Defendant moves for an order of dismissal on speedy trial grounds alleging that omissions in the Prosecution's automatic discovery render their Certificate of Compliance (COC) and Statement of Readiness (SOR) illusory.

The Prosecution opposes.

For the reasoning more fully explained herein, Defendant's motion is GRANTED.

This case commenced with the filing of an accusatory instrument and Defendant's arraignment on February 20, 2024. Defendant was charged with PL §120.00(1), Assault in the Third Degree, and related offenses. On April 16, the parties appeared in Part DV1. The Prosecution was not ready for trial and the case was adjourned. Later the same day, the Prosecution served initial discovery. On May 13, the Prosecution served and filed a superseding information (SSI). On May 17 and 18, the Prosecution served discovery. They served and filed a COC and SOR on May 18. On May 23, the parties again appeared in Part DV1 and were ordered to diligently confer about missing discovery. On June 10, Defendant, through counsel, emailed the Prosecution a list of missing items. In response, the Prosecution served additional discovery and filed two Supplemental Certificates of Compliance (SCOC), dated June 10 and June 14. On July 2, 2024, Defendant filed the instant motion to dismiss.

Defendant argues that the Prosecution's failure to disclose the following items of discovery prior to filing their COC render it invalid: the command log; audit trails; unredacted copies of all Internal Affairs Bureau (IAB) logs; attachments embedded in IAB logs; a [*2]description of the "general services" that the Prosecution rendered to the complainant; 911 calls made by the complainant and the related radio run, sprint report, and 911 certification; an unredacted copy of the Domestic Violence Bureau Complainant Intake (DVBCI) form; the i-card; an unredacted copy of the Domain Awareness System (DAS) report; and updated Civilian Complaint Review Board (CCRB) summary letters.

The Prosecution argues that their COC and SOR were filed in good faith and valid under CPL §245.50. They argue the unredacted DAS report is not subject to automatic discovery, but that they were nonetheless diligent in disclosing it upon Defendant's request. They argue their failure to turn over the 911 calls was an inadvertent error, but that they exercised diligence by promptly correcting the mistake once alerted. The Prosecution argues that the remaining items Defendant seeks are not related to the subject matter of the case and are therefore not subject to automatic discovery.

On September 20, 2024, the Court conducted a fact-finding hearing to resolve the discrepancy between the parties related to the 911 calls. Prior to the hearing, Defendant asserted that there were five total 911 calls disclosed, whereas the Prosecution asserted that there were only two. In Defendant's telling, none of the calls were disclosed prior to the COC; all five were disclosed after Defendant notified the Prosecution of their omission, using other discovery to determine their existence. By contrast, the Prosecution asserted that one 911 call was disclosed before the COC was filed, and the second after, when Defendant alerted the Prosecution to their oversight. During the hearing, the Prosecution conceded that Defendant was correct: there were five calls in total, none of which were disclosed prior to the COC. The Prosecution argues that this was a benign oversight and should not invalidate their COC.

Pursuant to the automatic discovery provisions of CPL §245.20(1), the prosecution is required to disclose to the defendant, without motion, a list of enumerated items. Disclosure under this section is limited to "all items and information that relate to the subject matter of the case and are in possession, custody or control of the prosecution or persons under the prosecution's direction and control" (CPL §245.20[1]).

Once such disclosure is made, the prosecution must certify compliance with these discovery obligations by the service and filing of a COC (CPL §245.50[1]). The statute further provides that "[n]o adverse consequences to the prosecution . . . 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 245.80 of this Article" (Id.).

If the prosecution provides additional discovery after filing their COC but prior to trial, they must file a SCOC, detailing the additional materials (CPL §245.50[1]). In the SCOC, the prosecution must also detail the basis for the delayed disclosure so the court may evaluate whether the late disclosure affects the validity of the original COC (CPL §245.50[1-a]; see also People v Bay, 41 NY3d 200 [2023]). The filing of a SCOC shall not affect the validity of the original COC if the COC was filed in good faith after exercising due diligence (id.).

Pursuant to CPL §30.30(1)(b), the prosecution must declare trial readiness within ninety days from the date of commencement of a misdemeanor criminal action. To properly announce trial readiness, the prosecution must certify in good faith compliance with their discovery obligations pursuant to CPL §245.20 (CPL §30.30[5]). "Absent an individualized finding of special circumstances in the instant case by the court before which the charge is pending, the [*3]prosecution shall not be deemed ready for trial . . . until it has filed a proper certificate [of compliance]" (CPL §245.50[3]). A defendant seeking dismissal pursuant to CPL §30.30 meets their initial burden by alleging that the prosecution has failed to declare readiness within the statutorily prescribed period (People v Beasley, 16 NY3d 289, 292 [2011]).

Once the defendant has shown that there is more than ninety days of delay, the burden of proving the existence of excludable periods falls upon the prosecution (People v Berkowitz, 50 NY2d 333, 349 [1980]). The prosecution must demonstrate that the disputed adjournments are excludable by reference to a statutory provision (People v. Luperon, 85 NY2d 71, 77-78 [1995]; People v. Cortes, 80 NY2d 201 [1992]; People v. Santos, 68 NY2d 859 [1986]; Berkowitz, 50 NY2d at 348-350). The prosecution also bears the burden to clarify, on the record, the basis for an adjournment so that the motion court can determine to whom the adjournment should be charged (Cortes, 80 NY2d at 215-216; People v Liotta, 79 NY2d 841 [1992]; Berkowitz).

It is undisputed that the 911 calls and related radio runs, sprint reports, and certifications are subject to automatic discovery (CPL §§ 245.20[1][e], [g]). The questions before the Court are whether the Prosecution exercised due diligence, despite failing to ascertain the existence of and disclose five 911 calls made by the complainant prior to filing their COC, and whether their explanation of benign error in their SCOC is sufficient to validate the original COC. The Court answers both questions in the negative: the Prosecution did not exercise due diligence, and the SCOC is insufficient to validate the COC.

The prosecution cannot declare readiness for trial without first complying with their discovery obligations and filing a valid COC (CPL §245.50[1]). The statute does require perfection; a COC filed in good faith that is reasonable under the circumstances meets the threshold requirements (id.). Good faith and reasonableness turn on whether the prosecution "exercised due diligence and ma[de] reasonable inquiries to ascertain the existence of material and information subject to discovery (id.). In People v Bay (41 NY3d 200 [2023]), the Court of Appeals set forth a framework to determine whether a prosecutor has exercised due diligence, finding it to be a "familiar and flexible standard that requires the People to make reasonable efforts to comply with statutory directives" (internal quotations omitted) (Bay at 211). Ultimately, the inquiry is case-specific and turns on the individual circumstances presented (id. at 212). In its ruling, the Court made a non-exhaustive list of factors to consider, such as the efforts made by the prosecution to comply with their discovery obligations, the volume of omitted material, the complexity of the case, how obvious the materials would have been to a reasonably diligent prosecutor, the prosecution's explanation for the omission, and their response when alerted to the issue (id.).

Applying the Bay factors, the Court cannot find that the Prosecution exercised due diligence here. In the context of a criminal case, 911 calls are entirely quotidian, something for which a reasonably diligent prosecutor would be on the lookout (Bay at 215 [finding that belatedly turning over routinely produced disclosure materials weighs against a finding of due diligence]). More importantly, Defendant was able to pick up on their existence by reviewing other discoverable materials. Had the Prosecution properly reviewed their own discovery, their omission would have been obvious (cf. People v Cooperman, 225 AD3d 1216 [2024] [where the materials in question would not have been obvious to the prosecution despite their diligent efforts]). The Court is also struck by the volume of calls — five in total — that the Prosecution [*4]overlooked. Finally, statements made by the complainant close in time to the alleged incident — such as in the 911 calls — are of exceptionally high evidentiary value and are indispensable to the preparation of a defense.

For the same underlying reasons, the Court cannot find the Prosecution's explanation of benign error in their SCOC sufficient, and there is plainly nothing before the Court amounting to the "special circumstances" necessary to permit a declaration of readiness absent a proper COC (CPL §§ 245.50[1-a], [3]; see also People v Bay, 41 NY3d 200 [2023]). Because the Prosecution failed to exercise due diligence, their COC was illusory (CPL §245.50[1]).

The Court need not address Defendant's remaining contentions.

The speedy trial clock ran from the commencement of the case on February 20, 2024, until Defendant filed the instant motion to dismiss on July 2, 2024. The Prosecution is charged one hundred and thirty-three days. Defendant's motion to dismiss is granted (CPL §30.30[1][b]).

This constitutes the decision and order of the Court.