Opinion
Docket No. CR-027513-19NA
08-20-2021
The PEOPLE of the State of New York, Plaintiff, v. Kyle SALTERS, Defendant.
Acting Nassau County District Attorney: Joyce A. Smith Attorney for Defendant: David Zeitlin
Acting Nassau County District Attorney: Joyce A. Smith
Attorney for Defendant: David Zeitlin
Andrew M. Engel, J.
Papers Submitted:
Notice Motion 1
Affirmation in Support 2
Affirmation in Opposition 3
Reply Affirmation 4
On October 26, 2019, the Defendant was arraigned and charged with driving while intoxicated, stopping/standing/parking on a highway and driving on the shoulder, in violation of VTL §§ 1192(3), 1201(a) and 1131, respectively.
On or about December 29, 2020, the People filed and served a Certificate of Compliance with Initial Discovery and a Certificate of Readiness for Trial. The Certificate of Compliance represented "that the People have exercised due diligence and made reasonable inquires to ascertain the existence of material and information subject to discovery under C.P.L. § 245.20(1) and have disclosed and made available all known material and information subject to discovery."
After several adjournments, on April 20, 2021, both sides indicated that they were ready to proceed with pre-trial hearings that day. Moments before calling their first witness, the People disclosed, for the first time, that had they obtained a letter of censure which had been issued against the arresting trooper, involving a motor vehicle collision in which he had been involved, and that there is a pending personnel complaint against the assisting trooper regarding an allegation of excessive force used in a driving while intoxicated matter. At that time, the People provided defense counsel with the letter of censure for the arresting trooper.
Upon questioning by the court, the People acknowledged that they had neither obtained nor provided defense counsel with disciplinary records for either the arresting or assisting trooper. When asked if the People had requested such records from the New York State Police before the People filed their Certificate of Compliance, the Assistant District Attorney ("ADA") handling the matter first responded, "No, but I believe at the time of filing that would not have been required." (Transcript 4/20/21, p. 7 l. 5-6) The ADA then indicated that she had been informed that her office "made requests of every law enforcement agency which includes the New York State Police for them to provide us with all disciplinary records of every trooper which would of course then include both testifying troopers in this case." (Transcript 4/20/21, p. 9 l. 17-22) The ADA then acknowledged that as of the hearing date she still did not have the relevant troopers' disciplinary records. When pressed about the efforts made to obtain these records, the ADA reiterated, "We've made requests." (Transcript 4/20/21, p. 9 l. 25) Finally, when specifically asked by the court when these requests were made, to whom the requests were made, who made the requests, what was the response, what was received, what was not yet received, and when they will be received, the ADA requested, "that before especially given that there hasn't been a motion made, even if one is made, I would ask that we have the opportunity as we are entitled to by statute in terms of responding to the motion, I would ask that we are given that opportunity to provide the court with the information that would substantiate my representations that we have made efforts." (Transcript 4/20/21, p. 12 l. 5-12)
The Defendant now moves for an order striking the People's Certificate of Compliance and dismissing the accusatory instruments pursuant to CPL §§ 170.30 and 30.30.
CERTIFICATE OF COMPLIANCE
The Defendant argues that the representations the People made in their Certificate of Compliance, that they "have exercised due diligence and made reasonable inquires to ascertain the existence of material and information subject to discovery under C.P.L. § 245.20(1) and have disclosed and made available all known material and information subject to discovery." are erroneous. According to the Defendant, given the fact that four months after filing their Certificate of Compliance, the People, for the first time, acknowledged the existence of disciplinary records for the testifying troopers which had not been delivered or made available to the Defendant, "[t]he Certificate of Compliance therefore cannot be said to be ‘proper’ under CPL § 245.50(3)." (Zeitlin Affirmation , 5/5/21, ¶ 17)
The People acknowledge that CPL § 245.20(1)(k) requires them to disclose any information or evidence that tends to impeach the credibility of a witness before they may file a Certificate of Compliance and Certificate of Readiness. The People also concede that, "Here, the filing of the certificate of compliance and certificate of readiness preceded the disclosure of the letters of censure." (Greenberg Affirmation 7/6/21, p. 2) The People, nevertheless, challenge the timing of the Defendant's motion, brought only after the court questioned the People concerning their belated and incomplete disclosure of the disciplinary records of the two New York State Trooper witnesses they intended to call at the hearing. The People also assert that the letter of censure is not impeachment material, is sufficient compliance with their discovery obligation and that the Defendant was not prejudiced by this late disclosure, given the fact that the Defendant could review the letter of censure and question the trooper about its contents.
On January 1, 2020 the newly enacted CPL Article 245 became effective and CPL Article 240 was simultaneously repealed. The new discovery statute significantly expanded the People's discovery obligations, providing for "a presumption in favor of disclosure[,]" CPL § 245.20(7), See : People v. Porter , 71 Misc 3d 187, 142 N.Y.S.3d 703 (Crim. Ct. Bronx Co. 2020) ; People v. Georgiopolos , 71 Misc 3d 1215(A), 144 N.Y.S.3d 344 (Sup. Ct. Queens Co. 2021) and relieving defendants of their former obligation to demand discovery, placing the affirmative obligation on the People to comply with their automatic discovery obligations, as set forth in CPL §§ 245.10 and 245.20(1)(a-u). See : People v. Villamar , 69 Misc 3d 842, 132 N.Y.S.3d 593, (Crim. Ct. NY Co. 2020) ; People v. DeMilio , 66 Misc 3d 759, 117 N.Y.S.3d 830 (County Ct. Dutchess Co. 2020) ; People v. Lobato , 66 Misc 3d 1230(A), 122 N.Y.S.3d 492 (Crim. Ct. Kings Co. 2020)
CPL § 245.20(1) provides a non-exhaustive list of the items the People must disclose. Among them, CPL § 245.20(1)(k)(iv) mandates the disclosure of "All evidence and information, including that which is known to police or other law enforcement agencies acting on the government's behalf in the case, that tends to: impeach the credibility of a testifying prosecution witness." As appropriately noted in People v. McKinney , 71 Misc 3d 1221(A), 145 N.Y.S3d 328 (Crim. Ct. Kings Co. 2021), this statutory obligation is broader than the People's Brady and Giglio obligations, as they existed prior to the enactment of Article 245:
Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194 (1963)
Giglio v. United States , 405 U.S. 150, 92 S.Ct. 763 (1972)
While the list of items for which disclosure is required may have been partially drawn from Brady, see e.g. William C. Donnino, Practice Commentary, McKinney's Cons. Laws of NY C.P.L. § 245.10, the People's specific discovery obligations under C.P.L. § 245.20(1)(k) go beyond the Supreme Court's mandate in Brady v. Maryland , 373 U.S. 83 (1963). Importantly, the statute abandons the ‘materiality’ requirement of Brady, see 373 U.S. at 87, in favor of broader disclosures, encompassing ‘all evidence and information’ which ‘tends to impeach the credibility of a testifying prosecution witness ... irrespective of whether the prosecutor credits the information.’ C.P.L. § 245.20(1)(k). More expansive than Brady , C.P.L. § 245.20(1) also requires the disclosure of ‘all evidence and information’ (emphasis added), without regard for whether such evidence and information is already known to the defendant, or was previously disclosed in a different form. Compare People v. LaValle , 3 NY3d 88 (2004).
See also : People v. Castellanos , 72 Misc 3d 371, 148 N.Y.S.3d 652 (Sup. Ct. Bronx Co. 2021) ; People v. Rosario , 70 Misc 3d 753, 139 N.Y.S.3d 498 (Co. Ct. Albany Co. 2020) Similarly, "impeachment evidence and information is not limited to that which is related to the subject matter of the underlying case." People v. Williams , 72 Misc 3d 1214(A), 2021 NY Slip Op. 50743(U) (Crim. Ct. NY Co. 2021) ; See also : People v. Altug , 70 Misc 3d 1218(A), 139 N.Y.S.3d 791 (Crim. Ct. NY Co. 2021) As noted in People v. Soto , 2021 NY Slip Op. 21204, 2021 WL 3355998 (Crim. Ct. NY Co. 2021)
Impeachment evidence and information is that which concerns the credibility of the officer witness — regardless of the subject matter of the charges against the defendant ( People v. Smith , 27 NY3d 652, 36 N.Y.S.3d 861, 57 N.E.3d 53 [2016] [cross-examination concerning any immoral, vicious or criminal act which may affect witness' character and show unworthiness of belief]; People v. Beal , supra. (same); People v. Altug , supra.).
As this court has previously detailed, in People v. Herrera , 71 Misc 3d 1205 142 N.Y.S.3d 791 (District Ct. Nassau Co. 2021), the People's discovery obligation pursuant to CPL § 245.20(1)(k), particularly in light of the repeal of Civil Rights Law § 50-a, includes " ‘any record created in furtherance of a law enforcement disciplinary proceeding’ ( Public Officers Law 86[6], see also, Buffalo Police Benevolent Association, Inc. v. Brown, 69 Misc 3d 998 [Sup Ct, Erie County October 9, 2020] )." People v. Cooper , 71 Misc 3d 559, 143 N.Y.S.3d 805 (Co. Ct. Erie Co. 2021) ; See also : People v. Perez , 71 Misc 3d 1214(A), 144 N.Y.S.3d 332 (Crim. Ct. Bronx Co. 2021) This is consistent with the plain language of CPL § 245.20(1)(k)(iv), which mandates the disclosure of "All evidence and information that tends to impeach the credibility of a testifying prosecution witness[.]" (emphasis added) This cannot mean simply summaries of disciplinary records or officers' self-reporting questionnaires. See : People v. Williams , supra., People v. Cooper, supra. , People v. McKinney , 71 Misc 3d 1221(A) (Crim. Ct. Kings Co. 2021) "All" must mean "all," See : People v. Castellanos, supra ., and "evidence" must include the actual documents, not just "information."
It is not for the People to decide, in the first instance, if a particular item from a disciplinary record might be admissible or might impeach a witness. The clear scope of the statute removes that discretion from the People. People v. Williams, supra. , People v. Soto, supra. , People v. Porter, supra. These items must be disclosed "regardless of whether the prosecutor finds the information to be ‘material’ or ‘credible.’ " CPL § 245.20(1)(k) ; People v. Suprenant , 69 Misc 3d 685, 130 N.Y.S.3d 633 (City Ct. Glens Falls 2020) ; See also : People v. Cooper, supra . Moreover, if after reviewing a disciplinary record the People believe certain items are not subject to disclosure, they may seek a protective order for such items pursuant to CPL § 245.70.
To hold otherwise conflates discovery with admissibility at hearing or trial. It has long been recognized "that the best judge of the value of evidence to a defendant's case is ‘the single-minded devotion of counsel for the accused ( People v. Baghai—Kermani , 84 NY2d 525, 531, 620 N.Y.S.2d 313, 644 N.E.2d 1004 ; People v. Flores , 84 NY2d 184, 187, 615 N.Y.S.2d 662, 639 N.E.2d 19 ; People v. Banch , 80 NY2d 610, 615, 593 N.Y.S.2d 491, 608 N.E.2d 1069 ; People v. Young , 79 NY2d 365, 371, 582 N.Y.S.2d 977, 591 N.E.2d 1163 )." People v. DaGata , 86 NY2d 40, 45, 629 N.Y.S.2d 186, 189 (1995) Of course, the admissibility of any evidence or information defense counsel may believe useful at hearing or trial will ultimately be determined by the court upon a motion in limine. See : People v. Randolph , 69 Misc 3d 770, 132 N.Y.S.3d 726 (Sup. Ct. Suffolk Co. 2020), People v. Cooper, supra., People v. Castellanos, supra., People v. Williams, supra.
To facilitate the People's compliance with their discovery obligations, CPL 245.20(2) mandates that:
The 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; For purposes of subdivision one of this section, all items and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency shall be deemed to be in the possession of the prosecution.
Further, CPL § 245.55 obligates "[t]he district attorney and the assistant responsible for the case " (emphasis added) to:
endeavor to ensure that a flow of information is maintained between the police and other investigative personnel and his or her office sufficient to place within his or her possession or control all material information pertinent to the defendant and the offense or offenses charged, including, but not limited to, any evidence or information discoverable under paragraph (k) of subdivision one of section 245.20 of this article.
See : People v. McKinney, supra. ; People v. Georgiopoulos, supra.
After the People have provided all of their automatic discovery, except for lost or destroyed items, or items subject to a protective order issued pursuant to CPL § 245.70, the People shall serve their Certificate of Compliance, in which they 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." See : CPL § 245.50(1) ; People v. Haymon , 71 Misc 3d 1203(A), 142 N.Y.S.2d 790 (Co. Ct. Albany Co. 2021); People v. Johnson , 70 Misc 3d 1205, 135 N.Y.S.3d 811 (Co. Ct. Albany Co. 2021) Such a Certificate of Compliance "is a necessary prerequisite to a valid statement of readiness under C.P.L. § 30.30." People v. Barnett , 68 Misc 3d 1000, 129 N.Y.S.3d (Sup. Ct. NY Co. 2020); See also : People v. Piasecki , 66 Misc 3d 1231(A), 125 N.Y.S.3d 537 (Crim. Ct. Kings Co. 2020) ; People v. Freeman , 67 Misc 3d 1205(A), 125 N.Y.S.3d 842 (Crim. Ct. Bronx Co. 2020) In this regard, CPL § 30.30(5) explicitly provides, "Any statement of readiness must be accompanied or preceded by a certificate of good faith compliance with the disclosure requirements of section 245.20 of this chapter" Likewise, CPL § 245.50(3) provides, "absent an individualized finding of special circumstances in the instant case by the court before which the charge is pending, the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper certificate of compliance pursuant to subdivision one of this section."
Against this backdrop, the question herein becomes, did the People file a "proper" Certificate of Compliance on December 29, 2020. A finding that they did not would render the Certificate of Compliance and Certificate of Readiness illusory and subject to being stricken. See : People v. Barnett, supra. , People v. Georgiopoulos, supra. , People v. Williams, supra.
While Article 245 does not define what constitutes a "proper" Certificate of Compliance, the court in People v. Georgiopoulos, supra. astutely recognized, "Given that the statute specified that ‘[n]o adverse consequences’ shall adhere to the People based on the filing of a certificate that is filed ‘in good faith and reasonable under the circumstances,’ ( CPL § 245.50[1] ), the most reasonable inference is that such a certificate is ‘proper’ within the meaning of CPL § 245.50[3] and, thus, fulfills that section's prerequisite to any valid statement of readiness by the People." This "good faith and reasonableness under the circumstances" must be measured against the requirement mandated by CPL § 245.50(1) that the People exercise due diligence and make reasonable inquiries to ascertain the existence of material and information subject to discovery before filing their Certificate of Compliance Thus, the court finds that a "proper" Certificate of Compliance is one which is filed in good faith, reasonable under the circumstance, after the exercise of due diligence and reasonable inquiries to ascertain the existence material and information subject to discovery.
Contrary to the People's suggestion, the fact that the Defendant did not file a motion challenging the propriety of the People's Certificate of Compliance until after the People first disclosed some limited information regarding disciplinary proceedings involving their witnesses, at the moment pre-trial hearings were to begin, neither affects the propriety of the People's Certificate of Compliance nor the timeliness of the Defendant's motion challenging same. While CPL § 245.50(4) provides, "Challenges to, or questions related to a certificate of compliance shall be addressed by motion[,] See : People v. Gonzalez , 68 Misc 3d 1213(A), 130 N.Y.S.3d 262 (Sup. Ct. Kings Co. 2020) ; People v. Suprenant, supra. , Article 245 does not state at what time such a motion must be made. The court would note, however, although amended in part, effective January 1, 2020, CPL § 255.20(1) continues to provide, in pertinent part, "all pre-trial motions shall be served or filed within forty-five days after arraignment and before commencement of trial, or within such additional time as the court may fix upon the application of the defendant made prior to entry of judgment."
Given the facts and circumstances presented herein, it is clear the Defendant had no reason to believe the People failed to provide or make available to him the disciplinary records for the arresting and assisting troopers until the hearing date of April 20, 2021. It was only when the People turned over a letter of censure for the arresting trooper and orally advised that the assisting trooper was the subject of an open disciplinary matter that the Defendant, or the court for that matter, had any reason to question the propriety of the People's Certificate of Compliance. Immediately upon receiving this information, the Defendant sought the opportunity to make the present motion and moved expeditiously, with the court's permission.
The People acknowledge that at the time they filed their Certificate of Compliance they had not provided or made available to the Defendant a single item of disciplinary information for either of their anticipated witnesses. The record is also clear that almost four months after filing their Certificate of Compliance, the only item they provided or made available to the Defendant was a letter of censure regarding the arresting trooper. Moreover, as explained by the ADA at the time pre-trial hearings were to be held, relevant disciplinary records existed but were neither provided nor made available to the Defendant.
Notwithstanding the People's failure to provide the disciplinary records, "[i]f the People establish that they exercised due diligence and acted in good faith in filing their certificate, their certificate of compliance shall be deemed valid." People v. Georgiopoulos, supra .; See also : People v. Bruni, 71 Misc 3d 913, 144 N.Y.S.3d 544 (Co. Ct. Albany Co. 2021) The People in the matter sub judice , however, fail to make such a demonstration.
The People herein provide no explanation for their failure to provide the disciplinary records of their trooper witnesses. The ADA handling the matter explained, on the record, that she received self-reporting questionnaires from the troopers and, based thereon, almost four months after filing a Certificate of Compliance, she delivered a single letter of censure for one witness and advised of an open disciplinary complaint for the other. The assigned ADA indicated that while she knows the People "routinely receive disclosure from the New York State Police automatically without a request[,] [Transcript 4/20/20, p. 5 l. 23-25], the People did not have these disciplinary records before their Certificate of Compliance was filed. The assigned ADA further advised that she was informed that her office made a request of the New York State Police for the troopers who were expected to testify in this case, but that, contrary to the mandate of CPL § 245.55(1) she, as "the assistant responsible for the case" did not "endeavor to ensure that a flow of information [was] maintained between the police and her office sufficient to place within her possession or control all material and information discoverable under paragraph (k) of subdivision one of section 245.20 of [CPL Article 245]." Indeed, the ADA acknowledged that, even as late as April 20, 2021, she did not have the disciplinary records of the troopers who were expected to testify in this case.
When given the opportunity to demonstrate, on the record, who made the request for disciplinary records, to whom the request was made, when the request was made, what was the response to the request, what records have been provided by the police, what records have not been provided and when all records will be provided, the People merely asked for the opportunity to put this information in their opposition to the Defendant's motion. Their opposition to this motion, however, does not utter a single word addressing any of these issues. This sort empty response, choosing instead to rely on "We've made requests" [Transcript 4/20/21, p. 9 l. 25] and the belated disclosure of a single letter of censure, does not support a claim of diligent good faith and reasonable inquiry. See : People v. Georgiopoulos, supra. , People v. Williams, supra. , People v. McKinney, supra. ; Compare : People v. Bruni, supra.
On this record, the People cannot avoid the vacatur of their Certificate of Compliance by stating that the disciplinary records are not in their actual possession. As noted in People v. Georgiopoulos, supra.
all police paperwork is imputed to be in the People's control and it is the prosecutor's duty to work with the police to obtain such materials. As a result, it is never sufficient for the People to affirm that an item is not in their physical possession to defeat a certificate of compliance challenge. If the item at issue is police paperwork, that argument must always fail.
Similarly, "the withholding of [disciplinary records] by law enforcement agencies cannot excuse the People of their discovery obligation" People v. Perez, supra. Moreover, as noted in People v. Altug , supra. :
the People's failure to state that they have actually examined the officer's disciplinary file (or whether there is one), means that they cannot be found to have exercised due diligence in determining the existence of discoverable impeachment material that might be in a disciplinary or personnel file.
In further recognition of the People's lack of due diligence and good faith in filing their Certificate of Compliance, the court would note the following observation in People v. Williams, supra. :
In CPL Article 245, the Legislature provided numerous opportunities for the People to seek accommodation or relief regarding untenable discovery difficulties in any particular case. For example, CPL 245.10 (1)(a) allows for extension of time to provide initial discovery where materials are exceptionally voluminous. In some circumstances, CPL 245.50 (3) allows for trial readiness when discoverable evidence is unavailable. CPL 245.70 (2) allows for modification of discovery periods for good cause shown. CPL 245.70 (1) allows for protective orders that might deny, restrict, condition, or defer disclosure of any discovery. In addition, CPL 30.30 (4)(g) allows for exclusion of time chargeable to the People for delay caused by unavailability of evidence that the People have diligently attempted to obtain and disclose.
"By following the prescribed procedure and upon the granting of the motion the People would get additional time to disclose these hard-to-obtain items without penalty." People v. Adrovic , 69 Misc 3d 563, 130 N.Y.S.3d 614 (Crim. Ct. Kings Co. 2020)
While the People could have availed themselves of any or all of the foregoing opportunities, in a truly diligent and good faith effort to fulfill their discovery obligations prior to filing their Certificate of Compliance, they, instead, chose to do "[w]hat the People my not do [-] file a Certificate of Compliance in which they claim to have exercised due diligence and turned over ‘all known material and information,’ C.P.L. § 245.50(1), while at the same time not actually turning over all known material and information, without express permission of the court." People v. Adrovic, supra. "As succinctly stated by Judge Egan, ‘[t]he People may not withhold known material and information subject to automatic discovery and expect the court to accept a certificate of compliance and statement of trial readiness’ (People v. Cooper , supra. 7)." People v. Haymon, supra.
Accordingly, the court finds the People's Certificate of Compliance and Certificate of Readiness illusory and invalid.
SPEEDY TRIAL
With the People's Certificate of Compliance having been found illusory, the Defendant argues that, "the People could not be ready for trial on December 29, 2020 and their Statement of Readiness is thus also invalid. As a result, the time which elapsed between December 29, 2020 and April 20, 2021 is not excludable and must be charged to the people, resulting in chargeable time well over 90 days and prejudice to the Defendant, requiring the dismissal of this action." (Zeitlin Affirmation , 5/5/21, ¶ 18)
The Defendant clearly labors under the misapprehension that the People are automatically charged with all time which transpires in a case until a proper Certificate of Compliance is filed. The Defendant overlooks the fact that, the enactment of CPL Article 245 notwithstanding, the exclusionary periods set forth in CPL § 30.30(4), with some amendment not relevant herein, remain intact. See : People v. Cada , 69 Misc 3d 882, 133 N.Y.S.3d 425 (Crim. Ct. Queens Co. 2020) ; People v. Dobrzenski , 69 Misc 3d 333, 130 N.Y.S.3d 238 (City Ct. Oneida 2020) ; People v. Otero , 70 Misc 3d 526, 135 N.Y.S.3d 621 (City Ct. Albany 2020)
In opposition to this branch of the Defendant's motion, the People argue that "the suspension of Article 245 remained in effect at the time the People filed the certificate of compliance. Executive Order 202.67-202.101." (Greenberg Affirmation , 7/6/21, ¶ 3) The People's reliance on the Governor's Covid related executive orders is misplaced. As this court detailed in People v. Gonzalezyunga , 71 Misc 3d 1210, 143 N.Y.S.3d 863 (Dist. Ct. Nassau Co. 2021), Executive Order 202.8 (9 NYCRR 8/202/8), which suspended, inter alia , "any specific time limit for the, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law" (Bold added), did not affect the time within which the People were required to file a Certificate of Compliance and declare their readiness for trial. That time limitation is set forth in CPL § 30.30, the tolling of which was lifted effective October 5, 2020, pursuant to Executive Order 202.67, ( 9 NYCRR 8.202.67 ).
The enactment of Article 245, and the Governor's executive orders notwithstanding, speedy trial determinations are to be made, as they have always has been made. As the court pointed out in People v. Percell , 67 Misc. 3d 190, 119 N.Y.S.3d 731 (Crim. Ct. NY Co. 2020) :
‘Whether the People have satisfied [their CPL § 30.30 ] obligation is generally determined by computing the time elapsed between the filing of the first accusatory instrument and the People's declaration of readiness, subtracting any periods of delay that are excludable under the terms of the statute and then adding to the result in any post readiness periods of delay that are actually attributable to the People and are ineligible for exclusion.’ ( People v. Cortes , 80 NY2d 201, 208, 590 N.Y.S.2d 9, 604 N.E.2d 71 [1992] ).
With this in mind, the court shall review the pertinent dates which affect the Defendant's speedy trial motion. Given the fact that the only periods of time the Defendant mentions in his motion are the dates between June 6, 2020 and April 20, 2021, the court will only address the adjournments which occurred between those dates, as that appears to be the period of time in question.
The court notes that there was no calendar date in this matter for June 6, 2020. For this reason, the court will begin reviewing dates commencing with May 8, 2020, the last calendar date before June 6, 2020.
May 8, 2020 to November 18, 2020
During this period of time, this matter appeared on the court's calendar four times, May 8, 2020, June 26, 2020, August 10, 2020 and September 30, 2020.
The Defendant concedes that "all pertinent time limits were tolled on March 20, 2020 by Governor Andrew Cuomo's Executive Order 202.8. The tolling of CPL § 30.30 was expressly concluded on October 4, 2020 by Executive Order 202.67." (Zeitlin Affirmation 5/5/21, ¶ 11) Accordingly, the People should not be charged with any time between May 8, 2020 and October 4, 2020, inclusive.
The matter appeared on the court's calendar on September 30, 2020 for pre-trial hearings. As indicated, in addition the tolling of CPL § 30.30 at that time, the parties consented to the adjournment of pre-trial hearings to November 18, 2020. As such, in addition to the time from September 30, 2020 to October 4, 2020 being excludable time, the time from October 5, 2020 until the adjourn date of November 18, 2020 is excludable. CPL § 30.30(4)(b)
In addition thereto, applying the principles set forth in People v. Cada , 69 Misc 3d 882, 129 N.Y.S.3d 293 (Sup. Ct. NY County 2020), the balance of the adjournment on September 30, 2020 is also excludable due to the fact that the adjournment, which began on September 30, 2020 was, at that time, excludable due to the continuing effect of Executive Order 202.8. Since the toll of CPL § 30.30 was still in effect when the adjournment began, the speedy trial clock could not begin to run again for the entire adjournment period, notwithstanding the lifting of the CPL § 30.30 toll, effective October 5, 2020, until the adjourned date.
Accordingly, the People shall be charged with zero (0) days for the period of time from May 8, 2020 to November 18, 2020.
November 18, 2020 to January 5, 2021
On November 18, 2020 the matter appeared on the court's calendar for pre-trial hearings. The matter was adjourned, at the Defendant's request, until January 5, 2021.
Accordingly, the People shall be charged with zero (0) days for this period of time. CPL § 30.30(4)(b)
January 5, 2021 to February 17, 2021
On January 5, 2021 the matter appeared on the court's calendar for pre-trial hearings. The matter was adjourned, at the Defendant's request, until February 17, 2021.
Accordingly, the People shall be charged with zero (0) days for this period of time. CPL § 30.30(4)(b)
February 17, 2021 to March 22, 2021
On February 17, 2021 the matter appeared on the court's calendar for pre-trial hearings. The matter was adjourned to March 22, 2021 for pre-trial hearings.
It being unclear as to the reason for the adjournment and it being the People's burden of proving that certain periods of time should be excluded, See : People v. Berkowitz , 50 NY2d 333, 428 N.Y.S.2d 927 (1980), this time is to be charged to the People.
Accordingly, the People shall be charged with thirty-three (33) days for this period of time.
March 22, 2021 to April 20, 2021
On March 22, 2021 the matter appeared on the court's calendar for pre-trial hearings. The People were not ready to proceed with the hearing at that time. The matter was adjourned to April 20, 2021 for pre-trial hearings.
Accordingly, the People shall be charged with twenty-nine (29) days for this period of time.
April 20, 2021 to Date
As discussed hereinabove, on April 20, 2021, the Defendant requested that the pre-trial hearings in this matter be adjourned so that the Defendant could bring the instant motion. The motion was filed on May 10, 2021 and ultimately submitted for decision on July 30, 2021.
Accordingly, the People shall be charged with zero (0) days for this period of time. CPL § 30.30(4)(a)
Based upon the foregoing, the People are presently charged with a total of sixty-two (62) days.
CONCLUSION
That branch of the Defendant's motion seeking an order striking the People's Certificate of Compliance and Certificate of Readiness is granted; and it is
ORDERED , that the People's Certificate of Compliance and Certificate of Readiness are hereby vacated; and, it is further
ORDERED , that in accordance with CPL § 245.35(3), any future Certificate of Compliance the People may file shall "state[ ] that the prosecutor and/or an appropriate named agent has made reasonable inquiries of all police officers and other persons who have participated in investigating or evaluating the case about the existence of any favorable evidence or information within paragraph (k) of subdivision one of section 245.20 of this article, including such evidence or information that was not reduced to writing or otherwise memorialized or preserved as evidence, and has disclosed any such information to the defendant[.]"
That branch of the Defendant's motion seeking an order dismissing the accusatory instruments is denied.
This constitutes the decision and order of the court.