Defendant Jesus Valderrama ("Defendant Valderrama") is charged by information with violating Vehicle and Traffic Law ("VTL") § 1192 — Operating a motor vehicle while under the influence of alcohol or drugs; specifically, VTL §§ 1192[3], 1192[2]*^[FN1] , and 1192[2-a][a]*, class A misdemeanors; and VTL § 1192[1], a violation.

By Notice of Omnibus Motion dated December 6, 2024, defense counsel, on behalf of Defendant Valderrama seeks an Order:

1. Dismissing the superseding information for facial insufficiency and speedy trial violations pursuant to C.P.L. §§ 170.30, 170.35, 100.15, 100.40, and 30.30(1);

2. Deeming the People's Certificates of Compliance invalid pursuant to C.P.L. § 245.20(1) and C.P.L. § 245.20(2);

3. Deeming the People's statements of readiness invalid pursuant to C.P.L. §§ 30.30(1), 170.30, 170.35;

4. Dismissing the entire accusatory instrument in the instant matter pursuant to C.P.L. §§ 30.30(1)(B), 30.30(5), 170.30(1)(e), and the New York State and Federal Constitutions;

5. An order controverting the search warrant and suppressing all evidence obtained as a result of its execution, pursuant to C.P.L. § 690.40, U.S. Const., Amend. IV and XIV, and NY Const. Art. I, Sec. 12, or in the alternative, granting a Franks hearing (pursuant to Franks v. Delaware, 438 U.S. 145, 155-56 (1978)) for findings of fact and conclusions of law;

6. Suppressing any and all evidence relating to Mr. Valderrama's alleged refusal to submit to a chemical test. In the alternative, Mr. Valderrama requests a hearing for findings of fact and conclusions of law (Refusal/VTL § 1194/Dunaway/Ingle);

7. Suppressing any and all evidence related to the chemical breath test given to Mr. Valderrama. In the alternative, Mr. Valderrama requests a hearing for findings of fact and conclusions of law (Ingle/Johnson/Atkins/Mapp/Dunaway);

8. Suppressing any and all evidence relating to observations of Mr. Valderrama by police, including body worn camera footage from St. Barnabas Hospital on June 29, 2024. In the alternative, Mr. Valderrama requests a hearing for findings of fact and conclusions of law (Mapp/Dunaway/Ingle);

9. Precluding the District Attorney from introducing at trial any evidence of Mr. Valderrama's prior convictions or bad acts (Sandoval/Ventimiglia);

10. Reserving Mr. Valderrama's right to make additional motions as necessary; and

11. Granting such additional relief as the Court deems just and proper.

People submit opposition papers. Defendant was provided the opportunity to submit reply papers but did not do so. Upon consideration of these papers and an analysis of statutory authority and relevant case law, the Defendant's motion to dismiss the superseding instrument for facial insufficiency and speedy trial violations is GRANTED, in part. Defendant's motion to deem the People's Certificate of Compliance ("CoC") invalid and to dismiss the accusatory instrument is DENIED.

By complaint dated June 29, 2024^[FN2] , People allege that on or about June 28, 2024, at approximately 9:50PM, at the northeast corner of Morris Avenue and Mount Eden Avenue in Bronx County, Police Officer Armando Arias, deponent, responded to a motor vehicle collision. There, Officer Arias observed Defendant Valderrama seated behind the steering wheel of a 2006 Infiniti FX with the engine running and "front bumper smashed in," and a Honda SUV in front of Defendant's vehicle to have sustained rear bumper damage and a broken front passenger light. Officer Arias further observed a Toyota in front of the Honda to have sustained dents to the rear bumper. Officer Arias states that he smelled a "strong odor of alcohol emanating from the [Defendant's] vehicle." He also observed Defendant "slumped over the steering wheel, with bloodshot watery eyes" and one empty bottle of beer on the floor of the passenger side. Pursuant to a search warrant issued by Hon. Daniel Lewis, Officer Arias retrieved from St. Barnabas Hospital two vials of Defendant's blood, which he transported to the 44th Precinct for vouchering. Officer Arias then delivered the vials to the NYPD Forensics Laboratory for a toxicology analysis. Reinaldo Fonseca, Assistant Director of Forensic Toxicology, examined the results of Defendant's blood analysis and informed Officer Arias that he observed a "blood ethanol concentration [of] .21 of one percentum by weight."

Defendant Valderrama was arrested on June 28, 2024 and arraigned on June 30, 2024. At arraignment, the complaint was deemed an information on which Defendant was arraigned and pled not guilty, his driver's license was suspended, a screening/assessment ("S&A") was ordered, and he was released on his own recognizance. People were directed to provide legible refusal paperwork, and the matter was adjourned to August 20, 2024 for the filing of a CoC. On [*2]August 20, the matter was adjourned to October 1, 2024, again for the filing of a CoC, and for People to provide a more legible copy of the refusal paperwork. Off-calendar, on September 20, 2024, People filed and served a CoC, Notice (Statement) of Readiness ("SoR"), and a legible copy of the refusal paperwork. On October 1, the complaint was deemed an information on which Defendant, again, was arraigned and pled not guilty. Also on October 1, People offered Defendant a plea to VTL § 1192[2], plus a conditional discharge, the use of an Ignition Interlock Device ("IID") for one year, payment of a $1,000 fine, six-month license revocation, and the completion of several programs^[FN3] , which he declined. The matter was adjourned to October 28, 2024 for a CoC conference, and for S&A results. On October 28, S&A results were provided; it was recommended that Defendant attend thirty-six sessions of the DWI/Substance Use Disorder treatment program; and this Court directed the parties to continue discovery conferral and adjourned the matter to November 4, 2024 for a CoC conference. Off-calendar, on October 31, 2024, People filed a Supplemental CoC ("SCoC") and SoR. Also off-calendar, on November 1, 2024, People filed and served a superseding information ("SSI"). On November 4, this Court noted that People's SSI required a supporting deposition, and at defense counsel's request, set a schedule for the parties to engage in motion practice^[FN4] . People filed a supporting deposition on November 13, 2024.

Defendant Valderrama moves for an Order deeming the People's CoC invalid (CPL § 245.50[1]) for their failure to timely disclose discoverable materials required by CPL § 245.20[1]. Defendant's top charge is a class A misdemeanor and, accordingly, People must be ready for trial within ninety days from the commencement of the criminal action (CPL § 30.30[1][b]). In this case, because Defendant was arraigned on June 30, 2024, People must be ready for trial by September 28, 2024.

CPL §§ 170.30 and 30.30 collectively govern the timeliness of the prosecution's declaration of readiness for trial. This declaration is made by the filing of a valid CoC pursuant to CPL § 245.50[1] and a SoR. When interpreting CPL §§ 245.50[1] and 30.30 together, in the context of a motion to dismiss on speedy trial grounds, the Court must first examine the People's "actual readiness" (CPL § 30.30[5]); that is, whether the prosecution has "done all that is [*3]required of them to bring the case to a point where it may be tried," including the filing of a valid CoC (People v England, 84 NY2d 1, 4 [1994]). A CoC is deemed valid when the court is satisfied that it was filed in "good faith and reasonable under the circumstances" (CPL § 245.50[1]).

If any known discoverable materials were not exchanged prior to the filing of the CoC, People must file and serve a Supplemental CoC ("SCoC") (CPL § 245.50[1-a]) that identifies such items and provides a basis for their belated disclosure. If additional discovery is subsequently provided before trial, pursuant to CPL § 245.60, People must file and serve an additional SCoC, again identifying and providing a basis for the belated disclosure. No adverse consequences to the prosecution or the prosecutor 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 CPL § 245.80.

Additionally, People must demonstrate how due diligence was exercised with regard to those items not timely disclosed (see People v Pierna, 74 Misc 3d 1072, 1088 [Crim Ct. Bronx County 2021]) by detailing the reasonable inquiries made to obtain them (see id.; CPL § 254.50[1]). To determine whether the People have exercised due diligence, the Court relies upon People v Bay, 41 NY3d 200 [2023]. Therein, the Court of Appeals provides guidance as to factors to consider when deciding whether the People have exercised due diligence. These factors include "the efforts made by the prosecution and the prosecutor's office to comply with the statutory requirements, the volume of discovery provided and outstanding, the complexity of the case, how obvious any missing material would likely have been to a prosecutor exercising due diligence, the explanation for any discovery lapse, and the People's response when apprised of any missing discovery."

Defense counsel argues that the SSI, filed on November 1, is facially insufficient because People did not file a supporting deposition until November 13, after the expiration of their statutory speedy trial time.

By way of opposition, People make several arguments. First, they argue that the misdemeanor complaint here was converted to an information at Defendant's arraignment on June 30 when refusal paperwork was filed and served. People then argue that a "defendant does not need to be arraigned for conversion to occur," referring to the legible copy of refusal paperwork filed, which gave rise to Defendant's second arraignment on October 1^[FN5] . People concede that the statutory speedy trial clock resumed on November 1 because they filed an unconverted SSI. People, however, argue that the speedy trial clock was stopped again on November 4, pursuant to CPL 30.30[4][a], when defense counsel "[c]oincidentally" requested the instant motion schedule (People's Opp at 8).

According to CPL § 30.30[5-a]:

Upon a local criminal court accusatory instrument, a statement of readiness shall not be valid unless the prosecuting attorney certifies that all counts charged in the accusatory [*4]instrument meet the requirements of sections 100.15 and 100.40 of this chapter and those counts not meeting the requirements of sections 100.15 and 100.40 of this chapter have been dismissed.

CPL §§ 100.15 and 100.40, read together, provide that "in order for an information or a count thereof to be sufficient on its face, every element of the offense charged and the defendant's commission thereof must be supported by non-hearsay allegations of such information and/or any supporting depositions" (see People v Casey, 95 NY2d 354 [2000]).

CPL § 30.30[4][a] provides, in relevant part: "In computing the time within which the people must be ready for trial [. . .] the following periods must be excluded: (a) a reasonable delay resulting from other proceedings concerning the defendant, including but not limited to: [. . .] pre-trial motions."

People's reading of CPL § 30.30 runs contrary to its plain meaning. CPL § 30.30[4][a] requires that delays "resulting from other proceedings concerning the defendant, including but not limited to: [. . .] pre-trial motions" be excluded from time chargeable to the People (emphasis added). Here, People filed an unconverted SSI on November 1, restarting the statutory speedy trial clock eighty-three days after Defendant Valderrama's arraignment. On November 4, eighty-six days after commencement of this matter, defense counsel requested a motion schedule to challenge, inter alia, the validity of People's CoC. People filed a supporting deposition on November 13, ninety-five days after Defendant's arraignment. Defense counsel served the instant motion on December 6, more than three weeks after People filed the supporting deposition. While People proffer no explanation for the delay, it could not have resulted from counsel's request for a pre-trial motion schedule to which People assented. Furthermore, the instant matter was not adjourned solely for defense counsel to file a motion. Courts have excluded time during adjournments granted for the defense to file motions (see People v Worley, 66 NY2d 523 [1985]; People v Reid, 214 AD2d 396 [1st Dept 1995]); the same is true regarding adjournments granted for the prosecution to file motions (see People v Reed, 19 AD3d 312 [1st Dept 2020]). But that is not the case here. On November 4, this Court declined to arraign Defendant on the SSI because a supporting deposition had not been filed. The matter therefore was adjourned, not only for Defendant's motion, but for People to file a supporting deposition.

People's interpretation of CPL § 30.30[4][a], in the instant case, is inconsistent with the legislative intent of CPL § 30.30[5-a]. In 2019, the legislature amended the statute "to ensure cases go to trial in a reasonable timeframe" (Senate Introducer's Mem in Support of 2019 NY Senate Bill S1738). The statute was amended to include the provision that "a statement of readiness shall not be valid unless the prosecuting attorney certifies that all counts are converted and facially sufficient and that those counts that are not have been dismissed" (id.). Were the Court to follow People's reading of the statute, in this instance, it would risk endorsing an illusory statement of readiness and nullifying the legislature's intent that CPL § 30.30[5-a] "reduce undue delay" in resolving criminal matters (id.).

The Court agrees with People to the extent that the original complaint was fully converted at Defendant's arraignment, upon the filing of refusal paperwork. The original charges, having been incorporated in the SSI as Counts 3 and 4 (VTL §§ 1192[3] and 1192[1], respectively) remain converted and thus are facially sufficient. As for Counts 1 and 2 (VTL §§ 1192[2-a][a] and 1192[2], respectively), we find that People failed to timely file a supporting deposition and therefore did not convert the charges before the speedy trial time expired, rendering them facially insufficient (see People v England, 84 NY2d at 4; CPL §§ 30.30 [5-a], [*5]100.15, and 100.40). Accordingly, Counts 1 and 2 of the SSI are dismissed.

Defense counsel contends that People's CoC is invalid for their failure to exercise due diligence to obtain and timely disclose: 1) photos of the vials containing Defendant's blood and urine; 2) documents related to the testing of Defendant's blood and urine; and 3) minutes related to People's search warrant application.

In opposition, People contend that they exercised due diligence in obtaining and disclosing materials subject to automatic discovery. People state that the photos of vials containing Defendant's blood and urine are "generated by OCME in a litigation packet and are not under the custody and control of the People" (People's Opposition at 18). On September 20, People requested the OCME litigation packet; they received the packet on September 30 and disclosed the items therein on October 7. People claim that they ordered search warrant minutes on September 25; they then disclosed them on October 7, three days after receipt.

On September 20, 2024, People filed and served a CoC, having disclosed upwards of 50 items. The Court is uncertain as to why People filed their CoC on the same day that they requested materials subject to automatic discovery. Notwithstanding, in view of the Bay factors, particularly "the volume of discovery provided and outstanding" (People v Bay, 41 NY3d 200 [2023]) when the CoC was filed, we find that People exercised due diligence and therefore filed a valid CoC on September 20, 2024.

Accordingly, the Defendant's motion to deem the People's CoC invalid is DENIED.

Defendant moves for dismissal of the accusatory instrument pursuant to CPL § 30.30 on the ground that the People failed to file a valid CoC and therefore were not ready for trial within the 90-day statutory period (CPL § 30.30).

Defense counsel contends that 82 days are chargeable from June 30, 2024 to September 20, 2024; 17 days are chargeable from September 20, 2024 to October 7, 2024; 24 days are chargeable from October 7, 2024 to October 31, 2024; 1 day from October 31, 2024 to November 1, 2024; and 12 days from November 1, 2024 to November 13, 2024, totaling 136 days chargeable to the People.

People argue that a total of 84 days are chargeable from June 30, 2024 to September 20, 2024.

The Court agrees with defense counsel to the extent that 82 days are chargeable from June 30, 2024 to September 20, 2024. Since this Court deemed People's CoC valid, the SoR filed on September 20, 2024 stopped the statutory CPL § 30.30 clock. Based upon the foregoing, the Defendant's motion to dismiss pursuant to CPL § 30.30 is DENIED.

Defendant Valderrama's Omnibus Motion seeking suppression of tangible evidence (Ingle/Johnson/Atkins/Mapp/Dunaway), statements/refusal (Huntley/Dunaway/Ingle;), and observation (Mapp/Dunaway/Ingle) is granted, on consent, to the extent that hearings shall be held. The issue of evidence of prior convictions or bad acts (Sandoval/Ventimiglia/Molineux) is respectfully referred to the trial court.

Defendant's motion for a hearing pursuant to Franks v Delaware, 43 U.S. 154 [1978], [*6]seeking to controvert the search warrant, lacks merit and is accordingly DENIED.

This constitutes the Decision and Order of this Court.