Defendant moves for an order of dismissal on speedy trial grounds alleging the Prosecution's failure to timely disclose discoverable materials renders their Certificate of Compliance (COC) and Statement of Readiness (SOR) illusory.

The Prosecution opposes.

For the reasons explained more fully herein, Defendant's motion is GRANTED.

Defendant was arraigned on a misdemeanor complaint charging one count of Patronizing a Person for Prostitution in the Third Degree on August 22, 2024 (PL §230.04). The Prosecution served and filed a supporting deposition on September 26. On October 10, the parties appeared in Part SV; the Prosecution was not yet ready for trial and the case was adjourned for discovery compliance. On November 13, the Prosecution served and filed the COC and SOR. On November 21, the parties again appeared in Part SV; the case was adjourned for the parties to confer about discovery and Defendant's COC. Between November 27 and January 7, the parties conferred via email about missing discovery. On January 9, the Prosecution served and filed a Supplemental Certificate of Compliance (SCOC) with some of the materials Defendant requested. On January 21, 2025, the parties appeared in Part SV, where the Court set a motion schedule.

Defendant argues the Prosecution's failure to disclose the following items of discovery prior to filing their COC renders it invalid: a video recording made by an undercover officer involved in his arrest, the names and contact information for six other defendants arrested in the same undercover operation, discovery related to the other six defendants, unredacted DD5s, unredacted memo books, and a copy of an undercover officer's memo book. Although the Prosecution belatedly disclosed the recording by the undercover officer, Defendant argues it [*2]depicts another defendant. Defendant also contends that the Prosecution has demonstrated a lack of due diligence. Specifically, Defendant points to the fact that he first alerted the Prosecution to their failure to turn over the video recording forty-three days before they acted to correct the mistake.

The Prosecution argues they filed their COC in good faith after exercising due diligence, as required by CPL §245.50(1). They affirm that they mistakenly believed they had shared the recordings made by the undercover officer depicting Defendant's arrest, but that the files did not properly upload. They argue this error does not undermine their diligence. They dispute Defendant's claim that the video depicts a different defendant, asserting that the police confirmed it is the correct video. Regarding the other six defendants arrested in the same operation, the Prosecution argues their cases are wholly separate from Defendant's, so materials from their cases are not subject to automatic discovery in this case. Relatedly, they argue their redactions to the DD5s and memo book were proper, as they apply only to information about the other six people arrested and to different dates than Defendant's arrest, respectively.

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 possession, custody or control of the prosecution or persons under the prosecution's direction and control" (CPL §245.20[1]). The prosecution is also obligated to make a diligent, good faith effort to ascertain the existence of and make available materials that would be automatically discoverable but are not in their possession, custody, or control, except those which the defendant may obtain by subpoena duces tecum (CPL §245.20[2]).

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 consequences 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 245.80 of this Article" (Id.).

If the prosecution provides additional discovery after filing their COC but prior to trial, they must file a 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 a SCOC shall not affect the validity of the original COC if the COC was filed in good faith after exercising due diligence (id.).

Pursuant to CPL §30.30(1)(b), the prosecution must declare trial readiness within ninety 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]). "Absent 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 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 [*3]statutorily prescribed period (People v Beasley, 16 NY3d 289, 292 [2011]).

Once the defendant has shown that there is more than ninety 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 parties dispute the discoverability of several items, namely information related to the other six defendants arrested in the same undercover operation as Defendant and the redacted portions of the undercover officer's memo book. They agree, however, that the video recording made by the undercover officer depicting Defendant's alleged criminal transaction is subject to automatic discovery (CPL §245.20[1][g]). They also agree that the Prosecution did not disclose the video recording, until after filing their COC. In their January 9 SCOC, the Prosecution states that they "believed, in good faith, that they had originally served the Buy Recording, as evidenced by the COC Discovery Inventory. However, Defense Counsel alerted the People that the Recording was not in the OneDrive. The People re-serve the Recording."

Preliminarily, the Court will address the disputed items. The Court lacks sufficient information to adequately determine whether the names and contact information of the other six defendants is subject to automatic discovery in this case. It is conceivable that these people may have been witnesses to Defendant's interaction with the undercover officer and subsequent arrest. If so, their names and contact information are plainly discoverable under CPL §245.20(1)(c). However, if they were merely arrested around the same time as Defendant for similar conduct, but did not witness Defendant's own alleged criminal conduct, the Court sees no reason why their information would be discoverable. That they were transported to the precinct with Defendant is of no import unless they have some information relevant to Defendant's case. As to the panoply of discovery in their cases, Defendant has not provided any persuasive reason he should be so entitled, given that these defendants are not charged with any overlapping course of conduct. The Court's assessment of the DD5 redactions follows the same line of reasoning. Finally, the Court agrees with the Prosecution that they are permitted to redact the undercover officer's memo book to show only the dates relevant to Defendant's case. Other dates having nothing to do with Defendant's arrest and charges do not meet the baseline relevance threshold contemplated by CPL §245.20(1).

The pivotal issue here is the video recording depicting Defendant's alleged criminal transaction and arrest, and the Prosecution's belated disclosure thereof. Although discovery must be turned over prior to filing a COC, the statute leaves room for human error; so long as the prosecution files a COC in good faith that is reasonable under the circumstances, they meet their statutory obligation (CPL §245.50[1]). To meet this mandate, they must demonstrate that they exercised due diligence to ascertain the existence of and disclose discoverable materials (id.). In People v Bay, the Court of Appeals set forth the framework with which to evaluate the question of due diligence, finding it to be a "familiar and flexible standard that requires the People to [*4]make reasonable efforts to comply with statutory directives" (internal quotations omitted) (People v Bay, 41 NY3d 200, 211 [2023]). 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 prudent prosecutor, the prosecution's explanation for the omission, and their response when alerted to the issue (id.).

Generally, the Court is disinclined to invalidate a COC because of a single piece of discovery amid several. However, it is hard-pressed to imagine evidence more crucial than a video made and stewarded by police that depicts the alleged crime. This evidence is likely essential to both Defendant's prosecution and his ability to present a defense. Even so, the Court may not be troubled by a mere technological problem in uploading the video if it was a good faith error; the bigger problem is the Prosecution's inaction for forty-three days upon Defendant's notification. The Prosecution has offered no reason why they failed to remedy their mistake at first, instead insisting they had already sent the video. In drawing this conclusion, they relied only on their Discovery Inventory in which they listed amongst the materials already shared. This is to say, they asserted that they shared it in the Inventory, then again asserted that they had shared it when Defendant alerted them it was missing, but never bothered to double-check or share "again" until over a month later. Indeed, in their SCOC, they fail to mention or explain this considerable lapse. This is not diligence. Under the circumstances, the SCOC is insufficient to validate the original COC.

This case commenced with the filing of accusatory instrument on August 22, 2024. The Prosecution's COC was illusory and failed to stop the speedy trial clock, which ran until the Court set a motion schedule on January 21, 2025. The Prosecution is charged one-hundred and fifty-two days. Accordingly, Defendant's motion to dismiss is granted (CPL §30.30[1][b]).

This constitutes the decision and order of the Court.