DECISION & ORDER Defendant moves for dismissal of the accusatory instrument on statutory speedy trial grounds pursuant to Criminal Procedure Law (“CPL”) §30.30 and §170.30; or in the alternative, for an order pursuant to Civil Practice Law Rules (“CPLR”) §2221 (d) granting re-argument of defendant’s motion to suppress any physical evidence found on his person or alternatively granting a Mapp hearing; and granting defense counsel the opportunity to file a reply brief and have a hearing on the underlying facts in accordance with the holding in People v. Allard, 28 NY3d 41 (2016). Specifically, defendant contests the validity of the People’s certificate of compliance (“CoC”) and supplemental certificate of compliance (“SCoC”) due to the People’s failure to comply with their disclosure obligations pursuant to CPL §245.20 (1) prior to the expiration of their speedy trial time. The People oppose the motion. Upon review and consideration of the submissions, court file and relevant legal authority, the Court finds that the People’s CoC, filed on December 9, 2022, was illusory. Accordingly, the People’s prosecution pursuant to CPL §30.30 was not timely and defendant’s motion is GRANTED. PROCEDURAL BACKGROUND On October 17, 2022, defendant Louis Andrews was arrested and charged with three counts of Penal Law (“PL”) §120.14 (1) (Menacing in the Second Degree) and one count of PL §265.01 (2) (Criminal Possession of a Weapon in the Fourth Degree), both Class A misdemeanors, and three counts of PL §240.26 (1) (Harassment in the Second Degree), a violation. Defendant was arraigned and released on his own recognizance and the matter was adjourned to November 30, 2022, for conversion. The People filed their CoC and statement of readiness (“SoR”) on December 9, 2022. At a compliance conference held on January 17, 2023, the People advised the court that they had recently disclosed a surveillance video to defendant. When defense counsel inquired about the “images” referred to in the People’s CoC, the assigned stated that the reference was inadvertent because he believed that none existed, but he would review his disclosures to confirm. A motion schedule was set by Hon. Giyang An, and later that day, the People filed and served a SCoC to annotate their supplemental disclosure of the video referenced at the conference. By omnibus motion dated January 31, 2023 (“the January Omnibus”), defendant argued that disclosures were presumptively outstanding because the People’s SCoC did not clarify whether images existed and, thus, the prosecution could not declare readiness for trial. The People opposed the motion in its entirety, asserted that no images existed and argued that they had exercised good faith and due diligence regarding their discovery obligations. On March 22, 2023, Hon. Giyang An issued her Decision and Order denying defendant’s request to invalidate the CoC. Specifically, the court credited the People’s representations that no images existed, and held that the surveillance video, although belatedly disclosed, was not in the People’s custody, control, or possession but, rather, had been obtained from a private company. The court scheduled the matter for Hearings and Trial on April 24, 2023. However, at the next appearance, a motion schedule was set after defense counsel requested an opportunity to reargue the January Omnibus on the grounds that the People had just served defendant with a second SCoC with evidence they had previously asserted did not exist. Defendant filed a second omnibus motion (“the May Omnibus”) on May 15, 2023, which the People opposed on June 21, 2023, and defendant replied to on July 7, 2023. DISCUSSION I. Applicable Standard for CoC Challenge1 Criminal Procedure Law §245.20 (1) provides, in pertinent part, that the prosecution shall disclose to defendant and permit defendant to “discover, inspect, copy, photograph and test, all items and information that relate to the subject matter of the case and in the possession, custody, or control of the prosecution or persons under the prosecution’s direction or control.” Including in the enumerated items is “[a]ll evidence and information, including that which is known to police or other law enforcement agencies acting on the government’s behalf” (People v. Perez, 75 Misc 3d 1205 [A] at *2 [Crim Ct, Bronx County 2022]). Pursuant to CPL §245.50 (1), where the prosecution has complied with their disclosure obligations, the People are required to serve a CoC on defendant and file it with the court as a condition precedent to announcing their readiness for trial. However, if the prosecution should subsequently provide additional discovery prior to trial pursuant to CPL §245.60, which mandates a continuing duty to disclose, then “a supplemental certificate shall be served upon the defendant and filed with the court identifying the additional material and information provided” (CPL §245.50 [1]). Congruent with this directive, “[a]ny supplemental certificate of compliance 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” (CPL §245.50 [1-a] [emphasis added]). Where defendant alleges that the People’s CoC is invalid because they have failed to discharge their discovery obligations, the People must establish that they have met their burden (see People v. Georgiopoulous, 71 Misc 3d 1215[A], at *3 [Sup Ct, Queens County 2021] ["This may be accomplished by recounting the steps they took to obtain certain materials or ascertain the existence thereof"] [emphasis added]; Perez at *2 ["They must detail the reasonable inquiries made to obtain these discoverable materials"] citing CPL §245.50 [1]); People v. Franklin, 78 Misc 3d 1232[A], *6 [Crim Ct, Bronx County 2023] ["The People also set forth dated efforts to further investigate the claims and produce information as it became available"]). It is well-settled 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” (see People v. Martinez, __-NY3d __, 2023 NY Slip Op 23194, *2 [Crim Ct, Bronx County 2023] citing People v. Kendzia, 64 NY2d 331, 337 [1985]). II. The Parties’ Arguments As a threshold matter, defendant’s May Omnibus is not a motion to reargue as contemplated by CPLR 2221 (d), which states, in pertinent part, that it “shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion” (see CPLR §2221 [d][2]). The May Omnibus is entirely premised on the belated disclosures in the People’s second SCoC, including images, about which the prior court, given the People’s representations, was completely unaware. Additionally, defendant’s January Omnibus did not request an order to suppress evidence taken from defendant or, alternatively, a Mapp hearing. Accordingly, the Court’s analysis of the propriety of the People’s second SCoC, and whether the belated disclosures appended thereto should invalidate their CoC, is a matter of first impression. Defense counsel avers that on April 24, 2023, the People served a second SCoC, which included property vouchers and an image of the alleged weapon used by defendant (affirmation of defendant’s counsel at 14). Counsel asserts that the assigned emailed her to state that he was first made aware of undisclosed items when he met with the arresting officer (“AO”) on April 21, 2023 (affirmation of defendant’s counsel at 15). Counsel argues that although the People advised the court that they would confirm whether the “images” referenced in the CoC existed, they did not (memorandum of law of defense counsel at 7, reply of defense counsel, exhibit B at 8). Defendant further asserts that the belated disclosure on April 21, 2023, rendered the People’s CoC illusory (memorandum of law of defense counsel at 8-9). Defendant contends that prejudice is not a factor when deciding a CoC challenge (memorandum of law of defense counsel at 9). Counsel also seeks an order suppressing any physical evidence taken from defendant or, alternatively, for a Mapp hearing (memorandum of law of defense counsel at 8-9). Additionally, counsel denies that she delayed her CoC challenge after being served on December 9, 2022 (reply of defense counsel at III). The People assert that as soon as they came into possession of discovery which they believed did not exist, the materials were turned over (People’s affirmation at procedural history). The prosecution also avers that its supplemental disclosures were made in furtherance of its continuing duty to disclose pursuant to §245.60 (People’s affirmation at I). The People state that the assigned was advised in or about October 2022, that no images or vouchers existed (Id.). The prosecution further asserts that in December 2022, the assigned spoke to a discovery liaison at the 44th Precinct and was again advised that no property was vouchered, nor were any photographs taken (Id.). The People also state that the assigned attempted to call the AO, but he was on his regularly scheduled day off (“RDO”) (Id.). The prosecution contends that because the alleged weapon can be seen in the body-worn camera (“BWC”) footage taken from the AO, the image disclosed in the second SCoC is merely cumulative (Id.). Lastly, the People aver that their CoC was filed in good faith and that defendant cannot demonstrate any prejudice occasioned by the belated disclosures (Id.). III. The Court’s Analysis As this Court has previously held, “[w]ithout appellate guidance to establish what, if anything, constitutes full or even substantial compliance with mandatory discovery obligations as a condition precedent to filing a CoC, courts have examined the due diligence of the prosecutor’s efforts to obtain outstanding discoverable materials to determine the validity of their CoC and SCoC” (see Franklin at * 6 citing People v. Rodriguez, 73 Misc 3d 411, 419 [Sup Ct, Queens County 2021] ["Moreover, the People's communications with defense counsel, which they have attached to their opposition papers, demonstrate that they have endeavored with great diligence to ensure that counsel received all documents to which the defendant is entitled"]). A. A Supplemental CoC cannot cure a Defective CoC Criminal Procedure Law §245.50 (1) codifies the Legislature’s recognition that the universe of discoverable documents may not be identifiable at the earlier stages of the prosecution’s investigation and, thus, the filing of a supplemental CoC does not void the original certification (see §245.50 [1-a] ["The filing of a supplemental certificate of compliance shall not impact the validity of the original certificate of compliance if filed in good faith and after exercising due diligence"]). However, this Court rejects the proposition that an SCoC can be used to cure defects in the original CoC, where CPL §245.50 (1) expressly provides, in pertinent part, that “[i]f additional discovery is subsequently provided [] pursuant to §245.60 of this article, a supplemental certificate shall be served” (see §245.50 [1]; see also People v. Diaz, 75 Misc 3d 314, 319 [Crim Ct, Bronx County 2022]; Perez, supra at *3; see Georgiopoulos, supra at *3]). The section unambiguously references the disclosure of additional information but will not shield the People from failing to disclose evidence already known to them at certification, nor, arguably, from investigating evidence which they had reason to believe existed. B. The People Failed to Exercise Due Diligence The uncontroverted facts at bar demonstrate that the People’s CoC, filed on December 9, 2023, referenced “images.” At the January 17, 2023 compliance conference, the prosecution advised the court that no images were believed to exist, although by his own admission, the assigned ADA had made just one (unsuccessful) attempt to contact the AO before certifying (People’s affirmation at I). Thereafter, the People duly filed a supplemental CoC for recently obtained surveillance video which made no mention of what, if anything, the assigned had done to confirm whether photographs were taken. The record further demonstrates that the assigned did not confer with the AO until the eve of Hearings and Trial, at which time the AO advised the People of the outstanding discovery, consisting of a photograph of the alleged weapon and five property vouchers. The prosecution’s second supplemental SCoC, filed on April 24, 2023, blithely remarks that “[t]he People were unaware of the existence of such materials until PO Lozano came [] and informed the assigned ADA of the existence of vouchers and a photo of the screwdriver in question.” Based on this assertion, the People’s scheduling of a meeting to prepare for Hearings and Trial constituted the extent of their efforts to confirm outstanding discoverable materials. This Court finds scant evidence that the People acted reasonably or with due diligence to discharge their discovery obligations in this important regard. Courts of concomitant jurisdiction have held that good faith and due diligence are the touchstones by which a certificate of compliance must be evaluated (see Perez, supra at *3 [internal citations omitted]; People v. Erby, 68 Misc 3d 625, 633 [Sup Ct, Bronx County 2020]; People v. Rivera, 78 Misc 3d 1219 [A], *4 [Sup Ct, Queens County 2023]). Additionally, as stated by the Georgiopoulos court, “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” (Georgiopoulos at *3). Prejudice to a defendant, a consideration for the imposition of sanctions pursuant to §245.80, is not a factor when evaluating whether the prosecution has met its obligations within the statutorily prescribed time to declare readiness for trial (see People v. Edwards, 77 Misc 3d 740, 749 [Crim Ct, Bronx County 2022]). In the case at bar, it would strain credulity to suggest that from December 9, 2022 through April 24, 2023, the respective filing dates for the CoC and the second SCoC, the People’s sole attempt to contact the AO on what was the officer’s RDO, could constitute a reasonable effort to ascertain the existence of outstanding discoverable items before certification. This is particularly so where disclosure listed in the CoC was neither confirmed, nor excluded. Hence, it was plausible that the discovery could exist, but the People did not follow-up, which is the very essence of due diligence. An RDO is simply a police officer’s regularly scheduled day off. Scheduled each week and with regularity, the RDO generally falls on the same day of the week. It’s not as if the officer was on long-term leave or even on vacation. The ADA could have reached out at any other point between the compliance conference and the eve of hearings and trial to ascertain whether the images in question existed. Due diligence would have required repeated attempts to reach an officer to obtain the information to satisfy this discovery obligation. Moreover, even if, as asserted by the prosecution, the BWC footage depicts the alleged weapon, this does not mitigate the People’s duty to investigate before certifying compliance with their §245.20 mandate. The Court recognizes the prosecution’s efforts to confirm discovery with their liaison at the 44th Precinct prior to the CoC filing. However, the People have not articulated their efforts to obtain the belated items, nor provided any explanation of why these materials were not disclosed until just three days prior to Hearings and Trial. Without these details, this Court cannot find that the prosecution acted “reasonably and diligently under the circumstances” (see Diaz, supra at 321). It is axiomatic that if the People cannot certify their compliance pursuant to CPL §245.50 (3), they cannot declare their readiness for trial pursuant to CPL §30.30 (5) because “[t]he obligation is inflexible. No trial ready statement is valid unless the People file a [proper] COC 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” (see People v. Pierna, 74 Misc 3d 1072, 1087 [Crim Ct, Bronx County 2022][internal quotation marks omitted]; see also People v. Aquino, 72 Misc 3d 518, 520 [Crim Ct, Kings County 2021]; People v. Adrovic, 69 Misc 3d 563, 574- 575 [Crim Ct, Kings County 2020; People v. Vargas, 76 Misc 3d 646, 652 [Crim Ct, Bronx County 2022]) Accordingly, the People’s CoC and second SCoC, filed on December 9, 2022 and April 24, 2023, respectively, were invalid, and the prosecution’s concomitant statements of readiness are deemed illusory. CONCLUSION Based upon the foregoing, defendant’s motion for dismissal of the accusatory instrument on statutory speedy trial grounds pursuant to CPL §30.30 is GRANTED. This constitutes the opinion, decision, and the order of the Court. Dated: August 21, 2023
