Opinion
No. 2023-23105 Docket No. CR-005088-22BX
04-13-2023
The People of the State of New York, v. Godfred Amissah, Defendant.
For the People: Darcel D. Clark, District Attorney, Bronx County (by: LaToya Stephens, Esq.) For the Defendant: Marissa Balonon-Rosen, Esq.
For the People: Darcel D. Clark, District Attorney, Bronx County (by: LaToya Stephens, Esq.)
For the Defendant: Marissa Balonon-Rosen, Esq.
Hon. Yadhira González-Taylor, J.C.C.
Defendant moves, inter alia, for dismissal of the misdemeanor charges on statutory speedy trial grounds pursuant to Criminal Procedure Law ("CPL") §§ 30.30 (1) (b); 170.30 (1) (e). Specifically, defendant argues that the prosecution failed to file a supplemental Certificate of Compliance (SCOC) and Statement of Readiness (SSOR) in accordance with CPL §§§ 245.50 (1), (1-a) and (3) and CPL § 30.30 (5) after serving additional disclosures pertaining to Giglio material, and that without such a filing, which would enable the court to make a determination as to whether the delayed disclosure impacted the propriety of the SCOC, the People failed to stop the speedy trial clock. The People oppose the motion.
The People filed a SCOC and SSOR on March 6, 2023, 30 days after the instant motion and 60 days after their Giglio disclosure on January 5, 2023.
Upon review and consideration of the submissions, court file and relevant legal authority, the court finds that the People's speedy trial time continued to run during their 32-day delay in filing a SCOC and SSOR following their supplemental disclosure on January 5, 2023. Therefore, the court finds that, at a minimum, 121 days are chargeable to the People and, thus, defendant's motion to dismiss is granted.
PROCEDURAL BACKGROUND
On March 27, 2022, defendant Godfred Amissah 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 (1) (driving while impaired), § 1192 (2) (driving while intoxicated; per se), § 1192 (2) (a) (a) (aggravated driving while intoxicated; per se, and § 1192 (3) (driving while intoxicated).
On March 28, 2022, defendant was arraigned and released on his own recognizance. The People filed their initial certification (COC) and statement of readiness (SOR) off-calendar on June 24, 2022, after serving defendant with discovery.
During a discovery conference held on September 9, 2022, defense counsel submitted a letter which itemized the missing discovery, but which included no response from the People. The People advised the court that they had indeed submitted their response on August 24, 2022, although it was noted that nothing was in the court file. The matter was scheduled for a discovery conference and the People were directed to respond to defense counsel's letter by September 21, 2022.
By motion practice, defendant sought an order dismissing the charges or, alternatively, granting his request for hearings. By Decision and Order dated December 16, 2022, the Hon. Michael J. Hartofilis denied defendant's motion to dismiss and ordered that Dunaway/Mapp and Sandoval/Ventimiglia hearings be held before trial. Judge Hartofilis also ordered the People to produce outstanding Giglio materials.
On January 5, 2023, the People served defense counsel with 74 PDFs and 11 Word documents of previously undisclosed Giglio material. The matter was initially set for hearings and trial on January 30, 2023, however, the trial was adjourned to February 6, 2023, because a witness for the People was unavailable.
On February 6, 2023, defense counsel served the People on the record with a motion seeking dismissal of the criminal court information pursuant to CPL §§ 30.30 (1) (b) and 170.30 (1) (e) alleging that because the People's January 5, 2023 Giglio disclosures were not accompanied by a SCOC setting forth the basis for their delay, as required by CPL § 245.50, the People did not toll their speedy trial time pursuant to CPL § 30.30 (5), and the additional accrual of time from the date of their disclosure until the instant motion renders their prosecution untimely.
The People oppose the motion by affirmation dated March 13, 2023, and advised that they had filed a SCOC and SSOR on March 6, 2023. They further aver that (1) their initial COC had already been held to be valid, (2) the People had complied with the court's December 18, 2022 order to provide outstanding Giglio material, (3) the principle of stare decisis precluded further consideration of either the propriety of their SCOC or the due diligence of their demonstrated efforts to provide belated discovery and, parenthetically, (4) the instant motion is barred by the court's prior decision. Defendant filed a Reply on April 4, 2023.
DISCUSSION
I. The People Failed to Timely File a SCOC
Criminal Procedure Law § 245.20 (1) provides 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]).
Further, CPL § 245.20 (2) provides that "[t]he prosecutor shall make a diligent, good faith effort to ascertain the existence of material or information discoverable under subdivision one of this section and to cause such material or information to be made available for discovery where it exists but is not within the prosecutor's possession, custody or control" (People v Quinlan, 71 Misc.3d 266, 272 [Crim Ct, Bronx County 2021]).
The Legislature envisioned that both the prosecution and defense might discover additional materials or information that they would have a duty to initially disclose had they known of it and, thus, CPL § 245.60, provides, in pertinent part, 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]).
Pursuant to CPL § 245.50 (1), where the prosecution has complied with their disclosure obligations, the People are required to serve a certificate of compliance 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]) (Emphasis added). Further, "[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).
The filing of subsequent SOCs, though mandated, does not automatically negate prior filings, as long as the People demonstrate that they acted in good faith and used due diligence to fulfill their discovery obligations (People v Askin, 68 Misc.3d 372, 376 [County Ct, Nassau County 2020]). Additionally, the People are not statutorily required to produce every single piece of discoverable material before certifying their compliance (People v Erby, 68 Misc.3d 625, 633 [Sup Ct, Bronx County 2020]). As discussed in Erby,
"[T]he new discovery law, designed as it was to be remedial in nature, should not be construed as an inescapable trap for the diligent prosecutor who professionally, assiduously and in good faith attempts to comply with their new and extensive requirements under the discovery statute, but through no fault of his or her own, is unable to comply with every aspect of the automatic discovery rules specified in CPL § 245.20."(id. at 633.)
Defense counsel, perhaps not anticipating that the prosecution would file their second SCOC and SSOR, argued for dismissal on the fact that because the People did not comply with the plain reading of CPL §§ 245.50 (1) and (1-a), their 30.30 clock did not stop and the additional time accrued against the People would render their prosecution untimely. In his Reply, defendant maintains that he is not precluded from moving to dismiss the information pursuant to CPL § 30.30 and he argues that the People's failure to explain their belated second SCOC and SSOR filing renders them invalid. Further, defendant states that the People's speedy trial clock continued to run until they complied with CPL §§ 245.50 (1) and (1-a) (Def. Reply at ¶A and ¶B).
Having filed their second SCOC and SSOR, the People now argue that the issue of timeliness is academic where the statute is silent as to when a COC or SCOC must be filed relative to the additional disclosure. This court disagrees and believes the question of when a SSOC must be filed pursuant to CPL § 245.50 (1-a) warrants exposition, and is a case of first impression.
The People are correct to note that the requirements set forth by CPL §§ 245.50 (1) and (1-a) do not similarly mandate when to file. However, the People's understanding of their statutory obligations can be extrapolated from the timing of their prior COC and SOR filings. The court notes that when the prosecution served a supporting deposition and NYPD CMI Intoxilyzer 9000 Alcohol Analyzer report on June 24, 2022, they contemporaneously filed their COC and SOR. Further, when the People made additional disclosures on July 1, 2022, including memo books, body worn camera footage and a" Giglio Disclosure Letter," they also filed a contemporaneous SCOC and SSOR. The People's prior actions illustrate that, although administrative in nature, an initial or supplemental COC or SOR filing can be done at the same time or shortly after disclosing material. Conversely, although ordered to provide outstanding (underlying) Giglio material by the court's December 16, 2022 Decision and Order, and having produced this disclosure on January 5, 2023, the People's second SCOC and SSOR were not served until 60 days later. The court finds that the People's failure to comply with their statutory obligation indicates a casual disregard for a simple, but necessary administrative task which they had already timely completed twice before.
The COC, dated June 24, 2022, references the existence of unsubstantiated allegations against three named officers.
A. Reasonableness of the People's Delayed Supplemental COC and SOR
Criminal Procedure Law § 245.50 (1) provides, in pertinent part, that "[n]o 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" (Emphasis added).
There is no appellate guidance concerning the timeframe for filing a supplemental, or even an initial COC, following disclosure under CPL § 245.50 (1) - although it is evident that the filing stops the People's readiness clock. Therefore, 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.
However, insofar as certification is required before a statement of readiness, we are guided by how courts have borrowed directly from the statute and have applied a "reasonableness under the circumstances" standard to determine if 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] ["Nor did the People's unsworn, unaffirmed memorandum of law in opposition to defendant's CPL 30.30 motion establish that they "exercis[ed] due diligence and ma[de] reasonable inquiries to ascertain the existence of material and information subject to discovery," and that the certificate of compliance was filed in "good faith and reasonable under the circumstances"]). Courts have examined the COC for an explanation of the People's efforts to ensure they have turned over all known discoverable materials (see Perez, 75 Misc.3d 1205 [A], *3).
The mere filing of a COC or SCOC without a recitation of the prosecution's attempts to comply with disclosure of previously undisclosed materials has not satisfied the court's inquiry into the reasonableness of the People's actions. Indeed, "[w]hen the People submit documentation to the court certifying their compliance with their statutory obligation, they must do more than merely mouth the words" (see People v Adrovic, 69 Misc.3d 563, 574-575 [Crim Ct, Kings County 2020]).
By analogy, the notion that the People's statement of trial readiness could be backdated has been rejected with one court noting that to allow this interpretation "would enable the People to declare retroactive-readiness at any time up until the commencement of trial, without regard to the express time constraints of CPL 30.30(1)" (People v. Collado, 73 Misc.3d 1204 (A) [Crim Ct, NY County 2021]).
The People posit that it is of no consequence when they filed their second SCOC and SSOR and argue that the statute is silent on timeliness. However, the court finds that filing a SCOC and SSOR 60 days after disclosing long-requested outstanding Giglio materials was unreasonable, unpracticable, and unfair to the defense because it denied defendant an opportunity to review and, if necessary, object to the SCOC. It strains credulity to argue that disclosure of additional discovery pursuant to CPL § 245.50 (1) does not contemplate a contemporaneous filing of a SCOC and SSOR where both function as a triggering event to alert the defense that no other known discovery exists, and to announce the People's trial readiness to the court.
Further, where the prosecution provides additional discovery pursuant to CPL § 245.50 (1), the SCOC and SSOR serve a purpose to enable the court to make a determination of the People's exercise of good faith and due diligence in fulfilling their duties under CPL § 245.20 (1). This is especially relevant where the record demonstrates that the subject of the delayed disclosure, underlying records pertaining to police misconduct, fall squarely within the items enumerated for automatic discovery as determined by the statute. The record also indicates that the People, after initially requesting Giglio material for the arresting officer on April 6, 2022, provided a" Giglio Disclosure Letter" to defense on July 1, 2022, but did not endeavor to provide the defense with underlying Giglio discovery until January 5, 2023, and only following a court order, more than six months later.
The first SCOC, filed July 1, 2022, provides the same reference to unsubstantiated allegations against three named officers but also states that a" Giglio Disclosure Letter" had been provided to the defense. The record indicates that this letter was not made available to the court for its December 16, 2022 Decision and Order.
The People's response elides any explanation for waiting two months after additional disclosure to comply with their statutory obligations. However, this court rejects the notion that the Legislature contemplated "open-ended" compliance with CPL § 245.50 (1), and that the timing of a SCOC or SSOR is of no consequence.
B. The People had Statutory Recourse for Extending Their Time for Compliance
The People argue that defendant seeks to penalize them for merely acting in accordance with the order to disclose additional information. They further aver that as of the time of their opposition to the instant matter, defendant had already been in possession of the underlying Giglio materials for two months and claim that, without a showing of prejudice suffered based on when that discovery was received, defendant's motion is without merit.
Initially, given that on September 9, 2022, defense counsel had provided to the People an enumerated list of requested disciplinary records, the People cannot credibly argue that discovery provided four months later on January 5, 2023, and only after court directive, does not matter to a motion seeking dismissal pursuant to CPL § 30.30. The time elapsed amounts to passive inaction by the People which lacks good faith and reasonableness.
Nevertheless, the court acknowledges the considerable efforts required when records from disparate agencies must be requested, reviewed, and produced. It is well-settled that reforms to the discovery provisions of the CPL were not meant to create a burdensome duty to comply with CPL § 245.20 (1) and the court concurs with holdings which have recognized that greater transparency resulting from discovery reforms should not afford the defense license to lead the prosecution into a never-ending vortex of discovery demands (see e.g., People v Mclean, 77 Misc.3d 492, 497 [Crim Ct, Kings County 2022]; Erby, 68Misc.3d at 633; People v Sime, 76 Misc.3d 1107, 1111 [Crim Ct, Kings County 2022]; People v Aguayza, 77 Misc.3d 482, 488 [Sup Ct, Queens County 2022]).
However, the Legislature anticipated circumstances that would necessitate amending the statutory timeline to comply with disclosure obligations and the People were provided recourse to request that the court modify their deadline to comply.
Criminal Procedure Law § 245.10 (1) (a) (iv) (B) provides that "[w]hen the discoverable materials are exceptionally voluminous or, despite diligent, good faith efforts, are otherwise not in the actual possession of the prosecution, the time period in this paragraph may be extended pursuant to a motion pursuant to subdivision two of section 245.70 of this article" (People v Castellanos, 72 Misc.3d 371, 374 [Sup Ct, Bronx County 2021]).
Further, CPL § 245.70 (2) provides that "[u]pon motion of a party in an individual case, the court may alter the time periods for discovery imposed by this article upon a showing of good cause" (Adrovic, 69 Misc.3d at 571).
Additionally, pursuant to CPL § 245.50 (3), the People also have the statutory option of demonstrating special circumstances which would permit the prosecution to file its COC and SOR where, despite due diligence, they are delayed in complying with discovery (Askin, 68 Misc.3d 378-379). As noted by one court, "[i]f the People ever face logistical obstacles in meeting their statutory mandates, the discovery law provides them numerous opportunities to petition a court for relief" (People v Vargas, 76 Misc.3d 646, 648 [Crim Ct, Bronx County 2022]).
This court finds that the People's filing of their second SCOC and SSOR on March 6, 2023, two months after serving additional disclosure on January 5, 2023, without any explanation for the delay, and absent any prior request from the court to excuse the delay, contravened their duty under CPL §§ 245.50 (1) and (1-a) and demonstrated a disregard, whether willful or negligent, for the court's role in determining the propriety, good faith and due diligence of the supplemental disclosure.
In this instance, the SCOC and SSOR are not merely gratuitous but, rather, they put the defense on notice concerning any potential objections to the disclosure or, alternatively, to prepare for trial based on the known aggregate of documentation already provided and/or to ascertain plea bargaining status. Further, the SCOC and SSOR enable the court, at the time of the additional disclosure, to address any issues concerning the validity of the initial COC based on the belated discovery.
The People incorrectly maintain that defendant cannot demonstrate any prejudice suffered based on when discovery was received, as required by statutory and common law authority. Such a representation ignores the fact that defendant was only provided with 74 PDFs and 11 Word documents of previously undisclosed Giglio material on January 5, 2023, just 30 days before hearings and trial were to commence and only after being ordered to do so, despite having been provided with a detailed request for Giglio material four months earlier on September 9, 2022. Complying with the court's directive to provide additional Giglio disclosure and contemporaneously filing their second SCOC were not mutually exclusive acts. Indeed, the statute mandated the People to provide an explanation for the delayed discovery so that the court could determine the propriety of their certification.
Therefore, in the absence of any good faith explanation or evidence of special circumstances that would have justified not filing a SCOC and SSOR with the additional Giglio disclosures exchanged on January 5, 2023, this court holds that the March 6, 2023, SCOC and SSOR were filed untimely, and failed to toll the People's speedy trial clock.
Because the People's second SCOC is rendered untimely, this court has no need to consider the People's initial COC and first SCOC filed on June 24, 2022 and July 1, 2022, respectively, in its analysis.
II. The People did not Restate their Readiness for Trial
A. The Doctrine of Stare Decisis is not Applicable
The People contend that the instant motion should have been precluded by the principle of stare decisis because defendant's omnibus motion of October 14, 2022, which sought an order dismissing the misdemeanor charge pursuant to CPL §§ 245.20 (2) and 245.10 (1) (a) (ii), had been denied. The prosecution further argues that defendant's reservation of rights to file additional motions pursuant to CPL § 255.30 (3) had been denied by the court's December 16, 2022 Decision and Order and that he should be estopped from filing this motion because he has not proffered good cause to do so.
The doctrine of stare decisis (et non quieta movere), Latin for to "abide by," or "adhere to", decided cases and not to disturb what is settled, provides that "once a court has decided a legal issue, subsequent appeals presenting similar facts should be decided in conformity with the earlier decision" (People v Bing, 76 N.Y.2d 331, 337-338 [1990]; People v Crespo, 32 N.Y.3d 176, 192 [2018]; People v Garvin, 30 N.Y.3d 174, 191 [2017]). It is established that "[the] application of the doctrine of stare decisis is limited to a principle of law or a settled legal issue rather than to prior factual or legal determinations" (See 1 Carmody-Wait 2d § 2:316 [internal citations omitted]).
While this court agrees with the People that "[ s ] tare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles" (People v Taylor, 9 N.Y.3d 129, 148 [2007] citing (Payne v Tennessee, 501 U.S. 808, 827 [1991]), the People's reliance on this principle is misplaced.
In People v Taylor, the Court of Appeals' discussion of the applicability of the doctrine concerned whether the conviction should be overturned because a deadlock jury instruction which the Court had previously held to be facially unconstitutional had been employed in the defendant's case (Taylor, 9 N.Y.3d at 144 ["Defendant now argues, in light of this Court's declaration in People v LaValle that CPL 400.27 [10]'s deadlock jury instruction is unconstitutional"][Internal quotation marks and citations omitted]). The Taylor Court was deciding whether to apply stare decisis to a previously decided legal issue rather than a prior factual determination (see Taylor, 9N.Y.3d at 146-147). However, this court is being asked to determine the legal consequence of the People's failure to file their SCOC and SSOR in a timely fashion-a factual issue that arose after Judge Hartofilis' December 16, 2022, decision.
The United States Supreme Court in Payne v Tennessee, cited by the Taylor decision, limited its inquiry into the applicability of stare decisis in deciding whether to adhere to legal precedent concerning procedural and evidentiary rules (See Payne, 501 U.S. at 737 [Emphasis added]).
Accordingly, the cases cited by the People are wholly inapposite to the facts presented by the instant motion.
The People would have this court believe that the particulars of this case are of no import because defendant is seeking the same relief as before. However, the instant motion to dismiss is predicated on a new and different factual argument, to wit: that the People, by failing to file a SCOC and SSOR (before defendant's motion), deprived the court of its ability to determine the propriety of a prior claim of trial readiness.
While defendant anticipated the Giglio disclosure served on January 5, 2023, he could not have known that this additional disclosure would not have been accompanied by a SCOC and SSOR in compliance with CPL §§ 245.50 (1) and (1-a). Further, defendant argues that the People, if charged with the time of this non-compliance, will not have fulfilled their 30.30 obligation to complete their prosecution within 90 days. These are new facts which present this court with an issue of first impression rather than a pretext to perform a de novo review and, therefore, the principle of stare decisis does not apply (see State v. Moore, 298 A.D.2d 814, 815 [3rd Dept 2002] ["The application of the doctrine of stare decisis is limited to a principle of law or a settled legal issue, rather than to prior factual or legal determinations"], citing Killeen v Crosson, 218 A.D.2d 217, 220 [4th Dept 1996]; People v Lillis, 151 Misc.2d 988, 990 [Sup Ct, Monroe County 1991] [holding that, "[t]he doctrine of stare decisis relates to legal principles only and not to facts"]). Courts have not been bound by stare decisis where "[t]he record fails to establish that the factual evidence submitted to the court in the prior cases was identical to the factual evidence submitted in this case" (Samuels v High Braes Refuge, Inc., 8 A.D.3d 1110, 1111 [4th Dept 2004]).
The People's argument that this court is constrained to consider defendant's motion to dismiss because of an earlier ruling is similar to the objections made by the prosecution in People v Luperon. There, the Court of Appeals held that a lower court's finding of due diligence concerning claimed statutory exemptions for certain periods of time did not specifically address them because "[s]peedy trial analysis has always taken discrete, logical time periods and determined whether, for some unifying reason, a particular time period is or is not excludable in the speedy trial time" (85 N.Y.2d 71, 79 [1995]).
No court, no matter how reasoned its decision, can preemptively decide a factual issue not submitted to it, of how, if at all, the People's 30.30 time should be calculated given that no SCOC and SSOR were filed contemporaneously with the supplemental Giglio disclosure provided on January 5, 2023. Thus, this issue was neither considered nor decided in the earlier decision.
Additionally, defendant's reservation of rights to file additional pre-trial motions pursuant to CPL § 255.20 (3) is not precluded where the statute provides that the court has no discretion to entertain at any time before the end of trial "any appropriate pre-trial motion based upon grounds of which the defendant could not, with due diligence, have been previously aware" As stated herein, defendant's motion was premised on the People's failure to file a SCOC and SSOR concurrently with, or shortly after, its supplemental Giglio disclosure, thereby denying the court time to consider whether the delayed disclosure had any consequence on the timeliness of the prosecution's professed trial readiness. These were not facts available to the defense when this motion was filed.
Accordingly, this court finds that it is not precluded from examining and considering the instant motion.
B. The People did not Restate their Trial Readiness, as Mandated by Statute
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]; Adrovic, 69 Misc.3d at 574- 575; Vargas, 76 Misc.3d at 652.)
In Pierna, it was the People's failure to demonstrate efforts to locate discoverable materials before their COC filing which persuaded the court that they had not exercised due diligence (Pierna, 74 Misc.3d at 1089). Additionally, the court held that the People could have but did not request "a good cause extension to comply with their discovery obligations" (see id., 74 Misc.3d at 1089, 1093 [Internal citation omitted]. In noting that "[s]ignificantly, 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," the court found that where a failure to comply with CPL § 245.20 rendered a COC illusory, the People would be charged speedy trial time (Pierna, at 1087, 1093). Here, and equally illusory, was the People's non-existent SCOC and SSOR from the date of their additional disclosure on January 5, 2023, until March 6, 2023, with no explanation or request for an extension to comply with the court's order. Accordingly, the People are properly charged with speedy trial time from the date of their disclosure on January 5, 2023, until February 6, 2023, the date the instant motion was filed by defense counsel.
In Aquino, the court's inquiry into whether the People's statement of readiness effectively stopped their speedy trial clock focused on whether the People had met their discovery obligations "as ordinarily, discovery disclosure and the filing of a proper certificate of compliance are a prerequisite to the People's readiness" (see Aquino, 72 Misc.3d at 522 [Internal citations omitted]). The Aquino court held that "[a] certificate of "compliance in name only will not shield the People from the application of the speedy trial statute" (Id. at 527). By analogy, the People did not even file a second SCOC and SSOR from January 5, 2023, until February 6, 2023, the start of motion practice, and the failure to do so, although statutorily required by CPL § 245.50, cannot stop their speedy trial time from continuing to accrue.
In Adrovic, the court held that the People had failed to demonstrate that they exercised due diligence in producing discoverable materials before filing their certificate of compliance (see Adrovic, 71 Misc.3d at 574-575). More informative for the case at bar was the Adrovic court's finding that although CPL §245.50 "does not explicitly dictate the consequence of an incomplete certificate of compliance," the court would be guided by caselaw governing illusory statements of readiness to find that the People's certificate of compliance was insufficient to toll their speedy trial clock (id. at 570-571). Similarly, guided by case law concerning the consequence of filing of an illusory COC, and absent any explanation for the delay, this court finds that the People did not toll their speedy trial clock from January 5, 2023 until February 6, 2023.
The People aver that "hyper-technicalities beyond the prosecutor's actual control despite good faith efforts to comply" should not turn discovery into a "sporting event" (People Aff., at 7-8, citing People v Smith, 2022 WL 1464069 [NY City Ct, Westchester County 2022][Internal citations omitted]). The Smith court, which unlike this court, was required to examine the sufficiency of the discovery materials to determine the People's compliance, noted that the affidavit in support of the People's opposition" articulates the efforts" the prosecution undertook to comply with outstanding discovery prior to filing their SCOC and SSOR (Smith, 2022 WL 1464069, at *7 [Emphasis added]). However, in the case at bar, the People's response is entirely bereft of any explanation or justification for their failure to comply with their statutory obligation.
Accordingly, the People's speedy trial time pursuant to CPL § 30.30 (5) continued to run from January 5, 2023, until February 6, 2023, and the People are properly charged with 32 days for their delay in filing their second SCOC and SSOR.
III. Dismissal on Speedy Trial Grounds
The record demonstrates that the People did not fulfill their statutory obligation to certify their compliance and state their readiness for trial pursuant to CPL §§§ 245.50 (1), (1-a) and (3) either contemporaneously or shortly after their additional disclosures were made on January 5, 2023. Moreover, the People were not ready for trial on January 30, 2023, because a witness was unavailable to testify.
Excluding time for motion practice, which began on February 6, 2023, the prosecution accrued 32 additional days, from January 5, 2023, through February 6, 2023. As stated herein, where the People cannot or do not state their readiness, they fail to stop the speedy trial clock under CPL § 30.30 (see CPL § 245.50 [3]).
Additionally, on a motion to dismiss pursuant to CPL § 30.30, "the initial burden rests on the defendant to allege that his right to speedy trial has been violated" (People v Edwards, 77 Misc.3d 740, 742 [Crim Ct, Bronx County 2022]). Then the burden shifts to the prosecution to state "the exclusions on which they intend to rely" (Luperon, 85 N.Y.2d at 78 [1995]). However, the People's opposition is entirely silent to explain the extensive period of time that elapsed from when they made their supplemental Giglio disclosures to when they filed their second SCOC and SSOR. Defendant's argument that the speedy trial clock continues to run as a consequence of the prosecution's failure to comply with CPL §§ 245.50 (1) and (1-a) is availing where the People do not proffer a reason why this time should be excluded.
The court's calculation is as follows:
March 27, 2022 to June 24, 2022, 88 days charged to the People:
On March 27, 2022, the accusatory instrument was filed, and defendant was arraigned. The People were not ready for trial and the matter was adjourned to May 19, 2022. On May 19, 2022, the People were not ready for trial and the matter was adjourned to July 8, 2022. However, the People filed their COC and SOR off-calendar on June 24, 2022.
June 24, 2022 to September 9, 2022, 0 days charged to the People:
On July 8, 2022, the People advised the court that they had filed a supplemental COC and SOR on July 1, 2022, and the matter was adjourned to September 9, 2022.
June 24, 2022 to September 9, 2022, 0 days charged to the People:
On September 9, 2022, a discovery conference was held and the matter was adjourned to September 30, 2022, to facilitate the parties' off-calendar discussion regarding outstanding disclosure.
June 24, 2022 to September 30, 2022, 0 days charged to the People:
On September 30, 2022, a motion schedule was set regarding disputed discovery items.
June 24, 2022 to December 16, 2022, 0 days charged to the People:
On October 14, 2022, defendant filed an omnibus motion to which the People responded on November 9, 2022. On December 16, 2022, the court denied defendant's motion to dismiss, granted defendant's motion for hearings and ordered the People to disclosure its Giglio materials. The case was set for hearings and trial on January 30, 2023.
January 5, 2023 to January 30, 2023, 25 days charged to the People:
On January 5, 2023, the People disclosed additional Giglio materials without filing a supplemental COC and SOR to certify their compliance with all discovery requirements and state their readiness for trial. On January 30, 2023, the People announced that they were not ready for trial and the matter was adjourned to February 6, 2023.
February 6, 2023 - March 6, 2023, 0 days charged to the People:
On February 6, 2023, defendant filed the instant motion. The People filed a second supplemental COC and SOR on March 6, 2023, and opposed the motion on March 14, 2023.
The court finds a total of 121 days are chargeable to the prosecution for the period from the arraignment on March 28, 2022, through February 6, 2023. Accordingly, because the prosecution was not ready within the 90-day period to be ready for trial, dismissal based upon CPL § 30.30 is GRANTED.
CONCLUSION
Based upon the foregoing, defendant's motion for dismissal of the misdemeanor charges 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.