Opinion
Dkt: CR-027447-21KN
05-16-2022
The PEOPLE of the State of New York, v. Alexis RAMIREZ, Defendant.
For the People, Meredith Abrams, Assistant District Attorney, Office of the Kings County District Attorney For the Defendant, Michael E. Cirigliano, Attorney at Law, 404 Manor Road, Staten Island, NY 10314
For the People, Meredith Abrams, Assistant District Attorney, Office of the Kings County District Attorney
For the Defendant, Michael E. Cirigliano, Attorney at Law, 404 Manor Road, Staten Island, NY 10314
Carolina Holderness, J. Procedural History :
On November 10, 2021, defendant was arraigned and charged with Forcible Touching, Penal Law (PL) § 130.52(1), a class A misdemeanor, and related charges.
On January 5, 2022, a superseding information (SSI) and a supporting deposition (SD) were served on defense counsel.
On February 3, 2022, the People served on defense counsel and filed with the court through the Electronic Document Delivery Service (EDDS) a Certificate of Compliance (COC) and a Statement of Readiness (SOR).
At the following court appearance on February 15, defense counsel raised the fact that the SSI and the SD had not been filed with the court. The court searched but did not find those documents in the court file. The People also searched their records that but could not find a confirmatory EDDS email that the documents had been properly filed "as the notes of the assigned ADA indicated had occurred." People's Affirmation in Opposition, ¶ 8. Over defense counsel's objection, the "court accepted the SSI/SD and arraigned the defendant on the SSI." Id. at ¶ 7.
Defense counsel also averred that counsel was not properly served with these documents, but after being shown the e-mail confirmation of service, counsel conceded proper service upon defendant.
On that date, February 15, the People also filed the SSI and the SD via EDDS.
On March 29, the defendant served and filed the instant motion to dismiss.
The People oppose the motion in its entirety.
For the reasons stated below, the defendant's motion to dismiss is denied. Parties’ Contentions :
The defendant argues that when the court arraigned the defendant on the SSI on February 15, more than 90 days of speedy trial time had passed. He maintains that since the SSI and SD served on counsel on January 5, 2022, had not been filed with the court on that date, and consequently those papers had not been filed with the court prior to the service and filing on COC and SOR on February 3, that the COC and SOR were illusory, "and the People did not stop the speedy trial clock until the filing of the Superseding Information with the Court on February 15." Defendant's Affirmation, ¶ 15.
Defendant concludes that "the People have accrued at least 97 days of chargeable time ... and therefore the matter must be dismissed." Id. at 17 (emphasis in original).
The People concede that "there is a factual issue in this case that can't truly be resolved - whether the People inadvertently failed to file the SSI/SUD at the time of serving it, or whether the People properly attempted to do so and encountered an error in EDDS." People's Memorandum of Law, pg. 4. Either way, the People concede that they should have remedied the error upon timely confirming that they did not receive a confirmation of filing on February 3.
The People counter first that the 12 days between February 3 and February 15 should be excluded pursuant to CPL § 30.30(4)(g), as an exceptional circumstance, especially if the error was due to an EDDS system failure.
They next assert that they filed the SSI and SD as soon as they were made aware of the oversight, and that "dismissal of the case is not the proper remedy under 30.30 when the COC/SOR was filed in good faith." Id. at pg. 5. The People ask that the court apply the same statutory and case law analysis as the courts have relied upon when assessing the validity of a COC filed when the People had failed to disclose some item(s) of discovery and they maintain that "an inadvertent oversight ... does not demonstrate that the People acted in bad faith." Id. at pg. 7 (internal citation omitted).
Finally, the People point out that the defendant was timely and properly served with all of the papers, and that the defendant has not been prejudiced by the short delay in filing those papers with the court.
Court's Analysis :
Pursuant to CPL § 30.30(1)(b), the People had 90 days to be ready for trial in the instant matter. The question presented here is whether the People's COC and SOR stopped the speedy trial clock on February 3 when the SSI and SD had been previously served upon defense counsel on January 5, but there is no proof that the SSI and SD had been properly filed with the court on that date.
There is no dispute that the COC and SOR were properly served and filed on February 3.
In order to be "ready for trial" pursuant to CPL § 30.30, the People must meet two requirements: first, they must communicate their readiness either on the record in open court, or by a written notice simultaneously sent to defense counsel and filed with the court; and second, the People must declare their readiness when they are, in fact, presently ready to proceed to trial. People v. Kendzia , 64 N.Y.2d 331, 337, 486 N.Y.S.2d 888, 476 N.E.2d 287 [1985].
Good Faith :
Good faith is a factor that may be considered in evaluating an administrative error in a CPL § 30.30 motion. In People v. Clark, 31 Misc. 3d 152(A), *1, 2011 WL 2506461 (Sup. Ct., App. Term, 2nd Dept., 2011), the People had mailed the SOR to a previous and, therefore, incorrect address for defense counsel though they had been provided with notice of the change in counsel's address. The Appellate Term of the Second Department reversed the trial court's decision dismissing the accusatory instrument, finding that there was "no basis to determine that the ... statement of readiness did not accurately reflect the People's position, or that the People acted in bad faith."
Good faith must also be evaluated in determining the validity of a COC. Specifically, CPL § 245.50(1) provides that "[n]o adverse consequence to the prosecutor shall result from the filing of a certificate of compliance in good faith and reasonable under the circumstances."
While the EDDS system, created to facilitate filing documents during the COVID pandemic, has certainly accomplished that end, it has also created the possibility of an error such as this one, where a party in good faith believes it has filed a document but the EDDS system does not confirm that one was ever received. Because parties can file documents without receiving a clerk's stamp at the time of filing, good faith errors such as this are now possible, though uncommon.
There is no dispute that when the People properly filed their COC and SOR on February 3, they believed in good faith that the SSI and the SD had been timely filed with the court on January 5, when those same documents were served on defense counsel. Further, there is no allegation by the defense that the People were not, in fact, ready to proceed.
Lack of Prejudice :
Lack of prejudice to the defendant is not a factor in evaluating the validity of a COC except where a party is seeking a sanction or remedy for undisclosed discovery pursuant to CPL §§ 245.20(5) and 245.80. Nonetheless, courts have weighed the lack of prejudice when considering "adverse consequences [resulting] from the filing of a certificate of compliance in good faith." CPL § 245.50(1) ; see, People v. Ferrer , 72 Misc. 3d 1212(A), *3, 2021 WL 3200857 (Crim. Ct., Bronx County 2021) ; People v. Weissinger , 74 Misc. 3d 1225(A), 2022 WL 881746 (Justice Ct., Monroe County 2022). Even courts that have held that lack of prejudice to the defendant is not an automatic bar to evaluating prosecutorial discovery violations have recognized that "an accidental failure to include a particular disclosure will not invalidate a Certificate of Compliance, so long as the prosecutor can demonstrate that she acted in good faith." People v. Adrovic , 69 Misc. 3d 563, 574, 130 N.Y.S.3d 614 (Crim. Ct., Kings County 2020) ; People v. Turner , 71 Misc. 3d 1219(A), 2021 WL 1899469 (Sup. Ct., Monroe County 2021).
The People here did not attain any benefit through the failure to properly file the SSI and SD through the EDDS, nor did the defendant suffer any prejudice: defense counsel received the SSI and SD on January 3, and the defendant was arraigned on the new accusatory instrument at the earliest opportunity, which was his next scheduled court appearance on February 15.
To the extent that defense counsel noticed the SSI and SD had not been properly filed through EDDS at the time he was served with those documents on January 5, 2022, counsel did not bring it to the People's attention until February 15, even after he received their properly filed COC and SOR on February 3. The prosecution was, therefore, not given an opportunity to correct any error until after, in defense counsel's view, the speedy trial clock had run. Defense counsel should not sit idly by and lie in wait "while the speedy trial clock ticks loudly in the background." People v. Weissinger , supra at pg. *3 (internal citation omitted).
Exceptional Circumstance :
Moreover, the court finds the possibility of an EDDS malfunction would qualify as an exceptional circumstance within the meaning of CPL § 30.30(4)(g), especially where, as is the case here, there was no intentional inaction on the part of the prosecution. In People v. Campusano , 72 Misc 3d 137(A), *1, 2021 WL 3520859 (Sup. Ct., App. Term, 2nd Dept. 2021), the court excluded an adjournment period on exceptional circumstance grounds where the People did not state ready for trial as at that appearance the defense counsel had asked to be relieved and the People had expected the defendant to take a plea. The court held that "[t]here is no precise definition of what constitutes an exceptional circumstance under CPL 30.30 (4) (g) ... It is clear, however, that the range of the term's application is limited by the dominant legislative intent informing CPL 30.30, namely, to discourage prosecutorial inaction. " (emphasis in original), citing People v. Price , 14 N.Y.3d 61, 65, 896 N.Y.S.2d 719, 923 N.E.2d 1107 (2010).
In People v. Nelson , 2022 N.Y. Slip Op. 50347, 2022 WL 1417857 (Crim. Ct., New York County), "an unknown technical error prevented the body-worn camera footage from being properly [shared with defense counsel]" at *3. The court found that "[a]ny mistaken non-disclosure was not the result of lack of due diligence ..., nor the result of bad faith". The court concluded that the "unintentional oversight does not warrant invalidating the certificate of compliance." Id.
In sum, any error, human or technical, which resulted in the failure to properly file the SSI and the SD afforded no benefit to the prosecution, and it caused no prejudice to the defendant. In no way did the failure deny defendant his right to a speedy trial.
The court finds that under the circumstances here, the People's failure to properly file the SSI and SD did not invalidate their COC or SOR. Rather, the court finds that the COC and the SOR were filed in good faith and that they were sufficient to stop the speedy trial clock.
As the People complied with their obligations under the law and were prepared to proceed to trial within 90 days, the defendant's motion to dismiss is denied.
Conclusion :
As the People are charged with 85 days of speedy trial time, the defendant's motion to dismiss the charges pursuant to CPL § 30.30 is denied.