Opinion
Docket No. CR-018033-22BX
05-15-2023
The PEOPLE of the State of New York, v. Juan PERALTA, Defendant.
For the People: Darcel D. Clark, District Attorney, Bronx County (by: ADA Izamur Plaza) For the Defendant: The Bronx Defenders (by: Urooj Khan, Esq.)
For the People: Darcel D. Clark, District Attorney, Bronx County (by: ADA Izamur Plaza)
For the Defendant: The Bronx Defenders (by: Urooj Khan, Esq.)
Yadhira González- Taylor, J. Defendant moves, inter alia , for dismissal of the misdemeanor charges on statutory speedy trial grounds pursuant to Criminal Procedure Law ("CPL") §§ 245.50 (3) and 30.30 (5). Specifically, defendant seeks orders deeming the People's certificate of compliance ("COC") invalid and finding the prosecution not ready for trial because certain discovery items, including Giglio materials for non-testifying witnesses, remain outstanding. In the alternative, defendant seeks an order suppressing his statements to law enforcement personnel, precluding introduction of evidence at trial relating to his refusal to submit to a chemical breath analysis test and prior bad acts or convictions, or granting his request for Refusal/VTL § 1194/Ingle, Mapp/Huntley/Dunaway and Sandoval/Ventimiglia pre-trial hearings. The People oppose the motion.
Upon review and consideration of the submissions, court file and relevant legal authority, defendant's motion is granted in part and denied in part, as follows:
1. The People's COC filed December 27, 2022 is deemed VALID;
2. Dismissal pursuant to CPL § 30.30 is DENIED;
3. The People are DIRECTED to produce Internal Affairs Bureau ("IAB") Giglio materials for Detective Darryl Schwartz ("Det. Schwartz"), Police Officer Raymond Diaz ("Officer Diaz") and Sergeant Vasyl Filchukov ("Sgt. Filchukov") subject to their filing a motion pursuant to CPL § 245.70 for a protective order;
4. The People are DIRECTED to produce Civilian Complaint Review Board ("CCRB") materials for Det. Schwartz, Officer Diaz and Sgt. Filchukov which are in the People's actual possession or control;
5. The People are DIRECTED to produce underlying documentation concerning CCRB materials for Officer Robert Kosich ("Officer Kosich") which are in the People's actual possession or control; and
6. Pre-trial hearings are ORDERED as provided herein.
PROCEDURAL BACKGROUND
On October 10, 2022, defendant Juan Peralta was arrested and charged with two violations of the Vehicle and Traffic Law ("VTL"), § 1192 (3) (driving while intoxicated) and § 1192 (1) (driving while impaired).
On October 10, 2022, defendant was arraigned and released on his own recognizance. The People filed their COC and statement of readiness ("SOR") on December 27, 2022, which represented, in relevant part, that the prosecution had produced Activity Logs for Sgt. Filchukov, Officer Kosich, Det. Schwartz, Police Officer Emmanuel Mota ("Officer Mota"), Officer Yaw Asare, Officer Jason Batista ("Officer Batista") and Officer Diaz, body worn camera ("BWC") footage for all law enforcement personnel except Det. Schwartz, Giglio materials for Officers Mota, Batista and Kosich and two Intoxilyzer 9000 permits for Officer Kosich. Additionally, the People identified testifying law enforcement witnesses as Officers Mota, Batista and Kosich.
At a conference held on January 25, 2023, before the Hon. Giyang An, the parties were directed to submit a joint letter concerning disputed discovery items. In their joint letter, defendant asserted that the People had not fulfilled their obligations under CPL § 245.20 (1) concerning Det. Schwartz, in particular, because no Giglio , BWC or calibration reports related to his purportedly personal preliminary breath test ("PBT") device were disclosed. Defendant also identified as missing FDNY/EMS records, and any statements attributed Det. Schwartz, pursuant to § 245.20 (e). The People responded that they had acted in good faith to obtain BWC footage and calibration records, for the statutorily relevant time frame, to no avail. The prosecution argues that they were under no obligation to provide Giglio records for police officers whom they do not intend to call at trial.
On March 16, 2023, defendant filed the instant motion. The People filed their opposition on April 6, 2023. On April 28, 2023, defendant filed a reply to the People's opposition to reiterate his objection to the COC based on discovery deficiencies. DISCUSSION
I. Applicable Standard for COC Challenge
Where the People have fulfilled their statutory discovery obligations, they must file a SOR for trial, accompanied or preceded by a COC. (see People v. Marin , 74 Misc.3d 1037, 163 N.Y.S.3d 774 [Crim. Ct., Bronx County 2022] citing People v. England , 84 N.Y.2d 1, 4, 613 N.Y.S.2d 854, 636 N.E.2d 1387 [1994] ; see also CPL § 245.50 ).
If the defense alleges that the People's COC is invalid because they have failed to discharge their discovery obligations, the People must demonstrate their efforts to comply with CPL § 245.20 (1). (see e.g. , People v. Higgins , 2022 WL 3131965, 2022 N.Y. Misc. LEXIS 3313, *6 [City Ct., Yonkers 2022] citing People v. Perez , 40 Misc.3d 448, 965 N.Y.S.2d 702 [Crim. Ct., Queens County 2013] ["(w)here the People fail to set forth their efforts to locate items of discovery or determine that they do not exist, or the efforts they describe do not amount to due diligence, their certificate may be invalidated"]) but see , People v. Rodriguez , 73 Misc.3d 411, 419, 152 N.Y.S.3d 879, 882 [Sup. Ct., Queens County 2021] ["the People's communications with defense counsel, which they have attached to their opposition papers, demonstrate that they have endeavored with great diligence to ensure that counsel received all documents to which the defendant is entitled"]).
Criminal Procedure Law § 30.30 (5) provides, in pertinent part, that:
[t]he court shall make inquiry on the record as to their actual readiness. If, after conducting its inquiry, the court determines that the people are not ready to proceed to trial, the prosecutor's statement or notice of readiness shall not be valid for purposes of this section.
Accordingly, the court must determine whether the People exercised due diligence to disclose, or cause to be made available for discovery, evidence, whether their COC was filed in good faith, and whether the COC was reasonably filed under the circumstances. (see People v. McGee , 2023 WL 3085320, 2023 N.Y. Misc. LEXIS 1954, *8 [Crim. Ct., Kings County 2023] citing CPL § 245.50 (1) ; People v. Erby , 68 Misc.3d 625, 128 N.Y.S.3d 418 [Sup. Ct., Bronx County 2020], see also CPL § 245.20 [2] ).
II. The Parties’ Arguments
Defendant asserts that as of the filing of his motion, the following items remain outstanding: 1) records pertaining to substantiated and unsubstantiated allegations of misconduct against Det. Schwartz; 2) information relating to lawsuits filed against Det. Schwartz in his official capacity; 3) substantiated and unsubstantiated allegations of misconduct against Officer Diaz and Sgt. Filchukov; 4) calibration records for Det. Schwartz's PBT device six months prior to or six months following defendant's arrest; and 5) records generated by FDNY and EMS. (Def. Aff. at 8-9).
Defendant contends that although the prosecution has determined that it will not call Det. Schwartz, Officer Diaz and Sgt. Filchukov as witnesses, each played an integral role in his interrogation and arrest. (Def. Aff. at 15-16, 25). Defendant references BWC footage which purportedly demonstrates that Det. Schwartz was called to the scene because he was known to have his own PBT device, administered a PBT test, and participated in the search of defendant's vehicle. (Def. Aff. at 15-16). Additionally, defendant alleges that Officer Diaz acted as his translator during the interrogation by Det. Schwartz, which was observed by Sgt. Filchukov, who purportedly supervised the arrest. (Def. Aff. at 25).
Defendant claims that FDNY and EMS called NYPD to the scene and that although FDNY Lieutenant Charles Vitale ("Lt. Vitale") is listed as a testifying witness, defendant has not received any statements made by him in contravention of CPL § 245.20 (e). (Def. Aff. at 25). Moreover, defendant complains that underlying documents associated with CCRB allegations against testifying witness, Officer Kosich, were impermissibly withheld and that he was instead provided with the prosecution's summary of four CCRB charges and two CCRB cases. (Def. Aff. at 27).
Lastly, defendant states that the People have not disclosed calibration reports concerning Det. Schwartz's personal PBT device, shown in BWC footage, and that defendant's refusal of this test precipitated his arrest. (Def. Aff. at 28).
As an initial matter, the People oppose defendant's motions to suppress evidence of defendant's 1) refusal of a breathalyzer test; 2) statements pursuant to Huntley/Dunaway ; and 3) convictions or prior bad acts pursuant to Sandoval/Ventimiglia. The prosecution further contends that there was probable cause for the car stop and arrest based upon a policer officer's observations that a traffic violation may have occurred, and that proper statement notice was served at defendant's arraignment. (People's Aff. at ¶¶ 1-3). Specifically, the People assert that their COC is valid because they have complied with their discovery obligations, having exercised due diligence to marshal and produce discovery which is within their control as required by CPL § 245.20 (1). (People's Aff. at ¶¶ 4). They contend that Giglio disclosure is not required for Det. Schwartz because he has not been designated as a testifying witness and cite to CPL § 245.20 (1) (k) (iv) for the proposition that they need only disclose Giglio material "[to] impeach the credibility of a testifying prosecution witness." This same reasoning informs their objection to defendant's request for information concerning any lawsuits filed against Det. Schwartz in his capacity as an NYPD employee, and information concerning any substantiated or unsubstantiated allegations of misconduct against Officers Diaz and Sgt. Filchukov. (People's Aff. at ¶¶ [a][i] - [a][iii]).
The People do consent to a pre-trial Huntley hearing but aver that its scope is properly limited to Miranda issues because they believe the defendant has not set forth allegations that would give rise to a Dunaway hearing.
Next, the prosecution states that it is under no obligation to obtain CCRB records because the agency is not within their custody and control as prescribed by CPL § 245.20 (1). (People's Aff. at ¶ [a][iv]). The People make the same argument for why they have not disclosed records generated by FDNY or EMS. (People's Aff. at ¶ [a][ v]).
With respect to defendant's request for calibration records for Det. Schwartz's personal PBT device, assigned serial No.240387, the prosecution claims to have made inquiries on November 3, 2022, November 22, 2022 and February 3, 2023, and apprised defense counsel of such, before finally ascertaining from NYPD's Vehicular Crimes Unit that the device in question had not been calibrated since 2020 and, thus, no records were generated which would otherwise be discoverable. (People's Aff. at ¶ [a][vi]).
Lastly, the People maintain that their discovery obligations were timely fulfilled before the expiration of their speedy trial time. (People's Aff. at ¶b).
III. The Court's Analysis
While CPL § 245.50 (1) mandates that the prosecution file a COC after complying with their discovery obligations, CPL § 245.20 (1) unambiguously qualifies the People's duty to disclose information which is in the "possession, custody or control of the prosecution, [or] under the prosecution's direction or control " ( CPL § 245.20 [emphasis added]; see also , People v. Williams , 73 Misc.3d 1091, ––––, 157 N.Y.S.3d 877 [Sup. Ct., Kings County 2021] [internal citations omitted] citing People v. Lustig , 68 Misc.3d 234, 241-42, 123 N.Y.S.3d 469, 474-475 [Sup. Ct., Queens County 2020] ).
Criminal Procedure Law § 245.20 (2) further directs the People to make a diligent, good faith effort to ascertain the existence of such information, and when it exists, make it available for discovery, even if the material is not within their possession, custody, or control. (see People v. Martinez , 2022 WL 2070674, 2022 NYLJ LEXIS 1119, *6-7 [Crim. Ct., New York County 2022] )
Moreover, CPL § 245.60 provides a continuing duty to disclose if either the prosecution or the defense subsequently learns of additional evidence which they would have had an obligation to make previously known, they are can and must belatedly disclose the information. (see People v. Henry , 2022 WL 1098913, 2022 N.Y. Misc. LEXIS 1304 [Sup. Ct., Richmond County 2022] ).
It is well-settled that CPL § 245.20 (1) "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" (see People v. McLean, 77 Misc.3d 492, 497, 177 N.Y.S.3d 837, 843 [Crim. Ct., Kings County 2022] citing People v. Georgiopoulos , 71 Misc.3d 1215(A), *3, 2021 WL 1727831 [Crim. Ct., Queens County 2021]. Courts have recognized that "[n]ot every failure to provide a document which the People are obligated to provide under the letter of the statute [ CPL § 245.20 (1) ] is necessarily fatal to an assertion of readiness under CPL § 30.30" (see, People v. Rahman , 74 Misc.3d 1214 (A), *2, 2022 WL 553426 [Sup. Ct., Queens County 2022] ).
Giglio Material for Non-Testifying Witnesses
The People ostensibly argue that there is no issue concerning whether Giglio evidence must be disclosed for a non-testifying officer because CPL § 245.20 (1) (k) (iv) specifically references evidence used to "impeach the credibility of a testifying prosecution witness," and they cite to several decisions from courts of concurrent jurisdiction for that proposition.
However, this court rejects a myopic consideration of CPL § 245.20 (1) (k) that does not consider all its clauses, which provide, in pertinent part, that the People are 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: (i) negate the defendant's guilt as to a charged offense; (ii) reduce the degree of or mitigate the defendant's culpability as to a charged offense; (iii) support a potential defense to a charged offense; (iv) impeach the credibility of a testifying prosecution witness; (v) undermine evidence of the defendant's identify as a perpetrator of a charged offense; (vi) provide a basis for a motion to suppress evidence; or (vii) mitigate punishment."
Additionally, CPL § 245.20 (1) (k) specifically provides that information under this subdivision shall be disclosed "irrespective of whether the prosecution credits the information." The Legislature's usage of the conjunction "or" to separate the final clause of CPL § 245.20 (1) (k) demonstrates that its sections are not mutually exclusive nor does CPL § 245.20 (1) (k) (iv) identify disciplinary and/or personnel records as the material to be used to impeach the prosecution's testifying witness. Consequently, the presumption that Giglio evidence should only be used for impeachment purposes is wholly unfounded and this court rejects a stringent construction which holds that disciplinary records "which do not relate to the subject matter of the case but are of a general impeachment value" are not subject to automatic disclosure. (see People v. Florez , 2022 WL 792140, 2022 NYLJ LEXIS 245, *21 [Sup. Ct., Nassau County 2022] ["There is simply no language which magically turns general impeachment material into something that it never was before"]).
It is not magical reasoning to perceive that Giglio disclosures could be of significant consequence to negate a defendant's guilt, provide a basis to suppress evidence, or support a potential defense even if the prosecution decided not to call the officer in question as a witness. This court posits that this is a case-specific inquiry and should be decided based upon the specific circumstances presented and because of, necessarily, a substantial nexus between the police officer in question, or law enforcement agency actions made on the government's behalf, to the arrest and/or investigation. (see People v. Jackson , ––– Misc.3d ––––, 187 N.Y.S.3d 915, 2023 N.Y. Misc. LEXIS 1975, *10 [Crim. Ct., New York County 2023] ["The inquiry as to whether underlying records are discoverable under CPL 245.20 (1) (k) (i) and (iii) is fact-specific , based on the officer's particular involvement in the case and the nature of the misconduct allegations against him"] [emphasis added]. In Jackson , a non-testifying officer, who responded to the complainant's 911 call, spoke with the defendant and dealt with physical evidence, had several substantiated and unsubstantiated allegations against him, including the filing of a false statement and improper memo books. (see, Id. ).
In the case at bar, there is a documented public record of allegations, some substantiated, against non-testifying witness Det. Schwartz which include making bogus DWI arrests to earn extra overtime, failing to properly voucher a prisoner's wallet, and filing improper paperwork for drug seizures. These misconduct allegations and the potential utility to the defense, are a far cry from the concern that requiring any Giglio disclosure relating to any non-testifying witness would create a slippery slope leading inexorably to a situation where a zealous defense counsel could troll through files concerning an officer's divorce proceedings in the hopes of finding exculpatory evidence for her client. (see People v. Edwards , 77 Misc.3d 740, 745, 178 N.Y.S.3d 694, **744 [Crim. Ct., Bronx County 2022].
As described by defendant, and not denied by the People, Det. Schwartz was specifically called to the scene because he had his personal PBT device, and this formed the basis for the police action wherein defendant was arrested and removed to the precinct where he refused to submit to an official breathalyzer test. It strains credulity to speculate that defendant's initial refusal to submit to a PBT administered by Det. Schwartz was not a factor in the decision to arrest him; and it should be noted that defendant claims he was administered the PBT only after he was in handcuffs. (Def. Aff. at 6). As also described by defendant, and not refuted by the prosecution, Det. Schwartz, aided by Officer Diaz, who acted as his Spanish-language translator, participated in the interrogation of defendant, and they were both observed by Sgt. Filchukov, who acted as the supervising officer. Det. Schwartz could not have facilitated his PBT, nor conduct his interrogation without the assistance of Officer Diaz, and defendant's arrest had to have been approved by Sgt. Filchukov. The demonstrated involvement of Det. Schwartz, Officer Diaz and Sgt. Filchukov in defendant's interrogation and arrest was hardly fleeting or tangential and their disciplinary records should not be inscrutable just because the People have strategically decided, as is the prosecution's prerogative, not to call them as witnesses. In this instance, Giglio disclosure for non-testifying witnesses would only fly "in the face of the express provision of CPL § 245.20 (1) (k) (iv)" if the court ignores the section in its entirety. (see, People v. Diaz , 77 Misc.3d 727, 731, 178 N.Y.S.3d 912, 915 (2022) but compare People v. Jawad , 2023 WL 2701447, 2023 N.Y. Misc. LEXIS 1307, *8 [Crim. Ct., Queens County 2023] ["Prior disciplinary matters [for a non-testifying officer], could for instance, negate the accused person's guilt or support a potential defense"] [internal citations omitted]). The court has carefully considered the cases on which the People have relied upon for the proposition that impeachment material need only be disclosed for testifying witnesses pursuant to CPL § 245.20 (1) (k) (iv). However, this court respectfully declines to adhere to a statutory interpretation that, in effect, ignores all but one clause of CPL § 245.20 (1) (k) where the facts alleged demonstrate that the non-testifying officers have played an important role in the arrest and/or interrogation of a defendant.
It cannot be credibly argued that misconduct records for non-testifying officers demonstrated to have played a central role in the arrest could have no value to support a potential defense, negate defendant's guilt as to the charged offense, mitigate the defendant's culpability, support a potential defense, or provide a basis for a motion to suppress. This is especially true where a non-testifying officer such as Det. Schwartz, who presented at the scene with what was effectively a "ghost" PBT device, has a publicized history of police misconduct, and where, but for this officer's involvement, the arrest would not have been made.
There is a balance of equities to consider and to potentially allow the prosecution to cherry-pick around possibly valuable or favorable evidence where "[i]t has long been recognized that the best judge of the value of evidence to a defendant's case is the single-minded devotion of counsel for the accused" seems to contravene the Legislature's intent to ameliorate conditions wrought by New York's former criminal discovery statute which too often resulted in defendants being "denied vitally important information, essential to make rational decisions about their pending cases." (see Assembly Mem in Support of 2019 Assembly Bill A04360, incorporated in L 2020). The Assembly further noted that:
‘[t]he limited information [defendants] receive is
also turned over so late that it is often impossible to intelligently investigate, to secure and use any potentially exculpatory evidence, to fairly weigh a guilty plea offer, or to develop a trial strategy. Overhaul of New York's criminal discovery rules will accomplish two key things: it will help innocent or over-charged defendants fairly prepare for trial, and it will encourage guilty defendants to plead guilty without needless and costly delays."
(see, Id. )
This is particularly evident where defendant can demonstrate that the non-testifying officers were much more than marginally involved in the arrest or investigation. (see People v. Pennant , 73 Misc.3d 753,761, 156 N.Y.S.3d 690, 696 [Dist. Ct., Nassau County 2021] citing People v. Baghai—Kermani , 84 N.Y.2d 525, 531, 620 N.Y.S.2d 313, 316, 644 N.E.2d 1004 [1994] ; People v. Flores , 84 N.Y.2d 184, 187, 615 N.Y.S.2d 662, 664, 639 N.E.2d 19 [1994] ; People v. Banch , 80 N.Y.2d 610, 615, 593 N.Y.S.2d 491, 494, 608 N.E.2d 1069 [1992] ; People v. Young , 79 N.Y.2d 365, 371, 582 N.Y.S.2d 977, 981, 591 N.E.2d 1163 [1992] ).
In the case at bar, but for Det. Schwartz's arrival, interrogation and administration of the PBT with his personal device, defendant would not have been arrested. Secondly, but for Officer Diaz's translation, Det. Schwartz could not have interrogated and administered a PBT to defendant. Lastly, defendant would not have been arrested but for Sgt. Filchukov's supervision and approval. Moreover, the specific allegations presented by this arrest, namely, a detective with a demonstrated disciplinary history of misconduct who brought his personal PBT device, which has no recent calibration trail, calls into question whether there was probable cause for defendant's arrest.
Consequently, this court finds that substantiated and unsubstantiated IAB Giglio material for Det. Schwartz, Officer Diaz and Sgt. Filchukov are subject to automatic disclosure pursuant to CPL § 245.20 (1) (k) subject to the People's showing pursuant to CPL § 245.70 that the material should be subject to a protective order.
However, it is well-settled that the CCRB is not a law enforcement agency nor an agency within the prosecution's control. (see People v. Carter , 76 Misc.3d 1206 [A], 2022 N.Y. Slip Op. 50837 [U], *6, 2022 WL 3971927 [Crim. Ct., Bronx County 2022]. Therefore, the People's discovery obligation concerning CCRB records is triggered not by CPL § 245.20 (1) (k) but, instead, by CPL § 245.20 (2), which provides, in pertinent part, that: "[t]he prosecutor shall make a diligent, good faith effort to ascertain the existence of material or information discoverable under subdivision one of this section and to cause such material or information to be made available for discovery where it exists but is not within the prosecutor's possession, custody or control"] [emphasis added].
In the case at bar, the People have already produced summaries concerning CCRB allegations against Officer Kosich. However, summaries are insufficient to satisfy the prosecution's CPL § 245.20 (2) obligations. (see , People v. Castellanos , 72 Misc.3d 371, 374, 148 N.Y.S.3d 652, 655 [Sup. Ct., Bronx County 2021], People v. Soto , 72 Misc.3d 1153, 1160, 152 N.Y.S.3d 274, 281 [Crim. Ct., New York County 2021] ).
Insofar as the prosecution is already in possession of CCRB records for Officer Kosich, they are directed to disclose the underlying files concerning the allegations. Additionally, the court directs the People to disclose to defendant any CCRB records, including underlying documents, within their actual possession and control concerning Det. Schwartz, Officer Diaz, and Sgt. Filchukov.
Defendant also seeks an order requiring the People to disclose information concerning lawsuits filed against Det. Schwartz in his official capacity. However, it is well-settled that "[u]nder New York law, there is a broad presumption that the public is entitled to access to judicial proceedings and court records. This State has long recognized that civil actions and proceedings should be open to the public in order to ensure that they are conducted efficiently, honestly, and fairly" (see Styles v. Podz Inc. , 2021 WL 1960915, *1, 2021 NYLJ LEXIS 446, *3 citing Mosallem v. Berenson , 76 A.D.3d 345, 348, 905 N.Y.S.2d 575 [1st Dept. 2010] [internal quotations and citations omitted]).
Accordingly, defendant's request for information related to lawsuits filed against Det. Schwartz in his official capacity is denied because any documents pertaining to lawsuits filed against him are a matter of public record.
FDNY/EMS Documentation
The People aver that they were under no obligation to disclose records generated by the FDNY or EMS because neither is an agency under its direction or control. The prosecution blithely rejects defendant's request for these records by affirming that the People are not in constructive possession of them, nor are they required to "gather" FDNY/EMS reports in order to file a valid COC. As discussed in People v. Ajunwa , where the prosecution also deflected their duties by claiming no constructive possession of FDNY/EMS reports "[the] People were required to make a diligent, good faith effort to cause this record to be made available for discovery before filing their COC" 75 Misc.3d 1220 [A], *3, 170 N.Y.S.3d 876 [Crim. Ct., Bronx County 2022] [internal quotations and citations omitted].
Insofar as the prosecution has disclosed the name and contact information of FDNY Lt. Vitale, this court finds that the People have satisfied their burden of providing information to defendant which would cause the pertinent FDNY/EMS records to be made discoverable. Calibration Reports for Det. Schwartz's personal PBT
One reason this court has likened Det. Schwartz's personal device to a ghost PBT is the lack of records relating to its calibration. In this instance, while defendant's initial refusal to submit to a PBT administered by Det. Schwartz. undoubtedly precipitated his arrest, the People state that there are no calibration records pertaining to this device either six months prior to or six months after this arrest and, thus, they are not required to produce records pursuant to CPL § 245.20 (1) (s). Although the record demonstrates that the prosecution endeavored to ascertain if there were calibration reports generated more recently than 2020, this situation is reminiscent of the type of "sword-and-shield" gambit in which a party tries to benefit from evidence on one hand yet attempts to shield examination of that evidence on the other hand if an unfavorable inference could be drawn.
The prosecution has credibly established that they were unable to procure discoverable calibration records for Det. Schwartz's personal device. However, this court notes that the absence of a calibration trail further buttresses the argument for disclosure of Giglio materials for the non-testifying officers in this case.
IV. The CPL § 30.30 Calculation
Criminal Procedure Law § 245.50 (3) provides that "the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper certificate pursuant to subdivision one of this section" (see People v. Pierna , 74 Misc.3d 1072, 1087, 163 N.Y.S.3d 897, 908 [Crim. Ct., Bronx County 2022] [internal quotation marks omitted]; People v. Aquino , 72 Misc.3d 518, 520, 146 N.Y.S.3d 906, 909 [Crim. Ct., Kings County 2021] ).
In a motion to dismiss misdemeanor charges 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] ); People v. Luperon , 85 N.Y.2d 71, 77-78, 623 N.Y.S.2d 735, 739, 647 N.E.2d 1243 [1995] ). The burden then shifts to the People to identify excludable delays. (see, Id. ).
In the absence of appellate guidance to establish what, if anything, constitutes full or even substantial compliance with mandatory discovery obligations as a condition precedent to filing a COC, courts have examined the due diligence of the prosecutor's efforts to obtain outstanding discoverable materials to determine the validity of their COC. (compare People v. Rodriguez , 73 Misc.3d at 419, 152 N.Y.S.3d at 885 ["Moreover, the People's communications with defense counsel, which they have attached to their opposition papers, demonstrate that they have endeavored with great diligence to ensure that counsel received all documents to which the defendant is entitled"] with People v. Figueroa , 76 Misc.3d 888, 893, 173 N.Y.S.3d 907, 912 [Crim. Ct., Bronx County 2022] ["(T)he People fail to articulate any efforts whatsoever to ascertain the existence of FDNY reports and make them available for discovery"]).
In the case at bar, the People's 30.30 calculation commenced at defendant's arraignment on October 10, 2022. When the People filed a valid COC on December 27, 2022, they declared their readiness for trial and stopped their speedy-trial clock.
In light of the fact that this decision was made in consideration of the specific involvement of non-testifying witnesses Det. Schwartz, Officer Diaz and Sgt. Filchukov in defendant's interrogation and arrest, the court declines to find that the People did not act in good faith by withholding Giglio materials based on their understanding that automatic disclosure of disciplinary records was relegated to testifying officers, or that underlying CCRB documentation did not have to be disclosed for Officer Kosich. To the extent that the shared Giglio disclosure did not include Det. Schwartz, Officer Diaz and Sgt. Filchukov, or underlying CCRB records, the People are ordered to disclose this supplemental information and serve defendant with a SCOC explaining the reason for the supplemental disclosure and certifying their compliance pursuant to CPL § 245.50 (1).
Therefore, this court finds that the People were ready for trial 77 days after arraignment, within the statutorily allotted time. (see CPL § 30.30 (1) [b] ). CONCLUSION
Based upon the foregoing, defendant's motion for dismissal of the misdemeanor charges on statutory speedy trial grounds pursuant to CPL § 30.30 is DENIED in part and GRANTED in part, insofar as the People are directed to produce Giglio materials, both substantiated and unsubstantiated, for Det. Schwartz, Officer Diaz and Sgt. Filchukov, including underlying documentation, to provide underlying CCRB materials for Officer Kosich, and to provide any other CCRB materials for Det. Schwartz, Officer Diaz and Sgt. Filchukov which are within the People's possession.
Additionally, the court GRANTS defendant's motion for Refusal/VTL § 1194/Ingle, Mapp/Huntley/Dunaway pre-trial hearings, and Sandoval/Ventimiglia is referred to the trial court.
This constitutes the opinion, decision, and the order of the court.