Pending before the court is a C.P.L. § 30.30 motion to dismiss. It alleges that the prosecution failed to file and serve a proper certificate of discovery compliance before stating ready for trial. Such a certificate requires the prosecution to certify two things. (C.P.L. § 245.50[1]). First, that they have exercised "due diligence" and made "reasonable inquiries" to "ascertain the existence of material and information subject to discovery." (Id.). And second, that "after" doing so, they "ha[ve] disclosed and made available all known material and information subject to discovery." (Id.). Absent "an individualized finding of special circumstances in the instant case," the prosecution "shall not be deemed ready for trial" until it has filed a proper certificate of compliance. (C.P.L. § 245.50[3]). On a C.P.L. § 30.30 motion as this one, the prosecution "bear[s] the burden" of "establishing" that they, "in fact," completed the tasks they claimed to have completed in their certificate. (People v. Bay, 41 NY3d 200, 213 [2023]).^[FN1]

In People v. Bay, the Court of Appeals explained how to analyze whether the prosecution properly certified the first statement on the certificate; that is, whether the prosecution, in fact, exercised "due diligence" and made "reasonable inquiries" to "ascertain the existence" of discoverable material. That question is "fundamentally case-specific" and "will turn on the circumstances presented." (Id. at 212-13). "[G]ood faith is required," but "it is not sufficient standing alone and cannot cure a lack of diligence." (Id.). The statute does not demand a "perfect prosecutor," but it does demand a "reasonable" one. (Id.).

Thus, in Bay, the Court of Appeals found "no record support" for finding that the prosecution exercised reasonable diligence where they certified compliance without ascertaining the existence of "routinely produced disclosure materials." (Id. at 215). In that case, those "routinely produced disclosure materials" were two police reports, a 911 call recording, and a 911 call detail report. (Id. at 206).

In this misdemeanor case, the defense argues that the prosecution certified "diligence" in ascertaining the existence of discoverable material without ascertaining the activity logs of numerous officers involved. The prosecution responds that they generally have several resources to ascertain the existence of discoverable material, including "a Discovery Compliance Unit" and "paralegal discovery liaisons" embedded in their various bureaus. They explain that these liaisons "communicate regularly with discovery liaison units that have been created by outside agencies such as the NYPD." They note that they certified automatic discovery compliance on April 15, 2023—the 91st day after commencing this action^[FN2] —and, at that time, disclosed "approximately 40 files with defense counsel." In their memorandum of law written on May 29, 2024, the prosecution asserts that they have "recently" requested the activity logs from the NYPD. They assert their failure to do so before certifying compliance was a "minor oversight."

The question therefore comes down to this: has the prosecution established that their "oversight" here is one that can be excused as reasonable?

In reviewing the prosecution's submission, the answer is no. The analysis should begin with the character of the missing material. This is not a case where the prosecution failed to ascertain some rare or unusual documents amongst a sea of material. To the contrary, activity logs—like body-worn camera footage or Omniform system reports—are among the most basic NYPD documents ever produced. They are the digital versions of police memobooks, and they are routinely disclosed in every case. (See Bay, 41 NY3d at 215 [noting that a reasonable prosecutor does not fail to ascertain "routinely produced disclosure materials"]). Indeed, even before discovery reform, police memobooks were for decades understood to be Rosario material that the prosecution must disclose. While the mere fact that some police documents are missing does not always mean that the prosecution failed to exercise due diligence, it is difficult to conclude that the prosecution acted diligently when those missing documents are as basic as NYPD activity logs. This is a simple misdemeanor case that did not involve any complicated [*2]investigation, and a simple and reasonable checklist of routinely produced materials in such a case would have NYPD activity logs listed.

Moreover, the prosecution does not provide a reasonable record on which the court could nonetheless conclude they acted diligently. Indeed, nearly the entirety of their record is devoted to providing information regarding their general discovery compliance procedures. (See People v. Luciano, 83 Misc 3d 1273[A], at *2 [City Ct., Yonkers 2024] [involving the same deficiency]). But "these assertions are irrelevant as they fail to address the People's specific compliance . . . related to the instant matter." (See id.). If anything, the prosecution's general record about their office's many discovery resources highlights the problem: how can the prosecution be said to have acted diligently when, despite the substantial resources at their disposal, they failed to ascertain a kind of police document that is among the most basic? Rather than providing the court with that answer—or with specific reasons why they acted diligently despite missing these basic documents—the prosecution only states that their failure was a "mere oversight." But they do not explain why this oversight occurred, nor do they explain what this oversight was. Did they fail to appreciate that activity logs were produced in this case? Such an oversight would not be reasonable, as activity logs are so basic and routine. Or, for instance, did they, by sheer accident, mark the logs as successfully ascertained on a regular discovery index? Such a record could spell a different story. But here, the prosecution provides no detail as to why they committed their "oversight"; they simply say that they made one. That is not sufficient for the court to conclude that the prosecution nonetheless acted diligently. Not all oversights occur despite one's diligence.

Finally, the court notes that the prosecution certified compliance in this case on the very last day of the speedy-trial deadline. This further undermines the prosecution's claim that they acted diligently. The discovery statute sets the prosecution's compliance deadline well within the ninety-day speedy-trial timeframe; in this case, it was 35 days after arraignments. (See C.P.L. § 245.10[1][a]). Should a prosecutor require an extension, they may ask a court for one. (C.P.L. § 245.70[2]). Here, they did not do so, remaining radio silent until the 91st day after arraignments. The prosecution's unexplained and unilateral choice to delay compliance until this very last day is reminiscent of cases in which prosecutors certified compliance not because they had, in fact, complied, but because it was the final date on which they could possibly do so. (See, e.g., People v. Luke, 80 Misc 3d 1228[A] [Crim. Ct., Queens County 2023]).

Accordingly, the prosecution's certificate was not proper, and since they fail to establish special circumstances, their statement of readiness was illusory. Though the prosecution misreports the date of commencing this case as August 25, 2023, the court file indicates they commenced it on January 15, 2024. This motion schedule, which the defense requested on April 17, 2024, tolls the readiness clock. (See C.P.L. § 30.30[4][a]). It is the prosecution's burden to prove that any time between those dates "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]). Here, they do not claim even a single C.P.L. § 30.30[4] exclusion before April 17, 2024. (See generally Pr. Resp.).

Thus, the clock runs from January 15, 2024, to April 17, 2024, which is ninety-three days, more than the ninety days the prosecution is allowed. (See C.P.L. § 30.30[1][b]). The case must be dismissed.

Any remaining issues are moot.

The foregoing constitutes the order and decision of the court.