The People of the State of New York v. Forcey, Defendant. (2024)

Pending before the court is a C.P.L. § 30.30 motion to dismiss alleging that the prosecution failed to file a proper, good-faith certificate of discovery compliance before stating ready for trial. Such a certificate is a legal prerequisite to the prosecution's readiness. Under C.P.L. § 30.30[1][b], the prosecution had ninety days after commencing this case to state ready for trial. The motion's sole argument is that the defense attorney received the prosecution's discovery production via email on the 91st day after commencing the case and via mail postmarked on the 94th day. In response, the prosecution affirms that they submitted the discovery both electronically and by mail on the 90th day. The defense opted not to file a reply and does not contest those allegations. The motion is denied.

In a valid certificate of automatic discovery compliance, the prosecution must certify that they "ha[ve] disclosed and made available all known material and information subject to discovery." (C.P.L. § 245.50[1]). If the prosecution knows they have not, in fact, disclosed and made available all such material, their certificate claiming otherwise is improper. (E.g., People v. Henry, 82 Misc 3d 828 [Crim. Ct., Queens County 2024]; People v. Marte, 82 Misc 3d 528, 529-36 [Crim. Ct., Queens County 2023]). As other courts have put it, the People cannot certify they "turned over 'all known material and information,' while at the same time not actually turning over all known material and information." (People v. Ashraf, 80 Misc 3d 1223[A], at *3 [Crim. Ct., Richmond County 2023] [internal citations omitted]; People v. Pennant, 73 Misc 3d 753, 767 [Dist. Ct., Nassau County 2021] [same]; People v. Quinlan, 71 Misc 3d 266, 271 [Crim. Ct., Bronx County 2021] [same]; People v. Adrovic, 69 Misc 3d 563, 574 [Crim. Ct., Kings County 2020] [same]). Thus, a certificate of compliance [can]not be deemed complete until all of the material and information identified in the certificate as subject to discovery and electronically shared with the defendant [is] actually produced to the defendant." (People ex rel. Ferro v. Brann, 197 AD3d 787, 787-88 [2d Dep't 2021] [emphasis added]).

But the question of whether the defense has received discovery is not necessarily the same as whether the prosecution "actually produced" it. To "produce" means "to offer to view." (Produce, Merriam-Webster Dictionary [2022]). Similarly, to "disclose"—which is the word the discovery statute uses—means "to expose to view." (Disclose, Merriam-Webster Dictionary [2022]). Here, the prosecution submitted their discovery production by mail and electronic transfer on the 90th day after commencing the case. The transfer and mailing were properly addressed, and there was no technological error in the process. (Cf. People v. Francis, 75 Misc 3d 1224[A] [Crim. Ct., Bronx County 2022] [prosecution's discovery production was incomplete because of a "technological error" and an "inadvertent" "mishap"]). On the date that the prosecution initiated the electronic transfer properly and deposited discovery, correctly addressed, into a mailbox, they exposed it to view. This accords with general principles of law, which considers service to be complete when properly addressed and deposited in a mailbox. (E.g., C.P.L.R. § 2103[b]).

Accordingly, ninety days of delay are chargeable to the prosecution. They are within their limit. The motion to dismiss is denied.

The foregoing constitutes the order and decision of the court.

Dated: June 28, 2024

Queens, NY

Wanda L. Licitra, J.C.C.

Wanda L. Licitra, J.