People v. Kupferman

• Decision Date: 14 June 2021
• Docket Number: Docket No. 20572V-2019
• Citation: 71 Misc.3d 1232 (A),146 N.Y.S.3d 770 (Table)
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Matthew KUPFERMAN, Defendant.
• Court: New York Supreme Court

71 Misc.3d 1232 (A)

146 N.Y.S.3d 770 (Table)

The PEOPLE of the State of New York, Plaintiff, v. Matthew KUPFERMAN, Defendant.

Docket No. 20572V-2019

Supreme Court, Kings County, New York.

Decided on June 14, 2021

Esther M. Morgenstern, J.

The defendant, Matthew Kupferman, was arrested on November 19, 2019 and charged with Assault in the Third Degree [PL § 120.00(1)], Attempted Assault in the Third Degree [PL § 110/120.00(1)], Menacing in the Third Degree [PL § 120.15] and Harassment in the Second Degree [PL § 240.26 (1)].

The defendant, through his attorney, Jeffrey Lichtman, Esq. moved by Notice of Motion, dated April 5, 2021, seeking the following relief on Docket # 20572V-2019:

1) Deeming the prosecution's certificate of compliance ("COC"), and statement of readiness filed on February 14, 2020 and March 19, 2020 to be improper pursuant to CPL § 30.30(5-a) due to the prosecutor's failure to "certify that all counts charged in the accusatory instrument meet the requirements of [ CPL 100.15 and 100.40 ] and those counts not meeting the requirements of [ CPL 100.15 and 100.40 ] have been dismissed;"

2) Dismissing the accusatory instrument pursuant to CPL § 30.30 ; and

3) Granting such other relief as the Court may deem proper.

Assistant District Attorney Shaun Prunotto filed an Affirmation in Opposition to the defendant's Notice of Motion dated May 4, 2021.

Defendant filed a Reply Affirmation on May 7, 2021.

The Law

CPL 30.30 "was enacted to serve the narrow purpose of insuring prompt prosecutorial readiness for trial, and its provisions must be interpreted accordingly" ( People v. Sinistaj , 67 NY2d 236, 239 [1986] ; see People v. Price , 14 NY3d 61, 64, [2010] ["the dominant legislative intent informing CPL § 30.30 ... (is) to discourage prosecutorial inaction"]). CPL § 30.30(1)(a) requires the People to be ready for trial within six months of the commencement of a criminal action in which a felony is charged" and section § 30.30(1)(b) requires that the People be ready within 90 days in misdemeanor cases ( Price, supra ).

"The failure to declare readiness within the statutory time limit will result in dismissal of the prosecution, unless the People can demonstrate that certain time periods should be excluded" ( People v. Price, supra ). Once 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] ; see People v. Santos , 68 NY2d 859, 861 [1986] ).

On January 1, 2020, CPL article 240 was replaced by CPL article 245. Notably, CPL § 245.50 (3) requires the People to file a Certificate of Compliance when they have provided the automatic discovery ( CPL 245.30 [1] ). Until the People file [a COC], they cannot be deemed ready for trial. ( People v. Ramirez-Correa , 71 Misc 3d 570 [N.Y.Crim.Ct. Feb. 25, 2021] ).

CPL § 245.20 requires the People to disclose twenty-one (21) categories of discoverable material to the defendant "as soon as practicable" but not later than a fixed period of time.

CPL § 245.20 (1)(k) provides:

"Information under [ CPL § 245.20 (1)(k) ] shall be disclosed whether or not such information is recorded in tangible form and irrespective of whether the prosecutor credits the information. The prosecutor shall disclose the information expeditiously upon its receipt and shall not delay disclosure if it is obtained earlier than the time period for disclosure in subdivision one of section 245.10 of this article"

The sole "condition precedent to the prosecutor's ability to file a [COC] is the discovery of all material considered [a]utomatic [d]iscovery" ( People v. Napolitano , 67 Misc 3d 1241(A) [Sup Ct, New York County 2020] ).

CPL § 245.20 (2) provides, in relevant part:

"The 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; provided that the prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain. For purposes of subdivision one of this section, all items and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency shall be deemed to be in the possession of the prosecution."

Any assessment of a prosecutor's due diligence with discovery compliance must be considered in conjunction with the provisos contained within CPL § 245.55 (1) and (2) ( People v. Rosario , 70 Misc 3d 753, 756 [Sup Ct, Albany County 2020] ).

CPL § 245.55 (1) provides in relevant part:

"The district attorney and the assistant responsible for the case shall endeavor to ensure that a flow of information is maintained between the police and other investigative personnel and his or her office sufficient to place within his or her possession or control all material and information pertinent to the defendant and the offense or offenses charged, including, but not limited to, any evidence or information discoverable under paragraph (k) of subdivision one of section 245.20 of this article."

Furthermore, CPL § 30.30(5-a) now requires the People to state their readiness for trial, by serving and filing a COC which provides the following:

"Upon a local criminal court accusatory instrument, a statement of readiness shall not be valid unless the prosecuting attorney certifies that all counts charged in the accusatory instrument meet the requirements of sections 100.15 and 100.40 of this chapter and those counts not meeting the requirements of sections 100.15 and 100.40 of this chapter have been dismissed."

CPL § 100.15 provides the following:

"1. An information, a misdemeanor complaint and a felony complaint must each specify the name of the court with which it is filed and the title of the action, and must be subscribed and verified by a person known as the "complainant." The complainant may be any person having knowledge, whether personal or upon information and belief, of the commission of the offense or offenses charged. Each instrument must contain an accusatory part and a factual part. The complainant's verification of the instrument is deemed to apply only to the factual part thereof and not to the accusatory part.

2. The accusatory part of each such instrument must designate the offense or offenses charged. As in the case of an indictment, and subject to the rules of joinder applicable to indictments, two or more offenses may be charged in separate counts. Also, as in the case of an indictment, such instrument may charge two or more defendants provided that all such defendants are jointly charged with every offense alleged therein.

3. The factual part of such instrument must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges. Where more than one offense is charged, the factual part should consist of a single factual account applicable to all the counts of the accusatory part. The factual allegations may be based either upon personal knowledge of the complainant or upon information and belief. Nothing contained in this section, however, limits or affects the requirement, prescribed in subdivision one of section 100.40, that in order for an information or a count thereof to be sufficient on its face, every element of the offense charged and the defendant's commission thereof must be supported by non-hearsay allegations of such information and/or any supporting depositions.

4. Where a felony complaint charges a violent felony offense defined in section 70.02 of the penal law and such offense is an armed felony as defined in subdivision forty-one of section 1.20,

(a) the accusatory part of the instrument must designate the offense as an armed felony, and

(b) the factual part of the instrument must allege facts of an evidentiary character supporting or tending to support such designation."

CPL § 100.40 provides the following:

"1. An information, or a count thereof, is sufficient on its face when:

(a) It substantially conforms to the requirements prescribed in section 100.15 ; and

(b) The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; and

(c) Non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof.

2. A simplified information is sufficient on its face when, as provided by subdivision one of section 100.25, it substantially conforms to the requirement therefor prescribed by or pursuant to law; provided that when the filing of a supporting deposition is ordered by the court pursuant to subdivision two of said section 100.25, a failure of the complainant police officer or public servant to comply with such order within the time provided by subdivision two of said section 100.25 renders the simplified information insufficient on its face.

3. A prosecutor's information, or a count thereof, is sufficient on its face when it substantially conforms to the requirements prescribed in section 100.35.

4. A misdemeanor complaint or a felony complaint, or a count thereof, is sufficient on its face when:

(a) It substantially conforms to the requirements prescribed in section 100.15 ; and

(b) The allegations of the factual part of such accusatory instrument and/or any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of such

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