Defendant moves to invalidate the People's Certificate of Compliance ("COC") pursuant to CPL § 245.50 (4)(c) and to dismiss the accusatory instrument, pursuant to CPL §§ 30.30 and 170.30 (1)(e) on the grounds that the People did not timely disclose (i) Giglio materials, (ii) FDNY ambulance records, and (iii) failed to timely provide an adequate witness list with witness contact information. For the reasons discussed herein, the motion to invalidate the COC is denied, and sanctions, pursuant to CPL § 245.80, are granted to the extent set forth below.

Defendant is charged with (i) Menacing in the Second Degree (PL § 120.14 [1]), (ii) Assault in the Third Degree (PL § 120.00 [1]), (iii) Criminal Possession of a Weapon in the Fourth Degree (PL 265.01 [2]), (iv) Endangering the Welfare of a Child (PL § 260.10 [1]), (v) Menacing in the Third Degree (PL § 120.15), and (vi) Harassment in the Second Degree (PL § 240.26 [1]), stemming from an incident that occurred on [*2]June 16, 2023.^[FN1]

As relevant to this motion, the initial COC and Statement of Readiness ("SOR") were filed on December 7, 2023. At that time, the People indicated that they were not calling any police officer witnesses to testify at trial and reiterated this assertion when Defense requested Giglio materials for the officers involved in Defendant's arrest (Rini Affirm., ¶ 30). Thereafter, on October 3, 2024, the People filed and served Giglio materials for certain police officers, together with their Second Supplemental COC ("SCOC 2"), pursuant to a stipulation that these officers would only testify in connection with "any hearings to be ordered as a result of motion practice as it pertains only to Defendant's co-defendant, Jenny Morris" (id.). In reliance on this, Defense Counsel claims Defense did not challenge the validity of the initial COC (id.). On the morning of trial, however, the People informed Defense that they would, in fact, call Detective Shirley Perez Romero — whose Giglio materials were turned over together with SCOC 2 — as a witness notwithstanding the earlier assurances to the contrary. Defendant now moves to invalidate the COC on this basis.

Defendant also argues that the COC should be invalidated on the additional ground that the People did not provide ambulance records for the complainant until October 29, 2024, when the People filed and served their third Supplemental COC ("SCOC 3"). With respect to these ambulance records, the People initially indicated that the complainant was not treated by paramedics on scene and that no ambulance records existed as a result. According to the Assigned ADA, when the People initially "met with the complainant and asked if [she] was treated by EMS on scene, the complainant indicated she was not treated on scene, but was taken by a friend to receive medical attention" (Sulewski Affirm. at 11). However, while preparing for trial, the Assigned ADA learned for the first time that, "although [the] complainant's friend initially did pick her up, they stopped and called for an ambulance," which ambulance then "responded to a different location — not the scene of the incident — sometime [] after the incident took place" (id.; SCOC 3, ¶ 6 [b]). When this information became known, the Assigned ADA asked the complainant to sign a HIPAA form and expedited the subpoena to obtain the ambulance records the next day, at which time the People immediately shared these records with the Defense (id.). The records obtained pursuant to this subpoena contain a Prehospital Care Report Summary and an Ambulance Call Report (Sulewski Affirm., Ex. 5). Notably, the Prehospital Care Report Summary was already provided to Defense as part of the medical records disclosed prior to filing the initial COC on December 7, 2023 (id., Ex. 6). As to the Ambulance Call Report from FDNY, this Report provided the People with the ICAD number, allowing the People to also request the associated 911 call, which they [*3]did. However, "[t]he People were informed that at the time of their request, the call had been erased, and ceased to exist" (Sulewski Affirm. at 11).

Finally, Defense also maintains that the People incorrectly identified which of the complainant's daughters witnessed the incident, and belatedly disclosed the identity of the 911 caller, as well as the identity and contact information for two other witnesses on the eve of trial: an individual named XXXXX, who allegedly took the complainant away from the scene of the incident in question and an individual named XXXXX, who allegedly transported complainant to the precinct (Rini Affirm., ¶ 42; Exs. 4 and 6). The People contend that they only learned the identity of XXXXX and XXXXX on October 29, 2024, because the complainant was concerned about the safety of these individuals and, therefore, reluctant to share their identity with the People prior to that date (Sulewski Affirm. at 13). The People also maintain that Defense is not entitled to 911 caller information, but that, in any event, they turned it over as soon as it was obtained.

The mere fact that additional discovery was provided after the initial COC was filed does not automatically invalidate that initial COC (People v Bay, 41 NY3d 200, 209 [2023]). As the Court of Appeals has made clear, under the CPL, "'[n]o 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 circumstance,'" subject to any "discovery sanctions and remedies where provided in CPL § 245.80" (Bay, 41 NY3d at 209, citing CPL § 245.50 [1]). Rather, on a motion challenging the validity of a COC, "the key question in determining if a proper COC has been filed is whether the prosecution has exercised due diligence and made reasonable inquiries to ascertain the existence of material and information subject to discovery" (id. at 211 [internal quotations and citation omitted]). While "due diligence" is nowhere defined in the CPL, per the Court of Appeals, "it is a familiar and flexible standard that requires the People 'to make reasonable efforts' to comply with statutory directives" (id., quoting People v Bolden, 81 NY2d 146, 155 [1993]).

Here, the Court is satisfied that the People met their burden of due diligence and filed their initial COC in good faith and reasonable under the circumstances. As concerns the Giglio materials for Detective Perez Romero, the Court has no basis to believe — nor does the Defense allege — that the People were not truthful when they originally indicated that they would not be calling any police witnesses at trial. Nor does the Court have reason to doubt that when the People turned over the Giglio materials for Detective Perez Romero, they intended to have Detective Perez Romero testify only at the co-defendant's hearing. As such, invalidating the COC on this basis is unwarranted.

Nevertheless, because the People repeatedly asserted that they would not call any police witnesses to testify, Defendant is entitled to rely on that assertion here. In that respect, where "the court deems a COC proper (including in a case where there was late disclosure but the court concludes the People exercised due diligence), CPL § 245.80 sets forth the available remedies for the belated disclosure" (Bay, supra, at 215). Per that section, any remedy must be "appropriate and proportionate to the prejudice suffered by the party entitled to disclosure" (CPL 245.80 [1]). Here, the appropriate and proportional remedy for the belated disclosure of Giglio materials for Detective Perez Romero and the repeated assertion that she would not be called to testify at any trial against the defendant is to preclude the Detective's testimony. Precluding a police officer's testimony under these circumstances also serves to disincentivize any potential for gamesmanship that may result if the People can leave the decision as to whether to call certain officers to testify to the eve of trial.

Defense also argues that the COC should be invalidated because the People did not timely provide Defense with EMS records. As an initial matter, the discovery statute expressly states that the People "shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain" (CPL § 245.20 [2]); see also People v Vaillant, 80 Misc 3d 856 [Crim Ct Bronx County 2023]). People v Rahman, the Appellate Term, Second Department's decision on which the Defense relies, also does not require disclosure because nothing in the record before the Court indicates that the complainant was treated by EMS at the direction of the NYPD or another law enforcement agency (pPeople v Rahman, 79 Misc 3d 129 [A] [App Term 2d Dept, 2d, 11th and 13th Judicial Dist June 23, 2023]). Significantly, in Rahman, the NYPD "called Emergency Medical Services (EMS), which then treated the complainant for injuries she allegedly sustained during the altercation with defendant" (id.). Under those circumstances, the Appellate Term held that FDNY/EMS records were discoverable pursuant to CPL § 245.20 (1)(j), i.e., as records made "at the request or direction of a public servant engaged in law enforcement activity . . . ." Here, however, EMS was indisputably not called at the direction of the NYPD, but rather by the complainant or her friend, after the complainant left the place of the incident in question. Significantly, the complainant initially indicated that she was not treated by EMS and as soon as the People became aware that the records did exist, they expedited a subpoena for their production, followed up, and promptly turned over same to the Defense. The Court declines to invalidate the COC under such circumstances.

Turning to the identity of the 911 caller, the People are correct that this information may be withheld without a motion for a protective order pursuant to CPL § 245.20 (c), provided that "the prosecution shall notify the defendant in writing that such information has not been disclosed." Here, however, the People did not notify Defense that they were withholding this information; rather, they simply did not discover the caller's identity until they were preparing for trial. As such, it is unclear that the information is shielded from disclosure (and subsequent COC challenge) under CPL § 245.20 (c). Nevertheless, the People credibly explain that they were unable to determine the caller's identity earlier, that they belatedly obtained the caller's identity only when meeting with witnesses to prepare for trial and promptly turned over same, and that they provided Defense with the phone number that was provided by the 911 caller as part of the disclosure provided in this case. The People have met their burden of demonstrating that they exercised due diligence and made reasonable inquiries to determine the identity of the caller, and exercised good faith by promptly turning over information about the caller as soon as it was discovered (People v Watkins, 224 AD3d 1342 [4th Dept 2024]). The same holds true for the identity of the two witnesses, XXXXX and XXXXX, whose contact information and identity the People had trouble obtaining from the complainant due to her concern for these witnesses' safety. Inasmuch as a remedy is warranted for the belated disclosure, such remedy may be limited to a brief continuance. Dismissal on these grounds is not warranted.

At the time the People filed the initial COC and SOR on December 7, 2023, 85 days were chargeable to the People.^[FN2]

Accordingly, it is hereby

ORDERED that the Defendant's motion to dismiss is denied; and it is further

ORDERED that the People's Certificate of Compliance filed on December 7, 2023, is deemed valid; and it is further

ORDERED that pursuant to CPL § 245.80 Detective Shirley Perez Romero is precluded from testifying at trial against Defendant.