People v. Perez
| Citation | 2022 NY Slip Op 50387 (U) |
| Decision Date | 06 May 2022 |
| Docket Number | CR-013226-21BX |
| Parties | The People of the State of New York, Plaintiff, v. Jaime Perez, Defendant. |
| Court | New York Criminal Court |
Unpublished Opinion
Attorney for the People: Hon. Darcel D. Clark, District Attorney, Bronx County, 198 East 161st St., Bronx, NY 10451 - by Assistant District Attorney Latoya Stephens, Esq.
Attorney defendant Jaime Perez: Janet E. Sabel, The Legal Aid Society, Criminal Defense Practice, 260 East 161st St., 10th Floor, Bronx, NY 10451 - by Chrystalia King, Esq.
Hon Christopher Chin, J.C.C
Upon review and consideration of the submissions, court file and relevant law, defendant's motion to deem the certificate of compliance ("COC") filed on November 18, 2021 to be improper under CPL § 245.50 (1) and to dismiss the accusatory instrument on speedy trial grounds pursuant to CPL § § 30.30 and 210.20 (1)(g), as a result of the defective COC, is granted. The reasons for the court's decision are explained below.
Defendant Jaime Perez was arrested on September 4, 2021 and charged with three (3) counts of operating a motor vehicle while under the influence of alcohol or drugs (Vehicle and Traffic Law § 1192 [1], [2] and [3]). He was arraigned on the same day and released on his own recognizance.
The People provided various discovery materials to the defense and on November 18, 2021, served and filed a certificate of compliance (COC) and statement of readiness.
On December 7, 2021, the parties appeared in All-purpose Part 3 ("AP3") and the People asked to be found in compliance with their discovery obligations, which was challenged by the defense. The court (Hon. Joseph J McCormack) instructed defendant to put his objections to the COC in writing and a motion schedule was set.
By notice dated February 10, 2022, defendant moved for an order (1) deeming the November 18, 2021 COC to be a nullity under CPL § 245.50 (1) on the ground that certain materials discoverable pursuant CPL § 245.20 (1) were not disclosed and made available to the defense; and (2) dismissing the accusatory instrument pursuant to CPL § § 30.30 and 210.20 (1)(g), as a result of the defective COC.
Specifically, defendant asserts that prior to filing the certificate of compliance, the prosecution failed to comply with CPL § 245.20 (1)(e) and (s) because the following items were not provided: (1) memo books for three of the five police officers involved in defendant's arrest-explaining that the prosecution turned over body worn camera footage for five officers but memo books for only two of the officers; (2) NYDP Scratch Report for the Arrest Report Worksheet; (3) a formalized and finalized copy of the Collision Information Exchange (PD 302-257); (4) a formalized and finalized copy of the police accident report (MV 104AN); (5) a formalized and finalized copy of the motor vehicle accident report (MV 104); (6) a Truck and Bus Supplemental Police Accident Report (MV 1045); and (7) calibration reports.
By affirmation dated March 4, 2022, the People opposed, arguing that they met their burden under CPL § 245.50 (1) as they filed a COC and statement of readiness after exercising due diligence and making reasonable inquiries to ascertain the existence of material subject to discovery. The People urge that they turned over all discoverable items provided to them, substantially complied with their discovery obligations, and made good faith efforts to provide discovery materials under CPL § 245.20 (1). [1] The People simply state that: (1) the memo books of all five officers were provided to the defense on March 4, 2022; (2) the NYPD arrest report was "re-shared" with the defense on March 4, 2022 and they made inquiries of the arresting officer and precinct discovery liaison regarding the scratch report for the arrest report worksheet, which has yet to be provided; (3) collision information was "re-shared" with the defense on March 4, 2022 and they made inquiries of the arresting officer and precinct discovery liaison regarding the Collision Information Exchange, which has yet to be provided; (4) the NYPD Motor Vehicle Worksheet was "re-shared" with the defense on March 4, 2022; (5) they inquired of the arresting officer and precinct discovery liaison with respect to the Truck and Bus Supplemental Police Accident Report, which has yet to be provided; and (6) calibration reports were provided on March 4, 2022. [2] The People further maintain that they recognize their continuing duty to supply disclosure and the minimal amount of discovery that remains outstanding is not due to a lack of a good faith effort on their part. The People argue that the defense failed to set forth any harm, to warrant the imposition of remedies or sanctions by this court.
In reply, the defense maintains that the prosecution conceded that the memo books for all five (5) officers, calibration reports, and NYPD Arrest Report were not provided to it until March 4, 2022 (which was more than 90 days after this action was commenced), and the prosecution failed to explain why these materials were not previously provided. The defense further maintains that while the prosecution stated that they "re-shared" the NYPD Arrest Report, Collision Information, NYPD Motor Vehicle Collision Worksheet as of March 4, 2022, the prosecution did not state when the materials were originally provided. The defense contends that the materials claimed to be "re-shared" were not in fact supplied prior to the filing of the prosecution's certificate of compliance and statement of trial readiness.
Pursuant to CPL § 30.30 (1), a motion to dismiss must be granted when the prosecution is not ready for trial within the time period set forth by the relevant speedy trial provision.
In this case, it is undisputed that the prosecution must be ready for trial within ninety (90) days of the commencement of the action, because defendant is accused of one or more offenses at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three (3) months (see CPL §30.30 [1] [b]). [3] Although a criminal action commences with the filing of an accusatory instrument, computation for speedy trial purposes commences on the next day (see People v Stiles, 70 N.Y.2d 765, 767 [1987]). Here, all parties do not dispute that the speedy trial clock started on September 5, 2021.
To satisfy the initial burden under CPL § 30.30, a defendant need allege "only that the prosecution failed to declare readiness within the statutorily prescribed time period" (People v Luperon, 85 N.Y.2d 71, 77-78 [1995]). Once a defendant has alleged that more than the statutorily prescribed time period has elapsed since the commencement of the action without a declaration of readiness, the prosecution bears the burden of establishing sufficient excludable delay (see People v Berkowitz, 50 N.Y.2d 333, 349 [1980]). The time within which the prosecution must be ready is computed by subtracting any periods of delay that are excludable under the statute (see People v Cortes, 80 N.Y.2d 201, 208 [1992]).
Trial readiness means that the prosecutors must have "done all that is required of them to bring the case to a point where it may be tried" (People v England, 84 N.Y.2d 1, 4 [1994]) and a proper certificate of compliance with the disclosure requirements of CPL § 245.20 must have been filed (see CPL § § 245.50 [3]; 30.30 [5]; People v Adrovic, 69 Misc.3d 563, 575 [Crim Ct, Kings County 2020]).
Under the "initial discovery" provision of CPL § 245.20 (1), soon after the commencement of an action, "[t]he prosecution shall disclose to the defendant and permit the defendant to discover, inspect, copy, photograph and test, all items and information that relate to the subject matter of the case and are in the possession, custody or control of the prosecution or persons under the prosecution's direction or control, including but not limited to" a non-exhaustive list of materials. The prosecution is to make a diligent and good faith effort to ascertain the existence of the discovery materials and make them available to the defense, even if the information is not in the prosecution's physical possession, except for lost or destroyed material, and materials subject to a protective order (see CPL § § 245.20 [2]; 245.70 [1]; 245.80 [1][b]). Unless the court has made "an individualized finding of special circumstances... the prosecution shall not be deemed ready for trial for purposes of section 30.30... until it has [fulfilled its discovery obligations under CPL §§245.20 (1) and] filed a proper certificate [of compliance]" (CPL § 245.50 [3]; see also People v Aquino, 72 Misc.3d 518, 520 [Crim Ct, Kings County 2021]).
CPL § 245.50 (1) sets for the requirements for a COC as follows:
[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 (emphasis supplied).
The statute further states that where "additional discovery is subsequently provided prior to trial pursuant to section 245.60 [], a supplemental certificate shall be served identifying the additional material and information provided" (CPL § 245.50 [1]). The last sentence of CPL § 245.50 (1) states: "No 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;...
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