Crimes - Disclosure - Certificate of Discovery Compliance Valid Despite People's Failure to Turn over Names, Contact Information, and Witness Designations for Three Civilian Witnesses

Brooklyn Defender Services (Aleena Pasha of counsel) for defendant.

Eric Gonzalez, District Attorney (Jennifer Breen of counsel), for the People.

Defendant moves for an order of dismissal on speedy trial grounds alleging that omissions in the prosecution's automatic{**86 Misc 3d at 1178} discovery render their certificate of compliance (COC) and statement of readiness (SOR) illusory.

The prosecution opposes.

For the reasons explained more fully herein, defendant's motion to dismiss is granted.

Defendant was arraigned on a misdemeanor complaint charging assault in the third degree and related offenses on August 15, 2024 (Penal Law § 120.00 [1]). The case was adjourned for a Crawford hearing at defendant's request. On August 27, the parties appeared in Part DV2, where the court conducted the Crawford hearing and adjourned the case for discovery compliance. On October 29, the prosecution served and filed a superseding information (SSI). On November 13, the prosecution served and filed their COC and SOR. On November 15, the case was called in Part DV2; defendant did not appear, and the court stayed a bench warrant. On November 20, the parties appeared in Part DV2, where defendant was re-arraigned on the SSI; the court vacated the bench warrant and ordered the parties to confer about discovery. On January 24, defendant, through counsel, emailed a list of missing discovery. On January 27, the parties again appeared in Part DV2, where the court set a motion schedule.^[FN1] On January 29, the prosecution replied to defendant's discovery conferral email. Defendant filed the instant motion on February 14; the prosecution filed their response on March 17, 2025.

Defendant argues that the prosecution's failure to disclose the following items of [*2]discovery prior to filing their COC render it invalid: the names, contact information, and witness designations for three civilians who were present at the scene of the alleged incident; and underlying impeachment materials related to civil lawsuits against two testifying police witnesses. Defendant also argues the prosecution should be charged speedy trial time for their delayed filing, which was three days past the court-imposed deadline. Defendant points out that the prosecution stated on the record that they had filed their COC with 90 days of speedy trial time accrued on November 15 and 20.{**86 Misc 3d at 1179}

The prosecution argues they filed their COC and SOR in good faith after exercising due diligence, as required by CPL 245.50 (1). They argue the underlying impeachment materials are not related to the subject matter of the case and are therefore not subject to automatic discovery. They surmise that the three civilian witnesses to whom defendant refers are the complainant's grandmother, mother, and another family member or close friend. They further explain that they have requested their information from the complainant, but she has not yet responded. When she does, the prosecution affirms they will disclose it and file a supplemental certificate of compliance (SCOC). Regarding speedy trial time, the prosecution argues the first adjournment between August 15 and 27 is excludable under CPL 30.30 (4) (b), as defendant requested the hearing.

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 the possession, custody or control of the prosecution or persons under the prosecution's direction or control" (CPL 245.20 [1]). The prosecution must perform their initial discovery obligations as soon as practicable, but not later than 35 calendar days after arraignment where the defendant is at liberty (CPL 245.10 [1] [a] [ii]).

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 consequence 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 section 245.80 of this article" (id.).

If the prosecution provides additional discovery after filing their COC but prior to trial, they must file an 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 an SCOC shall not affect the validity of the original COC if the COC was filed in good faith after exercising due diligence (id.).{**86 Misc 3d at 1180}

Pursuant to CPL 30.30 (1) (b), the prosecution must declare trial readiness within 90 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]). "[A]bsent an individualized finding of special circumstances in the instant case by the court before which the charge is pending, the prosecution shall not be deemed ready for trial . . . until it has filed a proper certificate [of [*3]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 are more than 90 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).

The issues under consideration are twofold: the substantive challenge to the COC and what, if any, bearing it has on the COC's validity; and whether the adjournment for a Crawford hearing is excludable from speedy trial calculations. The court will first address the COC.

The court agrees with the prosecution that they are not required to disclose the underlying impeachment materials related to civil lawsuits against the officers. CPL 245.20 (1) (k) (iv) requires the prosecution to disclose "[a]ll evidence and information . . . that tends to . . . impeach the credibility of a testifying prosecution witness." This mandate is limited to materials in their possession or control that relate to the subject matter of the case (CPL 245.20 [1]). First, as the prosecution astutely argues, materials related to civil lawsuits are not only not in their custody and control, but also public and{**86 Misc 3d at 1181} equally available to both parties. Second, recent binding precedent excludes such underlying materials as unrelated to the subject matter of the case (People v Earl, 84 Misc 3d 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]). Thus, the court finds that the prosecution has satisfied their disclosure duties pertaining to the impeachment materials.

On the other hand, the prosecution has not complied with their obligation to disclose information about the three civilians with whom police spoke at the scene. CPL 245.20 (1) (c) requires the prosecution to provide

"[t]he names and adequate contact information for all persons other than law enforcement personnel whom the prosecutor knows to have evidence or information relevant to any offense charged or to any potential defense thereto, including a designation by the prosecutor as to which of those persons may be called as witnesses."

It is undisputed that the three witnesses spoke with police at the scene and that the prosecution has not disclosed their information or witness designations. That leaves the question of whether the COC is nevertheless valid.

When a COC is reasonable under the circumstances and filed in good faith, it meets the requirements of CPL 245.50 (1). This does not demand perfection; rather, it requires due diligence (id.; People v Bay, 41 NY3d 200 [2023]). Evaluating due diligence relies upon a "familiar and flexible standard that requires the People to make reasonable efforts to comply with statutory directives" (People v Bay, 41 NY3d at 211 [internal quotation marks omitted]). The inquiry is case-specific and turns on the individual circumstances presented (Bay at 212). The Bay court enumerated a list of factors to make this determination, such as the efforts made by the prosecution to comply with their discovery obligations, the volume of material omitted, the complexity of the case, how obvious the missing materials would have been to a reasonably [*4]prudent prosecutor, the prosecution's explanation for the omission, and their response when alerted to the issue (id.).

The court is troubled by the prosecution's failure to obtain this information prior to filing their COC. Both parties gleaned the existence of these three civilian witnesses from body-worn camera footage (BWC) supplied by the responding officers; thus, the prosecution should have been aware of their existence and potential for pertinent knowledge since receiving{**86 Misc 3d at 1182} and reviewing the BWC. Although they do not provide a date on which they contacted the complainant to learn the witnesses' names, the prosecution attests that, on January 29, they emailed defense counsel that they would do so in the future. They offer no reason for their inaction prior to January 29.

Still, the court must consider the broader context. The volume of material at issue is small relative to the rest of the discovery. The prosecution has demonstrated a substantial effort to comply with their discovery obligations, including pre-COC efforts to obtain materials and information on August 20, September 3, September 10, October 18, and November 8. Because the three people were inside the residence with defendant and the complainant, it stands to reason that defendant likely already knows who they are.^[FN2] Although the lapse between the prosecution's COC and their email stating they would contact the complainant is long, the court notes that defendant waited a particularly long time to confer about missing discovery. In other words, the prosecution acted quickly upon defendant's notification of the missing material, responding five days later. The court finds that the prosecution exercised due diligence and filed their COC in good faith. This leaves the question of speedy trial time.

The prosecution concedes that they accrued 78 days of speedy trial time between August 27 and November 13. The court will evaluate the remaining periods, between August 15 and 27—the Crawford hearing adjournment—and March 14 and 17—the prosecution's late response filing.

The prosecution cites CPL 30.30 (4) (b) for exclusion of the Crawford hearing adjournment. CPL 30.30 (4) (b) provides that "the period 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" is excluded from speedy trial calculations.

There is no controlling authority dictating whether an adjournment for a Crawford hearing falls within this statutory exclusion. Few courts of concurrent jurisdiction have evaluated this question, reaching opposite conclusions (see People v Hooks, 78 Misc 3d 398 [Crim Ct, Kings County 2023] [holding that an adjournment for a Crawford hearing is excludable under CPL {**86 Misc 3d at 1183} 30.30 (4) (b)]; cf. People v Winston, 78 Misc 3d 1201[A], 2023 NY Slip Op 50130[U] [Crim Ct, Bronx County 2023] [in which the court charged the prosecution with speedy trial time for the first Crawford hearing adjournment, but not for subsequent Crawford hearing adjournments resulting from the defense's unavailability]). The court believes the distinction between pre-readiness and post-readiness time is important to this question, because pre-readiness time is presumptively chargeable. Thus, the court believes an explicit speedy trial waiver is essential for the exclusion to apply before a valid SOR (People v Liotta, 79 NY2d at 843 ["(C)onsent to an adjournment must be clearly expressed by the defendant or defense counsel to relieve the People of the responsibility for that portion of the delay"]; see generally [*5]People v Worley, 66 NY2d 523, 528 [1985] [finding that "exclusions rest generally on theories of estoppel or waiver"]).

In this case, defendant indeed requested the Crawford hearing upon the court's issuance of a temporary full order of protection. However, defendant did not indicate any intent to waive speedy trial time. Rather, at the conclusion of defendant's arraignment, the court asked the parties what date they would prefer to return for the next appearance, to which defendant suggested August 27 and asked for a Crawford hearing on that day. The court sees no basis upon which to conclude this adjournment constitutes a "delay" as contemplated by CPL 30.30 (4) (b) (People v Suppe, 224 AD2d 970, 971 [4th Dept 1996] ["The statute does not exclude generic periods of delay requested or consented to by defendant or his counsel, but is limited to those periods of delay resulting from a continuance or adjournment of court proceedings granted by the court at the request of defendant or with his consent"]; see also People v Worley, 66 NY2d 523, 527 [1985] ["Those delays have been caused by the defendant for his own benefit, and with the court's permission, under circumstances in which both the defendant and the court have determined that the adjournment is desirable"]). Thus, the period between August 15 and 27 is chargeable to the prosecution.

Finally, the prosecution offers no explanation for their late filing, three days beyond the deadline. When the prosecution does not meet court-imposed deadlines, they incur speedy trial time (see People v Delosanto, 307 AD2d 298 [2d Dept 2003]). As such, the prosecution is charged three days of speedy trial time from March 14, the missed deadline, until March 17, when they belatedly filed their opposition.{**86 Misc 3d at 1184}

In total, the prosecution has incurred 93 days of speedy trial time, including 90 days between August 15 and November 13 and three days between March 14 and 17. Because the prosecution has exceeded 90 days of speedy trial time, defendant's motion to dismiss is granted (CPL 30.30 [1] [b]).