Opinion
No. CR-002548-23RI
11-27-2023
The People of the State of New York v. Lance Rushmore, Defendant.
For the Defendant: Gregory Esposito, Esq. For the People: Michael E. McMahon District Attorney, Richmond County By: Rebecca Jerome, Esq.
Unpublished Opinion
For the Defendant: Gregory Esposito, Esq.
For the People: Michael E. McMahon District Attorney, Richmond County By: Rebecca Jerome, Esq.
Raja Rajeswari, J.
The defendant is charged by information with one count of Driving While Intoxicated (Vehicle and Traffic Law § 1192[3]) and Driving While Ability Impaired (Vehicle and Traffic Law § 1192[1]). The defendant moves to dismiss the information on speedy trial grounds (CPL 170.30[1][e]; 30.30). The People opposed this motion. For the reasons stated below, the defendant's motion to dismiss is denied.
APPLICABLE STANDARD
The top charge, Driving While Intoxicated Driving While Intoxicated (Vehicle and Traffic Law § 1192[3]) is an unclassified misdemeanor punishable by up to three hundred sixty-four days in prison (Penal Law § 70.15[3]). Accordingly, a motion to dismiss must be granted when the People are not ready for trial "within 90 days of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony." CPL 30.30(1)(b); 170.30(1)(e). The ninety-day period commences with the filing of the accusatory instrument. CPL 1.20(17); People v Stirrup, 91 N.Y.2d 434, 438 (1998).
RELEVANT FACTS & PROCEDURAL HISTORY
On or about May 7, 2023, at approximately, 6:36 a.m., in the vicinity of Hannah Street and Bay Street, Staten Island, New York, in response to numerous 911 calls that a driver had collided with bicyclists, officers from the New York City Police Department ("NYPD") observed the defendant operating a red 2009 Mazda motor vehicle at said location. The officers further observed the defendant displaying signs of intoxication, including slurred and slow speech, bloodshot and watery eyes, the defendant was swaying and unbalanced and the odor of an alcoholic beverage on his breath and person. The defendant was arrested and transported to the Richmond University Medical where the defendant's blood was drawn. Officers further collected a sample of the defendant's blood under a theory of "deemed consent" (Vehicle and Traffic Law § 1194; see also People v Kates, 53 N.Y.2d 591 [1981]). The blood sample was secured in a NYPD voucher and transported to the Office of the Chief Medical Examiner ("OCME") for testing to determine the defendant's blood alcohol content.
The defendant was arraigned on an information on May 8, 2023, charging him with one count each of Driving While Intoxicated (Vehicle and Traffic Law § 1192[3]) and Driving While Ability Impaired (Vehicle and Traffic Law § 1192[1]). The matter was adjourned to June 5, 2023 for, inter alia, discovery compliance.
On June 5, 2023, the People had not yet filed a Certificate of Compliance ("COC") or Certificate of Trial Readiness ("CTR"), and the matter was adjourned to July 27, 2023 for hearings and trial. On July 9, 2023, the People filed and served an off-calendar COC and CTR. On the following court date, July 25, 2023, the People answered not ready because the assigned prosecutor was attending a training and requested July 27, 2023 for hearings and trial. Defense counsel objected to the validity of the People's COC and CTR because they had not produced any toxicology results from testing of the defendant's blood sample. The matter was adjourned to August 10, 2023 for hearings and trial.
On August 10, 2023, the People served and filed a CTR along with a Supplemental Certificate of Compliance ("SCOC"), which included a preliminary report from the OCME regarding the testing of the defendant's blood sample. On August 10, 2023, the People announced their readiness on the record, defense answered not ready so that they may review the new discovery, and the matter was adjourned to August 16, 2023 for hearings and trial. On August 16, 2023, the People stated ready, defense answered not ready, and the matter was adjourned to August 18, 2023 for conference. On August 18, 2023, the People received a supplemental report from the OCME and produced it to defense. On the same date, the matter was adjourned to August 21, 2023 in Part TRP1 for an additional conference and to pick a hearing date.
On August 21, 2023, the defense requested a motion schedule; a motion schedule was set, and the matter was adjourned to October 4, 2023 for decision. On the same date, the People received the entirety of the OCME litigation packet, including the final toxicology reports, and served and filed a second SCOC and CTR along with the litigation packet on August 22, 2023. Following the adjournment, defense contacted the Court and requested additional time to file their motion. The Court granted defense an extension, instructed them to file their motion by October 6, 2023, and changed the adjournment date to October 6, 2023 to set a new motion schedule. On October 6, 2023, the defense filed the instant motion, the People were instructed to file their response by October 20, 2023, and the matter was adjourned to November 6, 2023 for decision.
On October 19, 2023, the People filed their opposition to defendant's motion, after which the Court granted defense to follow a reply to the People's opposition, as requested in their motion, or to make an oral record before the Court on November 6, 2023. On that date, the Court conferenced dates for a hearing on defendant's motion and further granted defense the opportunity to file a reply to the People's opposition or to make a record regarding his reply before the Court on November 6, 2023. On that date, defense objected to some of the People's arguments in their opposition on the record, the Court heard arguments from both sides, and the matter was adjourned to November 17, 2023 for a hearing on defendant's motion.
30.30 Hearing
At defendant's request, the matter was advanced to November 14, 2023 for the hearing on defendant's motion wherein the Court inquired further into the People's process to obtain records from the OCME, as well as the People's efforts to obtain the records in the instant matter as well as OCME's responses to the People's request or lack thereof. In general, the People are not required to serve a subpoena upon the OCME, rather the People send an email requesting reports using the defendant's name and the voucher number to which the OCME responds via email directly to the People. There is no timeframe in which testing may be completed, but the People noted that there has been a recent "backlog" of testing at the OCME, presenting to the Court and defense a document indicating that requests made on unrelated matters remained pending at the time of the hearing. Additionally, the OCME typically sends reports to the People "in pieces," meaning that once a preliminary report is sent to the People, it is followed up by a supplemental report and, finally, a litigation packet containing the final reports. These reports are received in succession without further prompting by the People.
In the instant matter, the People explained that testing was requested by members of the NYPD, and the People requested reports from the OCME via email on May 22, 2023. On July 7, 2023, the People made a follow-up request to the OCME. However, the results of the OCME's testing were still pending at the time of each respective request. On July 11, 2023, the People requested that the OCME expedite the testing of the defendant's blood sample with instructions to return the results prior to July 25, 2023, the next date for hearings and trial. The People explained that expedited requests are sent via email to Dr. Gail Cooper, an OCME director, and reports made in response to expedited requests are typically received in approximately one week. However, in the instant matter, the final reports and litigation packet were not received for approximately six weeks, wherein the People again noted the backlog of OCME testing. The People maintained that between July 11, 2023 and August 8, 2023, the District Attorney's Office "was in constant communication with the OCME." On August 8, 2023, after the OCME indicated that test results were still pending, the assigned Assistant District Attorney contacted the OCME directly via telephone and was informed that the testing was still pending. The assigned Assistant District Attorney contacted the OCME again the following day and was informed that, while the results were still pending, a preliminary report would be sent to the People. The People then received the preliminary report on August 10, 2023, turned it over to defense and served and filed a SCOC and CTR. Subsequently, on August 18, 2023, the People received a supplemental report from the OCME, which it produced to defense. Finally, on August 21, 2023, the People received the entire litigation packet including the final testing results, which they produced to defense and served and filed another SCOC and CTR on August 22, 2023.
Defense further stated that they were informed on or about July 10, 2023 regarding the pending toxicology reports and thereafter conferred with the People regarding the outstanding reports. Defense further did not request records from the OCME nor requested subpoenas from the Court for records from the OCME.
VALIDITY OF THE PEOPLE'S CERTIFICATE OF COMPLIANCE
Before answering ready for trial, the People must have "done all that is required of them to bring the case to a point where it may be tried." People v England, 84 N.Y.2d 1, 4 (1994). Once a statement of readiness is filed, the People are only charged for adjournments when the delay is solely and exclusively the fault of the prosecution, and the time cannot otherwise be excluded under CPL 30.30(4). See People v Brown, 28 N.Y.3d 392, 404 (2016); People v Cortes, 80 N.Y.2d 201, 210 (1992). Conversely, "A statement of readiness at a time when the People are not actually ready is illusory and insufficient to stop the running of the speedy trial clock." England, 84 N.Y.2d at 4.
"By virtue of amendments to the CPL effective January 1, 2020, absent an individualized finding of special circumstances, the filing of a proper CoC is a prerequisite to the People being ready for trial." People v Hamizane, 80 Misc.3d 7, 11-12 (App Term, 2d Dept, 9th & 10th Jud Dists 2023). In this way, Article 245 has tethered the People's discovery obligations to speedy trial by requiring that the People "actually produce[ ]" automatic discovery to the defense before stating ready for trial. People ex rel. Ferro v Brann, 197 A.D.3d 787, 787-88 (2d Dept 2021); see CPL 245.20(1), 245.50(1), 245.50(3), 30.30(5). Automatic discovery under the statute includes "all" items and information in the People's possession that "relate to the subject matter of the case," including a non-exhaustive list of materials expressly provided by the statute. CPL 245.20(1). Thus, "To interpret CPL 245.50(1) and 30.30 together, in the context of a motion to dismiss on speedy trial grounds, the Court first examines the People's 'actual readiness' (CPL 30.30[5]); that is, whether the prosecution has 'done all that is required of them to bring the case to a point where it may be tried,' including filing a valid COC." People v Winston, 78 Misc.3d 1201 (A), 2023 NY Slip Op 50130(U), at*6 (Crim Ct, Bronx County 2023) (quoting England, 84 N.Y.2d at 4).
With these guidelines in mind, upon completion of discovery, the People must serve upon defendant and file with the court a "certificate of compliance" affirming 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). Thus, after the People have "actually turn[ed] over all known material and information," they must affirm it in a "proper" certificate of discovery compliance. People v Quinlan, 71 Misc.3d 266, 271 (Crim Ct, Bronx County 2021); People v Adrovic, 69 Misc.3d 563, 574 (Crim Ct, Kings County 2020); see also CPL 245.50(1), (3). A certificate of compliance is "proper" if it is filed "[w]hen the prosecution has provided the discovery required by subdivision one of section 245.20," except for materials that are lost, destroyed, or under a protective order. CPL 245.50(1).
Indeed, that is precisely what the statute directs the People to do in their certificate of compliance: t hey must certify 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). Alongside this plain text, courts hold that a certificate of compliance "[can]not be deemed complete" until discovery is "actually produced" to the defense. Ferro, 197 A.D.3d at 787-88; Quinlan, 71 Misc.3d at 271 (requiring that the People file a certificate of compliance only after they "actually turn[ed] over all known material and information"); Adrovic, 69 Misc.3d at 574 (same).
If "the prosecutor has failed to demonstrate diligence and reasonableness in obtaining and disclosing required information and, as a result of that lack of diligence and reasonableness has failed to make a necessary disclosure, then the Certificate of Compliance is invalid." Id. (citing CPL 245.50[1]). In other words, while CPL 245.50(1) provides that a COC filed "in good faith and reasonable under the circumstances " shall result in no adverse consequences to the prosecution, other than a remedy or a sanction, "[G]ood faith is, by itself, inadequate where the People fail to use diligence to comply with their discovery obligations." People v Barralaga, 73 Misc.3d 510, 514 (Crim Ct, New York County 2021). Additionally, if the People subsequently provide additional discovery, they must serve upon defendant and file with the court a supplemental certificate of compliance identifying the additional material and information provided. CPL 245.50(1). The statute specifically provides that "[t]he 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 pursuant to section 245.20 of this article, or if the additional discovery did not exist at the time of the filing of the original certificate of compliance." CPL 245.50(1-a).
Simply stated, in order to be actually ready, the People must serve and file a proper, good-faith certificate of compliance, which, in turn, requires first that the People exercise "due diligence" by making "reasonable inquiries" to "ascertain the existence" of discoverable material, and second, that they "made available all known material and information subject to discovery." CPL 245.50(1). Therefore, when a certificate of compliance is challenge by the defendant, it is the People's burden to establish that they have met their statutory duties. Hamizane, 80 Misc.3d at 11-12 ("the record indicates that the People failed to demonstrate that [their] CoCs were filed in good faith and were reasonable under the circumstances").
The defendant has filed the instant motion, seeking dismissal of the accusatory instrument on statutory speedy trial grounds (CPL 170.30[1][e]; 30.30), asserting that the COC and CTR filed by the People on July 9, 2023 were invalid due to the People's failure to turn over the toxicology report. The defense argues that the failure to disclose this item and information rendered the People's July 9, 2023 COC and CTR illusory. Alternatively, if this Court were to find that the COC and CTR were valid, then the defendant requests that this Court preclude the introduction of the toxicology report. The People respond that the records of the OCME are not in their custody or control and are, therefore, not automatically discoverable. The People further aver that even if the toxicology report was automatically discoverable, the People's COC was nonetheless filed in good faith because the People have exercised due diligence in attempting to obtain and produce it to the defendant. The People further maintain that the defendant has not been prejudiced by the subsequent disclosure of the toxicology report. The Court shall address each argument in turn.
The People's Obligation Under CPL 245.20(1)(j)
To begin, the Court finds that by the plain language of the statute, the toxicology report is clearly automatically discoverable pursuant to Criminal Procedure Law § 245.20(1)(j). The statute explicitly requires that the People produce to the defendant "[a]ll reports, documents, records, data...including but not limited to preliminary tests and screening results...concerning...scientific tests of experiments or comparisons, relating to the criminal action or proceeding which (1) were made by or at the request or direction of a public servant engaged in law enforcement activity, or (2) which were made by a person whom the prosecutor intends to call as a witness at trial or a pre-trial hearing, or (3) which the prosecution intends to introduce at trial or a pre-trial hearing." Id.
Such clear language obviates previous rulings that the "OCME is an independent agency" who "cannot bring criminal charges against anyone" and whose "sole purpose is to give an impartial scientific determination[s]," and, is, therefore, not within the custody or control of the prosecution. People v Washington, 196 A.D.2d 346, 350 (2d Dept 1994). Rather, the analysis under CPL 245.20(1(j) is not whether the OCME, or other entity, is a law enforcement agency. Instead, the plain language of the statute posits that whether the materials provided under CPL 245.20(1(j) are automatically discoverable turns on whether it meets any of its expressly provided provisions.
Additionally, such a finding is in accordance with the general tenor of the discovery statute, which expressly codifies a presumption of openness by establishing "a presumption in favor of disclosure when interpreting sections 245.10 and 245.25, and subdivision one of section 245.20, of this article." CPL 245.20(7). Consequently, "If something is in the prosecutor's file (or that of the police investigating agency) it should invariably 'relate to the subject matter of the case' and will need to be disclosed," unless it is work-product or subject to a protective order. People v Lustig, 68 Misc.3d 234, 239 (Sup Ct, Queens County 2020). With these guidelines and requirements in mind, "The Court strains to imagine a situation where material contained within records in the People's case file would somehow not 'relate' to the case." People v Payne, 75 Misc.3d 1224 (A), 2022 NY Slip Op 50656(U), at *3 (Crim Ct, Bronx County 2022) (emphasis included).
Moreover, as indicated in the People's written response and responses at a hearing before this Court, the People are not required to subpoena records from the OCME. Rather, the People's representations demonstrate a free flow of information from the OCME to the People wherein the People simply need to request the records and, without much effort, can receive frequent updates on testing requested by law enforcement. Here, the defendant's blood sample was collected by members of the NYPD for the sole purpose of prosecuting the defendant, and the NYPD further requested toxicology shortly after the defendant's arrest for the very same purpose. While the OCME may not be considered a law enforcement agency under prior jurisprudence, it is clear, therefore, that its reports made at the request of a law enforcement agency are automatically discoverable under 245.20(1)(j). See also People v Adams, 66 Misc.3d 918, 923 (Sup Ct, Queens County 2020) ("[B]ecause the OCME performed DNA analysis in this case at the request of either the New York City Police Department or the Queens County District Attorney's office, and not because they were under some statutory duty to do so, the data requested by the Defense pertaining to this DNA analysis is discoverable pursuant to CPL § 245.20(1)(j)"); People v Vaillant, 80 Misc.3d 856, 867-868 (Crim Ct, Bronx County 2023); People v Berkowitz, 68 Misc.3d 1222 (A), 2022 NY Slip Op 51044(U), at *5 (Crim Ct, Kings County 2020) ("OCME case file falls within the ambit of CPL § 245.20[1][j]").
The Court's conclusion is also consistent with recent jurisprudence prior the enactment of Article 245. See People v Jones, 55 Misc.3d 743 (Sup Ct, Bronx County 2017) (the People were obligated to obtain from the OCME and produce to the defendant the raw electronic data from which the DNA profiles were generated in defendant's prosecution for possession for possession of a loaded firearm); People v Gills, 52 Misc.3d 903 (Sup Ct, Queens County 2016) (because the OCME performed the DNA analysis at the request of the NYPD, the People were required to disclose the electronic raw data to the defendant). Accordingly, the Court finds that under these circumstances the toxicology report is automatically discoverable.
The People's Demonstration of Due Diligence
Upon such a finding, the Court is required to determine whether the People exercised the requisite level of diligence in obtaining the materials and, therefore, whether their certification was filed in good faith and was reasonable under the circumstances. See People v McKinney, 71 Misc.3d 1221 (A) (Crim Ct, Kings County 2021) ; Adrovic, 69 Misc.3d 563.
While some lower courts have previously differed on what shall render a COC and People's readiness under 245 illusory, recent appellate authority has made clear that the People must demonstrate to the Court that they have exercised due diligence to ascertain the existence of discoverable material and information in order to certify that their COC was filed in good faith. For example, in People v Hamizane, 80 Misc.3d at 11-12, the Court wrote that the People's certificates of compliance "failed to demonstrate that the CoCs were filed in good faith and were reasonable under the circumstances, since none of the People's submissions in opposition to defendant's motion, or arguments made at the hearing, showed that the People had attempted to obtain any police disciplinary records, or attempted to find out whether any such records existed, prior to the filing of these CoCs." Shortly before that, the Appellate Term found that "the People failed to 'exercis[e] due diligence and mak[e] reasonable inquiries to ascertain the existence of' the FDNY/EMS records and, thus, their CoC was not filed in good faith." People v Rahman, 79 Misc.3d 129 (A), 2023 NY Slip Op 50692(U), *2 (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2023). (internal citations omitted); see also People v LaClair, Id., 79 Misc.3d 8, 11 (App Term, App Term, 2d Dept, 9th & 10th Jud Dists 2023) ("the People failed to 'exercis[e] due diligence' and did not 'mak[e] reasonable inquiries to ascertain' the identities of all law enforcement witnesses related to the case and, thus, the CoC was not filed in good faith"); People v Guzman, 75 Misc.3d 132 [A], 2022 NY Slip Op 50445(U), *5 (App Term, 2d Dept, 9th & 10th Jud Dists 2022) ("CoC was not filed in good faith, as the People failed to exercise due diligence and did not make reasonable inquiries to obtain the video").
Thus, "In a challenge to the validity of a certificate of compliance, the court must determine whether the People exercised the requisite level of diligence in obtaining the materials and whether their certification was filed in good faith and was reasonable under the circumstances." People v Hooks, 78 Misc.3d 398, 401 (Crim Ct, Kings County 2023); see also People v Erby, 68 Misc.3d 625 (Sup Ct, Bronx County 2020); People v Knight, 69 Misc.3d 546, 552 (Sup Ct, Kings County 2020); People v McKinney, 71 Misc.3d 1221 (A), 2021 NY Slip Op 50456(U) (Crim Ct, Kings County 2021); Adrovic, 69 Misc.3d 563. "If any known discoverable materials were not exchanged prior to the filing of the COC, the prosecution must demonstrate how due diligence was exercised with regard to those items not exchanged." Winston, 78 Misc.3d 1201(A) at *6 (citing People v Pierna, 74 Misc.3d 1072, 1088 [Crim Ct, Bronx County 2022]). Crucially, "They must detail the reasonable inquiries made to obtain these discoverable materials." Winston, 78 Misc.3d 1201(A) at *6.
The standard in evaluating whether the People's efforts constitute due diligence is objective reasonableness. CPL 245.50(1). Indeed, "[G]ood faith, due diligence, and reasonableness under the circumstances are the touchstones by which a certificate of compliance must be evaluated." People v Rodriguez, 73 Misc.3d 411, 417 (Sup Ct, Queens County 2021). Here, based upon the People's motion response and responses at the hearing, this Court finds that the People's original certificate of compliance was filed upon diligent, good faith efforts being undertaken to ascertain the existence of discoverable information. The People have recounted multiple efforts prior to the filing of the COC to determine if the toxicology was completed, which based upon the People's representations, was not completed prior to its filing. Moreover, following the filing of the COC, the People continued to make additional efforts in the form of emails, telephone calls and expedited requests to produce the automatic discovery. Once the People actually received the preliminary report, the supplemental report and the complete OCME litigation packet with the finalized report, the People immediately produced each respective item to the defendant. The People were therefore diligent in attempting to obtain discoverable materials and filed their COC and CTR in good faith. See Vaillant, 80 Misc.3d at 870.
The Court also further notes the circumstances under which the People have made these concerted efforts to actually produce this discovery to the defendant. As demonstrated by the People, there was no readily available timeframe in which testing could be completed; rather, the People were beholden to a seemingly "backlog" of testing. The People demonstrated to the Court, therefore, that this toxicology report did not actually exist until August 21, 2023 and that it was provided to defense along with an SCOC the following day.
Accordingly, the People have demonstrated made diligent, good faith efforts to ascertain the existence of discoverable materials and continued to do so until the report was actually produced. People v McQueen, 80 Misc.3d 225 (Crim Ct, Kings County 2023) (multiple follows ups to the police laboratory constituted due diligence); s ee also People v Lewis, 78 Misc.3d 877, 881-882 (Sup Ct, Kings County 2022) (the People's COC was filed in good faith where the assigned prosecutor sent multiple follow up emails to obtain activity logs); People v McLean, 77 Misc.3d 492 (Crim Ct, Kings County 2022) (COC was not invalidated despite late disclosure of memo books because People demonstrated due diligence in attempting to obtain outstanding discovery). To be sure, this Court has previously ruled that the People's efforts have fallen short of their statutory duties. People v Ashraf, 80 Misc.3d 1223 (A), 2023 NY Slip Op 51068(U) (Crim Ct, Richmond County 2023); People v Hughes, 79 Misc.3d 1235 [A], 2023 NY Slip Op 50806(U) (Crim Ct, Richmond County 2023). However, in following those same precepts here, the People's efforts have demonstrated to the Court that their COCs were indeed filed in good faith.
Moreover, the Court must also give consideration to the more distinct provisions of Criminal Procedure Law § 245.20(1)(j), which, as stated above not only requires the automatic disclosure of, inter alia, scientific tests or experiments, but further provides that the People "prosecution shall not be required to provide information related to the results of physical or mental examinations, or scientific tests or experiments or comparisons, unless and until such examinations, tests, experiments, or comparisons have been completed." (Emphasis added). Just as the plain language of the statute makes clear that the OCME's toxicology report is automatically discoverable, it also expressly provides that the People need not disclose information related to this testing until it is completed. In this way, the language of CPL 245.20(1)(j) is distinguishable from other instances of non-disclosure under CPL 245.20(1), which requires some form of notice. See CPL 245.20(1)(c) (requiring that the People to notify the defendant in writing when information relating to 911 callers, confidential informants or other victims or witnesses has not been disclosed); CPL 245.20(1)(d) (requiring that the People to notify the defendant in writing when information relating to undercover personnel has not been disclosed); CPL 245.20(1)(f) (requiring that the People to notify the defendant in writing when information relating to an expert witnesses has not been disclosed).
Criminal Procedure Law § 245.20(1)(j) also provides, "If the prosecution... received results from[ ] a forensic science laboratory or similar entity not under the prosecution's direction or control, the court on motion of a party shall issue subpoenas or orders to such laboratory or entity to cause materials under this paragraph to be made available for disclosure." Therefore, in this instance, although such materials did not exist until August 21, 2023, the Court could have issued a subpoena to either party prompting the immediate disclosure of the records. Accordingly, while the People are not relieved of their duty to exercise diligent efforts to provide discovery under CPL 245.20(1)(j) to the defendant, in the instant matter, should the defendant find discoverable information or materials from the OCME have not been turned, the defendant could seek to obtain it himself from the OCME by subpoena or court order.
Moreover, a potential recourse for the People to have stated ready on an improper COC is a finding of special circumstances. CPL 245.50(3). "[A]bsent an individualized finding of special circumstances," a proper, good-faith certificate of automatic discovery compliance is a "prerequisite to the People being ready for trial." Hamizane, 80 Misc.3d at 10 (internal citations omitted). Inversely, a statement of readiness "is invalid if it is accompanied or preceded by" a certificate of compliance "that is later determined to be improper, where no special circumstances exist." Id. Here, even if the People failed to demonstrate due diligence, it could be argued that special circumstances existed in that the toxicology report did not exist in any form until August 2023. Likewise, the People may have demonstrated to this Court that there was an obstacle to obtaining the discoverable material such that it would have qualified for a "good cause" extension under CPL 245.70(2) or to toll speedy trial under CPL 30.30(4)(g).
Relatedly, the Court is satisfied on this record that the People were actually ready to proceed to trial without relying upon the toxicology report. The People have maintained their willingness and ability to proceed trial on charges of Driving While Intoxicated (Vehicle and Traffic Law § 1192[3]) and Driving While Ability Impaired (Vehicle and Traffic Law § 1192[1]), which was a reasonable assertion given that intoxication could be shown by police observations and the accident. Furthermore, neither charge requires proof of the defendant's level of intoxication. Cf. Vehicle and Traffic Law § 1192(2). The People had evidence to proceed to trial and subsequently attempted to see if they could strengthen it through the blood test, which is a strategic decision that does not undercut their ability to proceed or invalidate a statement of readiness for trial. See People v King, 152 A.D.2d 412, 412 (1st Dept 2017) ("The record supports the reasonable inference that, even if the People intended to strengthen their case by way of DNA evidence, but failed to make a timely motion for DNA testing, they had always been prepared to proceed to trial by relying solely on eyewitness testimony.")
Lastly, the defendant alternatively asks that should dismissal not be granted, then the Court should issue a sanction, specifically preclusion of the chemical test pursuant to Criminal Procedure Law § 245.80(2). The law specifies, "No adverse consequence to 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 sanction for a discovery violation as provided in section 245.80 of this article." CPL 245.50(1). Article 245 statute further states, "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 [CPL 245.80(b)], despite diligent and good faith efforts, reasonable under the circumstances. Provided, however, that the court may grant a remedy or sanction for a discovery violation as provided by section 245.80 of this article." CPL 245.50(3) (emphasis added). In turn, CPL 245.80(1) provides, "When material or information is discoverable under this article but is disclosed belatedly, the court shall impose a remedy or sanction that is appropriate and proportionate to the prejudice suffered by the party entitled to disclosure."
As explained above, however, the People have made a satisfactory record before this Court demonstrating that the toxicology report in this matter was not yet available until August 21, 2023, despite their diligent efforts to produce it to the defendant sooner. Accordingly, the Court may consider the remedies or sanctions provided in CPL 245.80(2). Here, however, there has been no showing of bad faith on the part of the People warranting preclusion. People v Ramjattan, 219 A.D.3d 1348, 1351 (2d Dept 2023) (citing People v Porter, 210 A.D.3d 1012 [2d Dept 2022]). Additionally, the defendant has not demonstrated prejudice to this Court. Rather, the defendant has been in possession of the toxicology report for three months and has requested multiple adjournments to review the evidence. Additionally, neither a trial nor pre-trial suppression hearings have been conducted. Therefore, absent a showing of prejudice from the delayed disclosure of the report, the Court does not find that any of the sanctions or remedies provided by the statute are warranted in this matter. See Ramjaattan, 219 A.D.3d at 1351 (citing People v Johnson, 139 A.D.3d 967 [2d Dept 2016]).
However, given that suppression hearings have not yet been conducted, the Court orders that any pre-trial suppression hearing is expanded to include a determination as to whether the defendant's blood was properly collected in accordance with Vehicle and Traffic Law § 1194. Additionally, although the defendant has requested multiple adjournments to review the People's disclosure of the various reports produced by the OCME, CPL 245.80(1) provides, "Regardless of a showing of prejudice the party entitled to disclosure shall be given reasonable time to prepare and respond to the new material." Therefore, the defendant shall be given a further adjournment to review the materials and prepare for the expanded hearing.
CHARGEABLE TIME CALCULATION
May 8, 2023 to June 5, 2023. The defendant was arraigned on an information on May 8, 2023. The case was adjourned to June 5, 2023 for the People to file their COC and CTR. The People are charged 28 days for this adjournment.
June 5, 2023 to July 25, 2023. On July 9, 2023, the People served and filed a COC or CTR, stopping the clock at 60 days. However, at the subsequent appearance on July 25, 2023, the People answered not ready for hearing and trial because the assigned prosecutor was unavailable due to a training and requested July 27, 2023. The matter was adjourned to August 10, 2023 for hearings and trial. The People are charged with post-readiness delays when the delay is solely and exclusively the fault of the prosecution, and the time cannot otherwise be excluded under CPL 30.30(4). See Brown, 28 N.Y.3d at 404; Cortes, 80 N.Y.2d at 210; People v Anderson, 66 N.Y.2d 529, 535-536 (1985). The People are charged 34 days for this adjournment.
July 25, 2023 to August 10, 2023. On August 10, 2023, the People stated ready for hearings and trial, however, the defendant answered not ready and the matter was adjourned to August 16, 2023 for hearings and trial. The People are charged 0 days for this adjournment.
August 10, 2023 to August 16, 2023. On August 16, 2023, the People stated ready for hearings and trial, however, the defendant answered not ready and the matter was adjourned to August 18, 2023 in Part TRP1 for conference and to pick a hearing date. The People are charged 0 days for this adjournment.
August 16, 2023 to August 18, 2023. On August 18, 2023, the matter was conferenced in Part TRP1 where the offer and defense's discovery issues were discussed. The matter was adjourned to August 21, 2023 for further conference and to pick a hearing date. Such period is excluded since defendant consented to the adjournment. CPL 30.30(4)(b). The People are charged 0 days for this adjournment.
August 21, 2023 to October 6, 2023. On August 21, 2023, the matter was again conferenced in Part TRP1 where the offer and discovery issues were again discussed wherein defense requested a motion schedule. The matter was adjourned originally adjourned to October 4, 2023 for decision and hearings. However, in the interim, defense contacted the Court and the People, requesting an extension on the motion schedule due to an illness and travel schedule, and the adjournment date was changed to October 6, 2023. Such period is excluded for motion practice (30.30[4][a]) and because defendant requested the adjournment ( CPL 30.30[4][b]). The People are charged 0 days for this adjournment.
October 6, 2023 to November 6, 2023. On October 6, 2023, the defense filed the instant motion, the People were instructed to file their response by October 20, 2023, and the matter was adjourned to November 6, 2023 for decision. Such period is excluded for motion practice. CPL 30.30(4)(a) . The People are charged 0 days for this adjournment.
November 6, 2023 to November 14, 2023. While the motion was pending, the Court contacted the People and defense off-calendar to discuss conducting a hearing on the motion. Defense also requested time to either file a reply, as originally requested in the motion to dismiss, to the People's opposition or an opportunity to reply on the record before the Court. Defense also requested time to prepare for the hearing. On November 6, 2023, defense offered an oral reply to some of the allegations in the People's motion in lieu of filing a reply. The matter was adjourned to November 17, 2023 for a hearing on the defendant's motion. In the interim, defense contacted the Court and the People, requesting a change in the date of the hearing. It was agreed amongst all parties to advance the case to November 14, 2023 for the hearing. Such period is excluded for motion practice (30.30[4][a]) and because defendant requested the adjournment ( CPL 30.30[4][b]). The People are charged 0 days for this adjournment.
November 6, 2023 to November 14, 2023. On November 17, 2023, the Court conducted a hearing concerning defendant's instant motion, wherein both factual inquiries and legal arguments were made. The matter was adjourned to for decision on the instant motion. Such period is excluded for motion practice. CPL 30.30(4)(a) . The People are charged 0 days for this adjournment.
CONCLUSION
As explained above, the Court finds that the People's certificate of compliance was proper notwithstanding the subsequent disclosure of the toxicology report. Given that the People's COC and CTR were filed following diligent efforts, which were reasonable under the circumstances, and, therefore, filed in good faith, the Court finds that the People's COC and CTR were valid, pursuant to Criminal Procedure Law §§ 30.30 and 245.50(3). Accordingly, this Court calculates that the People have accrued a total of sixty-two (62) days of speedy trial time since commencement of this action. Additionally, although the defendant has failed to demonstrate prejudice by the People's subsequent disclosure of the toxicology report warranting preclusion, the Court orders any suppression hearings conducted in this matter shall include an inquiry into whether the defendant's blood was properly collected under Vehicle and Traffic Law § 1194. For these reasons, the defendant's motion is denied except to the extent that the sanction of an expanded suppression hearing is imposed for the subsequent disclosure of the toxicology report.
The foregoing constitutes the order and decision of the court.