal [*3]argument" that it does fall within the statute. The discovery statute requires the People to engage in information sharing, not information suppression. And they are to build mechanisms to support the free flow of information, not construct arbitrary walls that block access. The People's approach here "appear[s] more bent on constricting the discovery statute, rather than acceding to the command of the Legislature that '[t]here shall be a presumption in favor of disclosure when interpreting ... subdivision one of section 245.20.' " (Payne, 2023 NY Slip Op. 23101, at *2 [quoting C.P.L. § 245.20[7]]). The People's responsibility—in entirety—is only to "diligently ascertain the existence of material" that relates to the case and then "disclose" it. (People v. Williams, 72 Misc 3d 1214[(A]), at *5 [Crim. Ct., NY County 2021]). It is not to withhold material and then dispute the evidentiary materiality of it.

Yet there is also another issue here. The prosecution disclosed only police misconduct records with substantial redactions. That suggests that the prosecution, at least, failed to diligently ascertain what underlies these redactions. In response, the prosecutor submits a hodgepodge of seemingly copy-and-pasted paragraphs that are not particular to this case. First, they say that "[t]he defense in their motion only stated they are missing the [misconduct reports] for non-testifying officers." That is not true; the defense does not raise that as an issue, at all. Then they say that "[a]ll of the testifying officer's material has been provided." Despite making that assertion, they also state disclosing all of the testifying officer's material—which they had previously stated they had, in fact, done—"would impose and unreasonable burden on the People" and that "the [P]eople cannot produce what they do not possess." They then also say that all these documents they purportedly disclosed were not discoverable anyway. (A reader of the New York Official Reports may notice that our city's criminal courts almost uniformly disagree.) In sum, the prosecution asserts that they: (1) disclosed all the records; (2) cannot disclose all the records because it would be an unreasonable burden; and (3) do not have all the records to disclose. The word "redacted" does not even appear in the prosecutor's response. To say the least, this confusing record does not meet the prosecutor's burden of "establishing that they did, in fact, exercise due diligence and made reasonable inquiries prior to filing" their certificate. (See Bay, 41 NY3d at 213).

For all these reasons, the prosecution's certificate of compliance was not proper. As a result, its accompanying statements of readiness were illusory. The prosecution commenced this case on June 16, 2023, and they had ninety days to validly state ready for trial. (See C.P.L. § 30.30[1][b]). It is now the prosecution's burden to prove that any time "should be excluded" and to provide the necessary evidence to substantiate their claims. (E.g., People v. Wearen, 98 AD3d 535, 537 [2d Dep't 2012]; People v. Reinhardt, 193 AD2d 1122, 1122 [4th Dep't 1993]). As the prosecution correctly notes, the defense's motion schedule from November 29, 2023, tolls the clock. (C.P.L. § 30.30[4][a]). Therefore, the prosecution is responsible for the delay from June 16, 2023, to November 29, 2023. That is 166 days.

Accordingly, the case must be dismissed. (See C.P.L. § 30.30[1][b]).

Any remaining issues are moot.

The foregoing constitutes the order and decision of the court.