Opinion
No. 2023-51051 IND-72590-23
10-03-2023
The People of the State of New York v. Rodney Bradford, Defendant
For the People: Alvin Bragg, District Attorney, New York County A.D.A. Kirstie Raffan, of counsel For the defendant: Michael Fineman, Esq.
Unpublished Opinion
For the People: Alvin Bragg, District Attorney, New York County
A.D.A. Kirstie Raffan, of counsel
For the defendant: Michael Fineman, Esq.
Diane Kiesel, Acting Supreme Court Justice
The defendant, a second felony offender, stands indicted on two counts of criminal contempt in the first degree (Penal Law § 215.51[b][iii], [iv]). On July 17, 2023 the People filed an off-calendar certificate of compliance with discovery and statement of readiness for trial. On the next appearance, August 1, 2023, the Court began its statutory inquiry into the People's actual readiness and afforded the defendant an opportunity to challenge the People's certificate of compliance (see CPL § 30.30[5]). The defendant stated that he wished to do so and the matter was adjourned to.
The defendant has now moved to dismiss the indictment on the ground that the People have failed to be ready for trial within the statutory period for doing so. The defendant's motion relies upon the argument that the People's July 17 statement of readiness was invalid due to an improper certificate of compliance. For the reasons stated below, the Court finds the certificate of compliance was improper, but denies the defendant's motion to dismiss.
The defendant's motion to challenge the People's July 17, 2023 certificate of compliance is granted. The People affirm that on July 17, 2023, they uploaded a digital copy of the defendant's discovery package to the "e-discovery" system, and filed and served certificates of compliance and readiness. The People further affirm that after the defendant's August 1, 2023, arraignment on the indictment, defense counsel notified them by e-mail at 4:25 p.m. that he had not received discovery. The People state that they verified the e-discovery upload had "failed," and they re-served the discovery package at 9:25 a.m. on August 2, 2023.
On the last date the defendant appeared before the Court, he requested an opportunity to challenge the certificate of compliance. Although he did not formally move to do so, the challenge is implicit in his motion to dismiss.
The law requires the People to "disclose to the defendant, and permit the defendant to discover, inspect, copy, photograph and test, all items and information that relate to the subject matter of the case" (CPL § 245.20[1]). The District Attorney of New York County uses an e-discovery program to fulfill that obligation. A good faith effort to upload the discovery to that system must be followed by due diligence in verifying it has been properly uploaded (see CPL § 245.50[1]). Because the People had not done all that was required of them to disclose the discovery, the certificate of compliance was premature.
The defendant's motion to dismiss the indictment on the ground that he has been denied the right to a speedy trial is denied. The Court may deny a motion to dismiss an indictment if the motion is legally or factually inadequate or if an essential allegation "is conclusively refuted by unquestionable documentary proof" (CPL § 210.45[4]). A motion to dismiss an indictment for denial of the right to speedy trial must be granted where the People are not ready for trial within six months of the commencement of a criminal action (CPL § 30.30[1][a]). In this case, the People have 182 days. The determination of whether the People have exceeded this time limit includes any post-readiness periods of delay attributable to the People, and excludes certain periods defined in CPL § 30.30(4) (People v. Cortes, 80 N.Y.2d 201, 208 [1992]). The defendant alleges that between December 28, 2022, and August 2, 2023, more than six months of includable time elapsed. The People affirm that all of the time except for 141 days has been excludable. The Court finds by unquestionable documentary proof that 54 days are excludable and the People are accountable for 163 days.
This criminal action commenced with the filing of a felony complaint in the Criminal Court of the City of New York on December 28, 2022. The period from December 28, 2022, to June 28, 2022 is 182 days (see People v. Cortes, 80 N.Y.2d 201, 208 n3 [1992]).
Calculations of Time
The defendant concedes that the 34-day period from the defendant's arraignment in the Criminal Court of the City of New York on December 28, 2022, until January 31, 2023, is excludable upon consent of the defendant (CPL § 30.30[4][b]). A total of 34 days is excluded as of January 31, 2023.
The parties agree that the period from January 31, 2023, until the June 20, 2023-140 days-is not excludable. A total of 34 days is excluded and 140 days elapsed as of June 20, 2023.
The period from June 20, 2023, until June 27, 2023, is excludable due to the unavailability of the defendant. The People had taken the necessary steps to secure the defendant's appearance from the custody of the New York State Department of Corrections and Community Supervision for arraignment on June 27, 2023. When the Court advanced this matter to June 20, 2023, to accommodate its own schedule it rendered the People unable to produce the defendant from State custody due to short notice. The defendant was therefore unavailable on June 20, 2023, because his location was known but his presence could not be obtained by due diligence (CPL § 30.30[4][c][i]). A total of 41 days is excluded and 140 days elapsed as of June 27, 2023.
The 20-day period between June 27, 2023, and the People's July 17, 2023, off-calendar statement of readiness is not excludable. Pre-readiness delay between the filing of an indictment and the defendant's arraignment on the indictment counts against the People because the delay does not impact their ability to state their readiness for trial (People v. Correa, 77 N.Y.2d 930 [1991]). Such delay may only be excluded under CPL § 30.30(4) (People v. Cortes, 80 N.Y.2d 201, 213 [1992]). The People's argument that, but for the Court's change of date, this matter would "have been adjourned for motion practice, which is an excludable period," does not fall within that section. The Court cannot excuse delay based on what might have been (cf Correa, 77 N.Y.2d at 931 [rejecting argument that People need not be ready prior to arraignment because defendant may plead guilty]).
The People had already secured the defendant's appearance for June 27, 2023, therefore he was no longer unavailable as of that date, irrespective of the availability of a particular court part. "It is the People's responsibility... to schedule the arraignment, so as to bring the case to the stage where it may be tried" (People v. McGrath, 223 A.D.2d 759, 760 [3d Dept. 1996]; see also People v. Beebe, 171 A.D.3d 1528, 1529 [4th Dept 2019]). The Supreme Court - Criminal Term for the County of New York maintains many Court Parts, including an emergency Part, to which the defendant could have been diverted for arraignment and further proceedings. A total of 41 days is excluded and 160 days elapsed as of July 17, 2023.
Of the 15 days between the July 17, 2023, certificate of readiness and the August 1, 2023, arraignment of the defendant, three days are charged to the People and 12 are excludable. To conclude the statutory readiness inquiry begun August 1, 2023, the Court finds the People were not actually ready on July 17, 2023. The People may not be deemed ready before they have filed a proper certificate of compliance (CPL § 245.50[3]). As discussed above, the certificate of compliance was improper and the statement of readiness therefore failed to satisfy CPL § 30.30 because it preceded the actual delivery of discovery.
The law obligates the defendant, however, to notify the People of discovery defects and bring challenges to the certificate of compliance as soon as practicable (CPL § 245.50[4][a], [b]). The defendant waited 15 days from the service of the certificate of compliance until the defendant's arraignment to raise the issue. This is not a situation where the People have inundated the defense with mountains of police paperwork, hours of body-worn camera footage or piles of medical records. In those instances, the defense would certainly be entitled to a reasonable amount of time to look through it, digest it, and determine whether all required materials have been shared. Instead, this is a situation where the material was never successfully transferred due to some type of computer or user error. The defense knew or should have known immediately that no material had been sent and could have reached out to inform the prosecutor so the matter could be corrected. The defendant has some obligation to at least do a cursory review of materials transferred by the prosecutor within a reasonable period of time. That was not done here.
The revised discovery law was designed to bring more fairness into the process of criminal prosecutions and to move cases forward expeditiously. It was not designed to be a game of "gotcha." If the People are willfully withholding discovery materials they deserve to pay the consequences. This was not what happened here and the Court expects both sides to play fair with discovery. There is no reason to believe it would have taken more than three business days to review the certificate of compliance and determine that no discovery had been served. The remaining delay is attributable to the defendant's dilatory conduct (see CPL § 30.30[4][a] [excusing delay from other proceedings concerning defendant]). A total of 53 days is excluded and 163 days elapsed as of August 1, 2023.
The one day between August 1, 2023, and the People's August 2, 2023, statement of readiness is excludable at the defendant's request to allow him to determine whether to challenge the July 17, 2023, statement of readiness (CPL § 30.30[4][a], [b]). When the People declare their readiness for trial, the Court must conduct an inquiry to determine whether the People are "actually" ready (CPL § 30.30[5]). During this inquiry, the Court may not deem the People ready unless they have filed a proper certificate of compliance (CPL § 245.50[3]). It follows that part of the inquiry requires the Court afford the defendant the opportunity to be heard regarding discovery (CPL § 30.30[5]). The Court cannot determine the readiness inquiry until the defendant has challenged the discovery or waived such a challenge.
The defendant indicated his intention to challenge the discovery and an adjournment was granted for that purpose (see CPL § 30.30[4][a], [b]). A total of 54 days is excluded and 163 days elapsed as of August 2, 2023.
This constitutes the Decision and Order of the Court.