Charles A. Schiano Jr., J.

Timothy M. Boucher, Esq., Assistant District Attorney, SANDRA DOORLEY, ESQ., Monroe County District Attorney, 47 S. Fitzhugh Street, Rochester, NY 14614.

For Defendant: Jessica Lauren Naclerio, Esq., 16 West Main Street, Ste 100, Rochester, NY 14614.

Charles A. Schiano Jr., J.

Defendant, James Claba Turner, is charged by the above-referenced Indictment with Criminal Possession of a Weapon in the Second Degree, in violation of Section 265.03(3) of the Penal Law of the State of New York ; and Criminal Possession of a Controlled Substance in the Seventh Degree, in violation of Section 220.03 of the Penal Law. Defendant brings this motion to dismiss this indictment upon the ground that he has been denied the right to a speedy trial pursuant to Criminal Procedure Law ("CPL") §§ 210.20(a)(g) and 30.30(1)(a).

Criminal Procedure Law Section 30.20 provides that a defendant in a criminal action is "entitled to a speedy trial." Section 30.30 provides that where the defendant is accused of at least one felony, as here, the People must announce their readiness to try the case within six months ( CPL§ 30.30(1)(a) ). New legislation went in effect on January 1, 2020 that imposed discovery requirements on the People before they could be deemed ready for trial. Pursuant to CPL 245.50 (1), after the prosecutor provides all automatic discovery due under CPL 245.20 [1][a]-[u] ), excepting discovery lost or destroyed (see CPL) or items subject to a protective order (see CPL 245.80 [1][b] and 245.70 ), the prosecutor is required to serve a certificate of compliance. The prosecution is not deemed ready for trial for purposes of CPL § 30.30 until it has filed a proper certificate of compliance ( CPL § 245.50[3] ). Challenges or questions related to a certificate of compliance shall be addressed by motion ( CPL § 245.50 [4] ). CPL § 245.60 imposes a continuing duty to disclose discoverable material that comes into the People's possession subsequent to their filing a certificate of compliance and allows the People to file a supplemental certificate. Criminal Procedure Law§ 245.50 [1] provides that "[n]o adverse consequence to the prosecution or the prosecutor shall result from the filing of a certificate of compliance in good faith."

It is defendant's contention that at the time the People filed the supplemental certificate of compliance certain items due under the automatic discovery law had not been turned over, rendering the certificate of compliance invalid and causing the statement of trial readiness to be "illusory." Defendant argues that because the People are now beyond the six months time to declare readiness for trial, the indictment must be dismissed.

A felony complaint charging defendant with two counts Criminal Possession of a Weapon in the Third Degree ( Penal Law§ 265.02 ) was filed on July 31, 2019, in Rochester City Court commencing this action ( CPL§ 1.20(17) ). The last day of the six month period was initially January 31, 2020, and there were 184 days ih this six month period.

Defendant again appeared in Rochester City Court on September 3, 2019, and the matter was adjourned by the Court to "approximately July 31, 2020 and placed on the ‘180.85 calendar’ " [Termination of Prosecution] (Affirmation, Jessica Lauren Naclerio, Esq. Nov. 20, 2020, p.3). The time from August 1, 2019, to September 3, 2019, is not chargeable to the People as defendant consented to the adjournments. Thus, 34 days were added to the end date of the sixth month period and the People had until March 5, 2020, to file the statement of readiness.

On January 13, 2020, the People filed a certificate of compliance and claimed an extension to gather "handwritten notes and MCU materials." On January 28, 2020, defendant's then counsel provided a waiver of CPL§ 30.30 and § 180.80 time for the purpose of a possible resolution of the action pre-indictment, initially indicating the waiver would run through February 24, 2020. The matter could not be resolved, however, and defense counsel revoked the waiver on February 6, 2020. This waiver period added nine days to the end date, making March 16, 2020 the last day the People could meet their CPL § 30.30 obligation to announce readiness for trial.

On February 25, 2020, the People filed their statement of trial readiness and a supplemental certificate of compliance that did not reference any hand written notes or MCU materials. It is this supplemental statement that defendant contends is now invalid due to discovery failures.

On March 16, 2020, defendant filed an omnibus motion requesting, among other things, suppression of statements and tangible evidence. On March 20, 2020, New York State Governor Andrew Cuomo issued Executive Order 202.8 which limited court operations to essential matters during the pendency of the Covid-19 health crisis and suspended CPL§ 30.30 speedy trial time. The suspension of CPL§ 30.30 was reaffirmed in subsequent executive orders until the suspension ended upon the issuance of Executive Order 202.60 which reinstated 30.30 speedy trial times where petit criminal juries are convened. Executive order 202.67 on October 4, 2020, ended the suspension for most parts of the state without reference to jury trials.

While 30.30 time was suspended, on July 6, 2020, a new prosecutor took over this case, and the Court heard motion argument on the March 16, 2020, omnibus motion and granted Mapp (Mapp v Ohio , 367 US 643 [1961] ) and Huntley (People v Huntley , 15 NY2d 72 [1965] ) hearings to defendant to be held on August 20, 2020. At the August 20, 2020, appearance, the hearing was adjourned to October 23, 2020, because defendant requested new counsel and defendant's then counsel stated to the court that the attorney/client relationship had irreparably broken down. Jessica Lauren Naclerio, Esq., was appointed to represent defendant. On October 16, 2020, with leave of the Court, Ms. Naclerio filed a supplemental omnibus motion.

A few days before the October 23, 2020, appearance, the hearing was adjourned because the prosecutor was required to go into quarantine. Unfortunately, the next hearing date, November 24, 2020, could not go forward due to a November 23, 2020 court administration order that, for practical purposes, provided that no further in-person hearings could be held until further notice due to Covid-19 concerns. A virtual hearing was contemplated but, under this court's rules, defendants must agree to virtual evidentiary proceedings, and defendant did not so consent. The present motion was filed on November 20, 2020.

The People responded to the filed defense motions and cross-moved on December 16, 2020. The Court heard oral argument on December 21, 2020, and subsequently asked for further briefing by the parties. On January 27, 2021, defendant replied to the People's response and submitted a separate, supplemental motion to the present motion. On December 30, 2020, Executive Order 202.87 again suspended the 30.30 speedy trial time, and it remains suspended as of the date of this decision.

Contrary to defendant's argument, the CPL § 30.30 time has not expired, and defendant's motion is premature. The exclusion "for proceedings concerning the defendant ... including ... pre-trial motions ... and the period during which such matters are under consideration by the court" from speedy trial calculations under Section (4)(a) of CPL § 30.30 was not changed by the new discovery laws effective January 1, 2020. As the last day to file a statement of readiness was March 16, 2020, and on that day defendant filed an omnibus motion requesting, among other things, the suppression of statements and tangible evidence, CPL§ 30.30 speedy trial time remains suspended, i.e., not chargeable to the People, pursuant to CPL § 30.30[4] [a] because the suppression issues remain pending (a hearing was granted but has not yet to take place). Accordingly, the present motion must be denied as the speedy trial CPL § 30.30 time has not yet run and will not until both the suppression issues are decided and the suspension of by CPL § 30.30 time Executive Order 202.87 is lifted.

Even if CPL § 30.30 time had expired, the Court would find the People's supplemental certificate of compliance of February 25, 2020, was filed in good faith and is proper, and the February 25, 2020 statement of readiness was not illusory. Further, no adverse consequences or sanction should be imposed on the People for good faith omissions as defendant has suffered no prejudice.

The supporting Affirmation of defendant's counsel lists six items or categories of items which defendant asserts are part of the automatic discovery requirements of CPL§§ 2450.20(1)(g) and (1)(e) that were not turned over by February 25, 2020 (Affirmation of Jessica Lauren Naclerio, Esq., November 20, 2020, page 4, paragraph 11 [bullet points 1-6]). For ease of discussion, the Court has assigned numbers to the bullet points in the order they appear in counsel's Affirmation.

1. The CAD printout for CR#19-177487 (Rochester Police Dept.)

2. The police radio transmissions associated with CR# 19-177487 (Rochester Police Dept.)

3. The parole warrant;

4. The violation of release packet, including the case summary written by the defendant's parole officer, Parole Officer White;

5. Any and all contact inquires or written documentation relating to the defendant's seizure and arrest on July 30, 2019 by Parole Officers White, Linder and Sears;

6. The transcript of the Parole Preliminary Hearing where Parole Officer White testified about the details of the traffic stop on July 30, 2020.

Taking the list in reverse order, defendant conceded at oral argument that item number 6, the transcript of the Parole Preliminary Hearing, was not part of the People's automatic discovery obligations.

The Court does not find that failure to turn over items 3-5 before issuing the certificate of compliance invalidates the certificate of compliance. Those items were not pursued and turned over in a good faith belief that parole materials were not subject to the automatic discovery requirements because they were not in the People's possession and are subject to subpoena by the People to obtain the records pursuant to CPL 245.20(2).

While it is correct that the People do not have to subpoena material not in their "possession, custody or control," if the items or material are related to the prosecution, and are in the possession of any New York state or local police or law enforcement agency, then those items or material are deemed to be in the possession of the prosecution. While the Court does not hold that every record maintained by Parole should be subject to CPL 245.20 discovery, where, as here, Parole Officers, who are peace officers under CPL § 2.10(23) and are authorized to make warrantless arrests and searches in the performance of their special duties ( CPL 140.25 et seq. ), were instrumental in the investigation and apprehension of defendant, then Parole must be considered to be then acting as a law enforcement agency for purposes of section 245.20, and its records deemed to be in the People's possession ( CPL§ 245.20(2) ).

The Court has reviewed the grand jury presentation in this case which makes clear the Parole Officers central role in this matter. The People presented the testimony of Parole Officers Garret White and Martha Linder to the grand jury. The Parole Officers testified that the Brighton Police Department ("BPD") called them to Rochester General Hospital to interview a woman in connection with a domestic incident. Based on this conversation, the Parole Officers then sought out defendant and spotted him driving an automobile as described by the woman. The Parole Officers contacted Rochester Police Department ("RPO") to conduct a felony traffic stop. When RPO officers signaled defendant to pull over, he stopped the vehicle and fled on foot. Parole Officer White gave chase and apprehended defendant. Parole Officer Linder searched the vehicle defendant ran from and found a handgun.

The People concede that items 1 and 2, the CAD printout (printout of information appearing on their in-vehicle computer screens) and police radio transmissions associated with RPO CR# 19-177487, are discoverable, but that failure to turn over this material was an oversight and contend that dismissal is not warranted as the People have shown a good faith effort to ascertain the existence of and to disseminate discoverable material and defendant was not prejudiced.

The Court agrees. Here, the People timely turned over the identical types of material concerning the Brighton Police Department's involvement in this matter, which shows the People faithfully sought this type of information. That they failed to follow through to collect the same materials from the Rochester Police Department is accepted by this Court as an oversight, which has at this point been corrected as the People have turned over the RPO information.

On January 27, 2021, defendant filed a "Notice of Supplemental Motion," purporting to supplement his November 20, 2020, motion. Here, defendant notes that the People obtained DNA results on October 2, 2020, from a swab taken of Glock 22 pistol defendant is alleged to have possessed, but did not make the results available to the defense until January 11, 2021. The lab report provides that the results "are insufficient to support an inclusion or exclusion and are therefore not suitable for comparison. No conclusion can be reached" regarding the submitted sample (Affirmation of Jessica Lauren Naclerio, Esq., Ex. 4, County of Monroe Crime Laboratory ("Lab") DNA Report, October 2, 2020).

In this case, defense counsel inquired about possible DNA results on August 20, 2020. At that point, the swabs taken of the gun had not yet been submitted to the Lab. The prosecutor did so on September 11, 2020. Defendant argues that the certificate of readiness was invalid from the date the prosecutor requested that the Monroe County Crime Laboratory analyze the DNA swabs, September 11, 2020, to the date the results were disclosed, January 20, 2021. The Court does not agree.

At the time the certificate was filed, the DNA results in question had not been completed, or even requested and so cannot invalidate the certificate. CPL 245.200) provides that:

The prosecution shall not be required to provide information related to the results of physical or mental examinations or scientific tests or experiments or comparison, unless and until such examinations, tests, experiments, or comparison have been completed.

While the People should have turned this information over on or about October 2, 2020 when they became available, defendant has not requested any sanctions. Moreover, defendant has not been prejudiced as due to Covid-19 related difficulties, a trial date has not yet been scheduled. The original trial date, set before the pandemic. for July of 2020, fell by the wayside long ago.

Also on January 27, 2021, defendant filed a "Reply to the People's Notice of Motion and Answering Affirmation Served December 16" wherein defendant raised several other discovery issues not raised in the November 20, 2020, motion seeking to dismiss the indictment.

Defendant appears to seek one missing page (Defendant's supplemental Notice of Motion, Oct. 16, 2020, p. 8) from discovery already provided to defendant, related to CR# 19-933505. It is noted the People have previously turned over 911 records and/or radio traffic to defendant under CR# 19-933505. The People assert that the records now sought by defendant under CR# 933505 are not within their possession ( CPL § 245.20 [1] ) because they have been sealed (See People's Answering Affirmation, Timothy M. Boucher, Esq., February 17, 20121, Ex. 1, Court Sealing Order, sealing arrest charges related to CR#933505). As the People have conceded these records are discoverable, the parties will conference this matter with the Court to determine what may be required to obtain access to the missing page. The Court finds the missing page does not render the certificate of compliance invalid and it was filed in good faith.

As to defendant's issues concerning CPL 245.20(1)(m) materials, regarding items allegedly recovered from defendant, the Court finds that the People have complied with this request. The parties are directed to conference with the Court as to any issues defendant contends need clarification.

As to the February 13, 2020 certificate of compliance referencing "handwritten notes and MCU materials," this statement was filed by the previous ADA assigned to the case. The current ADA stated that he is unaware of any such materials and does not know to what this entry refers. Accordingly, the Court does not find any MCU or handwritten notes are outstanding.

In sum, the Court finds that for the reasons cited above, the February 25, 2020 certificate of compliance was filed in good faith. CPL§ 245.50(1) provides that:

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 sanction for a discovery violation as provided in section 245.80 of this article.

Section 245.80(1)(a) provides that: "When material or information is discoverable under this article but is disclosed belatedly, the court shall impose an appropriate remedy or sanction if the party entitled to disclosure shows that it was prejudiced."

As the legislature directed that no adverse consequence should follow for a where a certificate of compliance was filed in good faith and reasonable under the circumstances, such precludes the finding of an "illusory" statement of readiness based on a discovery violation where the Certificate of Compliance was filed in good faith. Even in People v Androvic , cited by defendant for the proposition that the court should not consider prejudice in automatic discovery violations, the court recognized that "an accidental failure to include a particular disclosure will not necessarily invalidate a Certificate of Compliance, so long as the prosecutor can demonstrate that she acted in good faith" ( People v Androvic , 69 Misc 3d 563, 574 (Sup Ct, Kings Co., September 3, 2020)).

Moreover, defendant does not contend he has been prejudiced or seek any discovery sanctions. In any event, the Court finds that there is no prejudice to the defendant as despite several attempts, as noted above, the Court has been unable to conduct a suppression hearing.

In accordance with the above, it is

ORDERED, that defendant's motion to dismiss the indictment on the ground that the defendant has been denied the right to a speedy trial is denied.