CERTIFICATE OF COMPLIANCE INVALID PURSUANT TO CPL §§245.20, 245.50: GRANTED MOTION TO GRANT PEOPLE’S STATEMENT OF TRIAL READINESS ILLUSORY PURSUANT TO CPL §§245.50(3), 30.30(5): GRANTED MOTION TO DISMISS PURSUANT TO CPL §30.30: DENIED MOTION FOR A MAPP/DUNAWAY HEARING: GRANTED Defendant was originally charged in a felony complaint with three counts of Assault in the Second Degree [PL §120.05(3)], a class “D” violent felony, three counts of Assault in the Third Degree [PL §120.00(1)], a class “A” misdemeanor and three counts of Harassment in the Second Degree [PL §240.26(1)], a violation. It is alleged, in relevant part, that on or about June 25, 2022, in Bronx County, while police officers (hereinafter “P.O.”) Cleyder Romero Ramirez, Jose Ortiz and Rexroddi Agyei were transporting defendant from Lincoln Hospital to the 40th precinct, defendant spat at them causing saliva to strike their eyes and mouths. On July 27, 2022, in Part FB, the court granted the People’s application to dismiss the three felony counts in the felony complaint, Assault in the Second Degree, a class “D” violent felony, and reduce the case. The court adjourned the matter to September 21, 2022, in Part AP-3 for the People to file a superseding misdemeanor complaint, supporting depositions and a discovery Certificate of Compliance (hereinafter “COC”) pursuant to CPL §245.50. On July 28, 2022, the People filed with the court and served upon defense counsel the supporting deposition of P.O. Rexroddi Agyei, a lab report and a superseding misdemeanor complaint, which charged defendant with one count of Criminal Possession of a Controlled Substance in the Seventh Degree (PL §220.03) (a class “A” misdemeanor), three counts of Obstructing Governmental Administration in the Second Degree (PL §195.05) (a class “A” misdemeanor), three counts of Attempted Assault in the Third Degree [PL §110/120.00(1)] (a class “B” misdemeanor) and three counts of Harassment in the Second Degree [PL §240.26(1)] (a violation). The superseding misdemeanor complaint alleged, in pertinent part, that on or about June 25, 2022, in the county of the Bronx, while P.O. Cleyder Romero Ramirez, P.O. Jose Ortiz and P.O. Rexroddi Agyei were transporting defendant from Lincoln Hospital to the 40th precinct, defendant spat at them causing saliva to strike their eyes and mouths. P.O. Romero Ramirez further alleged that defendant’s actions caused him to “stop duty” in that he needed to wash his face and that he experienced annoyance and alarm from defendant’s actions. The misdemeanor complaint further alleged that P.O. Romero Ramirez was informed by Sergeant Edward Najarro that he observed defendant to have in his custody and control, one ziplock baggy containing a white powdery substance which Sergeant Najarro believed to be crack cocaine. On August 25, 2022, the People filed with the court and served upon defense counsel, off calendar, the supporting depositions of P.O. Jose Ortiz and Sergeant Najarro. On September 15, 2022, the People filed with the court and served upon defense counsel a COC and a statement of trial readiness (hereinafter “SOR”). On September 21, 2022, in Part AP-3, pursuant to defense counsel’s request, the Court set a motion schedule and adjourned the case to November 3, 2022 for decision. Defense counsel filed her omnibus motion on October 15, 2022. On November 3, 2022, in Part AP-3 the People had not yet responded to defense counsel’s omnibus motion. The court administratively adjourned the case to November 12, 2022 for the People’s response to defense counsel’s motion and decision. On November 4, 2022, the People and defense counsel requested that this matter be administratively adjourned to January 5, 2023, the next court date for defendant’s other pending criminal court matter in Part DVM. The court granted this request and the case was administratively adjourned to January 5, 2023 in Part AP-3 for decision with respect to defense counsel’s omnibus motion. DEFENDANT’S MOTIONS Defendant now moves this Court for: 1. an order dismissing the accusatory instrument on the ground that he has been denied his right to a speedy trial pursuant to CPL §30.30(1)(b); 2. an order deeming the prosecution’s September 15, 2022 certificate of discovery compliance invalid; 3. suppression of all property allegedly obtained from him and police observations of him or in the alternative, a Mapp/Dunaway hearing; 4. an order directing the prosecution to make timely Brady disclosures; and 5. an order granting additional relief as the Court deems just and proper. DEFENDANT’S CPL §30.30 MOTION Defendant claims that the ninety (90) day time period within which the People must be ready for trial has expired and therefore the misdemeanor information must be dismissed. The People, in opposition to defendant’s motion, contend that only eighty-one (81) days of chargeable time has elapsed, which is within the ninety (90) day speedy trial time period pursuant to CPL §30.30(1)(b). Defendant has satisfied his initial burden under the speedy trial statute by alleging that the People failed to declare their readiness within the prescribed time period. The burden is now on the prosecution to identify the exclusions on which it intends to rely (see People v. Luperon, 85 NY2d 71; People v. Drummond, 215 AD2d 579). Both sides have submitted papers with respect to the motion. The Court has determined that the motion can be decided on the basis of the submissions, the court file and transcripts of the court proceedings (see People v. Lomax, 50 NY2d 351; People v. Varella, 164 AD2d 924). Defendant’s motion is decided as follows: The speedy trial time in this case commenced on June 26, 2022, the date that the felony complaint was filed in criminal court (see CPL §100.05; CPL §30.30(1)(a); People v. Lomax, supra; People v. Osgood, 52 NY2d 37). CPL §30.30(7)(c) sets forth that: “[W]here a criminal action is commenced by the filing of a felony complaint, and thereafter, in the course of the same criminal action either the felony complaint is replaced with or converted to an information, prosecutor’s information or misdemeanor complaint pursuant to article one hundred eighty of this chapter, or a prosecutor’s information is filed pursuant to section 190.70 of this chapter, the period applicable for the purposes of subdivision one must be the period applicable to the charges in the new accusatory instrument, calculated from the date of the filing of such new accusatory instrument, provided, however, that when the aggregate of such period and the period of time, excluding the periods provided in subdivision four, already elapsed from the date of the filing of the felony complaint to the date of the filing of the new accusatory instrument exceeds six months, the period applicable to the charges in the felony complaint must remain applicable and continue as if the new accusatory instrument had not been filed.” The CPL §30.30(7)(c) formula considers two time periods. The first is the CPL §30.30 time period applicable to the highest charge in the new accusatory instrument that was filed, calculated from the date of reduction. Here, the highest charge in the misdemeanor complaint filed on the date of reduction,1 is Assault in the Third Degree a class “A” misdemeanor which has a ninety (90) day speedy trial time period pursuant to CPL §30.30(1)(b). As such, the ninety (90) day period would be calculated from the date of reduction on July 27, 2022. The second time period contemplated by the statute is the period elapsed from the filing of the original felony criminal court complaint to the date of reduction plus the CPL §30.30(1) speedy trial time period associated with the most serious charge in the reduced accusatory instrument (see People v. Cooper, 98 NY2d 541). In the event, that this combined total amount of time is greater than six months, then the applicable speedy trial time frame is the six-month felony clock pursuant to CPL §30.30(1)(a), which is calculated from the date of the filing of the felony complaint, rather than from the date of reduction of the felony complaint. In this case, the People filed their felony complaint on June 26, 2022, and it was reduced to a misdemeanor complaint on July 27, 2022, which is a total of thirty-one (31) days. Added to this number (31 days) is the ninety (90) day speedy trial time period associated with the most serious charge in the reduced accusatory instrument (Assault in the Third Degree) which equals an aggregate total of one hundred and twenty-one (121) days. Inasmuch as this one hundred and twenty-one (121) day time period is less than the six month time period applicable in this case, (one hundred and eighty three (183) days), the relevant CPL §30.30 time clock is the ninety (90) day time period commencing on the date the court reduced the felony complaint on July 27, 2022 (see CPL §30.30(7)c) ; People v. Cooper, supra; People v. Tychanski, 78 NY2d 909; People v. Osgood, supra; People v. Sommersell, 166 Misc2d 774). The Court will now address each court adjournment period seriatim. June 26, 2022, to June 30, 2022: No days are chargeable to the People On June 26, 2022, in Part AR-3 defendant was arraigned on a felony complaint, the court set bail and adjourned the matter to July 1, 2022, in Part FB for grand jury action and CPL §180.80 compliance. The People requested, off calendar, to advance this matter from July 1, 2022, to June 30, 2022, which the court granted. Ordinarily, the People would be charged with this adjournment period since there was no grand jury action from June 26, 2022, to June 30, 2022, however, based upon the above CPL §30.30(7)(c) calculation, the CPL §30.30 clock commenced from the date of reduction of the felony case on July 27, 2022. Thus, no days are chargeable to the People. June 30, 2022, to July 27, 2022: No days are chargeable to the People On June 30, 2022, in Part FB, there was no grand jury action and the People consented to defendant’s release because they could not meet their CPL §180.80 burden. The court adjourned the case to July 27, 2022, in Part FB for grand jury action. There was no grand jury action between June 30, 2022, and July 27, 2022. Ordinarily, the People would be charged with this adjournment period, however, based upon the above CPL §30.30(7)(c) calculation, the CPL §30.30 clock began from the date of the reduction of the felony case on July 27, 2022. Thus, no days are chargeable to the People. July 27, 2022 to September 21, 2022: Fifty-six (56) days are chargeable to the People On July 27, 2022, in Part FB, the court granted the People’s request to dismiss the felony counts contained in the accusatory instrument, Assault in the Second Degree, a class “D” felony and reduced the case. The People answered not ready for trial with respect to the remaining misdemeanor counts and the court adjourned the case for the People to file a supporting deposition and a COC to September 21, 2022, in Part AP-3. In the interim, on July 28, 2022, the People filed with the court and served upon defense counsel the superseding misdemeanor complaint, along with the supporting deposition of P.O. RexRoddi Ageyi and a laboratory report. On August 25, 2022, the People filed with the court and served upon defense counsel the supporting deposition of Sergeant Najarro. On September 15, 2022, the People filed with the court and served upon defense counsel a COC and SOR and an Automatic Disclosure Form. On September 21, 2022, in Part AP-3, the People announced that they were ready for trial when they filed their COC on September 15, 2022. Further, on September 21, 2022, pursuant to defense counsel’s request, the Court set a motion schedule and adjourned the case to November 3, 2022 in Part AP-3 for decision. THE PEOPLE’S CERTIFICATE OF COMPLIANCE In support of defendant’s motion to invalidate the People’s COC, he claims that the People failed to provide him with the following discoverable items: the memo books of P.O. Cleyder Romero Ramirez and P.O. Jose Ortiz. Defendant claims that the People’s failure to provide him with the police officer memo books renders their September 15, 2022 COC invalid and thus, their September 15, 2022 statement of trial readiness illusory. Defendant further contends that the People failed to describe any efforts or exercise of due diligence made to obtain these “crucial” memo books when they filed their September 15, 2022 COC. Finally, defendant claims that inasmuch as the filing of a valid COC is a prerequisite to a statement of trial readiness, the time period from July 27, 2022 to October 13, 2022,2 seventy-eight (78) days is chargeable to the People. The People, in opposition to defendant’s motion, concede that they failed to provide defendant with the memo books of P.O. Romero Ramirez and P.O. Ortiz when they filed their initial COC. Specifically the People state that: “Prior to filing the Certificate of Compliance, [the] People contacted the 40th precinct to obtain outstanding materials. The 40th precinct provided all other materials, however, the People inadvertently failed to request the memobook for PO Romero Ramirez and PO Jorge Ortiz. The People filed their COC without the two missing memobooks under the mistaken belief that they had already been provided to the People and shared with defense. The People realized that they had forgotten the memobook for PO Ortiz and obtained and sent the memobook to defense counsel on the same day as the filing of the COC, September 15, 2022…Defense counsel never mentioned the missing memobooks until the instant motion was filed. Thereafter, the People contacted the precinct, who provided a copy of PO Romero’s memobook, which was provided to defense counsel…,” Risch Affirmation, p. 8. Although, the People concede that they filed their COC without the aforementioned memo books, nevertheless, the People claim that the COC was valid when it was filed on September 15, 2022 because they had previously disclosed a voluminous amount of discovery items, namely, “203 pages of material, 20 body worn cameras and radio runs and 911 recordings to defense counsel,” Risch Affirmation, p. 7-8. Additionally, the People argue that since they provided defense counsel with 11 other memo books and body worn camera files from defendant’s arrest process, “[a]ny further information contained in P.O. Romero Ramirez’s memo book would be duplicitous, which demonstrates even further that defendant could not possibly have been prejudiced by the delayed disclosure of the memobook,” Risch Affirmation, p. 9. Based upon the foregoing, the People claim that since the September 15, 2022 COC was proper and filed in good faith, their September 15, 2022 statement of trial readiness was valid and they should not be charged with CPL §30.30 time after that date. LEGAL ANALYSIS Effective January 1, 2020, the New York State legislature substantially expanded the discovery requirements of the prosecution by repealing CPL Article 240 and enacting CPL Article 245. This statute “evinces a legislative determination that the trial of a criminal charge should not be a sporting event where each side remains ignorant of the facts in the hand of the adversary until events unfold at trial. Broader pre-trial discovery enables the defendant to make a more informed plea decision, minimizes the tactical and often unfair advantage to one side, and increases to some degree opportunity for an accurate determination of guilt or innocence,” People v. Copicotto, 50 NY2d 222. This change was profound because, fundamentally, instead of previously requiring defense counsel to make written demands for discovery materials under Article 240, the new statute now places the burden of timely disclosure of discovery materials solely upon the People (see People ex rel. Ferro v. Brann, 197 AD3d 787). As such, pursuant to CPL §245.20(1), under “automatic discovery,” the People are required to disclose: “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.” In making their disclosures, pursuant to CPL §245.20(2), the People must also: “…make a diligent, good faith effort to ascertain the existence of material or information discoverable under [CPL §245.20(1)] and to cause such material or information to be made available for discovery where it exists but is not within the prosecution’s possession, custody or control; provided that the prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain.” With respect to items deemed in the prosecution’s “possession, custody or control,” CPL §245.20(2) specifies that: “…all items and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency shall be deemed to be in the possession of the prosecution.” In order to facilitate timely disclosure of materials from the police, CPL §245.55(1) stipulates that: “The district attorney and the assistant responsible for the case…shall endeavor to ensure that a flow of information is maintained between the police and other investigative personnel and his or her office sufficient to place within his or her possession or control all material and information pertinent to the defendant and the offense or offenses charge…” When the People have provided all requisite discovery to defendant, CPL §245.50(1) mandates that they must file a “certificate of compliance” which: “…shall state that, after exercising due diligence, and making reasonable inquires 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. It shall also identify the items provided. If additional discovery is subsequently provided prior to trial pursuant to section 245.60 [additional material discovered after the filing of the initial COC] of this article, a supplemental certificate shall be served upon the defendant and filed with the court identifying the additional material and information provided. No adverse consequence to the prosecution or the prosecutor 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 a sanction for a discovery violation as provided in section 245.80 of this article.” In the event that the People are not able to comply with their discovery obligations in a timely manner, CPL Article 245 provides them with several different opportunities to seek accommodation or relief. Notably, CPL §245.70(2) allows for modification of discovery periods when good cause is shown. Significantly, CPL Article 245 now ties the People’s good faith compliance with their discovery obligations to the calculation of speedy trial time pursuant to CPL §30.30. CPL §245.50(3) sets forth, in pertinent part, that: “…the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper certificate pursuant to subdivision one of this section. A court may deem the prosecution ready for trial pursuant to section 30.30 of this chapter where information that might be considered discoverable under this article cannot be disclosed because it has been lost, destroyed or otherwise unavailable as provided by paragraph (b) of subdivision 1 of section 245.80 of this article, despite diligent and good faith efforts, reasonable under the circumstances. Provided, however a court may order a remedy or sanction for a discovery violation as provided by section 245.80 of this article.” The speedy trial statute, CPL §30.30(5) reiterates this requirement by stating that: “Any statement of trial readiness must be accompanied by or preceded by a certification of good faith compliance with the disclosure requirements of section 245.20…” “The obligation is inflexible. No trial ready statement is valid unless the People file a [proper] C[O]C that truthfully asserts that the People have ‘exercised due diligence and made reasonable inquiries to ascertain the existence of material and information subject to discovery,’” People v. Surgick, 73 Misc3d 1212(A) quoting CPL §30.30(5), CPL §245.50(1), CPL §245.50(3); see also People v. Barnett, 68 Misc3d 1000; People v. Piasecki, 66 Misc3d 1231(A); People v. Freeman, 67 Misc3d 1205(A); People v. Salters, 72 Misc3d 1219(A). Although, “due diligence” is not statutorily defined, Black’s Law Dictionary (11th ed. 2019) defines it as “[t]he diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation…” “Paired with the phrase ‘reasonable inquiries,’ the most natural and ordinary meaning of ‘due diligence’ in this context requires the People to conduct a ‘reasonable’ search for discovery material. To be sure, this reasonableness standard requires the People to go to great effort. The prosecution of a criminal charge where liberty is at stake demands no less. The standard, however, cannot be construed as an absolute requirement to provide the defense with all discovery material, whether known or unknown, regardless of the reasonableness of the People’s searches, investigations, and inquiries,” People v. Surgick, 73 Misc3d 1212(A) citing People v. Smith, Albany City Court, July 20, 2021, Farrell, J. Index No. 1872-20 [see also People v. Barralaga, 73 Misc3d 510; People v. Bruni, 71 Misc3d 913; People v. Erby, 68 Misc3d 625; People v. Gonzalez, 68 Misc3d 1213(A)]. Accordingly, upon a challenge to a certificate of compliance, it is incumbent upon the People to articulate what, if any, efforts they made to comply with the discovery statute, see People v. Barralaga, supra. “This may be accomplished by recounting the steps they took to obtain certain materials or ascertain the existence thereof, explaining the reasons why particular items are outstanding, lost or destroyed, and submitting their good faith arguments for why certain materials are not discoverable under the statute,” People v. Rodriguez, 73 Misc3d 411; [see also People v. Pennant, 73 Misc3d 753; People v. Surgick, supra; People v. Salters, supra; People v. Williams, 72 Misc3d 1214(A); People v. Georgiopoulos, 71 Misc3d 1215(A)]. “On the other hand, where the People fail to set forth their efforts to locate items of discovery or determine that they do not exist or the efforts they describe do not amount to due diligence, their certificate may be invalidated,” People v. Knorr, 73 Misc3d 285 citing People v. Perez; 73 Misc3d 171, 177; People v. Adrovic, 69 Misc3d 563. Applying the above legal principles, the Court will now address each piece of missing discovery material. Memo Book of P.O. Jose Ortiz Memo books are discoverable pursuant to CPL §245.20(1)(e) as “all statements written or recorded or summarized…made by persons who have evidence or information relevant to any offense charged or to any potential defense thereto, including all police reports, notes of police and investigators and law enforcement agency reports.” Here, the Court is presented with a rather unique factual scenario. Although P.O. Ortiz’s memo book was not included in the list of discoverable items in the People’s COC filed on September 15, 2022, it, nevertheless, was subsequently disclosed to the defense on the same exact day.3 Thus, under these narrow set of circumstances, the Court cannot fairly conclude that the People failed to exercise due diligence with respect to this particular memo book. To hold otherwise would, in this Court’s view, be interpreting the discovery statutes in an unnecessarily hyper-technical and unreasonable manner. Memo book of P.O. Romero Ramirez Inasmuch as P.O. Romero Ramirez’s memo book was discoverable pursuant to CPL §245.20(1)(e), the People were obligated to exercise due diligence in making reasonable inquiries to determine the existence of it and disclose it to the defense before the filed their COC. Here, the People did not do so. The People’s explanation that they “inadvertently” failed to request the memo book…”under the mistaken belief that [it] had already been provided to the People and shared with defense” Risch Affirmation, p. 8, is inadequate inasmuch as it is “well settled that office failure does not amount to special circumstances,” People v. Guzman, 75 Misc3d 132(A) App Term 2nd Dept 2022, in the context of determining the validity of a COC and the People’s readiness for trial. Moreover, from the inception of this case, the People were clearly on obvious notice of the probable existence of P.O. Romero Ramirez’s memo book inasmuch as this case centers around defendant’s alleged assault and harassment of P.O. Romero Ramirez and his two fellow officers during the arrest process. Indeed, P.O. Romero Ramirez is a complainant who the People listed as “will testify at trial” in their Automatic Disclosure Form. Thus, “the People clearly overlook[ed] their statutory obligations to seek out discoverable evidence and information in their possession and/or in the possession of the…police and to make such evidence and information available to the Defendant before filing their COC,” People v. Pennant, supra. As to the People’s argument that their COC was valid since defendant was not prejudiced by the belated disclosure of P.O. Romero Ramirez’s memo book, “[p]rejudice to the defendant is not a factor in this analysis; the People’s obligation to provide discovery, and to certify compliance with that obligation, is not relieved by an absence of prejudice to the defendant. Therefore, while a defendant must show some prejudice in order to obtain a sanction against the People under CPL §245.80 the burden is not lifted from the People to comply with their obligation in the first instance.,” People v. Adrovic, supra. Further, the People’s bare assertion that their COC is valid because P.O. Romero Ramirez’s memo book contained “minimal duplicative information,” Risch Affirmation, p. 9 is rejected. “That is not the People’s determination to make. CPL Article 245 relieves the People of having to define what is discoverable,” People v. Williams, supra; see People v. Cartagena, 76 Misc3d 1214(A). Accordingly, based on all of the foregoing, defendant’s motion to invalidate the People’s September 15, 2022 COC and to deem the SOR that they filed on that same date to be illusory is granted (see CPL §245.50; CPL §30.30(5); People v. Ramirez, supra; People v. Barralaga, supra; People v. Knorr, supra, People v. Ryklin,72 Misc3d 1208(A); People v. Georgiopoulos, supra; People v. Adrovic, supra). The Court is cognizant that the revised discovery statute imposes a heavy burden on the District Attorney’s office. However, based upon the circumstances in this case the prosecution’s failure to make any efforts to ascertain the existence of P.O. Romero Ramirez’s memo book and disclose it in a timely manner prior to the filing of their COC cannot be excused as a “mere oversight.” To hold otherwise would essentially ignore the mandates in Article 245 which were enacted in the spirit to reform the discovery process in criminal cases in the state of New York. Therefore, with respect to the applicable time period from July 27, 2022, to September 21, 2022, inasmuch as the People’s September 15, 2022 certificate of compliance is invalid and their statement of readiness illusory, the People are charged this fifty-six (56) day time period. On September 21, 2022, defense counsel requested a motion schedule effectively tolling the CPL §30.30 clock (see CPL §30.30(4)(a); People v. Worley, 66 NY2d 523). Thus, a total of fifty-six (56) days are chargeable to the People. Accordingly, since this period of time is less than the ninety (90) day statutory limit in which the People must be ready for trial, defendant’s motion to dismiss the instant case pursuant to CPL §30.30(1)(b) is denied. The People are directed to file a valid certificate of discovery compliance and statement of trial readiness. Defendant’s Remaining Motions The branch of defendant’s motion requesting suppression of property obtained from him and any observations of him made by police or, in the alternative, for a Mapp/Dunaway hearing, is granted to the extent that a Mapp/Dunaway hearing is to be held prior to trial. The branch of the motion that seeks Brady material is granted to the extent that the District Attorney is to provide defendant with all Brady material in her custody, knowledge, possession, or control (see Brady v. Maryland, 373 US 83). Order entered accordingly. This constitutes the decision and order of the Court. The Clerk of the Court is directed to forward a copy of this order and memorandum to the attorney for the defendant and the District Attorney. Dated: December 9, 2022
