Opinion
2019BX007394
10-09-2020
The PEOPLE of the State of New York, Plaintiff, v. David DAVIS, Defendant.
ADA Madeline Smith, Bronx County District Attorney's Office Mr. Willoughby Jenett, Esq., The Legal Aid Society, for Defendant
ADA Madeline Smith, Bronx County District Attorney's Office
Mr. Willoughby Jenett, Esq., The Legal Aid Society, for Defendant
Tara A. Collins, J. On June 12, 2020, Governor Cuomo signed a bill repealing Civil Rights Law § 50-a, which protected the police officers' personnel records from public inspection without court approval or, in narrow circumstances, a prosecutor's subpoena (2020 NY Senate-Assembly Bill S8496, A10611). In light of this legislative change, the defendant filed the instant motion to ask the Court to reconsider its earlier decision holding that the People had no obligation to turn over their witness' disciplinary records from an internal investigation by the police department ( 67 Misc. 3d 391, 120 N.Y.S.3d 740 [Crim. Ct., Bronx County 2020] ). In addition, the defendant contends that the People's failure to serve maintenance records for the breathalyzer machine that was used in this case invalidates their Certificate of Compliance ("COC"). Finally, he argues that his statutory speedy trial right was violated by the ineffective COC and moves for dismissal under CPL § 30.30.
Based upon the recent legislative changes, the Court GRANTS the defendant's motion to renew ( CPLR § 2221 [e] ). Upon reconsideration, the Court adheres to its ruling from February 20, 2020. For the reasons stated below, the Court also rejects the defendant's motion to deem the COC invalid for the prosecution's failure to provide maintenance records. As for the defendant's motion to dismiss, the Court concludes that sixty-four [64] days are chargeable. Accordingly, the defendant's motion is DENIED in its entirety.
FACTUAL AND PROCEDURAL BACKGROUND
The defendant was arrested on March 15, 2019 and charged with two counts of Driving While Intoxicated ( VTL § 1192 [2], [3] ; "DWI") and one count of Driving While Ability Impaired ( VTL § 1192 [1] ). On January 20, 2020, the People filed and served off-calendar their automatic disclosure form. They also filed and served a COC and a statement of readiness during the defendant's court appearance on January 23, 2020. A one-page document titled "Giglio Material" was attached to the COC and it provided, in relevant portions, "PO Lyubchenko received a partially substantiated IAB, where no action was taken for an incomplete/inaccurate property clerk invoice on 08/05/2019."
On January 23, 2020, defense counsel challenged the validity of the COC on several grounds. As relevant to the decision here, he argued that the People's disclosure of Officer Lyubchenko's partially substantiated complaint without also providing the underlying reports fell short of meeting their Brady and discovery obligations (see Giglio v. United States , 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 [1972] ; Brady v. Maryland , 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 [1963] ; CPL § 245.20 [1] [k] ). He maintained that at a minimum, the People needed to provide substantive materials from the Internal Affairs Bureau ("IAB") investigation to the Court for an in camera review.
On the other hand, the People opposed by claiming that the IAB records sought by the defense were privileged internal police agency documents that may not be accessed without a subpoena or an order by the court. They further objected on relevance grounds because there were no issues relating to accuracy of the property invoice in this case. Defense counsel rebutted generally by pointing out that most of the DWI cases involve challenging police paperwork at trial.
After oral argument, the Court directed the People to provide all of the IAB documents in their possession for an in camera review. The People promptly provided a two-page document titled, "New York City Police Department Central Personnel Index." The Court then adjourned the case for further written submissions by the parties and adjourned the case for decision to February 20, 2020.
On February 20, the Court issued a written decision ("February 20 decision") holding, in part, that the People were not required to provide any more records from the IAB investigation. During the court appearance, defense counsel informed the Court that he was made aware during the appearance of an unrelated case that the Intoxilyzer machine that was used in this case had been taken out of service in July and August 2019. He further stated that he did not have any maintenance records related to this. The People stated that they did not know that the machine was taken out of service, but they agreed that if the out-of-service documents existed, they would be discoverable pursuant to CPL § 245.20 (1) (s).
Based on this new development, the Court directed the People to provide the records to the defense immediately and to file a supplemental COC. Defense objected, arguing that the COC has been invalidated based on the People's failure furnish all of the required discovery materials. The Court rejected that argument and held that the COC from January 23 was valid. The case was then adjourned to March 26 for hearings and trial. It is undisputed that the People provided the maintenance records to the defense counsel on February 20. They also filed a supplemental COC on the following day, February 21.
Prior to the next scheduled court date, the entire court system in New York had to shut down the administration of non-essential services due to the COVID-19 pandemic. As such, this case has not been heard on the record since February 20. In the meantime, on June 12, 2020, a bill repealing Civil Rights Law § 50-a was signed into law, effective immediately (2020 NY Senate-Assembly Bill S8496, A10611). Defense counsel e-mailed the Court on June 17, 2020, asking for reconsideration of the February 20 decision as the now-repealed statute was a part of the basis for why his motion for the underlying IAB records was denied. The Court invited a formal written submission by the defense, but none was received.
Subsequently, during a virtual SKYPE meeting with the Court on August 7, 2020, defense counsel renewed his motion orally. The Court once again invited written submissions from the parties. Defense filed the instant motion on August 22, 2020; the People timely responded on September 14, 2020.
LEGAL DISCUSSION
The People Have No Obligation to Provide Documents from the IAB Investigation After the oral argument on January 23, 2020, the People provided a two-page document titled "New York City Police Department Central Personnel Index" for Officer Lyubchenko ("CPI"). They also represented that this document constituted all of the records in their possession related to the partially substantiated complaint against the officer. This document listed the charges filed against the officer and the results of the investigation. At the same time, it did not have any attached reports nor contain information about the underlying facts.
In the February 20 decision, the Court held that CPL § 245.20 (1) (k) is a codification of existing Brady case law and did not expand the prosecutor's duties (February 20 Decision, 6-7; see also William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, CPL 245.10 ) [Note: online version]. In other words, if something is Brady material, not only do the federal and New York State constitutions require the prosecution to disclose it, but the discovery statute does so as well — and it must be disclosed as part of the "automatic discovery" without a specific demand from the defendant ( CPL § 245.20 [1] [k] ). By the same token, if something is not Brady material, the new discovery statute does not mandate more from the prosecutor and there is no added duty to disclose.
One of the practical imports of this legislative reform may be changing the applicable standard of review on appeal. For instance, "[t]he general standard to measure the materiality of the failure to disclose Brady material, where there was no specific defense request for information in question, is whether there was a 'reasonable probability' that, had the evidence been disclosed to the defense, the result of the prosecution would have been different" (People v. Vasquez , 214 A.D.2d 93, 101, 631 N.Y.S.2d 322 [1st Dept. 1995] [internal citation omitted] ). In comparison, where the prosecution fails to disclose material specifically requested by the defense, the standard changes to the "reasonable possibility" standard (id. [internal citation omitted] ). Moreover, this legislative change may affect the question of whether the defendant has the right to challenge the validity of a guilty plea when post-plea Brady information becomes known (see e.g. People v. Martin , 240 A.D.2d 5, 669 N.Y.S.2d 268 [1st Dept. 1998] ; People v. Day , 150 A.D.2d 595, 541 N.Y.S.2d 463 [1st Dept. 1989] ).
Under this framework, since the People would have no obligation to disclose the exonerated claims against the officers to the defense under the traditional Brady analysis, the Court held that "the District Attorney had no duty [under the new discovery statute] to disclose the unsubstantiated allegations of misconduct that had been filed against the officers" (February 20 decision, at 12, citing People v. Ortega , 12 Misc.3d 1182(A), 2006 WL 1982648, *5 [Sup. Ct., N.Y. County 2006] ). As for the partially substantiated charge of incomplete/inaccurate property clerk invoice, the Court conducted a balancing test between the interest in protecting the confidentiality of personnel and disciplinary records of law enforcement officers against the defendant's Sixth Amendment right to confront and cross-examine adverse witnesses (see id. at 12-13). Ultimately, the Court ruled that the defendant failed to make a "clear showing of facts sufficient to warrant the judge to request records for review" and denied the defendant's motion (id. , citing CRL § 50-a [2], [3] [repealed June 12, 2020] ).
Although the Court has previously characterized the claims against Officer Lyubchenko as "unsubstantiated" (February 20 decision, 12), the Court has re-reviewed the CPI, and it shows "overall disposition" as the officer being "exonerated." Only the allegation of "report incomplete/inaccurate — property clerk invoice" was adjudicated to be "unfounded," and the "overall disposition" was "partially substantiated." It further shows that no action was taken.
In the instant motion, the defendant asks the Court to reconsider the February 20 decision based on the repeal of 50-a. Because Officer Lyubchenko's privacy interests are not protected by the statute any more (subject to Public Officers Law §§ 86 and 87 in the case of requests arising under the Freedom of Information Law), the defendant contends that the balancing test is no longer required and the only reigning consideration is his constitutional right to confront and cross-examine witnesses. In that regard, the defendant claims that only the broad mandate of the discovery statute is controlling, and it extends to the underlying materials from the investigation. In addition, he argues that under People v. Smith, 27 N.Y.3d 652, 36 N.Y.S.3d 861, 57 N.E.3d 53 [2016], even the unsubstantiated claims of misconduct give him a good faith basis to ask questions about them. If he can ask questions about them, he maintains, he is entitled to obtain such records from the prosecution. Finally, the defendant argues that CPI is merely a summary, and the People must review all of the documents related to the investigation to meet their Brady and discovery obligations.
On the other hand, the People urge the Court uphold its earlier decision. They argue that the repeal of 50-a did little to change the legal analysis contained in the February 20 decision. They cite several recent trial court cases that have held that the prosecutor's Brady obligation was fully discharged by disclosing information regarding the officer's misconduct without also having to obtain and produce the underlying records. Further, the People contend that because 50-a has been repealed, the defense is now able to request and obtain the disciplinary records as well.
Having carefully re-considered the issues presented herein in light of the repeal of Civil Rights Law § 50-a, the Court once again rejects the defendant's motion. The prosecution's Brady obligation extends to the information that is "favorable to the defense, material either to guilt or punishment, or affecting the credibility of prosecution witnesses" ( People v. Baxley , 84 N.Y.2d 208, 213, 616 N.Y.S.2d 7, 639 N.E.2d 746 [1994] ). Since they have no effect on the witness's credibility, unfounded or exonerated claims do not fall within the category of favorable information that must be disclosed regardless of whether 50-a protects the officer's personnel records (see also People v. Randolph , ––– Misc.3d ––––, ––––, 132 N.Y.S.3d 726 [Sup. Ct., Suffolk County 2020] ["IAB files involving allegations that have been determined to be exonerated or unfound[ed] are not required to be provided as part of automatic discovery"] ). Nor does the discovery statute require more disclosure.
The defendant's reliance on Smith is misplaced as well. The central issue in Smith was "whether the trial courts abused their discretion in precluding any cross-examination into allegations of a law enforcement officer's prior misconduct made in an unrelated federal lawsuit" ( supra , at 659, 36 N.Y.S.3d 861, 57 N.E.3d 53 ). After deciding that civil lawsuits could provide a good-faith basis for cross-examination at trial, the Court of Appeals held that the trial courts' preclusion of the defense from asking questions about them was an abuse of discretion. At the same time, the Court cautioned that "the specific allegations must be relevant to that witness's credibility" and "whether to permit inquiry into such prior bad acts for impeachment purposes are discretionary calls" for the trial courts ( id. at 662-663, 36 N.Y.S.3d 861, 57 N.E.3d 53 ).
In the instant case, by arguing that Smith mandates the prosecutor to provide the underlying IAB materials, the defendant conflates the issues of his right to cross examine and the prosecutor's duty to disclose. As noted above, the People are not required to produce any documents related to the claims of misconduct in which the officer was exonerated as they do not constitute Brady material. In addition, because the officer was exonerated, the defendant has no good faith basis for cross examination about those claims ( Randolph , supra , at ––––, 132 N.Y.S.3d 726 ). With regards to the partially substantiated complaint, the Court once again determines that the prosecutor has fully and adequately discharged her duties. A recent case, People v. Suprenant, ––– Misc.3d ––––, 130 N.Y.S.3d 633 [Glens Falls City Ct., 2020], is directly on point. In that case, the defendant was charged with several misdemeanor crimes of criminal mischief and petit larceny. The People filed a COC on April 3, 2020. Following the repeal of 50-a, defense counsel challenged the COC's validity by claiming, among others, that the police officer witnesses' internal disciplinary records were not produced. The People asserted that they met both their Brady and discovery obligations by providing to defense counsel information about the disciplinary actions and a method to obtain them directly from the police agency.
The Court notes that the underlying charge was adjudicated to be "unfounded" and the defendant's request could be denied on that ground as well.
The Suprenant Court agreed with the People. It concluded that "contrary to the defendant's assertion, CPL 245 does not mandate the People to obtain the police officer's disciplinary files for the defendant and produce those files to defense counsel" ( id. at ––––, 130 N.Y.S.3d 633 ). Instead, the court pointed to the language of the statute, which "clearly provides that the 'prosecutor shall make a diligent, good faith effort to ascertain the existence of material or information discoverable ... and to cause such material or information to be made available for discovery ..." ( id. , citing CPL § 245.20 [2] [emphasis original] ). Based on this language, the court determined that the People's discovery obligation was satisfied "where they disclose the existence of the officer's disciplinary records and either produce copies of the records or cause the material or information to be made available to defense counsel" ( id. ).
The reasoning and holding in Suprenant are persuasive. To begin, as in the February 20 decision, the Court once again finds that the defendant has failed to provide a compelling reason for why the incomplete property invoice claim is relevant and material to his guilt or innocence or the officer's credibility in this case. It is well-settled that nondisclosure of the evidence that has the "mere general impeachment value" does not constitute a Brady violation ( Martin , 240 A.D.2d at 5, 669 N.Y.S.2d 268 ; People v. Fernandez , 249 A.D.2d 3, 5, 670 N.Y.S.2d 840 [1st Dept. 1998] ["where the impeachment information has no bearing on defendant's guilt or innocence, such as where the prosecution witness's misconduct is completely unrelated to the trial at which he is testifying and the witness's testimony is not crucial to the prosecution's case, its nondisclosure does not constitute a Brady violation"] ). Furthermore, the plain language of the new discovery statute only requires the People to disclose the information that is favorable to the defendant, but not necessarily the underlying material as well. Requiring the People to produce the underlying records would be "an onerous requirement" that "would go far beyond 'a diligent, good faith effort' on the People's part to provide the defendant with impeachment material related to one of their witnesses" ( People v. Lustig , 68 Misc. 3d 234, 243-244, 123 N.Y.S.3d 469 [Sup. Ct., Queens County 2020] ; see also People v. Knight , 69 Misc.3d 546, 130 N.Y.S.3d 919 [Sup. Ct., Kings County 2020] [rejecting the defendant's claim that the prosecution must produce underlying records in addition to the disclosure of alleged misconduct by the police witnesses to satisfy their obligation under CPL § 245.20 [1] [k] [iv] ]; People v. Gonzalez , 68 Misc. 3d 1213(A), 2020 WL 4873901, at *2 [Sup. Ct., Kings County Aug. 19, 2020] [holding that the People's disclosure that a potential witness had two substantiated allegations and one pending allegation of misconduct unrelated to the case satisfied their obligation under CPL § 245.20 [1] [k] [iv] ] ). This is especially so when, with the repeal of 50-a, the information is equally accessible to the defense.
Finally, the Court also rejects the defendant's argument that the assigned prosecutor must review all of the underlying documentation from the IAB investigation rather than relying on the CPI. Since the defendant has been made aware of the partially substantiated complaint, nondisclosure of the underlying materials cannot be considered a Brady violation ( People v. Wade , 166 A.D.3d 912, 913, 88 N.Y.S.3d 239 [2d Dept. 2018] ). Even assuming, arguendo , that there is more favorable information in the form of impeachment materials, a prosecutor's " ‘duty to learn’ of favorable evidence known to those ‘acting on the government's behalf’ has generally been held to include information that directly relates to the prosecution or investigation of the defendant's case" ( People v. Garrett , 23 N.Y.3d 878, 888, 994 N.Y.S.2d 22, 18 N.E.3d 722 [2014] ). The materials at issue are from different incidents and bears "no relationship to the case against the defendant, except insofar as it would be used for impeachment purposes" ( id. ). Accordingly, any knowledge may not be imputed to the prosecutor, nor is there a "rule that would impose an affirmative duty upon the police to obtain potentially exculpatory evidence for the benefit of a criminal defendant" ( People v. Hayes , 17 N.Y.3d 46, 51, 926 N.Y.S.2d 382, 950 N.E.2d 118 [2011] ).
For the foregoing reasons, the defendant's motion to direct the People to disclose materials related to Officer Lyubchenko's IAB investigation is denied.
Defendant's Challenge to the COC's Validity is Denied
In a criminal case, a prosecutor has a duty to disclose certain items in their possession, custody or control to the defendant before a case may be brought to trial. New discovery laws that became effective on January 1, 2020, provided a non-exclusive list of items that must be disclosed "automatically," without a specific demand from the defendant ( CPL § 245.20 [1] ). The timing of the automatic discovery and what may be held back by the prosecution without a protective order were subsequently amended (see e.g. CPL §§ 240.10 and 245.20, as amended by L. 2020, c. 56. HHH, § 2 [effective May 3, 2020] ).
Under either iteration of the discovery statute, when the prosecution has provided discovery required by the statute, they must file and serve a COC pursuant to CPL § 245.50 (1). The COC must 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" ( CPL § 245.50 [1] ). The statute also requires the COC to identify the items provided (id. ).
The prosecutor also has a continuing duty to disclose ( CPL § 245.60 ). If the People learn of additional material or information which should have been disclosed under CPL § 245.50 (1), they must "expeditiously notify the other party and disclose the additional material and information" (id. ). In such an event, the People must also file and serve a supplemental certificate of compliance, which must list the additional material and information provided ( CPL § 245.50 [1] ). Finally, "[n]o 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" although the court "may grant a remedy or sanction for a discovery violation" (id. ).
The defendant challenges the validity of the People's COC from January 23, 2020 ("January 23 COC") on the grounds that they did not disclose nor produce out-of-service records for the breathalyzer machine that was used during his arrest (Intoxilyzer 9000 instrument No. 90-002040). More specifically, a field inspection report dated July 26, 2019, states that the breathalyzer was "taken out of service 7/25/19 at 2200 hrs due to simulator overheating. Simulator MP4514 has been replaced by simulator MP4515. Simulator solution was changed with new solution, same lot 19090. Upon inspection instrument was found to be in proper working order and placed back in service" (People's Exhibit 6). In addition, there is a handwritten note from Highway Officer Coffey from August 5, 2019, which states that "INTOXILYZER 9000 SERIAL NUMBER 90-002040 IS OUT OF SERVICE DUE TO SIMULATOR SOLUTION FAILURE" (People's Exhibit 4). It is undisputed that these documents would have been discoverable under CPL § 245.20 (1) (s), and that they had not been furnished prior to February 20, 2020. It is further undisputed that the prosecutor immediately provided the items in question on February 20 after the defense counsel's demand on the record. A supplemental COC was filed on February 21, 2020.
On the one hand, defense claims that the January 23 COC cannot be deemed valid as the People failed to provide all of the items that should have been disclosed prior to its filing. On the other, the People assert that they were unaware of the existence of these materials and they had made a good faith effort to obtain and furnish all of the discoverable items prior to their January 23 COC. Furthermore, they argue that the maintenance records at issue were obtained and provided to the defense counsel as soon as their existence was learned, and that the defense suffered no prejudice as a result of this nondisclosure. The defendant does not challenge the prosecutor's assertion that she was unaware of these documents (Tr. at 3 lines 9-10 [Feb. 20, 2020] ). At the same time, he contends that even if the assigned prosecutor did not know about the existence of these materials, it was still within the general knowledge of the New York City Police Department and the Bronx District Attorney's Office.
The Court orally accepted the People's January 23 COC and again in its written decision on February 20, 2020 and sees no reason to disturb them. First and foremost, the Court finds that the People exercised due diligence and made a good-faith effort to obtain and provide all of the discoverable items to the defense in a timely fashion. A quick inspection of the January 23 COC reveals that the People have provided the following items: arrest report, sprint/radio run reports, DA summary, prisoner movement slip, NYSPIN records, IDTU video, calibration reports, breath analysis test report, chemical test analysis, intoxicated driver arrest report, interrogation warnings to persons in police custody, highway district intoxicated driver examination, Intoxilyzer 9000 NHTSA approved, gas chromatography data, IDTU officer's health cards, calibration reports for PBT, dash camera footage, calibration reports, field unit inspection reports, simulator solution records, IDTU roll call logs, IDTU command logs, PO Lyubchenko's memo book, radio run audio, PO Vitale's memo book, and Giglio material. The COC further states that the People have disclosed these items over multiple dates, May 13, 2019, December 12, 2019, January 21, 2020, and January 22, 2020.
Under such circumstances, although the maintenance records may have been within the general knowledge of the police department and/or the prosecutor's office, Judge Hornstein's language in People v. Erby resonates with the Court: "the new discovery law, designed as it was to be remedial in nature, should not be construed as an inescapable trap for the diligent prosecutor who professionally, assiduously and in good faith attempts to comply with their new and extensive requirements under the discovery statute, but through no fault of his or her own, is unable to comply with every aspect of the automatic discovery rules specified in CPL § 245.20" ( 68 Misc. 3d 625, 633, 128 N.Y.S.3d 418 [Sup. Ct., Bronx County 2020] ). The Court finds that the prosecutor's initial disclosures were reasonable and made after exercising due diligence ( CPL § 245.50 [1] ).
Moreover, it is clear that the prosecutor has appropriately discharged her continuing duty to disclose under CPL § 245.60. As soon as she learned of the materials that should have been disclosed, she obtained and made them available to the defense expeditiously. As a result, the defendant did not suffer any prejudice. Thus, the branch of the defendant's motion that seeks to have the January 23 COC invalidated by the People's subsequent disclosure of the breathalyzer's out-of-service records is denied (see also People v. Nelson , 67 Misc. 3d 313, 314, 119 N.Y.S.3d 837 [Franklin County Ct. 2020] ; Knight , supra , at 552, 130 N.Y.S.3d 919 ["very few discovery items were provided to defendant after the People's certificate of compliance dated February 21, 2020. Their absence from the original certificate of compliance does not vitiate it"]; cf. People v. Adrovic , 69 Misc.3d 563, 130 N.Y.S.3d 614 [Crim. Ct., Kings County 2020] [COC deemed invalid in a drug possession case where the People did not disclose necessary lab reports, police officer memo books, names and affiliations, and provided no reasonable explanation for failure to disclose the materials] ).
Defendant's Motion to Dismiss is Denied
The People have a duty to bring a case to trial within the authorized speedy trial time. Their failure to do so results in dismissal of the charges against the defendant. Under CPL § 30.30, the People satisfy their obligation once they declare their readiness for trial ( People v. Giordano , 56 N.Y.2d 524, 449 N.Y.S.2d 955, 434 N.E.2d 1333 [1982] ). The People are "ready" for trial when they serve "either a statement of readiness by the prosecutor in open court, transcribed by a stenographer, or recorded by the clerk or a written notice of readiness sent by the prosecutor to both defense counsel and the appropriate court clerk" ( People v. Chavis , 91 N.Y.2d 500, 505, 673 N.Y.S.2d 29, 695 N.E.2d 1110 [1998] ). The People must "in fact be ready to proceed at the time they declare readiness" ( id. ). The People's declaration of readiness is "presumed truthful and accurate" and "a defendant who challenges such a statement must demonstrate that it is illusory" ( People v. Brown , 28 N.Y.3d 392, 405, 45 N.Y.S.3d 320, 68 N.E.3d 45 [2016] ).
In a motion to dismiss pursuant to CPL § 30.30, the initial burden rests on the defendant to allege that his right to speedy trial has been violated (See People v. Luperon , 85 N.Y.2d 71, 77-78, 623 N.Y.S.2d 735, 647 N.E.2d 1243 [1995] ). Then, the burden shifts to the People to identify "the exclusions on which they intend to rely" ( id. at 78, 623 N.Y.S.2d 735, 647 N.E.2d 1243 ). If the defendant disagrees, she "must identify any legal or factual impediments to the use of these exclusions" ( id. ).
In this case, the defendant is charged with VTL §§ 1192 (2) and (3), and the applicable speedy trial time is ninety days ( CPL § 30.30 [1] [b] ). The parties do not dispute, and the Court agrees, that a total of forty-one [41] days are chargeable from the date of arraignment to December 16, 2019. What is disputed is whether the period from January 23, 2020 is chargeable based on the defendant's challenge to the People's COC. The following constitute the Court's analysis:
December 16, 2019 — January 23, 2020
On December 16, 2019, the People answered ready for trial. The case was adjourned to January 23, 2020 at the defense request. On January 1, 2020, a new procedural framework for discovery compliance and trial readiness went into effect. Among those was CPL § 245.50 (3), which provides, "absent an individualized finding of special circumstances," the People cannot be deemed ready for trial purposes unless a proper COC has been filed (id. ). As the procedural changes apply to all pending matters, the People in the instant case must also file a COC before they may announce ready for trial ( People v. Berkowitz , 68 Misc. 3d 1222(A), 2020 WL 5508068, at *4 [Crim. Ct., Kings County 2020] ["The statutory amendments concerning the speedy trial and discovery law apply to all pending proceedings as of the January 1, 2020 effective date"], citing McKinney's Consolidated Laws of NY § 55 ; Wade v. Byung Yang Kim , 250 A.D.2d 323, 681 N.Y.S.2d 355 [2d Dept. 1998] ; People v. Lobato , 66 Misc. 3d 1230(A), 2020 WL 1071377, at *3 [Crim. Ct., Kings County 2020]. Accordingly, the period from January 1, 2020, until January 23, 2020 when the COC was filed is chargeable (see People v. Villamar , ––– Misc.3d ––––, 132 N.Y.S.3d 593 [Crim. Ct., New York County 2020] [Prosecution may not answer ready for trial until it has filed a proper COC]; People v. Adrovic , 69 Misc.3d 563, 567 130 N.Y.S.3d 614 [Crim. Ct., New York County 2020]; People v. Barnett , 68 Misc..3d 1000, 1002-03, 129 N.Y.S.3d 293 [Sup. Ct., New York County, 2020]. ; Cf. People v. Roland , 67 Misc. 3d 330, 121 N.Y.S.3d 550 [Crim. Ct., New York County 2020] [first fifteen days from January 1, 2020 are excluded for the purposes of speedy trial calculations]; People v. Dobrzenski , 69 Misc.3d 333, 130 N.Y.S.3d 238 [Oneida County City Court, 2020] ).
For the reasons discussed in the February 20 decision as well as the previous section of this decision (see supra , ––––. The People Have No Obligation to Provide Documents from the IAB Investigation), the Court rejects the defendant's argument that the COC was invalid. Twenty-three [23] days are charged.
January 23, 2020 — February 20, 2020
On January 23, 2020, the People announced ready for hearings and trial. The defendant was on alert but was directed to appear as the case was being sent to a trial part. When the case was received by the Court in TP6, the People informed the Court and the defense that the precinct's roll call had released the officers. The defendant did not appear as he could not leave work.
During the court appearance, defense counsel raised various issues with the validity of the People's COC from January 23 and their statement of readiness. The Court set a motion schedule at the defense request and adjourned the case for a decision on February 20, 2020. This period is not chargeable pursuant to CPL § 30.30 (4) (a) (See also People v. Douglas , 209 A.D.2d 161, 162, 617 N.Y.S.2d 765 [1st Dept. 1994] ). Zero [0] days are charged. February 20, 2020 — Now
Both the defense and the prosecution filed their motions timely on February 10, 2020. The Court issued a written decision on February 20, 2020. As relevant to the instant decision, and discussed above (supra , ––––. Defendant's Challenge to the COC's Validity is Denied), the Court accepts the COC and the People's trial readiness from January 23. The case was adjourned to March 26, 2020 for hearings and trial.
On March 7, 2020, due to the pandemic, Governor Cuomo issued Executive Order Number 202 and declared a state of emergency for the entire State of New York (Executive Order [Cuomo] No. 202 [ 9 NYCRR 8.202 ] ). On March 20, 2020, he issued Executive Order Number 202.8, which suspended criminal procedure law until April 19, 2020 (Executive Order [Cuomo] No. 202.8 [ 9 NYCRR 8.202.8 ] ). There have been consecutive executive orders and the statutory speedy trial statute has remained suspended since. The Bronx criminal court suspended its non-essential services around this time as well and the case was administratively adjourned from March 26 to June 26; and from June 26 to October 9, 2020. This period is not chargeable because the People's COC was valid and the Court is satisfied with the People's statement of readiness from January 23. Zero [0] days are charged.
The new executive order issued on October 4, 2020, brings some aspects of CPL § 30.30 back in effect, but is not relevant for this decision (Executive Order [Cuomo] No. 202.67 [9 NYCRR 8.202.67] ).
Based on the foregoing reasons, the Courts finds that a total of sixty-four [64] days are chargeable. Accordingly, the defendant's motion to dismiss pursuant to CPL § 30.30 (1) (b) is denied.
This constitutes the decision and order of this Court.