The defendant is charged with Criminal Possession of a Weapon in the Second Degree, pursuant to Penal Law §265.03(3), three counts of Criminal Possession of a Weapon in the Third Degree, pursuant to Penal Law §265.02(8), 265.02(1) and 265.02(7), and Criminal Possession of a Weapon in the Fourth degree, pursuant to Penal Law §265.01(4) by way of indictment. The defendant has filed a motion seeking various relief. This decision deals specifically with the portion requesting the Court strike the People's Certificate of Compliance and dismissing the indictment due to the People's failure to meet their discovery obligations with in the statutory speedy trial period. The People have opposed this motion. The case came before this Court for oral arguments on the motion on May 19, 2025.

The defendant argues that the People have failed to meet their discovery obligations as it pertains to five specific categories of evidence; (1)the Grand Jury instructions, attendance and voting sheets, (2)law enforcement disciplinary records, (3)a BOLO from the Buffalo Police Department, (4)any reports or documents from an FBI agent involved in the case and finally, [*2](5)the search warrant transcript. The defendant further argues that as the People did not comply with their discovery obligations under CPL §245 either not providing the information above or disclosing the information late, the People's Certificate of Compliance, as well as Supplemental Certificate of Compliances, should be invalidated; the People's declaration of readiness should be deemed illusory and ultimately the indictment should be dismissed pursuant to CPL §30.30. The People argue they complied with their discovery obligations and exercised due diligence in doing so and further, they have not exceeded their statutory speedy trial time.

The People have also argued that the defendant's motion is untimely, having been filed beyond the forty-five day post-arraignment statutory period. The motions were filed sixty-two days after the defendant's arraignment. The People further argue that the defense failed to notify the People as soon as practicable about the deficiencies to the certificate of compliance.

As to the untimeliness of the defendant's motion, the People are correct in that the motions were filed by the defendant past the statutory period. Pursuant to CPL §255.20, "Except as otherwise expressly provided by law, whether the defendant is represented by counsel or elects to proceed pro se, all pre-trial motions shall be served or filed within forty-five days after arraignment and before commencement of trial, or within such additional time as the court may fix upon the application of the defendant made prior to entry of judgment." The defendant was arraigned on February 18, 2025. The defendant's motions were filed on April 21, 2025, a period of sixty-two days after arraignment. The People are also correct that the motions were filed past the statutory deadline without a request for an adjournment. However, as the delay was minimal and the motions were filed well before any hearing or trial dates, and in the interest of justice, the Court will consider the motions on their merit.

The case originated with two incidents- August 21, 2024 and August 24, 2024 in which the defendant and co-defendant, Abdifatah Wali were arrested in the city of Buffalo. An indictment was returned on the charges outlined above. The defendant was arraigned on said indictment on February 18, 2025. The People filed their initial Certificate of Compliance on November 1, 2024 which was accompanied by their statement of readiness for trial. The People have indicated they shared discovery with the defense on September 17, 2024, December 12, 2024, February 13, 2025 and February 19, 2025. The People filed their Supplemental Certificate of Compliance on February 18, 2025. The People filed additional Supplemental Certificate of Compliances on February 20, 2025 and March 5, 2025. The defendant initially raised the issue over discovery non-compliance March 21, 2025. The defendant subsequently filed a written motion on April 21, 2025.

Pursuant to CPL §30.30(1)(a), the People must be ready for trial, "six months of the commencement of the criminal action wherein a defendant is accused of one or more offenses, at least one of which is a felony." "CPL 30.30 time periods are generally calculated based on the most serious offense charged in the accusatory instrument and are measured from the date of commencement of the criminal action (see CPL 30.30[1] ). Under CPL 30.30(1), the People have six months to announce readiness in a felony prosecution." People v Cooper, 98 NY2d 541. As the initial filing of the instrument occurred on August 22, 2024, the People had until February 22, 2025 (not including any excludeable time) to declare their readiness for trial. The People did file their Certificate of Compliance and statement of readiness on February 20, 2025, just under the statutory deadline (again, without considering any excludeable time).

To sufficiently declare ready for trial, the People must have met their discovery obligations and filed a Certificate of Compliance in good faith. As noted, the defendant has argued that due to certain deficiencies in the People's discovery, the Certificate of Compliance was not filed in good faith, and further, in certain areas, the People did not exercise due diligence. The Court will address each of the five areas of discovery below.

The first issue the defendant raises, pertains to various Grand Jury materials. The defendant acknowledges the People did provide the Grand Jury minutes including the testimony of all witnesses. The defendant argues, however, that the People did not provide the legal instructions or the attendance and voting sheets. The defendant argues that, "Under the plain language of the statute, the missing Grand Jury materials are subject to initial discovery. By failing to disclose them, the prosecution is out of compliance with its obligation."

Under CPL §245.20(1)(b), the People must provide, "All transcripts of the testimony of a person who has testified before a grand jury, included but not limited to the defendant or a co-defendant." The statute specifically addresses transcripts of testimony of any person who has testified before the Grand Jury. Absent from the statute is any mention of legal instructions or attendance and voting sheets. Under the "plain language of the statue" the defendant argues, there is no mention of the additional Grand Jury materials. The defendant has cited no case law to the contrary that expands the requirements under CPL §245.20(1)(b) to include the additional Grand Jury materials.

Taking a step back from the specific statute concerning Grand Jury testimony, CPL §245.20(1) states, "The prosecution shall disclose to the defendant, and permit the defendant to discover, inspect, copy, photograph and test, all items and information that relate to the subject matter of the case and are in the possession, custody or control of the prosecution or persons under the prosecution's direction or control..." The discovery statute deals specifically with evidence and information that relates to the "subject matter of the case." Under this definition, Grand Jury attendance sheets, voting sheets and other similar materials do not relate to the subject matter of the case. It is clear that all transcripts of testimony are discoverable. It is equally as clear that the additional Grand Jury materials outlined by the defendant are not discoverable.

Other courts throughout the state have reached the same conclusion. "However, that automatic statutory disclosure obligation is limited to transcripts of witness testimony. It does not extend to any legal instructions that the People provided to the Grand Jury. Any request for discovery and inspection of those legal instructions will be considered in the exercise of the Court's discretion during omnibus motion practice." People v DeMilio, 66 Misc 3d 759. Also, "Based on the legislative construction argument detailed above and legal precedent, these words will be given their common and previously agreed upon meanings. As such, the People are only required to disclose the testimony of a witness. The question and answers between the People and the grand jurors and the charge presented to the grand jury will remain under the purview of the court for review." People v Askin, 68 Misc 3d 372. Finally, " In their Certificate of Compliance filed January 19, 2024, the People certified that they had turned over the grand jury testimony to the defense in accordance with the requirements of CPL § 245.20(1)(b). Thus, the defendant has received the portion of grand jury transcript to which he is entitled pursuant to CPL § 245.20(1)(b) and his motion is moot with respect to that portion of the minutes. [*3]Otherwise, the defendant's motion is denied because release of the remainder of the grand jury minutes is not necessary to assist this court in determining defendant's motion to reduce or dismiss the indictment." People v Morillo, 83 Misc 3d 1206(A).

The second discovery area in which the defendant argues the People are deficient concerns "50A material." The People are obligated to provide law enforcement disciplinary records as part of automatic discovery pursuant to CPL § 245.20(1)(k). Currently, the People have provided all defense attorneys access to the disciplinary records of all officers through SharePoint. Further, the People regularly update the database as they receive updated files which then (according to the People), "Defense Counsel's access therefore provides live updates to the files simultaneously to the People's receipt of those files."

The defendant further argues that "The disciplinary cards for the Buffalo Police Officers on this case are current only as of 2021. Only one of the officers has a post-2021 entry, and that was from 2022." The defendant further argues that, "At a minimum, the prosecution has failed to maintain the required flow of information." The defendant does not outline which officers there is a concern with. Further, there is no information provided that there is missing information (as opposed to the lack of disciplinary proceedings against an officer over the time period specified). If the defendant has specific information on specific officers, that can be brought to the Court, but currently there is only generalized speculation that information is missing. Further, it appears the system the People use goes above and beyond in fulfilling their obligations and maintaining an open flow of information.

The third category of discovery outlined by the defendant concerns a "BOLO" issued in this case. The defendant argues the BOLO was not disclosed until March 16, 2025 and that it is "an obvious discovery violation with no reasonable explanation." The People have argued they have exercised due diligence in attempting to obtain the BOLO, "meeting with law enforcement on multiple occasions and continually asking for a copy of the BOLO." Also, the Court has reviewed the People's Supplemental Certificate of Compliance filed on March 5, 2025 which indicates the BOLO was received on March 5, 2025 at 2:30 and was being disclosed in that Supplemental Certificate of Compliance. The People unfortunately do not outline in their motion any dates or outline what officers they requested the BOLO from. This would have assisted the Court's review of the People's due diligence.

It does appear the People did take steps to obtain the BOLO and did immediately provide it to the defendant upon receipt. The BOLO should have been provided with the initial discovery. While the document is deemed to be in the People's possession, it was not in their physical possession, however, the People took steps to obtain the document. Further, upon receipt of the BOLO, the People turned over the document in an expeditious manner.

The fourth category of discovery concerns "the FBI reports." The defendant argues that only the name and contact information of the FBI agent was provided. The defendant argues the People must request the FBI reports in a timely manner. This Court has taken up this issue previously in People Adams, 226 N.Y.S.3d 533 (2025).

In its decision in Adams, this Court looked back to People v Santorelli, 2000 95 NY2d 412 (2000). The Court in Santorelli held, "The reports—involving a separate, pre-existing investigation—were in the hands of the FBI, an independent Federal law enforcement agency not subject to State control. While defendant argued that the two agencies were engaged in a joint or [*4]cooperative investigation, and that the District Attorney thus had constructive possession or control of the Federal records, the trial court held otherwise, and the record before us supports that undisturbed finding." Further, "That a Federal law enforcement agent served as a fact witness at defendant's trial does not alter the conclusion that the People did not possess or control—actually or constructively—the additional materials defendant sought." Finally, the Court in Santorelli, also indicated, "As in the Brady context, the People cannot be charged with failure to disclose materials they themselves could not obtain from law enforcement officers answerable to another sovereign." This issue was also raised in People v Kronberg, 243 AD2d 132 (1998), which held, "The documents were in the possession of the FBI, which is not part of the State "law enforcement chain." (People v Kelly, 88 NY2d 248, 253.) The People never had possession of the 302 reports." While both of these cases address the People's lack of control over federal law enforcement agencies, they do pre-date the enactment of CPL §245. The Fourth Department briefly addressed the issue post-Legislation 2020 in People v Jenkins, 197 AD3d 927, holding, "Here, the materials sought by defendant were in possession of the Federal Government, and it is well established that "the right to Rosario material must yield to the rights of the Federal Government under 28 CFR 16.22 in this State prosecution" (People v. Button, 276 AD2d 229, 232, 722 N.Y.S.2d 629 [4th Dept. 2000]."

As this Court has previously ruled, if information from federal law enforcement exists and is known to the People, the People would have an obligation to disclose that material in a timely manner to the defendant (absent any protective order). Further, any situation in which there is exculpatory material possessed by a federal law enforcement agency, that information must be disclosed as there has always been an obligation to disclose exculpatory material pursuant to the People's Brady obligations and subsequent codification of this duty in CPL §245.20(1)(k).

Ultimately, as this Court has previously held, "the People do not have control over federal law enforcement agencies for the purpose of CPL §245. The statute does not explicitly state this whereas the statute is clear when it comes to state and local law enforcement agencies. Further, there is no appellate authority expanding the discovery requirements beyond the statute as it pertains to control over federal law enforcement agencies. As noted, if the People are in possession of the information it must be disclosed (subject to any protective orders). Absent that actual possession, this Court is not in the position to expand that statute to encompass federal law enforcement agencies." Adams, 538-539.

Finally, the defense has argued the People did not disclose a "copy of the transcript of all testimony or other oral communications offered in support of the warrant application." As noted in the defendant's motion, this Court has taken up this issue in People v Richards, 77 Misc 3d 616 (2022). The issue this Court addressed in Richards was whether the People must provide to the defendant the in camera testimony of a confidential informant which was used in support of obtaining a search warrant. In Richards the defendant argued that under Criminal Procedure Law (CPL) § 245.20(1)(n), he was entitled to the in camera testimony. Under CPL § 245.20(1)(n) the People must disclose, "Whether a search warrant has been executed and all documents relating thereto, including but not limited to the warrant, the warrant application, supporting affidavits, a police inventory of all property seized under the warrant, and a transcript of all testimony or other oral communications offered in support of the warrant application."

In Richards, this Court held,

"Ultimately, this Court finds there is no conceivable theory in which the in camera testimony of an informant on a search warrant, whether a stenographic transcript or handwritten notes of the Judge, is in the control of the People. CPL § 245.20(1) is clear in requiring everything that is "in the possession, *620 custody or control of the prosecution or persons under the prosecution's direction or control," must be disclosed. The People provided the defendant with a copy of the warrant, application and associated documents (which also puts the defense on notice of the existence of a confidential informant). The transcript of the in camera testimony is never provided to the People upon the granting of the search warrant. It is a Court document that is ultimately filed with the Clerk. At the conclusion of the testimony, the Court regularly seals the in camera testimony. "In this state there appears to be an unqualified right to inspect court records of the clerk of the court, subject only to the inherent power the court possess with respect to its own records to seal them as the interests of justice may dictate." People v. Christopher, 109 Misc 2d 767, 443 N.Y.S.2d 544 (1981). Further, "The identity of the anonymous source of information sometimes contained in them has caused the courts to balance access to such information by the defendant, against the privacy that furthers and protects the public interest in effective law enforcement." Christopher, at 772, 443 N.Y.S.2d 544. See also, Matter of Hynes v. Karassik, 47 NY2d 659, 419 N.Y.S.2d 942, 393 N.E.2d 1015, "Though the statute, therefore, embodies stringent safeguards by which court records may remain confidential, in appropriate cases courts have called upon a power, traditionally labeled inherent, to provide similar relief when the interests of justice so dictate. The power grows out of that measure of discretionary authority courts enjoy with respect to their own records insofar as they pertain to the business of the court and when essential to the proper administration of justice," as it pertains to the Court's ability to seal records including in camera testimony during a search warrant application."

The defendant has asked the Court to reconsider its interpretation of the statute arguing the defense has a limitation on its subpoena power. As this Court outlined in Franklin, "The in camera testimony of the confidential informant also appears to be equally available (or unavailable) to both parties. Disclosure would require a motion to unseal to the Judge who issued the warrant and upon a showing of good cause."

In this situation, as the People's declaration of readiness was not illusory and the CPL §30.30 time has not expired, dismissal of the indictment is an extreme remedy which is not appropriate in this situation (as opposed to if the speedy trial time had in fact run). "The remedy must be appropriate and proportionate to the prejudice suffered by the party entitled to the disclosure." People v Bay, 41 NY3d 200, 214. The only information the defendant alleges is missing that the People are required to disclose is the BOLO. The People have outlined, in part, their due diligence in acquiring the BOLO and immediately disclosed the document to the defendant upon its receipt. The document was disclosed two and a half months before any pre-trial hearing dates. Additionally, the document was disclosed seven months prior to the scheduled trial date. The defendant has had a meaningful opportunity to use the one page document in preparation of his defense.

The Court has accepted the People's Certificate of Compliance and statement of readiness. Therefore, the defendants' motion to dismiss the indictment pursuant to CPL §30.30 due to the defendant's argument that the People committed discovery violations and therefore their statement of readiness was illusory is DENIED.

SO ORDERED.