Summary

Jose Rosario was arrested on October 6, 2024 for operating a motor vehicle under the influence of alcohol or drugs.^[FN1] He was arraigned on October 7, 2024, released on his own recognizance and the case was adjourned to November 19, 2024 for conversion and the filing of a Certificate of Compliance (COC).

On November 19, 2024, the complaint was deemed an information, and the case was adjourned to January 10, 2025 for the prosecution to file its COC and Statement of Readiness (SOR). On January 2, 2025, the prosecution filed its Automatic Disclosure Form, COC and SOR. At the January 10, 2025 calendar call the defense requested time to review, and the parties were directed to confer and submit objections in writing. The case was adjourned to January 24, 2025 for a COC conference.

On January 23, 2025, the defense emailed the prosecution their discovery-related questions/objections. The assigned prosecutor was not present at the January 24, 2025 calendar call, and the defense noted several questions/objections with the discovery. In particular, the defense argued that it was missing several items of discovery: reports associated with ethanol solution lot number 24270; information, activity logs, and body-worn camera (BWC) footage [*2]associated with two of the officers at the scene of the arrest; and the BWC footage of Officer Gomes.

The court ordered the parties to confer diligently with reference to the outstanding items and adjourned the case to February 14, 2025. On February 4, 2025 and February 10, 2025, the defense emailed the prosecution seeking a response to the January 23, 2025 email. On February 13, 2025, the prosecution responded with its position. On February 14, 2025, the defense outlined its discovery issues, and a motion schedule for the instant motion was issued. The defense filed the instant omnibus motion including its motion to dismiss under CPL § 30.30 on March 14, 2025.

The right to a speedy trial in New York is both statutorily and constitutionally based. People v. Johnson, 38 NY2d 271, 275-276 (1975). It is a "fundamental" right imposed by the Due Process Clause of the Fourteenth Amendment on the States. Klopfer v. State of North Carolina, 386 U.S. 213 (1967). While the words "speedy trial" appear in the title of CPL § 30.30 and the section is often referred to as expressing a statutory right to a speedy trial, it is only the right of a dismissal "where the people are not ready for trial." People v. Brothers, 50 NY2d 413, 417 (1980).

The New York legislature enacted CPL 30.30 to "insur[e] prompt prosecutorial readiness for trial. To further such purpose, "[t]he legislature tethered the People's CPL article 245 discovery obligations to CPL 30.30's speedy trial requirements." People v. Bay, 41 NY3d 200, 209 (2023). The "statute was intended only to address delays occasioned by prosecutorial inaction." People v. McKenna, 76 NY2d 59, 63 (1990) (emphasis added).

Upon filing a COC, the prosecution must state their readiness for trial either by making a statement of readiness in open court "transcribed by a stenographer, or recorded by the clerk" or by written notice sent to both defense attorney and the court clerk to pause the CPL § 30.30 clock. People v. Kendzia, 64 NY2d 331, 337 (1985). The prosecution's statement of readiness is presumed to be valid absent proof to the contrary. People v. Brown, 28 NY3d 392 (2016).

The prosecution must be ready for trial when they file their statement of readiness. "A statement of readiness at a time when the People are not actually ready is illusory and insufficient to stop the running of the speedy trial clock." People v. England, 84 NY2d 1, at 4 (1994). "[R]eadiness is not defined simply by an empty declaration that the People are prepared to present their direct case." Id. "The inquiry is whether the People have done all that is required of them to bring the case to a point where it may be tried." Id. "[T]he statement 'ready for trial' contemplates more than merely mouthing those words." Id.

"To be deemed ready for trial, the People are obligated to represent that the COC was served, 'after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery, the prosecutor has disclosed and made available all known material and information subject to discovery'" People v. Paulino, 83 Misc 3d 1222(A) (Bronx Crim Ct May 23, 2024), citing CPL § 245.50(1). Thereafter, should service of additional discovery upon defendant occur, a supplemental certificate of compliance (SCOC) 'shall be served upon the defendant and filed with the court identifying the additional material and information provided'." Id. "The SCOC 'shall detail the basis for the delayed disclosure so that the court may determine whether the delayed disclosure impacts the propriety of the certificate of compliance'." Id. citing CPL § 245.50 (1-a).

"It is against these provisions that [the court] must assess a CPL 30.30 motion for speedy [*3]trial dismissal based on incomplete compliance with CPL article 245 discovery obligations." Bay, 41 NY3d at 210. This Court's assessment will be made by applying the six factors set forth in Bay to Officer Gomes' BWC. While not addressing the remainder of the discovery issues, this decision should not be construed as having decided those issues.

[C]ourts should generally consider, among other things, [1] the efforts made by the prosecution and the prosecutor's office to comply with the statutory requirements, [2] the volume of discovery provided and outstanding, [3] the complexity of the case, [4] how obvious any missing material would likely have been to a prosecutor exercising due diligence, [5] the explanation for any discovery lapse, and [6] the People's response when apprised of any missing discovery.

It appears the prosecution turned over much of the required discovery in this case, but the record does not demonstrate what effort or steps were taken before the filing of the COC. "[T]he People [] made no mention of any efforts taken to ascertain the existence of discovery materials before the COC was filed []." Bay, at 215. This is important because the COC in this case was filed just four days before the CPL 30.30 deadline.

Again, the prosecution turned over much of what was required in this case, but there appears to be missing discovery. There is no evidence that discovery was overly voluminous or excessive relative to other misdemeanor cases.

There has been no argument of why this case is any more complex than any other prosecution under VTL § 1192.

The prosecution filed its COC certifying that it had disclosed all the material listed in the COC. It should be obvious to a prosecutor acting reasonably and with diligence what discovery exists, what discovery is in their possession, and what discovery has been disclosed to the defense. Clearly that was not the case here, because the prosecution cannot say, even up to the filing of its opposition to this motion, whether activity logs or BWC footage exist for Officer Gomes. The Bay Court found similar conduct was not due diligence. "The prosecutor speculated that such disclosure items did not exist and had not been created, and otherwise stated in a cursory fashion that all discovery had been turned over." Bay at 215.

The prosecution's response when challenged on missing discovery related to Officer Gomes was "the People already explained that Officer Gomes being listed on the body worn camera checklist was likely a mistake by the arresting officer." However, it was the assigned prosecutor who certified that the missing discovery had been disclosed to the defense. To argue three months after the filing of the prosecution's COC that errors in the COC were made by the [*4]arresting officer is a clear demonstration of a lack of due diligence. The prosecution also indicated that it reached out to the arresting officer numerous times with no response. However, the evidence provided by the prosecution indicates that the prosecution began these efforts on February 13, 2025, over a month after the prosecution filed its COC. See Prosecution's Opposition, Exhibit IV. "Read together, CPL 245.50 and CPL 30.30 require that due diligence must be conducted prior to filing a COC . . . post-filing disclosure and a supplemental COC cannot compensate for a failure to exercise diligence before the initial COC is filed." Bay at 212. Three emails sent more than 40 days after the filing of the prosecution's COC does not establish the exercise of due diligence prior to the filing of the COC.

The prosecution commenced this case on October 6, 2024. They had 90 days to be ready for trial (CPL 30.30[1][b]). After considering the facts of this case and reviewing the relevant factors from Bay, this court finds the prosecution failed to demonstrate the requisite reasonableness and diligence in ascertaining, then disclosing, discovery when they filed a COC certifying the existence and disclosure of discovery that may not exist. "[T[he People bear the burden of establishing that they did, in fact, exercise due diligence and made reasonable inquiries prior to filing the initial COC []." Bay at 213. Thus, the COC was improper. Therefore, the Statement of Readiness is stricken as illusory, and this case is dismissed as the prosecution has exceeded its readiness time under CPL § 30.30. When the prosecution fails to act reasonably and with diligence "the COC should be deemed improper, the readiness statement stricken as illusory, and—so long as the time chargeable to the People exceeds the applicable CPL 30.30 period—the case dismissed." Id. The prosecution is charged for all the time since arraignment to the setting of the instant motion schedule, 130 days. The suppression and other trial motions are moot.

This constitutes the decision of the court.