Summary of the Court's Decision-

The defendant, by written motion dated January 16, 2024, seeks the invalidation of the People's Certificate of Compliance, Supplemental Certificate of Compliance, and speedy trial dismissal. The People, by written response dated February 6, 2024, oppose. After a review of the defendant's motion, the People's opposition, the court file, and the record, this Court makes the following findings:

In pertinent part, the defendant was arraigned on February 18, 2021 on a criminal court complaint charging him with P.L. § 265.03(1), P.L. § 265.03(3), P.L. § 170.25, P.L. § 265.02(1), P.L. § 265.01(B)(1), two counts of P.L. § 170.20, P.L. § 195.05 and V.T.L. § 1111(D)(1). On February 22, 2021, defendant was indicted on the charges of P.L. § 265.03(1)(B), P.L. § 265.03(3), P.L. § 265.02(1), P.L. § 195.05, V.T.L. § 511(1)(A) and V.T.L. § 1111(D)(1). Defendant was arraigned in Supreme Court on the indictment on March 19, 2021.

The defendant moves to invalidate the People's Certificate of Compliance and Supplemental Certificates of Compliance, alleging the People failed to timely disclose discovery of several officers including body-worn camera footage and audit trails, despite repeated requests. The People argue that their Certificate of Compliance and Supplemental Certificates of Compliance were filed in good faith, that they exercised due diligence, and that any belated discovery did not prejudice the defendant.

C.P.L. § 245.20(1) requires the People to disclose to the defendant "all items and information that relate to the subject matter of the case and are in the possession, custody, or [*2]control of the prosecution or persons under the prosecution's direction or control" prior to filing a certificate of compliance. C.P.L. § 245.20(2) specifies that "all items and information related to the prosecution of a charge in the possession of any New York state or local police, or law enforcement agency shall be deemed in the possession of the prosecution." See C.P.L. 245.20(2)(emphasis added). Moreover, C.P.L. § 245.20(2) requires the People to make good faith and diligent efforts to obtain discoverable material or information pursuant to C.P.L. §245.20(1), unless such material would require subpoena duces tecum or information that defendant "may thereby obtain."

C.P.L. § 245.55(2), mandates that, upon the People's request, the police make a complete copy of their records and their case files available to the People. See People v. Edwards, 74 Misc 3d 433, 441 (NY Crim. Ct. 2021)(citing C.P.L. § 245.55 (2)). Therefore, before filing a Certificate of Compliance, the People must disclose all information in their possession or in the possession of law enforcement that relates to the subject matter of the case. People v. Amir, 76 Misc 3d 1209(A) (Bronx Cty. Crim. Ct. 2022)(relying upon C.P.L. §§ 245.20(1), 245.50(3), 245.50(1)). Courts have held that if something is in the prosecutor or police file, it is deemed related to the subject matter of the case and needs to be disclosed. Id. (quoting People v. Lustig, 68 Misc 3d 234, 239-40 (Queens Cty. Sup. Ct. 2020)). The People must also exercise due diligence and make reasonable inquiries to ascertain the existence of material and information subject to discovery before filing their CoC. See People v. Lustig, 68 Misc 3d 234 (Queens Cty. Sup. 2020)(quoting C.P.L. § 245.50(1))(emphasis added).

Recently, the Court of Appeals in People v. Bay held that the trial court should find a Certificate of Compliance and Statement of Readiness illusory where the People fail to establish that they exercised due diligence in advance of filing their Certificate of Compliance and Statement of Readiness. See People v. Bay, 2023 NY Slip Op 06407.

The People assert that this Court should excuse their delayed disclosure of missing body worn camera footage and other discovery and find that they acted with good faith and due diligence in their discovery obligations and in their filing of the Certificate of Compliance and Supplemental Certificate of Compliance, despite their disregard of prior counsel's demand for and notice of missing discovery in April 2022. They argue that the prosecutor made "reasonable efforts" to obtain the body worn camera footage "using the method for obtaining that material developed by the NYPD and the Queens County District Attorney's Office" and that the prior prosecutor "followed the standardized process in this case." On the record in court on December 19, 2023, the People asserted that it was sufficient for them, as is their protocol, to rely on the arresting officer to obtain and link all discovery for them. This Court disagrees.

Here, prior counsel repeatedly alleged, on the record and in written motions that: (1) there was missing body worn camera footage; (2) she could see the recording light on the body worn camera footage of an unknown officer depicted on a known officer's body worn camera in the People's possession and provided to counsel; and (3) she specifically directed the People to the known officer's body worn camera footage to help them identify the unknown officer whose body worn camera footage was outstanding.

Regardless of counsel's notice and demand, C.P.L. § 245.20 imposes an obligation on the People to disclose police officer body worn camera footage from the scene of the incident and arrest and C.P.L. § 245.20(2) deems such video footage to be in the People's constructive possession. Counsel's confusing the name of an officer in her demand or mistaken identification of any officers at the scene, especially where the officer is depicted on body worn camera in the [*3]People's actual possession, does not obliterate the People's disclosure obligations.

Moreover, good faith and/or due diligence, dictates that the People should have reviewed the footage, conducted an appropriate investigation, obtained, and disclosed the body worn camera video footage and any other outstanding discovery, prior to filing a Certificate of Compliance. On the record on December 19, 2023 and in their answer to their motion, the People concede that prior counsel specifically pinpointed the exact video footage that showed the unknown officer at the scene with an illuminated body worn camera in April 2022. Besides implying that they believed prior counsel arguments to be unreliable, the People fail to explain why they did not follow up with the specific officer or review the body worn camera video footage until December of 2023. The People's de minimis effort of contacting one officer and failure to articulate what, if any other effort they made between April 2022 and December 2023, to obtain any outstanding discovery including the missing body worn camera footage, falls short of what the statute requires.

In April 2022, the People took the position that no additional body worn camera footage existed and refused to revisit their incorrect position, even after present counsel reasserted a demand for the missing body worn camera footage in October 2023. It was not until counsel took a still photo of the very body worn footage of the other officer and handed it to the People, did the People decide to adequately follow-up. In finally doing so, they identified and provided the body worn camera footage of the previously unidentified officer, Officer Healy and discovered body worn camera footage for additional officers, Officers Rose, Haines, Aizaga and McMahon in December of 2023. In addition, at the same time they provided memo book entries for Officers Rose, McMahon, Aizaga, Healy and Haines, and LEOW disclosures for Officers Rose, Haines, Healy, Aizaga, and McMahon.

It is clear to this Court, the People's disdain for prior counsel influenced their lack of appropriate effort or diligence. It is equally clear that had the People exercised even a minimal amount of diligence, they would have realized that there were other officers at the scene, obtained the officers' body worn camera footage and paperwork in early 2022. Furthermore, the People's claim that these officers' body worn cameras failed to "link up" with the previously disclosed body worn cameras and that it was reasonable to rely solely on their arresting officer, as a reasonable excuse for the delayed disclosure, lacks merit.

For approximately two years, the People were put on notice that there was outstanding discovery. The People filed Supplemental Certificates date June 17, 2022 and October 17, 2023, but did not even attempt to investigate or obtain the statutorily required missing discovery indicated by the defendant's first counsel back in April 2022 until the end of 2023.

Consequently, the Court finds that the People have failed to exercise due diligence, as articulated by the Court of Appeals in People v. Bay and finds the People's Certificate of Compliance and Supplemental Certificates of Compliance to be INVALID.

Pursuant to C.P.L. § 30.30(1)(a), a motion to dismiss must be granted "where the [prosecution is] not ready for trial within . . . six months of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a felony." To satisfy his initial burden under C.P.L. § 30.30, the defendant need allege "only that the prosecution failed to declare readiness within the statutorily prescribed time period." People v. Luperon, 85 NY2d 71, 77-78 (1995); see also People v. Drummond, 215 AD2d 579 (2d Dept. [*4]1995).

Once the defendant has alleged that more than the statutorily prescribed time period has elapsed since the commencement of the action without a declaration of readiness by the prosecution, the prosecution bears the burden of establishing sufficient excludable delay. See C.P.L. § 30.30(4); People v. Berkowitz, 50 NY2d 333, 349 (1980); People v. Santos, 68 NY2d 859, 861 (1986); People v. Brown, 28 NY3d 392, 403 (2016); People v. Cantoni, 140 AD3d 782, 784 (2d Dept. 2016); People v. Matos, 62 Misc 3d 128(A) (App. Term 2d Dept. 2018).

The People must communicate readiness to the trial court and to defense counsel either in open court or by filing a statement of readiness with the clerk of the court and serving a copy of the statement on defense counsel. People v. Smith, 82 NY2d 676 (1993). The defendant's statutory speedy trial rights survive a guilty plea or trial verdict. See generally People v. Frazier, 175 AD2d 257 (2nd Dept. 1991); People v. Hall, 213 AD2d 558 (2nd Dept. 1995).

Here, the defendant was arraigned in Criminal Court on February 18, 2021 and in Supreme Court on March 19, 2021 on two counts of Criminal Possession of a Weapon and other related charges. A Certificate of Compliance was filed on March 31, 2022. Defendant asserts that 263 days are chargeable prior to the People's filing of their March 31, 2022 Certificate of Compliance, while the People argue that only 13 days of chargeable time accrued. Defendant asserts that the People should be charged with 551 days after the Certificate of Compliance was filed, while People assert that no time is chargeable post readiness.

Here, in accordance with the above, having found the People's Certificate of Compliance and Supplemental Certificates, invalid and having found more than 181 days of chargeable time has accrued, the defendant's motion to dismiss on speedy trial grounds is GRANTED.

Where, as here, the Court finds in excess of three hundred chargeable days after the filing of the now invalid Certificate of Compliance, the court will limit its calculation to chargeable adjournments post the People's filing of the Certificate of Compliance.

The defendant filed his omnibus motion on May 24, 2022 and, inter alia, included in the motion the missing discovery. At the June 14, 2022 appearance, matter was adjourned for the People's reply on June 16, 2022 and decision on August 26, 2022. As such, this adjournment is excludable. See C.P.L. § 30.30(4).

On July 14, 2022, the Court issued a decision granting a Mapp/Huntley/Dunaway hearing and adjourned the matter for that purpose on August 26, 2022. However, because the People failed to comply with discovery, they could not be ready for the hearing or trial. Accordingly, the People are charged with 43 days.

At the August 26, 2022 appearance, the People answered not ready for hearings and requested September 8, 2022. However, this request for time was illusory as they had not complied with discovery nor filed a valid statement of readiness. See People v. Bay, 2023 NY Slip Op 06407. Accordingly, the People are charged with 34 days.

Defense counsel was on trial and not available for the hearing on September 29, 2022. The matter was adjourned for hearings on October 21, 2022. Accordingly, this is an excludable adjournment. See C.P.L. § 30.30(4)(b).

The People were not ready for hearings on October 21, 2022 and requested October 26, 2022. Again, the People had not filed a valid Certificate of Compliance or Statement of readiness by that date. Thus, the request for time is illusory. See People v. Bay, 2023 NY Slip Op 06407. Accordingly, the People are charged with 19 days.

On November 9, 2022, the People were not ready and the matter was adjourned for hearings. Accordingly, the People are charged 22 days.

On December 1, 2022 the People answered ready for hearings with one witness. However, defense counsel anticipated being sent out for trial in the afternoon and requested an adjournment. The matter was adjourned for hearings on December 15, 2022. Accordingly, this is an excludable adjournment. See C.P.L. § 30.30(4)(b).

At the December 15, 2022 appearance, the People made a new offer which the defendant wished to consider. The matter was adjourned to December 21, 2022 for possible disposition. Accordingly, this is an excludable adjournment. See C.P.L. § 30.30(4)(b).

The defendant did not accept the People's updated offer on January 13, 2023. The matter was adjourned for hearings on January 13, 2023. At this time, there was no valid discovery compliance or statement of readiness. Accordingly, the People are charged with 24 days.

On January 13, 2023, the People answered ready for hearings, but the defendant was unable to be produced due to a Department of Corrections issue. As it is the People's responsibility to ensure the defendant's production while in custody and their continued failure to comply with discovery, the People are charged with 7 days.

The suppression hearings commenced on January 20, 2023 and continued on February 14, 2023. The matter was adjourned to March 8, 2023 for the hearing decision. Accordingly, this is an excludable adjournment.

On March 8, 2023, the Court issued the hearing decision denying suppression of the firearm and adjourned the matter for trial on April 6, 2023. As the People had yet to comply with discovery, this is a chargeable adjournment. Accordingly, the People are charged with 29 days.

The defendant requested an adjournment to work on a possible disposition on April 6, 2023. The matter was adjourned for that purpose at the defendant's request. Accordingly, this is an excludable adjournment.

On April 27, 2023, the matter was on to set a trial date. There was no disposition at the appearance. However, the People had still not complied with discovery or validity stated ready for trial. See People v. Bay, 2023 NY Slip Op 06407. Accordingly, the People are charged with 21 days.

On May 18, 2023, the matter was on to set a trial date. There was no disposition at the appearance. As of that date, the People had still not filed a valid Certificate of Compliance or [*5]Statement of Readiness. See People v. Bay, 2023 NY Slip Op 06407. Accordingly, the People are charged with 35 days.

On June 22, 2023, the matter was again adjourned to set a trial date without a valid Certificate of Compliance or Statement of Readiness. Accordingly, the People are charged with 21 days.

On July 13, 2023, the matter was again adjourned to set a trial date without a valid Certificate of Compliance or Statement of Readiness. Accordingly, the People are charged with 32 days.

On September 14, 2023, the People answered ready for trial, but defense counsel was on trial. The People still had not met their discovery obligations. On October 3, 2023, the case was advanced for new counsel to be assigned, per the defendant's request and adjourned to November 1, 2023. Accordingly, this is an excludable adjournment as the defendant requested a change of counsel. See C.P.L. § 30.30(4)(b).

On November 1, 2023, the defendant indicated that he was working with additional trial experts and made additional requests for discovery. While the Court could decide this adjournment should be chargeable since the People failed to properly comply with their discovery obligations, an argument can also be made that defendant consented to this adjournment. See C.P.L. § 30.30(4)(b). Accordingly, no time is charged.

At the December 5, 2023 appearance, the People confirmed the name of the officer, Officer Healy, whose body worn camera was missing and indicated they were awaiting the footage. Accordingly, the People are charged with 14 days.

The People made an additional record about the missing body worn camera footage on December 19, 2023 and requested that the defendant put any discovery and speedy trial motions in writing. The Court adjourned this matter for the defense to file motions on January 17, 2024. Accordingly, this adjournment is excludable. See C.P.L. § 30.30(4).

On January 17, 2024, the defendant filed this motion before the Court. The People's response was due off-calendar on February 6, 2024. The Court did not have a decision on the initial adjourn date of February 16, 2024 and adjourned this matter for decision on March 1, 2024. Accordingly, this is an excludable adjournment. See C.P.L. § 30.30(4)(a).

The Court finds that there are 301 days charged after the filing of the People's invalidated Certificate of Compliance. As the chargeable time attributed to the People exceeds six months (181 days in this matter), pursuant to C.P.L. § 30.30(1)(a)—to wit, a total of 301 days post-invalidated Certificate of Compliance —the defendant's motion to dismiss on speedy trial grounds is GRANTED.

Accordingly, all charges on the indictment are dismissed and sealing is stayed thirty days. This constitutes the decision and order of this Court.