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The PEOPLE of the State of New York v. Ruben ZWEIFACH, Defendant.
The defendant is charged in an information with one count of Unlawful Possession of an Imitation Pistol in violation of New York City Administrative Code 10.131 [g] ). The defendant moved to controvert the search warrant and dismiss the information on statutory speedy trial grounds (CPL 170.30  [e]; 30.30), asserting that the Certificate of Compliances (COCs) filed by the People on March 28, 2022, and April 26, 2022, were invalid due to the People's failure to turn over certain CPL 245.20  discoverable materials. The People opposed this motion. For the reasons stated below, the defendant's motion is granted.
Unlawful Possession of an Imitation Pistol (NYC AC 10.131 [g] ) is an unclassified misdemeanor punishable by up to three hundred sixty-four days in prison (PL 70.15 ). Accordingly, a motion to dismiss must be granted when the People are not ready for trial “within 90 days of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony” (CPL 30.30  [b]; 170.30  [e]).
CPL 245.20  provides that
“the prosecution shall 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 and are in the possession, custody or control of the prosecution or persons under the prosecution's direction or control.”
Pursuant to CPL 245.50 ,
“when the prosecution has provided the discovery required by subdivision one of section 245.20 of this article, except for discovery that is lost or destroyed as provided by paragraph (b) of subdivision one of section 245.80 of this article and except for any items or information that are the subject of an order pursuant to section 245.70 of this article, it shall serve upon the defendant and file with the court a certificate of compliance. The certificate of compliance shall state 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. It shall also identify the items provided. If additional discovery is subsequently provided prior to trial pursuant to section 245.60 of this article, a supplemental certificate shall be served upon the defendant and filed with the court identifying the additional material and information provided. No 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; but the court may grant a remedy or sanction for a discovery violation as provided in section 245.80 of this article.”
VALIDITY OF THE PEOPLE'S CERTIFICATES OF COMPLIANCE
The defendant claims that the People's COC dated March 28, 2022 and Supplemental COC dated April 26, 2022 are invalid because the following items of discovery remain outstanding: (i) accompanying materials such as testimony, affidavits, 911 call, and reports made to the precinct for the search warrant executed at 87 Seacrest Avenue; and (ii) impeachment information for all officers involved in this case (including but not limited to materials from NYPD personnel files). The People concede that they are charged 71 days from February 14, 2022,1 to April 26, 2022, as no Certificate of Trial Readiness (CTR) had been filed. This court finds the COC dated March 28, 2022, to be invalid as it was filed before the search warrant and accompanying materials were turned over.
I. Accompanying materials such as testimony, affidavits, 911 call, and reports made to the precinct for the search warrant executed at 87 Seacrest Avenue
The defendant acknowledges that he received the search warrant, reconnaissance report, location check report, pre tac plan, search warrant completion report, post tac plan, evidence and seizure report, and radio runs on April 26, 2022, after the first COC had already been filed. A discovery compliance conference was held in court on May 26, 2022. Defense counsel stated that she did not have the affidavit (search warrant application). The People stated that the affidavit was turned over on April 26, 2022. The defendant claims he did not receive the 911 call or phone call to the precinct as “noted in the DD5's that the complainant called the precinct and made reports with the precinct” (Defendant's Affirmation, p. 18, footnote 4). The People stated they only had a radio run in their possession and made a request for any 911 call recordings. If the complainant called the precinct as stated in the DD5, it would stand to reason that there are no additional recordings as calls made directly to the precinct are not recorded and 911 was not utilized.
On August 2, 2022, while the instant motion was pending, the defendant filed an Affirmation in Reply to the People's Affirmation in Response and Supplemental Affirmation in Response to Defendant's Motion to Dismiss. The defendant attached a screenshot of the “DEMs” folder as Exhibit H. The Digital Evidence Management System (DEMS) is the system by which discovery is provided electronically by the District Attorney's Office to the defendant. The DEMS screenshot shows that the search warrant application was uploaded on May 26, 2022, at 11:47 a.m., not on April 26, 2022, as the People claimed. Under CPL 245.50 , the People have a duty to exercise due diligence in disclosing all known material and information subject to discovery. The failure to disclose a search warrant application is not a de minimis oversight, nor is it consistent with due diligence. See People v Kaba, 75 Misc 3d 1218(A), 2022 NY Slip Op 50538(U) (Cohoes City Court 2022). This court finds the Supplemental COC dated April 26, 2022, to be invalid as it was filed before the search warrant application was turned over.
II. Impeachment information for all officers involved
CPL 245.20[k][iv] requires the prosecution to disclose “[a]ll 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 ․ (iv) impeach the credibility of a testifying prosecution witness ․” (CPL 245.20[k][iv]). This court finds that the People have complied with their discovery obligations under CPL 245.20 [k][iv] by providing detailed Giglio letters to the defense. See People v Akhlaq, 71 Misc 3d 823 (Sup Ct, Kings County 2021); People v Knight, 69 Misc 3d 546 (Sup Ct, Kings County 2020); People v Gonzalez, 68 Misc 3d 1213(A) (Sup Ct, Kings County 2020).
The defendant contends that with the repeal of Civil Rights Law 50(a), the prosecution now must disclose all favorable information in police personnel files regardless of “materiality,” including disciplinary investigation records for factually unrelated prior bad acts. This court also does not find that the repeal of Civil Rights Law 50(a) imposes any additional burden on the prosecution under CPL Article 245. See Akhlaq at 826; People v Mauro, 71 Misc 3d 548 (Westchester County Ct 2021); People v Perez, 73 Misc 3d 171 (Sup Court, Queens County 2021).
For the foregoing reasons, the court finds the People's COC dated March 28, 2022, and Supplemental COC dated April 26, 2022, to be invalid.
CHARGEABLE TIME CALCULATION
The defendant was arraigned on a misdemeanor complaint on February 14, 2022. The complaint was deemed an information, and the case was adjourned to March 28, 2022, for the People to comply with their discovery obligations. On March 28, 2022, the People made a record that they had not yet filed a CTR or COC, and the case was adjourned to May 3, 2022, for the People to comply with their discovery obligations. Later that same day on March 28, 2022, the People served a COC on defense counsel via email and filed same with the court by uploading the documents to the New York State Unified Court System's Electronic Document Delivery System (EDDS). On April 26, 2022, the People served a CTR and Supplemental COC on defense counsel via email and filed same with the court by uploading the documents to EDDS. As this court has deemed the Supplemental COC to be invalid, it also finds the People's CTR dated April 26, 2022, to be invalid. It should be noted that the charges against the defendant arise out of a search warrant. Among the most important items of discovery in a search warrant case are undoubtedly the search warrant and application. Thus, as trial readiness is now tied to discovery pursuant to CPL 30.30 , the People could not possibly have been ready for trial without turning over the search warrant application.
On May 3, 2022, defense counsel made a record that she was missing certain items of discovery, namely a 911 call, a Domestic Incident Report (DIR), and an affidavit from the complainant and/or search warrant minutes. The calendar Assistant District Attorney did not have any information as to whether those items existed, and the case was adjourned to May 26, 2022, for discovery compliance. This time period is chargeable to the People as the court has found the previously filed supplemental COC dated April 26, 2022, to be invalid. On May 26, 2022, defense counsel requested a motion schedule to address the remaining items of discovery she was purportedly missing. This period is excludable (CPL 30.30  [a]). The People are charged 101 days from February 14, 2022, to May 26, 2022. No additional CTRs or COCs have been filed to date.
SEARCH WARRANT CONTROVERSION & SUPPRESSION OF PHYSICAL EVIDENCE
The court's decision will not address the defendant's remaining arguments, as they are rendered moot.
The People's COC dated March 28, 2022, and supplemental COC dated April 26, 2022, are invalid. The People's CTR dated April 26, 2022, is also invalid. In total, the People are charged 101 days. The defendant's motion to dismiss is granted.
1. The first day (the date on which the defendant is arraigned) is excludable. See People v Stiles, 70 NY2d 765 (1987).
Biju Koshy, J.
Response sent, thank you
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Docket No: Index No. CR-000606-22RI
Decided: August 16, 2022
Court: Criminal Court, City of New York,
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