DECISION & ORDER Defendant moves, inter alia, for dismissal of the accusatory instrument on statutory speedy trial grounds pursuant to Criminal Procedure Law (“CPL”) §§30.30 (1) (b) and 170.30 (1) (e). Specifically, defendant contests the validity of the People’s Certificate of Compliance (“CoC”) 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 was illusory and, as such, did not stop the prosecution’s speedy trial time from accruing. Accordingly, the People’s prosecution pursuant to CPL §30.30 was untimely and defendant’s motion is GRANTED. PROCEDURAL BACKGROUND On February 12, 2023, defendant Melvin Henriquez was arrested and charged with operating a motor vehicle under the influence of alcohol or drugs in violation of Vehicle and Traffic Law (“VTL”) §§1192 (2-a) (a), 1192 (3), 1192 (2), all misdemeanors, 1192 (1), a violation and Penal Law (“PL”) 220.03, criminal possession of a controlled substance in the seventh degree, a Class A misdemeanor. On February 13, 2023, defendant was arraigned and released on his own recognizance. The People converted the criminal complaint on March 21, 2023, with the filing of their Supporting Deposition (“SD”). The People filed their CoC and Statement of Readiness (“SoR”) on April 20, 2023. The People filed a supplemental CoC (“SCoC”) and a second SCoC on July 5, 2023 and August 29, 2023, respectively. At a conference held on July 10, 2023, defense counsel requested a motion schedule to contest the validity of the People’s CoC. The motion was filed on July 27, 2023, the People’s opposition was filed on August 31, 2023, and the defense filed its reply on September 15, 2023. DISCUSSION I. Applicable Standard for CoC Challenge 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 then “a supplemental certificate shall be served upon the defendant and filed with the court identifying the additional material and information provided” (see CPL §245.50 [1]). Where defendant alleges that the CoC is invalid because the People have failed to discharge their discovery obligations, the prosecution must establish that they have met their burden (see e.g. People v Figueroa, 76 Misc 3d 888, 892 [Crim Ct, Bronx County 2022] citing People v Payne, 75 Misc 3d 1224 [A], 2022 NY Slip Op 50656 [U], *2 [Crim Ct, Bronx County 2022]; see also People v Spaulding, 75 Misc3d 1219 [A], 2022 NY Slip Op 50544 [U], *2 [Crim Ct, Bronx County 2022] ["They must certify that they have complied- that the prosecutor has disclosed and made available all known material and information subject to discovery"][internal citations omitted] citing CPL §245.50 [1-a]). Courts have examined the CoC for an explanation of the People’s efforts to ensure that they have turned over all known discoverable materials (see Perez at *3). Additionally, following a challenge to the validity of the CoC, courts inquire whether the prosecution has done all that is required of them to bring a case to the point that it could be tried. (see e.g. People v Rodriguez, 77 Misc 3d 23, 25 [1st Dept 2022] but see People v Diaz, 77 Misc 3d 727, 733 [Crim Ct, Bronx County 2022]. II. The Parties’ Arguments The gravamen of defendant’s motion is that the People failed to exercise due diligence in the discharge of their CPL §245.20 obligations because their initial disclosures included “[an] arrest report, complaint report, and complaint report worksheet” that did not relate to the instant case, and then failed to file a second SCoC after they disclosed defendant’s actual arrest records until 52 days later (affirmation of defendant’s counsel at 8).1 Defendant further avers that discovery items are still outstanding, including chain of custody records for the substance purportedly recovered from defendant, quality control documents from NYPD’s laboratory and the Wanted Person Inquiry Check (affirmation of defendant’s counsel at 8). Lastly, defendant requests an order suppressing and precluding evidence, or in the alternative, granting hearings pursuant to Ingle/Johnson/Atkins/Mapp/Dunaway/Huntley and Sandoval/Ventimiglia, respectively. The People maintain that defense counsel was derelict in failing to timely confer and communicate concerning outstanding discovery (People’s affirmation in opposition at 4). The prosecution further argues that after being alerted by defense counsel that unrelated arrest paperwork had been exchanged, they promptly disclosed defendant’s actual arrest records (People’s affirmation in opposition at 4). Next, the People argue that their disclosure of unrelated arrest records amounts to a mere “scrivener’s error” which should not invalidate their CoC (People’s affirmation in opposition at 7). The prosecution further asserts that pursuant to CPL §245.50 (4) (b), defense counsel had a duty to alert the People of the defect in their disclosures (People’s affirmation in opposition at 9-10). The prosecution also argues that the People’s second SCoC filing should be considered timely because unlike the circumstances presented to this Court in People v Amissah, 79 Misc 3d 401, 403 [Crim Ct, Bronx County 2023], the instant matter is not in the hearings and trial stage and, therefore, defendant had ample time to review discovery (People’s affirmation in opposition at 13-14). The People aver that dismissal is too drastic a remedy for their inadvertence and disproportionate to any prejudice suffered by defendant (People’s affirmation in opposition at 15). Lastly, the prosecution opposes defendant’s request for an order suppressing or precluding evidence (People’s affirmation in opposition at 16-21). III. The Court’s Analysis This Court has held that the statutory caveat that a CoC shall be filed when the People have “disclosed and made available all known material and information” makes clear that the Legislature anticipated that the prosecution’s ability to identify the universe of discoverable material might be constrained by a continuing investigation (CPL §245.50 [1] [emphasis added]). Hence, the parties’ continuing duty to disclose pursuant to CPL §245.60, which requires that the parties “shall expeditiously notify the other party and disclose the additional material and information as required for initial discovery under this article” (People v Perez, 73 Misc 3d 171, 176 [Sup Ct, Queens County 2021]). However, we reject the premise that filing a CoC with arrest paperwork unrelated to defendant’s case could be attributed as harmless error (see People v Husted, 179 Misc 2d 606 [App Term, 2d Dept 1998]["While the certificate indicates the test was performed on October 29, 1996, the test was actually performed on October 25, 1996"]; see also People v Herlich, 75 Misc 3d 1206 [A], 2022 NY Slip Op 50398 [U], *2 [Dist Ct, Suffolk County 2022]["The People contend that the filing of the COC with the incorrect docket number is, in essence, a mere scrivener's error" [internal citations omitted]). As we held in People v Nichols, concerning defense counsel’s review of disclosures, the automatic discovery obligations imposed by CPL §245.20 require counsels to “marshal voluminous documents for innumerable legal matters” (see Nichols, 79 Misc 3d 1211[A], 2023 NY Slip Op 50591[U], *6 [Crim Ct, Bronx County 2023]). This is assuredly no less applicable to the prosecution. However, the Court cannot envision a more threshold aspect of discovery than providing a defendant with the specific paperwork related to the arrest that underlies the criminal proceeding at bar. The prosecution correctly argues that defense counsel cannot strategically delay their CoC challenge in the hope that the People’s speedy trial time will exhaust before their disclosures are supplemented, as such a course would undoubtedly contravene the Legislative intent which animates CPL §245.50 (4) (b) (see CPL §245.50 [4] [b] ["Challenges to, or questions related to a certificate of compliance shall be addressed by motion; [b] to the extent that the party is aware of a potential defect or deficiency related to a certificate of compliance or supplemental certificate of compliance, the party entitled to disclosure shall notify or alert the opposition party as soon as practicable“][emphasis added]; see also People v Valdez, 2023 NY Slip Op 23239, *6 [Crim Ct, Kings County 2023]). The Valdez court noted that the Legislature neither defined nor provided an explicit timeframe for notifying the People of a defect in their CoC or SCoC, and there is as yet no appellate authority that addresses the question (see Valdez at *6). We take no issue with the Valdez court’s holding that the nine weeks it took defense counsel to challenge the CoC was not “as soon as practicable” where the glaring deficiencies in the People’s disclosures were readily apparent (see Id.). Indeed, in the case at bar, this Court may have been persuaded that defense counsel inexplicably delayed conferral with the People to advise that the arrest and complaint reports appended to the CoC did not relate to the subject arrest. Moreover, the People’s prompt redress four days later would likely have inured to the prosecution’s benefit as a demonstration of the reasonableness of their actions. However, the issue for the Court is whether the People could rectify their inadvertence by producing the correct paperwork on July 10, 2023, but waiting until August 29, 2023, in response to the instant motion, to file a second SCoC. The prosecution argues that where CPL §245.50 (1) is silent concerning the time frame to file a supplemental CoC, “a mere oversight” in failing to disclose proper police paperwork should not warrant a finding that the People’s second SCoC was untimely. Furthermore, the People maintain that the defense had ample time to review the belated disclosures unlike the defendant in Amissah, whose case had already been scheduled for hearings and trial when the second SCoC was finally filed and served. In Amissah, this Court held that “a timely filing would be expected either contemporaneously or shortly after discovery is provided to defense and, not just for the People to stop the clock, but also to give the defense a fair opportunity to review and object to, if necessary, the validity of the SCoC” (see Amissah at 406). Consequently, the Court’s inquiry does not turn on the People’s belated disclosure of proper arrest and complaint reports but, rather, it is the People’s 50-day delay in filing a supplemental SCoC which is determinative of the reasonableness and due diligence of their discovery discharge (see Amissah at 408 ["This court rejects the notion that the Legislature contemplated open-ended compliance with CPL 245.50 (1), and that the timing of a SCoC [ ] is of no consequence”]). The People’s attempt to distinguish the case at bar from the facts presented in Amissah is unpersuasive. Therefore, in the absence of any explanation or evidence of special circumstances that would have justified not contemporaneously filing a supplemental SCoC with the disclosures exchanged on July 10, 2023, this Court holds that the SCoC filed on August 29, 2023, which purported to amend the People’s initial disclosures with the proper arrest and complaint reports for the instant docket, was untimely and the CoC and SCoC filed on April 20, 2023 and July 5, 2023, respectively, were illusory. IV. The CPL §30.30 Calculation In a motion to dismiss misdemeanor charges pursuant to CPL §30.30 (1), defendant has the initial burden to demonstrate that the prosecution failed to declare readiness for trial within the statutorily prescribed time, 90 days (see CPL §30.30 [1] [b]); see also People v Luperon, 85 NY2d 71, 77-78 [1995]). The burden then shifts to the People to identify excludable delays (see Luperon at 78). In the case at bar, the People’s 30.30 calculation commenced on February 14, 2023, the day following defendant’s arraignment. The People were not converted and were not ready for trial when the parties appeared in court on March 16, 2023 (February 14, 2023 to March 16, 2023 = 30 days chargeable). The People did not stop their speedy trial time from accruing when they filed a CoC, now deemed to have been illusory, on April 20, 2023 (March 16, 2023 to July 27, 2023 = 133 days chargeable)2. Consequently, 163 days in total are chargeable to the People. Accordingly, because the People did not certify their compliance pursuant to CPL §245.50 (1) within their statutorily prescribed time, their prosecution was not timely pursuant to §30.30 (1) (b), and the case must be dismissed. CONCLUSION Based upon the foregoing, defendant’s motion for dismissal of the accusatory instrument on statutory speedy trial grounds pursuant to CPL §§30.30 (1) (b) and 170.30 (1) (e) is GRANTED. This constitutes the opinion, decision, and the order of the Court. Dated: October 5, 2023
