Defendant Tomas Aracena was arraigned on an information on December 23, 2019 and charged with one count of Forcible Touching (P.L. §130.52[1]), one count of Criminal Contempt in the Second Degree (P.L. §215.50[3]), and one count of Harassment in the Second Degree (P.L. §240.26[3])1. Defendant now moves this Court to dismiss the accusatory instrument pursuant to CPL §§30.30(1)(b), 30.30(5), and 210.20(1)(g). He argues in support of his motion that the People failed to timely disclose information related to the complainant’s pending criminal prosecution, as required under CPL §245.20(1)(q), and thus concludes that the People’s Certificate of Compliance (“COC”) is invalid and their statutory speedy trial time has expired. The People oppose defendant’s motion. The top count charged in the complaint is an A misdemeanor, requiring the People to be ready for trial within ninety (90) days of the filing of the accusatory instrument, less any excludable time (CPL §§30.30[1][b], 1.20[17]). The Court finds that 44 days of chargeable time elapsed between the commencement of the action on December 23, 2019, and the setting of a motion schedule on May 17, 2021. For the reasons discussed below, defendant’s motion to dismiss pursuant to CPL §30.30 is denied. Background On December 23, 2019, defendant was arraigned on a first party information and the case was adjourned to February 3, 2020 for response and decision on a motion. On February 3, 2020, the People were directed to file a COC in accordance with the discovery reforms that became effective January 1, 2020 (see generally CPL Article 245). Shortly thereafter, on February 13, 2020, the People filed a COC and statement of readiness (“SOR”) (44 days charged from January 1, 2020 through February 13, 2020). On March 20, 2020, Governor Cuomo enacted various emergency measures to address the public health emergency caused by the COVID-19 pandemic. One of those measures was the suspension of the speedy trial guarantees under CPL §30.30 (see Executive Order [A. Cuomo] No. 202.8 [9 NYCRR 8.202.8]). This speedy trial suspension remained in effect for several months, until it was rescinded by subsequent Executive Order, effective October 5, 2020 (see Executive Order [A. Cuomo] No. 202.67 [9 NYCRR 8.202.67]). On July 13, 2020, during the suspension of CPL §30.30, the complainant in the instant case was arrested and charged with Robbery in the First Degree and other related charges. She was arraigned in Bronx County Criminal Court and subsequently indicted; the case against her is still pending. Notably, the altercation giving rise to that case occurred between the complainant and defendant’s current girlfriend, in defendant’s presence. It is undisputed that the prosecution has not formally disclosed the fact of the complainant’s open criminal indictment to defendant, nor provided him discovery related thereto. However, the court file reflects that the complainant’s arrest was discussed with defense counsel during a bench conference on July 21, 2020, one week after her arrest. Defendant nevertheless argues in support of his motion that the People have not complied with their continuing discovery obligations (see CPL §§245.20[1][q], 245.60 and 245.50). He insists the People should be charged with the 219 days between October 5, 2020, when the Executive suspension of CPL §30.30 ceased, and the filing of defendant’s motion, on May 12, 2021.2 By this calculation, defendant concludes dismissal is required under the speedy trial statute (see CPL §30.30[1][b]). Defendant additionally argues that the undisclosed discovery is exculpatory information that must be produced under Brady v. Maryland (373 U.S. 83 [1963]). In opposition, the People contend their COC was valid at the time of its filing and that they have not committed a Brady violation, since the evidence of the complainant’s pending criminal case is not exculpatory or material. They argue that while the complainant’s criminal matter may bear on her credibility, it does not tend to negate defendant’s guilt. The People further argue that defendant has not suffered prejudice, given that he had firsthand knowledge of the altercation at issue; the trial has not been scheduled; and the withheld information would not have changed the result of the trial. Discussion Effective January 1, 2020, the New York State Legislature modified the prosecution’s discovery obligations applicable to all pending cases (see generally CPL Article 245). In particular, Criminal Procedure Law §245.20(1)(q) provides that the People “shall disclose to the defendant [w]hen it is known to the prosecution, the existence of any pending criminal action against all persons designated as potential prosecution witnesses.” Once the People have provided automatic discovery, they shall serve and file a COC, stating that 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” (CPL §245.50[1]). The People cannot be deemed ready for trial until a valid COC is filed (CPL §§30.30[5], CPL §245.50[3]). The Court finds, and defendant does not dispute, that the People’s COC was valid when filed on February 13, 2020. The Court further finds that the People’s failure to formally disclose the fact of the complainant’s open criminal matter, as required under CPL §245.20(1)(q), did not subsequently invalidate the People’s COC. Pursuant to CPL §245.80(1) (a), “[w]hen material or information is discoverable under this article but is disclosed belatedly, the court shall impose an appropriate remedy or sanction if the party entitled to disclosure shows that it was prejudiced.” Here, the People verbally disclosed the complainant’s open criminal matter during a bench conference with defense counsel only one week following the complainant’s arrest. Also, defendant does not deny he was present at the altercation leading to the complainant’s arrest. For these reasons, defendant was not prejudiced by the People’s failure to disclose in writing the fact of the complainant’s open criminal matter. Defendant further objects to the People’s failure to provide him with “records, paperwork, grand jury minutes, witness statements, defendant statements, video recordings, [or] photographs” related to the criminal matter against the complainant. Because the record before the Court is silent as to the availability of these materials or the People’s efforts to obtain them, the People’s COC is not invalidated on this basis at this time. However, the People are reminded of their ongoing duty to disclose materials tending to impeach the credibility of their testifying witnesses (CPL §245.29[1][k][iv]; People v. Fuentes, 12 NY3d 259, 263 [2009], citing Giglio v. United States, 405 U.S. 150, 154-55 [1972]), and are directed to produce any such materials as soon as practicable. Finally, given the lack of prejudice to defendant for the reasons already discussed, the Court holds that the People have not violated their duties of disclosure under Brady v. Maryland (373 U.S. at 83; see People v. Fuentes, 12 NY3d at 263). Conclusion The Court finds after review of the parties’ motion papers and the court file, and based upon the reasoning discussed above, the People are charged with a total of forty-four (44) days, calculated from January 1, 2020 through February 13, 2020. Defendant’s motion to dismiss the information pursuant to CPL §30.30(1)(b) is denied. The People are directed to provide any and all discoverable information concerning pending criminal actions against any designated potential prosecution witnesses, along with a supplemental COC and SOR, as soon as practicable. This constitutes the decision and Order of the Court. Dated: September 9, 2021
