Summary

Tanzania Thompson was arrested on November 2, 2024 and charged with misdemeanor assault and related charges. She was arraigned that same day and released on her own recognizance. The case was adjourned to December 11, 2024 for conversion and the filing of a certificate of compliance (COC). The prosecution had not disclosed any discovery within the first 35 days after Ms. Thompson's arraignment as required under the discovery statute. See CPL § 245.10(1)(a)(ii). On December 11, 2024 the case was still not converted and no COC had been filed. The case was adjourned to January 28, 2025 for conversion and compliance.

After meeting with the complaining witness prior to Ms. Tanzania's arraignment, the prosecution was not successful in making further contact with the complaining witness. However, on January 3, 2025 the prosecution received a response from the complaining witness and the complaining witness signed a supporting deposition on January 9, 2025. Also, on January 9, 2025 the prosecution requested discovery materials from the New York City Police Department that they had not received prior to Ms. Thompson's arraignment.

On January 13, 2025, the prosecution filed a superseding complaint, signed by the complaining witness. At the calendar call on January 28, 2025 the complaint was deemed an information and Ms. Thompson was arraigned. The case was adjourned to February 7, 2025 for the prosecution to file their COC. The prosecution filed an initial COC on January 28, 2025, and supplemental COCs on January 31, 2025 and February 6, 2025. At the February 7, 2025 calendar call the parties were directed to meet and confer, and the case was adjourned to March 3, 2025 [*2]for a discovery conference. On March 3, 2025 the schedule for the instant motion was set.

Pending before the court is a defense CPL § 30.30 motion. The defense posits the prosecution's statement of readiness was illusory because they failed to first file a proper COC.

A proper COC requires the prosecution to certify that they have exercised "due diligence" and made "reasonable inquiries" to "ascertain the existence" of discoverable material. CPL § 245.50[1]. Part of that duty requires the prosecution to "make a diligent, good faith effort" to "ascertain the existence" of discoverable material, and to cause it to "be made available," where it "exists but is not within the prosecutor's possession, custody or control." See "Duties of the prosecution" CPL § 245.20[2]. A COC is incomplete or invalid until all materials subject to automatic disclosure are disclosed within the established deadlines. See People ex rel. Ferro v. Brann, 197 AD3d 787 (2nd Dept. 2021).

Further, under CPL § 245.10, "the prosecution shall perform its initial discovery obligations [ ] within thirty-five calendar days after the defendant's arraignment on an [] misdemeanor complaint [ ]." (emphasis added). This time period may be modified "upon a showing of good cause." CPL § 245.70(2).

The top charge in this case is an A misdemeanor. "CPL [ ] 30.30(1)(b) requires that the People be ready within 90 days in misdemeanor cases." People v. Brown, 28 NY3d 392, 403 (2016). In Brown the Court of Appeals also explained the purpose of CPL § 30.30 as is relevant to this case:

CPL 30.30 "was enacted to serve the narrow purpose of insuring prompt prosecutorial readiness for trial, and its provisions must be interpreted accordingly" (People v. Sinistaj, 67 NY2d 236 [1986]; see People v. Price, 14 NY3d 61 [2010] ["the dominant legislative intent informing CPL 30.30 ... (is) to discourage prosecutorial inaction"]). (emphasis added).

Here, the prosecution concedes that for 68 of the 90 days it has to be ready for trial, it did nothing to "disclose to the defendant all items and information that are within the People's possession, custody, or control and that relate to the subject matter of the case." CPL § 245.20(1). Yet they ask this court to find that they acted diligently and in good faith to do so.

The prosecution cites to cases that held that invalidation of the COC was inappropriate when the prosecution acted diligently, but failed to disclose some material. Here the prosecution was unable to disclose material it did not request until after all of the CPL § 245.10(1)(a)(ii), and much of the CPL § 30.30, time had elapsed. Unlike the cases cited with minor errors, not making any efforts for all, or a substantial portion, of the times allotted under the CPL, cannot save a deficient COC. Every time the prosecution obtained materials to disclose, they learned of additional disclosable materials, that they would have known of had they obtained and reviewed the discovery in a diligent and timely manner.

Despite the prosecution's claim that they "made reasonable and diligent efforts to comply with discovery obligations," the record is clear that they ignored the statutory 35-day time period for disclosure of discovery, and made no efforts for 68 days, nor did they seek a modification of the time period for "good cause." The prosecution sought some of the discovery for the first time on the 86th day, then again on the 87th day after arraignment, the same day they filed their initial COC. See People v. Rahman, 79 Misc 3d 129[A] [App. Term, 2nd Dept 2023], at *2, lv. denied, 40 NY3d 1040) (prosecution's claims of due diligence were contradicted by the record).

A COC is not intended to "be a simple placeholder that the People file while they [*3]continue to disclose discovery files piecemeal, far beyond the speedy-trial deadline." People v. Vargas, 76 Misc 3d 646, 647 (N.Y.Crim.Ct. 2022). A COC is intended to alert the court and defense that the prosecution has complied with its discovery obligations. If the prosecution needed more time to obtain discovery, they could have sought an extension of time from the court. "If the People require additional time with which to meet their discovery obligation, the statute directs the People to move for additional time, which the Court may grant 'upon a showing of good cause.' C.P.L. § 245.70(2)." People v. Adrovic, 69 Misc 3d 563, 571 (N.Y.Crim.Ct. 2020). Here, instead of requesting additional time to disclose discovery, the prosecution filed their COC before they received much of the discovery.

The Court of Appeals' seminal case, People v. Bay, 41 NY2d 200 (2023), held that the prosecution can avoid dismissal if the prosecution can show it "exercised due diligence and made reasonable efforts to identify mandatory discovery prior to filing [its COC] with statutory disclosure obligations." Id. The Court provided guidance for evaluating the facts in these matters.

Although the relevant factors for assessing due diligence may vary from case to case, courts 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.

The Bay factors weigh in favor of the defense. The prosecution did not comply timely with their discovery obligations, they waited until 68 days after arraignment to begin requesting discovery, and even after well over 90 days, they have not fully disclosed all materials subject to automatic discovery. That is not due diligence. As a prosecution for misdemeanor assault, this is not a complex case requiring substantial investigation beyond interviewing the complaining witness and police officers. The prosecution has not made any showing that the discovery is voluminous. By criminal case discovery standards, the discovery is relatively minimal and consists primarily of materials routinely generated in misdemeanor assault cases of which a diligent prosecutor would be aware. The prosecution's admission that they waited over two months to start the discovery disclosure process indicates lack of diligence.The prosecution is aware that obtaining discovery can take time and may require multiple efforts.. It appears that each time the prosecution learned of additional materials subject to automatic disclosure, they made efforts to obtain, and were able to obtain, these materials in a relatively short time. That is further proof that had they begun their discovery obligations sooner, they would have been able to comply with the statutory time mandates.

The Court finds that an analysis of the Bay factors supports a finding that the COCs filed in this case were invalid and the SORs are stricken as illusory. Therefore, the prosecution is charged all of the time from arraignment until the setting of the motion schedule in this case,^[FN1] a total of 121 days.

The motions for hearings and other issues presented in the omnibus motion are moot.

The foregoing constitutes the order and decision of the court.