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The People of the State of New York, v. Ginelle Alvia, Defendant.
Defendant moved for an Order to dismiss the accusatory instrument, to request a hearing consistent with People v. Allard, 28 NY3d 41, 45-47 (2016), and to request time to file a Reply. Defendant argues that the accusatory instrument should be dismissed because the People did not file a new certificate of compliance until October 27, 2022. As a result, defendant argues that the CPL § 30.30 time should be chargeable to the People until a new Certificate of Compliance was filed rendering the case untimely.
For the reasons set forth herein, defendant's motion is denied in its entirety.
Defendant was arraigned on February 27, 2022 and charged with Penal Law § 265.01 (criminal possession of a weapon in the fourth degree), Vehicle and Traffic Law §§ 1192.1 (driving while impaired); 1192.2 (driving while intoxicated, per se); 1192.2-a(a)(aggravated driving while intoxicated, per se); 1192.3 (driving while intoxicated), and 600.1A (leaving the scene of an incident). Once the People file the first accusatory instrument, the People must be ready to proceed to trial within 90 days less excludable time, if any. CPL § 30.30(1)(b); see CPL § 1.20 (16-17); cf. People v. Stirrup, 91 NY2d 434, 438 (1998)(under CPL § 30.30(5)(b) when a DAT is issued, "the criminal action must be deemed to have commenced on the date the defendant first appears in a local criminal court in response to the ticket.").
On May 10, 2022, the People filed a Certificate of Compliance ("CoC"). On May 24, 2022 defendant moved for an order seeking, inter alia, to invalidate the People's CoC and statement of readiness on the basis that the People failed to serve certain items listed in the CoC. On August 1, 2022 by Decision and Order, the Court invalidated the People's CoC instead of striking it, charged the People 87 days, and noted the People's failure to serve certain items identified as being provided was inadvertent.1 The next day, on August 2, 2022 2 , the People provided the identified but missing discovery items by serving a Supplemental CoC. By invalidating the CoC, the People were permitted to cure defects by filing a supplemental CoC. See People v. Portillo, 73 Misc 3d 216, 246 (Sup. Ct. Suffolk Cnty. 2021)(when the People act in good faith by providing "discovery in harmony with their understanding of the requirements . . . there is no basis to strike the CoC or impose other sanctions."); CPL § 245.50(1). Subsequently, the matter was reassigned to another judge.
On September 16, 2022, the court expressed its belief that once a CoC is deemed invalid the People are " 'supposed to' file a new CoC." To impose its belief the court, sua sponte, orally directed the People to file a new CoC. The case was thereafter adjourned to grant defendant time to review the supplemental CoC and for the People to file a CoC without the word "supplemental". The case was adjourned to October 28, 2022.
CPL § 245.50(1) provides that a CoC "shall identify the items provided." Furthermore, "[n]o adverse consequences to the prosecution or the prosecutor shall result from the filing of a certificate in good faith . . . .". See People v. Gonzalez, 130 N.Y.S.3d 262 (Sup. Ct. Kings Cnty. 2020)("absence of certain discovery items from the disclosure memorialized in the original CoC (such as the scratch complaint report, an updated disclosure letter pertaining to a detective, and the resume of an expert) does not vitiate the original certificate."). "Inadvertent errors or omissions will not automatically invalidate a COC and COR." People v. Pondexter, 76 Misc 3d 349, 353 (Crim. Ct. NY Cnty.).
Under CPL § 245.50(3), once the People file a valid CoC, they are deemed ready for trial. Once the People are deemed ready their speedy trial time is brought to a halt. CPL § 30.30(5); CPL § 245.50(3); see People v. Anderson, 66 NY2d 529 (1985)(speedy trial right under CPL § 30.30 is tied to prosecutorial readiness for trial). However, prior to announcing ready for trial, the People are required to have "done all that is required of them to bring the case to a point where it may be tried". People v. England, 84 NY2d 1, 4 (1994). Moreover, defendant's objections or challenges relating to a CoC must be addressed by motion. CPL § 245.50(4). A motion to dismiss the accusatory instrument must be granted should the People fail to announce ready for trial within 90 days of commencement of a misdemeanor criminal action. CPL § 30.30(1)(b).
A valid CoC can only be filed by the People 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." CPL § 245.50(1). However, the People may cure a defective CoC by filing of a supplemental CoC. Id. Furthermore, the Criminal Procedure Law permits the filing of supplemental CoC since "[t]he Legislature understood that the prosecution could not necessarily supply all discovery materials within the first set of timeframes." People v. Ferrer, 150 N.Y.S.3d 232 (Crim. Ct. Bronx Cnty. 2021). In addition, CPL § 245.60 imposes a duty on the People to notify and disclose material or information as it becomes known to the People. People v. Perez, 144 N.Y.S.3d 332 (Crim. Ct. Bronx Cnty. 2021). Conversely, the Criminal Procedure Law is devoid of requiring service of a "new" CoC when the initial certificate is deemed invalid.
Moreover, defendant has the initial burden of demonstrating that the People exceeded the speedy trial limits set forth in CPL § 30.30(1). However, when a defendant sufficiently alleges that the People were not ready within the statutory period, "the People [have] the burden of showing their entitlement to a statutory exclusion." People v. Luperon, 85 NY2d 71, 81 (1995); People v. Brown, 28 NY3d 392, 403 (2016).
Here, defendant contends that until the People served a new CoC the People's CPL § 30.30 time continued to run. Thus 173 days should be chargeable time against the People. Defendant's computation included the 87 days charged to the People by Decision and Order dated August 1, 2022; 46 days from August 1st to September 16, 2022 when the Court adjourned the case for the People to file a new CoC; plus 40 days from September 17th to October 27, 2022 when the People finally served a new CoC. However, defendant fails to acknowledge that on September 16, 2022 defendant requested time to review the supplemental CoC without requesting that the People's speedy trial clock continue ticking. See CPL 30.30(4)(b)("a reasonable period of delay resulting from other proceedings concerning the defendant" is excludable).
In response the People argue, in part, that the filing of the supplemental CoC along with a statement of readiness on August 2, 2022 satisfied their discovery obligations and not the document filed on October 27, 2022 titled "CoC". Consequently, the CPL § 30.30 clock stopped on August 2, 2022 regardless of the document title. Moreover, the document titled "Supplemental Certificate of Compliance" contained identical disclosure items listed as the document served on October 27, 2022 titled "Certificate of Compliance". Because the People satisfied their discovery obligations when they filed the supplemental CoC, the document title should not be considered.
Accordingly, the court rejects defendant's contention that the period between August 2nd to October 27, 2022 is chargeable time to the People for failing to title the "Supplemental Certificate of Compliance" a "Certificate of Compliance." A document title should not be a dispositive factor when determining discovery compliance. Snediker v. Rockefeller Ctr., Inc., 182 AD2d 585 (1st Dept. 1992)("mislabeling of the summons and complaint . . . was a mere irregularity which did not prejudice the defendants ."); People v. Williams, 959 N.Y.S.2d 91 (Just. Ct. Webster, Monroe Cnty. 2012)(mislabeled section of the misdemeanor complaint did not affect the information contained). Moreover, no real prejudice can be ascribed to defendant compelling consideration to impose dispositive relief for labeling a CoC "supplemental" under these facts. Moreover, striking a CoC and certificate of readiness is a "drastic remedy which should be used both sparingly and judiciously." People v. Nelson, 67 Misc 3d 313, 318 (Franklin Cnty. Ct. 2020).
The Court also finds that the People's August 2, 2022 "Supplemental CoC" was valid. CPL § 245.50(1). Consequently, the statutory speedy trial clock stopped when the supplemental CoC was filed resulting in 88 chargeable days against the People. Hence, having filed the "Supplemental CoC" 2 days prior to the CPL § 30.30 time expiration, the People did satisfy their statutory readiness obligation resulting in defendant's motion to dismiss the accusatory instrument under CPL § 30.30 being denied.
As to defendant's request for a People v. Allard 28 NY3d 41, 45-47 (2016) hearing to resolve disputed issues of material fact, the court finds that People's opposition undeniably refutes defendant's motion by convincing documentary proof. In addition, this court reviewed relevant court transcripts, the court file, and motion papers and concludes that the instant motion can be resolved without the need of a hearing. The record is clear, the Court did not strike the CoC or impose sanctions. See People v. Pealo, 71 Misc 3d 337 (Just. Ct. Penfield, Monroe Cnty. 2021)(court to determine that People failed to act in good faith before striking the CoC or imposing sanctions). The court instead invalidated the People's initial CoC leaving the People with the opportunity to cure the inadvertent defect.
As to challenges to sufficiency of items disclosed in the CoC dated October 27, 2022 raised for the first time in defendant's reply brief, those matters are not properly before this court. See People v. Ford, 69 NY2d 775, 777 (1987); People v. Ackerman, 173 AD3d 1346 (2019), lv denied 34 NY3d 949(2019). CPL § 240.50(4)(b) requires that "[t]o the extent that the party is aware of a potential defect or deficiency related to a CoC or supplemental CoC, the party entitled to disclosure shall notify or alert the opposing party as soon as practicable." Here there is no evidence in the record that defendant alerted the People that discovery remains outstanding.
Accordingly, the defendant's motion to dismiss and for a hearing is denied and to the extent that discovery remains outstanding the parties are directed to confer and resolve those issues within 45 days of the date of this decision. Since defendant filed a reply, which was considered by this court, this request is deemed moot.
This constitutes the decision and order of this court.
Dated: April 9, 2023
Bronx, New York
Carmen A. Pacheco, J.C.C.
1. People v. Alvia, 76 Misc 3d 704 (Crim. Ct. Bronx Cnty. 2022).
2. On August 2, 2022, the People filed a certificate of compliance stating that they disclosed the Disclosure Letter and Lawsuit Information. The People also stated that they disclosed IAB log 2018-15083 in compliance with the Decision and Order dated August 1, 2022, re-sent body worn camera footage and the IDTU to defense. Hence an additional day must be charged to the people.
Carmen A. Pacheco, J.
Response sent, thank you
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Docket No: Docket No. CR-003225-22BX
Decided: April 09, 2023
Court: Criminal Court, City of New York.
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