On April 28, 2023, the Defendant filed a notice of motion to dismiss the above-entitled action on the basis of speedy trial grounds pursuant to CPL § 30.30 and the People's failure to timely serve discovery. The People filed an answering affirmation on May 22, 2023. Oral arguments were held on December 15, 2023. Defense counsel then submitted additional support via email on December 20, 2023. This Court, with the consent of defense counsel, permitted the People to file an additional response, which they did on December 28, 2023. The Defendant asserts that the People were not ready for trial within 190 days and the People's filing of Supplemental Certificates of Compliance demonstrate that their original Certificate of Compliance and Statement of Readiness for Trial was illusory.

Defendant's challenge pursuant to CPL § 30.30

The Defendant moves to dismiss the indictment for a violation of CPL § 30.30, which requires that the People to declare their readiness for trial on a felony charge within six months of the commencement of the action (CPL § 30.30(1)(a)).

A defendant seeking a speedy trial dismissal pursuant to CPL § 30.30 meets his or her initial burden on the motion by alleging only that the prosecution failed to declare readiness within the statutorily prescribed time period (People v Reed, 151 AD3d 1821, 1821 [4th Dept. 2017] internal quotations omitted). The Defendant has met his initial burden since he alleges that the People were not ready for trial within the statutory time period. The calculation for CPL § 30.30 purposes begins at the date of arraignment where a defendant is provided a notice to [*2]appear, not the date of arrest (See CPL §1.20[17]^[FN1] and CPL § 30.30[7][b])^[FN2] .

New York reformed its criminal discovery laws by the passage of CPL Article 245, which established new, accelerated timelines for the sharing of evidence between the prosecution and the defense during the pretrial period. Under these new parameters, a prosecutor's ability to declare readiness for trial is inextricably tied to the filing of a "proper" Certificate of Compliance ("COC").

Under CPL § 245.50(1), a "proper" COC shall include a statement by the prosecutor 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." CPL § 245.50(1)(emphasis added). If the prosecution learns of additional material or information that should have been disclosed as part of automatic discovery under CPL § 245.20, "it shall expeditiously notify the other party and disclose the additional material and information as required for initial discovery under this article." People v. Henry, 74 Misc 3d 1230(A) (Sup. Ct., Richmond Cty. 2022).

Notably, CPL § 245.50 directs that "any supplemental certificate of compliance shall detail the basis for the delayed disclosure so that the court can determine whether the delayed disclosure impacts the propriety of the certificate of compliance" (CPL § 245.50[1-a])(emphasis supplied). As such, discovery reform contemplated situations where not every single item of discovery would be turned over prior to the filing of a COC and provided for supplemental COCs under CPL § 245.50(1). Moreover, CPL § 245.50(1) further provided that "no adverse consequence to the prosecution or the prosecutor shall result from the filing of a [COC] in good faith and reasonable under the circumstances." Accordingly, the fact that the prosecution provides discovery belatedly does not automatically result in the COC being illusory. At the same time, a post-filing disclosure and a supplemental COC cannot compensate for a failure to exercise due diligence before the initial COC is filed by the prosecutor.

Where a defendant challenges the People's COC for late discovery, as here, the People have the burden of proof to demonstrate to the Court what due diligence and reasonable inquiries were made in order to demonstrate that the COC was "proper" as required under CPL § 245.50. See People v Bay, 2023 WL 8629188 (Ct of Appeals 12/14/2023); People v. Rodriguez, 73 Misc 3d 411, 417 (Sup. Ct. Queens Cty. 2021), People v. Morgan, 77 Misc 3d 1214 (Sup. Ct. Queens Cty. 2022). "This may be accomplished by recounting the steps they took to obtain certain materials or ascertain the existence thereof, explaining the reasons why particular items are outstanding, lost or destroyed, and submitting their good faith arguments for why certain materials are not discoverable under the statute." Rodriquez, 73 Misc 3d at 417. The People's COC is next evaluated under the standard of whether, despite the late discovery, it was filed in good faith and reasonable under the circumstances. People v. Gaskin, 214 AD3d 1353, 1355 (4th [*3]Dep't. 2023).

The Court of Appeals recently clarified in People v Bay, 2023 WL 8629188 (Ct of Appeals 12/14/2023), the steps a prosecutor must take to demonstrate that he/she has "exercised due diligence and ma[de] reasonable inquiries to ascertain the existence of material and information subject to discovery" [CPL § 245.50(1)]. While the discovery statute does not define "due diligence", the Court noted that it is a "familiar and flexible standard that requires the People "to make reasonable efforts" to comply with statutory directives." The Court further relied on Black's Dictionary to define "due diligence" as "the diligence reasonably expected from, and ordinarily received by a person who seeks to satisfy a legal requirement or to discharge an obligation." Bay, 2023 WL 8629188 at p.*5 (internal citations omitted). Whether the People meet that given standard will depend upon the circumstances of each case.

The defense correctly asserts that the People failed to provide a factual basis for the filing of their Supplemental COCs dated January 10, 2023 and March 24, 2023. As such, the contention is that the original SRT and all COCs are illusory in nature.

The Bay Court directed that courts should generally consider, inter alia, the efforts made by the prosecution to comply with the statutory requirements, the volume of discovery provided and outstanding, the complexity of the case, how obvious the missing materials would have likely been to a prosecutor exercising due diligence, the explanation for any discovery lapse, and the People's response when apprised for any missing discovery. CPL § 245.50(1-a) directs the prosecutor to detail the basis for the delayed disclosure so that courts may evaluate the prosecution's efforts in light of the criteria set forth in Bay.

Both supplemental COCs are absolutely silent as why the "belated" disclosures were made. The People merely assert in their supplemental COCs that the materials were "not available when the original [COC] was filed". See generally, the People's Supplemental COC dated 1/10/23 at ¶5 and People's Supplemental COC dated 3/24/23 at ¶5. One may surmise that the reason for the People's belated disclosure on 1/10/24 was due to the recent receipt of grand jury minutes. However, there is simply no explanation for the late disclosure of 3/24/23. There is no explanation as to why the People were unaware of these materials or what due diligence was exercised to ascertain the existence of the same earlier. It is impossible for this Court to gauge how obvious the missing materials would have been given the dearth of information provided by the People.

Where the prosecution fails to make a showing that it did, in fact, exercise due diligence and made reasonable inquiries prior to filing its initial COC, despite a belated or missing disclosure, our Court of Appeals has directed that the readiness for trial statement must be stricken as illusory and the time chargeable to the People (People v. Bay, 2023 NY Slip Op. 06047, *7). On appeal, the question of whether due diligence was exercised is a mixed question of law and fact (Id. at *8). On the record before this Court where the People failed to provide any explanation whatsoever for the delayed disclosure in violation of CPL § 245.50(1-a), the initial COC and SRT are illusory and must be stricken. The time is chargeable to the People and exceeds the statutory timeframe for felonies.

Accordingly, the Defendant's motion to dismiss is GRANTED and this indictment is hereby DISMISSED. The parties' appearance currently scheduled for February 23, 2024 at 9:30 am is hereby removed from the Court's calendar.

Due to this Court's decision, the remaining issues ^[FN3] raised by the Defendant in his motion need not be addressed, including the issuance of any suppression decision.

This Decision constitutes the Order of this Court.