Upon the following papers read on this motion for omnibus relief:

ORDERED that this omnibus motion by the defendant is decided as follows: The [*2]defendant's motion to dismiss the accusatory instrument pursuant to CPL § 30.30 on the grounds that his statutory speedy trial rights were violated is DENIED. The defendant's motion to strike the People's CoC and/or SoR pursuant to CPL article 245 is DENIED. The defendant's motion to suppress tangible, non-tangible and testimonial evidence, or granting a Mapp/Dunaway hearing is DENIED, subject to renewal after hearing. The defendant's motion for a Mapp/Dunaway hearing is GRANTED. The defendant's motion to suppress the results of the chemical breath test is DENIED. The defendant's motion to suppress statements, or for Huntley/Dunaway/Ingle hearing is DENIED, subject to renewal after hearing. The defendant's motion for a Huntley/Dunaway/Ingle hearing is GRANTED. The defendant's motion for a pre-trial "voluntariness" hearing for statements to be used on cross-examination is GRANTED. The defendant's motion to preclude the admission of evidence under CPL § 710.30 is DENIED, subject to renewal after the Mapp/Dunaway/Huntley hearing. The defendant's motion for discovery pursuant to Brady v Maryland and CPL § 245.20(1)(k) is GRANTED. The defendant's motion for a Sandoval hearing is GRANTED. The defendant's motion for a Ventimiglia hearing is GRANTED. The defendant's motion to file additional motions is GRANTED, to the extent indicated herein.

On December 14, 2020, the defendant was arrested and charged with (1) one count of Driving While Intoxicated in violation of New York State Vehicle and Traffic Law ("VTL") § 1192.3, an unclassified misdemeanor; (2) one count of Driving While Intoxicated Per Se in violation of VTL § 1192.2, an unclassified misdemeanor and (3) one count of Unlicensed Operation of a Motor Vehicle in violation of VTL § 509.1. He was arraigned on December 15, 2020.

By motion dated February 7, 2024, the defendant now moves (1) to dismiss the accusatory instrument pursuant to Criminal Procedure Law ("CPL") § 30.30 on the grounds that his statutory speedy trial rights were violated and (2) to strike the People's Certificate of Compliance ("CoC) and/or Statement of Readiness ("SoR") pursuant to CPL article 245. In addition, the defendant moves (3) to suppress tangible, non-tangible and testimonial evidence, or granting a Mapp/Dunaway hearing, (4) to suppress the result of the chemical breath test, (5) to suppress statements, or granting a Huntley/Dunaway hearing, (6) for a pre-trial "voluntariness" hearing for statements to be used on cross-examination, (7) to preclude the admission of evidence under CPL § 710.30, (8) for discovery pursuant to Brady v Maryland and CPL § 245.20(1)(k), (9) for a Sandoval hearing, (10) for a Ventimiglia hearing and (11) to file additional motions.

This Court addresses the parties' arguments, below.

A. Motion to Dismiss Based on an Alleged Speedy Trial Violation

The defendant first moves to dismiss on the grounds that the People have violated his statutory speedy trial rights. (See Def.'s Aff. at ¶¶ 39-67).

CPL § 30.30(1)(b) provides, in pertinent part, that a motion to dismiss an accusatory instrument must be granted where the People are not ready for trial within: "ninety days from the commencement of a criminal action wherein a 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 and none of which is a felony." In general, the filing of the accusatory instrument [*3]marks the 'commencement' of the case pursuant to CPL § 30.30, unless a statutory exception applies. (See CPL § 30.30(1)(b) and CPL § 1.20[17]). Where the defendant's appearance was obtained by desk appearance ticket, the criminal action is deemed commenced at arraignment. (See CPL § 30.30(7)(b)).

Pursuant to CPL § 30.30(1)(b), with respect to the misdemeanor charge, the People were required to make an effective statement of their readiness for trial within 90 days of the commencement date of the within criminal actions, taking into account all excludable time periods. The within criminal action was commenced on December 14, 2020.^[FN1] The People filed their CoC/SoR on March 11, 2021, eighty-seven (87) days later. The People filed a Supplemental CoC/SoR on April 10, 2021.

The defendant contends that all time from commencement on December 14, 2020 until the filing of the instant motion on February 7, 2024, or one thousand, one hundred and fifty (1150) days, is chargeable to the People. (See Def.'s Aff. at ¶ 42). At the very least, the defendant contends that all time from commencement on December 14, 2020 until the People's filing of the Supplemental CoC/SoR on April 10, 2021, or one hundred and sixteen (116) days, are chargeable to the People. (Id.)

In opposition, the People contend that the time from December 18, 2020 until the next court appearance on February 10, 2021 (54 days) and from February 10, 2021 until the People filed their CoC/SoR on March 11, 2021 (29 days) is chargeable to them, but that the time from arraignment on December 15, 2020 until the scheduled hardship hearing on December 18, 2020 (3 days) is excludable. (See People's Aff. in Opp. at ¶¶ 8-11). Thus, the People concede that eighty-three (83) days are chargeable to them.

This Court addresses the disputed time periods, below.

1. December 15, 2020 until December 18, 2020 (3 days)

The defendant first contends that the time from arraignment on December 15, 2020 until December 18, 2020 (3 days) is chargeable to the People, as no waivers were provided. (See Def.'s Aff. at ¶¶ 7, 42).

The People argue that the adjournment from December 15, 2020 until December 18, 2020 (3 days) was at the defendant's request for the purpose of holding a hardship hearing, and should therefore be excludable pursuant to CPL § 30.30(4)(b). (See People's Aff. at ¶ 8 & Exhibit F, Transcript of Minutes from December 15, 2020 ("12/15/2020 Tr.")).

CPL § 30.30(4) expressly lists the periods of time that must be excluded from the speedy trial calculation. Pursuant to CPL § 30.30(4)(b), "continuance[s]... [made] at the request of, or with the consent of, the defendant or his or her counsel" are to be excluded. (See CPL § 30.30(4)(b) ["In computing the time within which the people must be ready for trial pursuant to subdivisions one and two of this section, the following periods must be excluded: (b) the period [*4]of delay resulting from a continuance granted by the court at the request of, or with the consent of, the defendant or his or her counsel"]).

It is the opinion of this Court that the People have met their burden to establish that the time from December 15, 2020 until December 18, 2020 (3 days) is excludable pursuant to CPL § 30.30(4)(b). This Court's review of the transcript of the December 15, 2020 appearance transcript reveals that the defendant's counsel requested the adjournment for the purpose of holding a hardship hearing. (See 12/15/2020 Tr. at p. 3, ll. 17-18). Although the defendant gave no waivers, the statutory exclusion nevertheless applies. (See People v Bonilla-Benitez, No. 2022-934 S CR, 2023 WL 8794870, 2023 NY Slip Op 51393(U) [App Term, Dec. 7, 2023] [time excludable where adjournment was at defendant's request despite defendant's counsel's statement of "no waivers"; held "[s]ince CPL § 30.30 (4) (b) creates a statutory waiver of speedy trial time in the proceedings upon a defendant's request or consent to adjournments, a defendant cannot circumvent the exclusion thereunder by stating 'no waivers,' as this would undermine the clear legislative intent of CPL 30.30 (4) (b)"]).

Accordingly, this Court finds that the time from December 15, 2020 until December 18, 2020 (3 days) is excludable from the speedy trial calculation.

2. December 18, 2020 until February 10, 2021 (54 days)

The defendant further contends that the time from December 18, 2020 until February 10, 2021 (54 days) is chargeable to the People, as no waivers were provided. (See Def.'s Aff. at ¶¶ 8, 42).

The People concede that the time from December 18, 2020 until February 10, 2021 (54 days) is chargeable to them. (See People's Aff. at ¶ 9).

Accordingly, this Court finds that the time from December 18, 2020 until February 10, 2021 (54 days) is chargeable to the People.

3. February 10, 2021 until March 17, 2021 (35 days)

The defendant further contends that the time from February 10, 2021 until March 17, 2021 (35 days) is chargeable to the People, as no waivers were provided. (See Def.'s Aff. at ¶¶ 9, 42).

The People concede that the time from February 10, 2021 until the filing of the People's CoC/SoR on March 11, 2021 (29 days) is chargeable to them. (See People's Aff. at ¶¶ 10-11).

As noted in Section B, infra, this Court has concluded that the People's March 11, 2021 CoC/SoR is valid and sufficed to stop the running of the speedy trial clock.

Accordingly, this Court finds that the time from February 10, 2021 until the filing of the People's CoC/SoR on March 11, 2021 (29 days) is chargeable to the People.

Based on the foregoing, this Court concludes that there are a maximum of eighty-three (83) days [the time from the court appearance on December 18, 2020 until February 10, 2021 (54 days) and from February 10, 2021 until the People filed their initial CoC/SoR on March 11, 2021 (29 days)] elapsed on the speedy trial clock.

Thus, the defendant's motion to dismiss based upon a speedy trial violation is DENIED.

B. Motion to Strike the CoC/SoR

The defendant further contends that the People's March 11, 2021 CoC/SoR is invalid because the People failed to comply with the automatic disclosure requirements of CPL article 245. Specifically, the defendant contends that the People failed to disclose (1) an email, (2) a supporting deposition and (3) the prisoner activity log prior to certifying. (See Def.'s Aff. at ¶ 62).

In opposition, the People contend that (1) the defendant did not timely notify the People of the alleged deficiency as required under CPL § 245.50(4)(b) (see People's Aff. In Opp. at Point Eight, p. 10/14); and (2) the defendant did not timely move to challenge the People's CoC/SoR (see id.).

(1) Adequacy/Timeliness of Notification of Deficiency

CPL article 245 was amended in May 2022 in several respects. One amendment requires a defendant to notify the People of alleged deficiencies related to the CoC "as soon as practicable" (CPL § 245.50(4)(b)) and to "confer to attempt to reach accommodation as to any dispute concerning discovery." See CPL § 245.35(1).

Here, the People contend that they were only informed by the defendant of the missing records with the filing of the instant motion of February 7, 2024, which is one-thousand and sixty-three (1,063) days after the People served their discovery and filed their CoC/SoR on March 11, 2021.^[FN2] (See People's Mem. of Law in Opp. at Point Eight, p. 10/14).

However, the statutory requirement that the defendant notify the People of deficiencies in the CoC only took effect in May 2022, which was more than a year after the People filed their CoC. This Court is unaware of any retroactive application of the statute.

Accordingly, the People's argument that the defendant's motion to strike the CoC/SoR be denied on this ground is meritless.

(2) Timeliness of Challenge

In addition, the People argue that the defendant's motion to strike the CoC/SoR is untimely pursuant to CPL § 245.50(4). (See People's Mem. of Law at Point Eight, p. 10/14).

The statute governing challenges to CoCs that was in effect at the time of the filing of the initial CoC and Supplemental CoC (in March and April 2021), CPL § 245.50,^[FN3] was silent as to [*5]when such challenges must be brought. (See CPL § 245.50(4) [2021] ["[c]hallenges to, or questions related to a certificate of compliance shall be addressed by motion."]). However, at that time, courts routinely applied the time limit set forth in CPL § 255.20, which states, in pertinent part, "all pre-trial motions shall be served or filed within forty-five days after arraignment or before commencement of trial, or within such additional time as the court may fix upon application of the defendant made prior to entry of judgment."

Accordingly, the time to challenge the initial CoC/SoR, filed on March 11, 2021, was 45 days later, on April 25, 2021. The time to challenge the Supplemental CoC/SoR (containing the email, supporting deposition and prisoner activity log ), filed on April 10, 2021, was May 25, 2021. The instant motion was filed on February 7, 2024, which is one-thousand and sixty-three (1,063) days after the initial CoC/SoR, filed on March 11, 2021, and one-thousand and thirty-three (1,033) days after the Supplemental CoC/SoR, filed on April 10, 2021.

This Court concludes that the defendant was on notice of the deficiencies in the People's initial disclosure and initial CoC/SoR at least as of the service and filing of the People's Supplemental CoC/SoR, on April 10, 2021. Accordingly, the defendant's motion to strike the CoC/SoR, filed 1,033 days later, is untimely.

Moreover, the defendant's counsel contention that the late-filing is excused by the fact that the case was in bench warrant status for almost two years (from November 23, 2021 until October 23, 2023), and consequently, the defendant was unreachable and/or could not provide consent to the filing of the instant motion, is unpersuasive. (See Reply at ¶ 8). The defendant has a duty to cooperate in his own defense by making himself available to his attorneys, absent medical or other emergency. The fact that the defendant did not do so here does not toll the application of statutory time limitations.

2. Merits of the Defendant's Challenges to the CoC/SoRs

CPL article 245 requires the People to serve and file a CoC with the court prior to stating readiness under CPL § 30.30 [see CPL § 245.50[3]]. In order for the People to be ready for trial, the People must: "(1) file a certificate of good faith discovery compliance; (2) file a valid statement of readiness; and (3) certify the facial sufficiency of the accusatory instrument." (People v Ramirez-Correa, Docket CR-018674-20QN [Crim Ct, Queens Cnty 2021]).

As noted above, the defendant contends that the People's March 11, 2021 CoC/SoR is invalid because the People failed to disclose (1) an email from the police department's office administrator regarding a prisoner property receipt, (2) a supporting deposition and (3) the prisoner activity log prior to certifying. (See Def.'s Aff. at ¶ 62).

It is undisputed that each item is discoverable under CPL article 245. In their opposition, the People contend that "[o]nce the prosecution realized that any discoverable materials were missing from their original certification, the prosecution expeditions filed a supplemental certificate of compliance on the Court and defense." People's Mem. of Law at Point One, p. 5/13. Notably, however, the People's opposition is devoid of any explanation of the good faith and due diligence undertaken prior to certifying to discovery such records.

However, for the reasons discussed above, such motion is DENIED as untimely.

3. People's Challenge to Defendant's Failure to Provide Reciprocal Discovery

The People object that the defendant failed to provide reciprocal discovery, as required by CPL § 245.10(2). (See People's Mem. of Law at Point Nine, p. 13/14).

In reply, the defendant states that they have no discovery subject to the statutory reciprocal discovery obligations of CPL § 245.20(4). (See Def.'s Reply at ¶ 19).

Based on the defendant's representation that none of the evidence in their possession is subject to the reciprocal discovery obligations of CPL § 245.20(4), this Court rejects the People's objection as meritless.

C. Motion to Suppress Tangible and Non-Tangible Evidence

In the alternative, the defendant moves, pursuant to CPL §§ 710.20(1)&(4), 710.60, to suppress tangible and non-tangible evidence, or for a Mapp/Dunaway hearing. (See Def.'s Aff. at �� 68-74).

The defendant's motion to suppress tangible and non-tangible evidence is DENIED, subject to renewal after a Mapp/Dunaway hearing. The defendant's motion for a Mapp/Dunaway hearing is GRANTED.

D. Motion to Suppress the Results of the Chemical Breath Test

Next, the defendant moves to suppress the results of the defendant's alleged chemical breath test on the grounds that the breath test sample was tested more than two (2) hours after the defendant's arrest. (See Def.'s Aff. at ¶¶ 75-78).

VTL § 1194(2)(a)(1) provides, in pertinent part:

2. Chemical tests. (a) When authorized. Any person who operates a motor vehicle in this state shall be deemed to have given consent to a chemical test of one or more of the following: breath, blood, urine, or saliva, for the purpose of determining the alcoholic and/or drug content of the blood provided that such test is administered by or at the direction of a police officer with respect to a chemical test of breath, urine or saliva or, with respect to a chemical test of blood, at the direction of a police officer:

(1) having reasonable grounds to believe such person to have been operating in violation of any subdivision of section eleven hundred ninety-two of this article and within two hours after such person has been placed under arrest for any such violation....

Courts have held that where a breath test is given more than two hours after the defendant's arrest, in cases in which the defendant did not give voluntary consent within the two-hour window, the test results are inadmissible. (See People v Odum, 31 NY3d 344, 350, 78 [*6]NYS3d 252 [2018] [breath test results inadmissible where breath test was given more than two hours after the defendant's arrest, where the defendant did not give voluntary consent until after expiration of the two-hour window). However, where the defendant has given voluntary consent within the two-hour window, the statute does not preclude admission of the breath test results. (See People v Atkins, 85 NY2d 1007, 1008—09, 630 NYS2d 965 [1995] "[] the two-hour limitation contained in Vehicle and Traffic Law § 1194(2)(a) has no application here where... defendant expressly and voluntarily consented to administration of the blood test [within the two-hour window].")

Here, the defendant was arrested at 9:26pm; the police read the alcohol influence report ("AIR") warnings/instructions at 10:35pm; the defendant consented to the chemical breath test at 10:45pm; the chemical breath test was performed at 11:57pm. (See Def.'s Aff. At 77 & Exhibit I; People's Mem. of Law at Point Three).

Thus, as the defendant consented to the administration of the chemical breath test within the two hour window, the results of the chemical breath test are admissible.

Therefore, the defendant's motion to suppress the results of the chemical breath test is DENIED.

E. Motion to Suppress Statements

The defendant also moves, pursuant to CPL §§ 710.20(1)&(4), 710.60, to suppress defendant's statement noticed in the People's CPL § 710.30 motion, namely "I had six beers," as well as a written statement contained in the defendant's AIR, or for a Huntley/Dunaway/Ingle hearing. (See Def.'s Aff. at �� 79-80).

The defendant's motion to suppress defendant's statement noticed in the People's CPL § 710.30 motion, namely "I had six beers," as well as a written statement contained in the defendant's AIR, is DENIED, subject to renewal after a Huntley/Dunaway/Ingle hearing. The defendant's motion for a Huntley/Dunaway/Ingle hearing is GRANTED.

F. Pre-Trial Voluntariness Hearing

Next, the defendant moves pursuant to CPL §§ 60.45, 710.20(3) and 710.40(3) for a pre-trial "voluntariness" hearing with respect to any statements sought to be used on cross-examination of the defendant. (See Def.'s Aff. at ¶ 81).

The defendant's motion for a pre-trial "voluntariness" hearing with respect to any statements sought to be used on cross-examination of the defendant is GRANTED, and such "voluntariness" hearing will be conducted during the Huntley hearing.

G. Motion to Preclude

The defendant also moves to preclude the People from introducing any statement or identification testimony at trial for which proper notice was not given pursuant to CPL § 710.30(3). (See Def.'s Aff. at � 89).

The defendant's motion to preclude the People from introducing any statement or identification testimony at trial for which proper notice was not given pursuant to CPL § [*7]710.30(3) is DENIED, subject to renewal after the Mapp/Dunaway/Huntley hearings.

H. Discovery and Discovery-Related Hearings

Finally, the defendant moves this Court for an order that the People comply with their obligations pursuant to (1) Brady v Maryland, and CPL § 245.20(1)(k), (2) People v Sandoval, as well as Sandoval and Molineux/Ventimiglia hearings. (See Def.'s Aff. at ¶¶ 90-92; ¶ 93 and ¶ 94).

The defendant's motion for disclosure of materials pursuant to Brady and CPL § 245.20(1)(k) is GRANTED to the extent that, in the event that, in exercising its obligation of due diligence, the People obtain or discover any exculpatory materials and/or materials subject to automatic disclosure, then the People are required to promptly disclose such materials to the defendant to the extent they have not already done so.

The defendant's motion seeking to obtain notice from the People of any proposed trial issues pursuant to Sandoval is GRANTED, to the extent that, in the event that, in exercising its obligation of due diligence, the People obtain or discover disclosable materials, the People are directed to provide such notice to the defendant no later than fifteen (15) business days prior to the trial date of this action.

The defendant's motion for a Sandoval hearing is GRANTED.

The defendant's motion for a Molineux/Ventimiglia hearing is GRANTED, and will be scheduled prior to trial.

I. Motion to File Additional Motions

The defendant's request to file additional motions is GRANTED, but only to the extent permitted by CPL § 255.20(3). (See Def.'s Aff. at ¶ 95).

By reason of the foregoing, the defendant's motion to dismiss the accusatory instrument pursuant to CPL § 30.30 on the grounds that his statutory speedy trial rights were violated is DENIED. The defendant's motion to strike the People's CoC and/or SoR pursuant to CPL article 245 is DENIED. The defendant's motion to suppress tangible, non-tangible and testimonial evidence, or granting a Mapp/Dunaway hearing is DENIED, subject to renewal after hearing. The defendant's motion for a Mapp/Dunaway hearing is GRANTED. The defendant's motion to suppress the results of the chemical breath test is DENIED. The defendant's motion to suppress statements, or for Huntley/Dunaway/Ingle hearing is DENIED, subject to renewal after hearing. The defendant's motion for a Huntley/Dunaway/Ingle hearing is GRANTED. The defendant's motion for a pre-trial "voluntariness" hearing for statements to be used on cross-examination is GRANTED. The defendant's motion to preclude the admission of evidence under CPL § 710.30 is DENIED, subject to renewal after the Mapp/Dunaway/Huntley hearing. The defendant's motion for discovery pursuant to Brady v Maryland and CPL § 245.20(1)(k) is GRANTED. The defendant's motion for a Sandoval hearing is GRANTED. The defendant's motion for a Ventimiglia hearing is GRANTED. The defendant's motion to file additional motions is GRANTED, to the extent indicated herein.

This shall constitute the decision and Order of the Court.