Opinion
No. CR-0017449-22BX
11-15-2023
The People of the State of New York, v. Antonio Flores-Garcia, Defendant.
For the People: Darcel D. Clark, District Attorney, Bronx County (by: Carole Liscio, Assistant District Attorney) For the Defendant: The Bronx Defenders (by: Edward Soto, Esq.)
Unpublished Opinion
For the People: Darcel D. Clark, District Attorney, Bronx County (by: Carole Liscio, Assistant District Attorney)
For the Defendant: The Bronx Defenders (by: Edward Soto, Esq.)
Yadhira González-Taylor, J.
On July 20, 2023 (the "July Motion"), defendant moved for dismissal of the misdemeanor charges on statutory speedy trial grounds pursuant to Criminal Procedure Law ("CPL") §§ 30.30 (1) (b) and 170.30 (1) (e). Specifically, defendant asserts that dismissal is warranted where the prosecution failed to comply with a court order which mandated that they disclose enumerated unredacted portions of six IAB logs by May 10, 2023. Defense counsel further argues that the case must be dismissed if the People are charged with the period of their non-compliance. The People did not file an opposition to the July Motion.
Upon review and consideration of defendant's submission, court file and relevant legal authority, the Court finds that where the prosecution has neither served nor filed papers responsive to the July Motion, nor complied with their statutory obligation pursuant to CPL §§ 245.50 (1) and 245.50 (1-a), the People failed to toll their speedy trial clock and the motion is GRANTED.
RELEVANT PROCEDURAL HISTORY
Defendant Antonio Flores Garcia was arrested on October 1, 2022, and charged with Vehicle and Traffic Law ("VTL") §§ 1192 (3) (driving while intoxicated) and VTL § 1192 (1) (driving while impaired), a misdemeanor and a violation, respectively. By omnibus motion dated February 16, 2023 (the "February Motion"), defendant moved, inter alia, for dismissal of the accusatory instrument because the People's Certification of Compliance ("CoC") and supplemental CoC ("SCoC"), filed December 27, 2022 and January 26, 2023, respectively, were purportedly invalid. The gravamen of defendant's February Motion was that dismissal was warranted where disclosed Giglio materials had been redacted without the court's consent. Parenthetically, the motion schedule had been set after the People filed a motion for a protective order pursuant to CPL §§ 245.70 (1) and 245.70 (2) on January 27, 2023.
On April 26, 2023, Hon. Giyang An issued a Decision and Order for the February Motion which: 1) deemed the People's CoC and SCoC to be valid; 2) denied defendant's motion to dismiss, and 3) ordered disclosure of enumerated unredacted entries and/or category headings for: IAB Log No. 2020-8128, Summary for IAB Log No. 2020-8128, IAB Log No. 2019-12126; Summary for IAB Log No. 2019-12126, IAB Log No. 2018-28967; and Summary for IAB Log No. 2018-28967. The People were directed to disclose their unredacted IAB records by May 10, 2023.
Although the docket was scheduled for hearings and trials on June 29, 2023, after defense counsel advised the Court that he was still not in possession of unredacted Giglio materials, the following motion schedule was set: defendant's motion by July 20, 2023, the People's opposition by August 10, 2023 and any reply by defendant by August 24, 2023.
RELEVANT BACKGROUND
On September 12, 2023, the Court was informed that the docket was reassigned to another ADA, who then advised that she would check her file to ascertain if the People ever responded to the July Motion. At the next court appearance on October 4, 2023, before Hon. Deronn E. Bowen, the prosecution was unable to confirm whether they had responded to the July Motion and the docket was adjourned to. On October 6, 2023, the newly assigned ADA forwarded to the Court a copy of the People's opposition to the February Motion, to which defense counsel immediately replied to alert the ADA that the brief was not responsive to the instant motion. The Court was copied on an email exchange wherein defense counsel obliged the assigned ADA's request for a copy of defendant's July motion. Defense counsel has confirmed that he did not receive a response, nor is there any record in the court file that the People opposed the motion.
DISCUSSION
I. Defendant's Arguments
Defendant avers that Judge An ordered the People to unredact at least six Giglio disclosures (affirmation of defendant's counsel at 3). Counsel states that the prosecution did not comply with the court's order to disclose unredacted materials by May 10, 2023 (affirmation of defendant's counsel at 3). Defendant asserts that unredacted Giglio materials were not disclosed until after the July Motion schedule was set on June 29, 2023 (affirmation of defendant's counsel at 4). However, defendant argues that the prosecution did not file a second SCoC with their June 29, 2023 disclosures (affirmation of defendant's counsel at 4).
Counsel further maintains that the prosecution should be charged with 50 additional days of speedy trial time for the period of their non-compliance (memorandum of defendant's counsel at 7). Lastly, defense argues that the prosecution of the misdemeanor instrument has been untimely because 135 days are chargeable to the People (memorandum of defendant's counsel at 7).
II. The Court's Analysis
Criminal Procedure Law § 245.50 (1) provides, in pertinent part, "(t)he 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" (see CPL § 245.50 [1]; see also People v Amissah, 79 Misc.3d 401, 406-07 [Crim Ct, Bronx County 2023]; People v Henriquez, 80 Misc.3d 1220 [A], 2023 NY Slip Op 51044 [U], *8-9). In Amissah, this Court recognized that:
"(t)here is no appellate guidance concerning the timeframe for filing a supplemental, or even an initial COC, following disclosure under CPL § 245.50 (1) - although it is evident that the filing stops the People's readiness clock. Therefore, a timely filing would be expected either contemporaneously or shortly after discovery is provided to defense and, not just for the People to stop the clock, but also to give the defense a fair opportunity to review and object to, if necessary, the validity of the SCOC."
(see Amissah at 406-407).
If the Court credits defense counsel's representation that the People finally complied with Judge An's order to disclose unredacted Giglio materials on June 29, 2023, 49 days after the court's deadline, the prosecution, having failed to respond to the instant motion, has not proffered evidence of special circumstances which justified untimely compliance with the court's order, nor any argument that a second SCoC was not required.
We have already rejected the notion that the filing of a SCoC following supplemental disclosure is merely gratuitous, or that the Legislature contemplated open-ended compliance with CPL § 245.50 (1) such that the timing of a SCoC filing is of no consequence (Amissah at 408; see also Henriquez at *9). Moreover, unlike the prosecution in Amissah and Henriquez, where a SCoC was eventually filed 32 and 50 days after disclosure, respectively, there is no evidence at bar that the People have complied with CPL § 245.50 (1) concerning their belated unredacted Giglio materials, nor will the Court infer an argument on the People's behalf.
It should also be noted that pursuant to CPL 245.70 (2), "(u)pon motion of a party in an individual case, the court may alter the time periods for discovery imposed by this article upon a showing of good cause" (see CPL 245.70 [2]; see also CPL 245.50 [3]). Thus, after the court partially granted their motion for a protective order concerning certain IAB entries, the People inexplicably failed to exercise their statutory recourse to request a modification of Judge An's order to accommodate their delayed disclosure. The record at bar is devoid of any explanation or evidence of special circumstances that would have justified the prosecution's belated disclosure despite the court's May 10, 2023 deadline.
Additionally, as this Court held in People v Infante, "(t)he prosecution's pronouncement of readiness will stop its speedy trial time pending subsequent review by the court" (see Infante, 79 Misc.3d 1222 [A], 2023 NY Slip Op 50705 [U], *4-5 [Crim Ct, Bronx County 2023). Accordingly, because there is no proof that the People served and filed a second SCoC or a second Statement of Readiness ("SoR') contemporaneously with their June 29, 2023 unredacted Giglio disclosures, the Court finds that the CoC and SCoC filed on December 27, 2022 and January 26, 2023, respectively, were illusory (see Infante at *4-5 citing People v Pierna, 74 Misc.3d 1072, 1093 [Crim Ct, Bronx County 2022]["(s)ignificantly, CPL article 245 now ties the People's good faith compliance with their discovery obligations to the calculation of speedy trial time pursuant to CPL 30.30" and [where a court finds] "a failure to comply with disclosure obligations pursuant to CPL § 245.20 rendered a CoC illusory, the People would be charged speedy trial time"]).
Accordingly, this Court finds that the People's CoC and SCoC did not toll their speedy trial time accrual and the prosecution is properly charged with 49 days for their non-compliance (May 11, 2023 to June 29, 2023).
III. The CPL § 30.30 Calculation
In a motion to dismiss an accusatory instrument where the top charge is a misdemeanor, pursuant to CPL § 30.30 (1), defendant has the initial burden to demonstrate that the prosecution failed to declare readiness for trial within the statutorily prescribed time, 90 days (see CPL § 30.30 [1] [b]; see also People v Flores, 79 Misc.3d 1239 [A], 2023 NY Slip Op 50834 [U], *2 [Crim Ct, Bronx County 2023] citing People v Galino, 38 N.Y.3d 199, 205 [Ct of App 2022]; see also CPL § 30.30 [4]). The burden then shifts to the People to identify excludable delays (see People v Luperon, 85 N.Y.2d 71, 77-78 [1995] ["(T)he People must ordinarily identify the exclusions on which they intend to rely, and the defense must identify any legal or factual impediments to the use of these exclusions"]).
In the case at bar, the People's 30.30 calculation commenced the day after defendant's arraignment, October 3, 2022. At the court appearance on November 2, 2022, the People were not ready for trial (October 3, 2022 to November 2, 2022 = 30 days chargeable). On December 27, 2022, the People filed their CoC and SoR off-calendar (November 2, 2022 to December 27, 2022 = 55 days chargeable). At the next court appearance on January 6, 2023, the People advised the court that they had declared their trial readiness (December 27, 2022 to January 6, 2023 = 0 days chargeable). On January 27, 2023, the People filed their motion for a protective order and a motion schedule was set (January 6, 2023 to January 27, 2023 = 0 days chargeable). On April 17, 2023, the court adjourned the docket for Decision and Order (January 27, 2023 to April 17, 2023 = 0 days chargeable).
On the return date, the court issued its Decision and Order and directed the People to comply with outstanding unredacted Giglio disclosures by May 10, 2023 (April 26, 2023 to May 10, 2023 = 0 days chargeable). On June 29, 2023, although the prosecution declared its readiness for Hearings and Trial, defense counsel requested a motion schedule because of the People's non-compliance, and the People served their disclosures in response to the court's order (May 11, 2023 to June 29, 2023 = 49 days chargeable). The docket was administratively adjourned for Decision and Order from September 14, 2023 to October 4, 2023, and then adjourned to, to accommodate the People's file and status review (June 29, 2023 to = 0 days chargeable).
Accordingly, because 134 days in total are chargeable to the People, the prosecution was not timely pursuant to CPL § 30.30 (1) (b) and the case must be dismissed.
CONCLUSION
Based upon the foregoing, defendant's motion for dismissal of the accusatory instrument on statutory speedy trial grounds pursuant to §§ 30.30 (1) (b) and 170.30 (1) (e) is GRANTED.
This constitutes the opinion, decision, and the order of the Court.