Criminal Court of the City of New York, Kings County, September 21, 2025

OPINION OF THE COURT

Tehilah H. Berman, J.

This case raises the following issues: (i) where the defendant was charged with operating a motor vehicle in an impaired or intoxicated condition, whether the People's failure to produce Giglio records for the responding and arresting officers or exercise due diligence and make reasonable inquiries concerning their existence prior to filing their certificate of compliance (COC) rendered their COC invalid and their statement of readiness illusory; (ii) whether the court could sua sponte raise issues concerning facial insufficiency when defense counsel did not raise such issues in their motion to dismiss; and (iii) whether the defendant's turning on and off the vehicle without taking any action to move the vehicle constituted operation of a vehicle within the meaning of Vehicle and Traffic Law § 1192 (1) and (3).

Defendant Nigel Wilkins (defendant) moves for: (1) an order deeming the People's certificate of compliance (COC) invalid due to the People's failure to disclose discoverable materials under CPL 245.20 (1), and (2) dismissal pursuant to CPL 170.30 (1) (e) and 30.30 for failing to file a valid COC and statement of readiness (SOR) within the 90-day statutory limit. For the reasons set forth below, defendant's motion to dismiss is granted.

{**88 Misc 3d at 1141}On January 13, 2025, defendant was arraigned on a misdemeanor complaint charging him with Vehicle and Traffic Law § 1192 (1) and (3). A person is guilty of violating Vehicle and Traffic Law § 1192 (1) when operating a motor vehicle while "the person's ability to operate such motor vehicle is impaired by the consumption of alcohol." A person is guilty of violating Vehicle and Traffic Law § 1192 (3) when operating a motor vehicle "while in an intoxicated condition." The complaint alleges that the deponent Police Officer (PO) Perry was informed by PO Damico (informant) (the responding officer), that on January 12, 2025, at approximately 9:20 p.m. at 312 Osborn St., County of Kings, "which is a public roadway," the informant observed defendant behind the wheel of a double-parked vehicle and that defendant "turned the vehicle on before then turning it back off." Deponent further states that he observed defendant "exhibiting signs of intoxication: to wit, red watery eyes, odor of alcoholic beverage on breath, and an unsteady gait."

The People served the court with a police department report of refusal to submit to a chemical test (refusal report), which was appended to the accusatory instrument. Section B of the report, which asked for "details" of the impairment or intoxication "such as poor coordination, alcohol beverage odor," was completed as follows: "IMPAIRMENT OF ALCOHOLIC BEVERAGE AND BLOODSHOT EYES." PO Perry was listed as the arresting officer, and PO Foisal was listed as the officer giving warning and witnessing the refusal. On [*2]the one hand, PO Foisal signed the report on January 12, 2025, and on the other hand, PO Perry signed the report on January 13, 2025. The People also filed a CPL 710.30 (1) (a) notice wherein defendant stated to PO Perry in sum and substance, "I was not driving and did not drink."

On January 24, 2025, the People sent a discovery request via email to the 73rd Precinct requesting a number of items.^FN1 Notably missing was a request for Giglio materials. On February 18, 2025, the People served initial discovery upon defense counsel. On April 3, 2025, the People emailed PO Perry and PO Damico and the 73rd Precinct discovery liaisons, generally requesting discovery that was still outstanding.

{**88 Misc 3d at 1142}On April 9, 2025, the People filed the supporting deposition of PO Damico, dated April 4, 2025, stating under penalty of perjury: "I, David Damico, have read the accusatory instrument filed in this action. The facts in that instrument stated to be on information furnished by me are true to my personal knowledge." On April 10, 2025, the People filed their COC and statement of readiness (SOR).

On April 24, 2025, defense counsel informed ADA Malloy that the activity logs and PO Perry's body worn camera (B.C.) footage that the People produced were from January 13, 2025, a day after the alleged incident. On May 15, 2025, the People received updated activity logs from PO Perry and provided them to defense counsel but did not file a supplemental COC. On May 20, 2025, defense counsel sent another conferral email requesting additional discovery, including Giglio material for PO Perry. The People's COC stated that Giglio letters for certain law enforcement officers, including PO Foisal, had been served on defendant on April 10, 2025, via OneDrive, but did not indicate that any had been produced for PO Damico and PO Perry. The COC states:

"The Kings County District Attorney's Office has a request pending with the New York City Police Department that may result in the Office's obtaining discoverable material. However, some aspects of this search are ongoing due to the volume of requests received by the Police Department. As any discoverable material becomes available, the People will produce such material as soon as practicable."

However, to date, the People have not produced Giglio records for PO Damico and PO Perry.

CPL 245.20 (1) (k) provides that the prosecutor has a duty to disclose "[a]ll evidence and information that relate to the subject matter of the case," including that which "tends to impeach the credibility of a testifying prosecution witness." (People v Coley, 240 AD3d 122, 127 [2d Dept 2025]; People v Jawad, 84 Misc 3d 31, 34 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024].) Police disciplinary records may contain evidence that negates a defendant's guilt, reduces culpability, supports a defense, or disproves the identification of the defendant as the perpetrator of the crime. (People v Aron, 85 Misc 3d 1231[A], 2025 NY Slip Op 50319[U] [Crim Ct, NY County 2025].) In using the phrase "all evidence and information," the Legislature intended to provide the broadest discovery possible {**88 Misc 3d at 1143}to defendants of impeachment material. (Coley, 240 AD3d at 127.) PO Perry was the deponent on the accusatory instrument and the arresting officer named on the refusal report, was listed among law enforcement personnel who may have evidence or information relevant to the offenses charged or to any potential defense [*3]thereto, and was designated as someone who may be called as a witness by the People. These facts, taken in totality, render the Giglio material for PO Perry related to the subject matter of the case. (People v Tavares, 81 Misc 3d 1245[A], 2024 NY Slip Op 50156[U], *6 [Crim Ct, Bronx County 2024].)

Similarly, PO Damico, the named informant in the complaint, witnessed defendant turn the vehicle on and off and allegedly observed defendant "exhibiting signs of intoxication: to wit, red watery eyes, odor of alcoholic beverage on breath, and an unsteady gait." These allegations form the basis for the Vehicle and Traffic Law § 1192 (1) and (3) charges against defendant. Therefore, PO Damico's testimony is critical to the case, and any Giglio information that would impeach his credibility relates to the prosecution of the charges against defendant. (Tavares, 2024 NY Slip Op 50156[U], *4.) Giglio letters are of particular importance here since in this case an issue is raised as to PO Perry's credibility as she signed the refusal report on January 13, 2025, a day after defendant's arrest. Furthermore, an issue is raised as to PO Damico's credibility because his description of defendant as exhibiting signs of intoxication in the accusatory instrument was at odds with the description of mere impairment as set forth in the refusal report. The distinction between being impaired and intoxicated is significant. A person is impaired when their physical or mental abilities to operate a motor vehicle are impaired "to any extent," whereas intoxication is a state where a driver has "consumed alcohol to the extent that he or she is incapable of employing those physical and mental abilities." (People v Stack, 140 AD2d 389, 391 [2d Dept 1988] [internal quotation marks omitted].)

In evaluating the validity of the People's COC, the court must determine whether the People have complied with their disclosure obligations under CPL 245.20, and exercised due diligence and made reasonable inquiries to ascertain the existence of material and information subject to discovery. (People v Cooperman, 225 AD3d 1216, 1218 [4th Dept 2024]; People ex rel. Nieves v Maginley-Liddie, 232 AD3d 568, 569-570 [2d Dept 2024]; People v Drayton, 231 AD3d 1057, 1059 [2d Dept 2024].) The People had an obligation to ascertain the existence of{**88 Misc 3d at 1144} impeachment evidence before filing their COC. (People v Stamm, 85 Misc 3d 136[A], 2025 NY Slip Op 50497[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2025].) The court must look to the following factors in assessing due diligence:

"[T]he efforts made by the prosecutor to comply with the requirements of this article; the volume of discovery provided and the volume of discovery outstanding; the complexity of the case; whether the prosecutor knew that the belatedly disclosed or allegedly missing material existed; the explanation for any alleged discovery lapse; the prosecutor's response when apprised of any allegedly missing discovery; whether the belated discovery was substantively duplicative, insignificant, or easily remedied; whether the omission was corrected; whether the prosecution self-reported the error and took prompt remedial action without court intervention; and whether the prosecution's delayed disclosure of discovery was prejudicial to the defense or otherwise impeded the defense's ability to effectively investigate the case or prepare for trial" (CPL 245.50 [5] [a]).

Although the People's notice/disclosure form listed eight police officers as potential witnesses, they only provided Giglio letters for six officers, and did not provide Giglio letters for PO Perry, the arresting officer, and PO Damico, the responding officer, two key witnesses in the People's case. This court finds that the People's statement in their COC that they had a request pending in the New York City Police Department for exculpatory material did not demonstrate due diligence, as it lacked specificity and did not provide any sworn allegations of fact that would permit the court to determine whether the prosecutor made any effort to obtain the Giglio letters for PO Perry and [*4]PO Damico before filing their COC. (See People v Hutchins, 74 Misc 3d 1234[A], 2022 NY Slip Op 50327[U], *1 [Sup Ct, Kings County 2022] [court found lack of due diligence where prosecutor did not articulate the efforts they made to obtain a 911 call].) Furthermore, the People did not demonstrate that they corrected their omission or took any remedial action, as required by CPL 245.50 (5) (a).

The People have a duty to disclose all evidence and information which tends to impeach the credibility of a testifying witness. (People v Hamizane, 80 Misc 3d 7, 11 [App Term, 2d Dept, 9th & 10th Jud Dists 2023].) Disciplinary records of a potential{**88 Misc 3d at 1145} police witness which were created in a different case go to the weight of such witness's credibility. (Id.) Therefore, it was the People's duty to inform the defense whether or not disciplinary records for PO Perry and PO Damico existed, and to provide the defense with copies of any existing records. Since the People failed to exercise due diligence and did not turn over Giglio material for testifying officers, this court deems their COC invalid. (See People v Mendoza, 86 Misc 3d 1201[A], 2025 NY Slip Op 50807[U], *2 [Crim Ct, Kings County 2025].) This court does not reach the belated discovery issues raised by defendant's motion since they are moot.

Though not an issue specifically raised in the motion to dismiss, facial sufficiency is a non-waivable, jurisdictional prerequisite to a misdemeanor prosecution. (People v Dumay, 23 NY3d 518, 522 [2014].) The issue of facial sufficiency "can be raised sua sponte by the Court to assure the court retains subject matter jurisdiction over a case." (People v Holiday, 78 Misc 3d 1217[A], 2023 NY Slip Op 50250[U], *1 [Crim Ct, NY County 2023].) This court finds that the accusatory instrument is facially insufficient to the extent that it does not provide reasonable cause to believe that defendant was operating the motor vehicle when he was approached by the police. An information is "sufficient on its face" when it substantially conforms to the requirements of CPL 100.15 (CPL 100.40 [1] [a]), the "allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information" (CPL 100.40 [1] [b]) and the "[n]on-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof." (CPL 100.40 [1] [c]; see People v Hill, 38 NY3d 460, 463-464 [2022]; People v Smalls, 26 NY3d 1064, 1066 [2015].) Reasonable cause "exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it." (CPL 70.10 [2].)

In order to find that defendant "operated" a motor vehicle in an impaired or intoxicated state, the People must first establish that defendant was actually operating the motor vehicle. A{**88 Misc 3d at 1146} person may be deemed to operate a motor vehicle when, "in the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of the vehicle." (People v Prescott, 95 NY2d 655, 662 [2001].) The term "operate" is broader than the term "drive," and the People need not prove that a defendant actually put the vehicle into motion to establish operation of a motor vehicle. (People v Allaico, 70 Misc 3d 134[A], 2021 NY Slip Op 50026[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021].) For example, a person is deemed to operate a motor vehicle under Vehicle and Traffic Law § 1192 (3) when such person is asleep at the wheel with the key in the ignition and the engine running. (People v Johnson, 140 AD3d 978, 979 [2d Dept 2016]; People v Garcia, 61 Misc 3d 14, 18 [App Term, [*5]2d Dept, 9th & 10th Jud Dists 2018]; see also People v Gomez-Gutierrez, 85 Misc 3d 135[A], 2025 NY Slip Op 50485[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2025] [information, together with supporting deposition, established that the defendant operated a motor vehicle where a park ranger observed the defendant sleeping in the driver's seat of a parked motor vehicle, and when the park ranger attempted to communicate with defendant, defendant woke up and started the engine].) This court finds that the allegation that defendant was observed behind the wheel of a double-parked vehicle and that he "turned the vehicle on before then turning it back off" is insufficient to establish that he operated the motor vehicle inasmuch as the ignition was off and defendant made no attempt to move the vehicle. (See Ebie v City of Pataskala Div. of Police, 2018 WL 3057722, *7, 2018 US Dist LEXIS 103380, *19 [SD Ohio, June 20, 2018, Case No. 2:16-cv-283] [plaintiff ceased to operate his vehicle once he brought it to a complete stop because he made no further attempt to move the vehicle].) A simple explanation can be that defendant turned the vehicle on and off to open the window in order to speak to the responding police officer.

Furthermore, defendant's statement to PO Perry upon his arrest that "I was not driving and did not drink," which statement was appended to the accusatory instrument and served on notice to defendant at his arraignment pursuant to CPL 710.30 (1) (a), can be considered by this court in determining the sufficiency of the accusatory instrument. (People v Anzalone, 85 Misc 3d 648 [Orchard Park Just Ct 2024]; see also People v Hardy, 35 NY3d 466, 475 [2020] ["in evaluating the{**88 Misc 3d at 1147} sufficiency of an accusatory instrument we do not look beyond its four corners (including supporting declarations appended thereto)"].) Defendant's statement to PO Perry further raises doubt as to whether there was reasonable cause to believe that he drank or operated the motor vehicle. Accordingly, this court deems the accusatory instrument to be facially insufficient.

Vehicle and Traffic Law § 1194 (2) (a) (1) provides that a defendant is deemed to have given consent to a chemical test to their blood provided that the test is performed "within two hours after such person has been placed under arrest for" driving while intoxicated. Inasmuch as a chemical test is no longer authorized after the two-hour period has expired, evidence of a defendant's refusal after the two-hour period expired must be suppressed. (People v Odum, 31 NY3d 344, 351-352 [2018].) Here, defendant was arrested on January 12, 2025, at 9:20 p.m., yet PO Perry signed and dated the refusal report on January 13, 2025, which was more than two hours later. Accordingly, the refusal report could not be used to evince defendant's consciousness of guilt. Further questions are raised because there is a discrepancy between what is alleged in the accusatory instrument and the refusal report regarding defendant's level of impairment—while the refusal report merely describes impairment of alcoholic beverage and bloodshot eyes, the accusatory instrument alleges that defendant exhibited signs of intoxication.

CPL 100.20 provides that a supporting deposition must contain factual allegations of an evidentiary character which "supplement" those of the accusatory instrument, i.e., provide "additional or corroborative facts or evidentiary material which may be necessary to demonstrate a sufficient case." (People v Johnson-McLean, 71 Misc 3d 31, 37 [App Term, 1st Dept 2021].) Here, PO Damico's supporting deposition did not contain additional or corroborative facts of an evidentiary character to demonstrate that defendant operated a motor vehicle while he was impaired or intoxicated. Therefore, his supporting deposition did not cure the facial insufficiency.

The "filing of a valid COC is a prerequisite to the People validly stating ready and [*6]stopping the speedy trial clock under CPL 30.30." (People v Earl, 84 Misc 3d 44, 46 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024].) Pursuant to CPL 30.30, dismissal is required "if the People did not file a proper COC and the speedy trial period has run." (People v Bay, 41 NY3d 200, 214 [2023].) In this case, the People's failure to comply{**88 Misc 3d at 1148} with their disclosure obligations under CPL 245.20 (1) (k) and to exercise due diligence renders their COC invalid and their statement of readiness illusory,^FN2 and, therefore, the People's COC failed to stop the speedy trial clock under CPL 30.30. (People v Sanchez, 87 Misc 3d 1204[A], 2025 NY Slip Op 51458[U] [Crim Ct, Kings County 2025].)

Furthermore, since the accusatory instrument was facially insufficient, it was jurisdictionally defective, and "the People could not validly declare themselves ready until there was an accusatory instrument sufficient for trial." (People v Sosa, 71 Misc 3d 140[A], 2021 NY Slip Op 50519[U], *3 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021].)

CPL 30.30 limitation periods are calculated based on the most serious offense charged in the accusatory instrument and are measured from the date of commencement of the criminal action. (People v Cooper, 98 NY2d 541, 543 [2002].) In this matter, the top count, Vehicle and Traffic Law § 1192 (3) (operating a motor vehicle while in an intoxicated condition) is a misdemeanor punishable by a term of imprisonment of up to one year. (Vehicle and Traffic Law § 1193 [1] [b].) Pursuant to CPL 30.30 (1) (b), the People were required to announce their readiness for trial within 90 days following the commencement of the criminal action. The first day counted for speedy trial purposes is January 14, 2025, the day following the commencement of the criminal action (People v Stiles, 70 NY2d 765, 767 [1987].) The prosecution filed and served their COC on April 10, 2025. However, as discussed above, the People's COC was invalid and failed to toll the speedy trial clock. The speedy trial clock was tolled on April 28, 2025, when the instant motion schedule was set. There are 104 days charged from January 14, 2025, to April 28, 2025. Accordingly, 104 days are chargeable to the People, and their 90-day speedy trial period has elapsed. The motion to dismiss under CPL 170.30 (1) (e) is granted. Sealing is stayed for 30 days from the date of this order.