People v Lewis

[*1] People v Lewis 2021 NY Slip Op 21155 Decided on May 24, 2021 Criminal Court Of The City Of New York, Kings County Warin, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on May 24, 2021
Criminal Court of the City of New York, Kings County

The People of the State of New York, Plaintiff,

against

Marcus Lewis, Defendant.



CR-037314-19KN



The Legal Aid Society, Eugenie Montaigne for the defendant

Kings County District Attorney's Office, Gavrielle Kube for the People
Elizabeth N. Warin, J.

The defendant is charged with Criminal Trespass in the Second Degree (PL 140.15 [1]), Criminal Possession of Stolen Property in the Fifth Degree (PL 165.40) and Trespass (PL 140.05). By motion filed on April 6, 2021 the defendant moved to dismiss pursuant to CPL 30.30 (1) (b) and (5-a). On May 4, 2021 the People filed a response. The defendant filed a reply on May 12, 2021. For the reasons stated below, defendant's motion to dismiss is DENIED in its entirety.

I. MOTION TO DISMISS PURSUANT TO CPL § 30.30

A. Applicable Standards

Where, as here, the top count charged on the information is an A misdemeanor, the People are required to be ready for trial within ninety days, less any excludable time (CPL 30.30 [1] [b]). The ninety-day period commences with the filing of the accusatory instrument (see CPL 1.20 [17]); People v Stirrup, 91 NY2d 434, 438 [1998]). Before answering ready for trial, the People 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 NY2d 1, 4 [1994]).

As described in this Court's opinion in People v. Herrera-Aquino, — NYS 3d &mdash, 2021 NY Slip Opinion 21135 [Crim Ct, Kings County 2021], new discovery and speedy trial laws went into effect on January 1, 2020, replacing CPL 240 and amending sections of CPL 30.30. Article 245 delineates the People's expanded discovery obligation, sets out a statutory time frame for its completion, and establishes potential sanctions for late or unobtained discovery where prejudice is shown (see CPL 245.10 [1] [a]; 245.20; 245.80). The "initial discovery" provision of CPL 245.20 (1) states:

The prosecution shall disclose to the defendant ... all items and information that relate tothe subject matter of the case and are in the possession, custody or control of the [*2]prosecution or persons under the prosecution's direction or control. (CPL 245.20 [1])

This same provision delineates a non-exhaustive list of items that the People must provide (People v. Lustig, 68 Misc 3d 234, 237 [Sup Ct, Queens County 2020]). In effect, the overhaul of the discovery provisions have transformed New York's discovery practice into open file discovery or "at least make[s] open file discovery the far better course of action to assure compliance" (Id at 238, citing William C. Donnino, Practice Commentary, McKinney's Cons of NY, Book 11A, CPL 245.10).

Under these provisions, the People must comply with their discovery obligations without any demand from the defense. Upon completion of discovery, the People must file a "certificate of compliance" affirming that "all known material and information subject to discovery" has been disclosed and provided to the defense, and that the People have exercised due diligence and made reasonable inquiries to ascertain the existence of the same (CPL 245.50 [1] [emphasis added]). Moreover, the statute sets out a schedule for the disclosure of discovery, generally thirty-five days from arraignment, with allowances made for voluminous material and other specific circumstances, and with the risk of sanctions for delay where prejudice is shown.[FN1]

Under the new discovery rules, a "proper" certificate of compliance must be filed before the People can be deemed ready for trial (CPL 245.50 [3]; see People v. Lobato, 66 Misc 3d 1230 [A], 2020 NY Slip Op 50322 [U] *4 [Crim Ct, Kings County 2020]; People v. Berkowitz, 68 Misc 3d 1222 [A], 2020 NY Slip Op. 51044 [U] [Crim Ct, Kings County 2020]). Further, once the People file a certificate of compliance "preceding or accompanying" a declaration of readiness, the Court must then conduct its own on-the-record inquiry as to the People's "actual readiness," and allow the defense to be heard on whether the disclosure requirements have been met (CPL 30.30 [5]). However, the People may be deemed ready by the Court, upon a finding that special circumstances exist to excuse a specific non-disclosure if some discovery is "lost, destroyed, or otherwise unavailable," as long as the People have shown "diligent and good faith efforts, reasonable under the circumstances" (CPL 245.50 [3]; see also (CPL 30.30 [5]).[FN2]

CPL 245.50 (1) allows the People to file a certificate of compliance even when the People know some discoverable material has not been disclosed to the defendant if it is "subject to an order under CPL 245.70" (CPL 245.50 [1]). Section 245.70 allows the People to apply for a protective order under CPL 245.70 (1) to shield certain discoverable material from full disclosure, and/or allows either side to request a "good cause" extension of the discovery [*3]deadlines under CPL 245.70 (2).[FN3] The statute also allows the People to file a certificate of compliance if some discoverable material has not been disclosed because it has been lost or destroyed (CPL 245.50 [1]).

In each of these scenarios, it is up to the court to decide if the People have met the requisite statutory standards of due diligence notwithstanding the outstanding discovery and can still be deemed ready for trial by having "done all that is required of them to bring the case to a point where it may be tried." (England, 84 NY2d at 4). For example, if the People have been granted a 'good cause' extension under CPL 245.70 (2) to locate some hard-to-find material but otherwise affirm their discovery compliance, they may persuade the court that the specific item is not required for the People to proceed with their case. After the requisite inquiry, the court may accept the statement of readiness, while also allowing more time for the discovery to be provided to defense (see e.g. Berkowitz, 68 Misc 3d 1222 [A] (People deemed ready although underlying OCME material for defendant's blood draw was still outstanding where blood draw evidence was not to be used by People at trial; diligence in obtaining data within a reasonable time afterwards also shown)). On the other hand, if the outstanding discovery is necessary for the People's case and likely available within a reasonable time, the People may persuade the Court to apply the 'exceptional circumstances' provision of CPL 30.30 (4) (g) to toll the speedy trial clock. Or the People may instead petition the court for a determination that special circumstances exist that should allow them to be declared ready without filing a certificate of compliance (see CPL 245.50 [3]; see also People v. Adrovic, 69 Misc 3d 563, 573-574 [Crim Ct, Kings County 2020]). Under all circumstances, however, the People cannot be deemed ready where discoverable material is "lost, destroyed or otherwise unavailable" unless the People have shown that "diligent and good faith efforts, reasonable under the circumstances" were employed to try obtain the material (CPL 245.50 [3]).

By allowing for the possibility that the People be deemed ready even when some discovery is outstanding, the legislature acknowledged that unavoidable delays and unforeseen hurdles may prevent a diligent prosecutor from complying fully with their discovery obligations, despite their best efforts to obtain all the relevant material in a timely fashion (People v. Weston, 66 Misc 3d 785, 789 [Crim Ct, Bronx County 2020] (extension provisions of discovery statute designed to address realistic delays prosecutors face in gathering discovery); see also Adrovic, 69 Misc 3d at 573-574 ("by placing the issue before the Court and seeking a ruling based on individualized circumstances, the People may then be able to move forward in their prosecution of a case before disclosure of, and perhaps without ever disclosing outstanding discovery")). These exceptions to the full discovery mandate as a prerequisite to trial readiness are narrowly drawn, limited to 'special circumstances' and only available if the People persuade the Court that their efforts to achieve full discovery compliance were sufficient under the statutory standard (CPL 245.50 [3]). Incomplete discovery is further discouraged by the statutory provisions allowing for imposition of sanctions, should the belated or thwarted disclosure of discovery cause prejudice to the defendant (CPL 245.50 [1]; 245.80 [1] [b]).

[*4]B. Time Charged to the People

October 13, 2019 - November 19, 2019

On October 13, 2019 the defendant was arraigned, and the case was adjourned to October 18, 2019 for conversion. On October 18, 2019, upon the filing of a superseding information and supporting deposition, the case was deemed an information and adjourned to November 19, 2019 for discovery by stipulation.

The parties agree that 5 days are charged between October 13, 2019 and October 18, 2019. 5 DAYS CHARGED TOTAL = 5

November 19, 2019 - December 18, 2019

On November 19, 2019, the People filed and served partial discovery and the case was adjourned for trial to December 18, 2019.

According to the voluntary disclosure agreement in Kings County and existing precedent, adjournments for discovery by stipulation are excludable (see People v Thomas, 26 Misc 3d 144 [A] [App Term, 2d Dept 2010]; People v Dorilas, 19 Misc 3d 75, 76 [App Term, 2d Dept 2008]; People v Nazarov, 2017 NY Slip Op 50337 [U], at *3 [Crim Ct, Kings County 2017]). Further, it is well settled that a reasonable adjournment to prepare for hearings and trial is not chargeable to the People (see People v Greene, 223 AD2d 474 [1st Dept 1996], lv. denied 88 NY2d 879 [1996]). Accordingly, this time period is excluded. 0 DAYS CHARGED TOTAL = 5

December 18, 2019 - January 24, 2020

On December 18, 2019 the People answered not ready and requested 15 days for trial. On December 30, 2019 the People filed a motion pursuant to CPL 245.70, requesting a good cause extension to file discovery in accordance with the new compliance deadlines that were to take effect on January 1, 2020 (see CPL 245.70 [2])[FN4] . On the following court date of January 24, 2020, the People withdrew their motion and answered not ready for trial. The case was adjourned to February 26, 2020 for the People to file a certificate of compliance.

Pursuant to CPL 30.30 (4) (a), a reasonable period of delay due to the filing of any pre-trial motion, including those related to discovery, is excludable (see CPL 30.30 [4] [a]; see also People v. Silvano, 174 Misc 2d 427 [App Term, 2nd Dep 1997] (all pretrial motions excluded from speedy trial count)).[FN5] This provision was not amended by the recent revisions to the discovery and speedy trial rules, nor is there another change that suggests its scope should be narrowed. That the People ultimately withdrew their motion does not change the basis for its exclusion (People v. Jones, 170 AD3d 477 [1st Dept, 2019] (time excluded for motion to consolidate, notwithstanding withdrawal of motion by the People, where no evidence to suggest that the motion was not made in good faith or that it was frivolous); Silvano at 429 (30.30 time excluded regardless of whether the moving party prevails on the motion); People v. Varuzzi, 179 Misc 2d 716, 723 [Crim Ct, Queens County 1999] (30.30 (4) (a) exclusion applies regardless of outcome of motion).

Accordingly, the People are charged with 12 days from December 18, 2020 up to the filing of the People's motion on December 30, 2019. 12 DAYS CHARGED TOTAL = 17

January 24, 2020 - February 26, 2020

On January 24, 2020 the People answered not ready for trial, stating again that they did not have a certificate of compliance, and the case was adjourned to February 26, 2020 for discovery compliance. The parties agree that this time is chargeable. Accordingly, the People are charged with 33 days. 33 DAYS CHARGED TOTAL=50

February 26, 2020 - April 1, 2020

On February 26, 2020 the People did not have a certificate of compliance and the case was adjourned to April 1, 2020 for a certificate of compliance. On March 17, 2020, all non-essential court operations were suspended by executive order of the Governor due to the global pandemic of COVID-19 (Executive Order No. 202). On March 20, 2020, the Governor issued an executive order suspending Articles 30.30 and 245 of the CPL (Executive Order No.202.8). The parties agree that the time from March 20 — April 1, 2020 is excludable. Accordingly, 23 days are charged to the People from February 26, 2020 through March 20, 2020. 23 DAYS CHARGED TOTAL =73

April 1, 2020 - March 19, 2021

Following the protocols in place during COVID-19, the case was adjourned through a series of administrative adjournments between April 1, 2020 through March 19, 2021. On July 3, 2020 the prosecution filed and served a certificate of compliance and statement of readiness. On October 4, 2020, the speedy trial clock was resumed by order of the governor (see Executive Order No.202.67). On March 19, 2021 the parties appeared for a virtual court date and a motion schedule was set at the defendant's request.

In his moving papers, the defendant claims that the People's statement of readiness dated July 3, 2020 did not stop the speedy trial clock from resuming on October 4, 2020 for two reasons (1) the affirmation contained in the certificate of compliance that all known discovery was filed was inaccurate due to several missing items of discovery; and/or (2) the People failed to certify the facial sufficiency of the accusatory instrument at the time they stated ready for trial (see CPL 30.30 [5-a]).

The defendant states that the People failed to disclose ten discoverable items (see Defendant's Motion at 4). Where the People have responded that the items do not exist or have been disclosed, the Court will not address them further.[FN6] The remaining items are addressed separately herein. The Court will then address what effect, if any, the alleged missing discovery may have on the People's statement of readiness dated July 3, 2020.

C. Material Alleged to be Missing from Required Disclosure under CPL 240.25 (1)

1) Scratch 61 complaint and Memo Book for Detective Ruiz

The People concede that the scratch complaint report and the memo book of Detective Ruiz were not provided (see People's Response at 6). As police reports related to the subject matter of the case, these documents are explicitly identified as discoverable material under (CPL [*5]245.20 [1] [e]). The People's argument regarding their duplicative nature is relevant to the propriety of any sanctions, not to the requirement of their disclosure (see CPL 245.80).

2) Giglio Disclosures for Police Officers Ruiz, Anderson, Demonte, Pace

The defendant claims that the People failed to provide Giglio material for four separate officers identified in the People's NDF as "potential" witnesses (Defendant's Motion at 4). In response, the People assert that the material has been provided for all "testifying" witnesses (People's Response at 15).

CPL 245.20 (1) [k] [iv] codifies long established Brady and Giglio doctrine requiring the People to disclose, "all 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 tend to ... impeach the credibility of a testifying witness..." (see CPL 245.20 [1] [k] (emphasis added); Brady v. Maryland, 373 US 83 [1963]; Giglio v. United States, 405 US 150 [1972]; People v. Smith, 27 NY3d 652 [2016]; People v. Randolph, 69 Misc 3d 770 [Sup Ct, Suffolk County 2020]; People v. Lustig, 68 Misc 3d at 242). As long as the People have disclosed the relevant information for those witnesses that will testify at trial, their obligation is satisfied.

3) Family Court Records and Orders of Protection

The defendant argues that the Family Court records and prior orders of protection issued by Family Court and relating to the parties in this case, should also be disclosed by the People (Defendant's Motion at 4). The Court agrees with the People that such records, even if arguably relevant to the instant matter, are not in the People's possession or control, and thus, are not subject to the disclosure requirements of Article 240.25 (People v. Fishman, 72 NY2d 884 [1988] (untranscribed plea minutes not within prosecution's control); People v. Rutledge, 179 Misc 2d 497 [Sup Ct, Monroe County 1998] (transcript of city court records not within People's custody or control); People v. Michael M., 162 Misc 2d 803 [Sup Ct, Kings County 1994] (child welfare agency records not within control of prosecutor; no obligation to disclose); see gen People v. Kelly, 88 NY2d 248 [1996]; People v. Washington, 196 AD2d 346 [App Div, 2nd Dept 1994]).

D. Effect of Any Missing Discovery on the People's Readiness

The missing discoverable items at issue here are therefore the scratch complaint report and the memo book of Detective Ruiz, which the People acknowledged in their certificate of compliance. The People also detailed multiple requests for the scratch complaint beginning on March 10, 2020 via phone and email, sent to both the arresting officer and the precinct operations coordinator; at least one of these requests also asked for the detective's memo book (see Certificate of Compliance at 6-7). On April 29, 2020, the People were informed that the precinct could not locate the materials and that Detective Ruiz was out on medical leave; by June 3rd, 2020, this medical leave was characterized as "indefinite" (Id at 2). When the People filed their certificate of compliance, the People requested a two-week extension of time to produce the outstanding material pursuant to CPL 245.70 (2) or alternatively, a tolling of the speedy trial clock for two weeks due to exceptional circumstances under CPL 30.30 (4) (g) (Id).

Once aware of the indefinite medical leave of the detective, the People properly sought the available statutory remedies under either CPL 245.70 (2) or CPL 30.30 (4) (g) that are expressly permitted in the discovery statute given the obstacle to their compliance (see CPL 245.70; CPL 245.50 [3]; see also discussion supra). Moreover, the Court is satisfied that at the time the People filed their certificate of compliance on July 3, 2020, the People had made diligent efforts to locate and obtain the scratch complaint report and memo book over the [*6]preceding four-month period. Accordingly, the Court finds that the omission of these discoverable documents did not invalidate the certificate of compliance, and the People's diligence in attempting to obtaining the missing material permitted them to answer ready at that time.

The Court is not aware of the current status of these outstanding materials, nor whether the People consider them lost at this point in time. The issue of appropriate remedies and/or sanctions for the defendant for their delinquency or nondisclosure, is deferred to the trial judge.

Thus, the Court finds that the People are charged with 73 days. As the People are within the 90 day speedy trial allotment for prosecution, the motion for dismissal pursuant to CPL 30.30 (1) (b) is DENIED.

E. Certification under CPL 30.30 (5-a)

Defendant also argues that the People's declaration of readiness is invalid due to their failure to "certify" their compliance with the facial sufficiency requirements of CPL 100.15 and 100.40, as required by CPL 30.30 (5-a) (see Defense Motion at 4, 8-10). Here, the People included on their certificate of compliance the affirmation that "[t]he prosecution is ready for trial pursuant to CPL 30.30 (5) and 245.50 (1)" (see Certificate of compliance dated June 22, 2020).[FN7]

Section 5 of CPL 30.30 requires that "whenever" the People state or otherwise provide notice of trial readiness, the Court "shall make inquiry on the record as to their actual readiness" (CPL 30.30 [5]). Echoing the requirements of CPL 245.50 (1) and (3), this provision expressly states that any statement of readiness "must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements" of CPL 245.20, and that the defense "shall be afforded an opportunity to be heard on the record as to whether the disclosure requirements have been met" (Id). There are of course many other aspects to the inquiry into "actual readiness" under Section 5 beyond discovery compliance, including the availability of trial witnesses, expert witnesses, and any outstanding subpoenaed materials and trial exhibits (see e.g. NY Model Colloquies, Inquiry on Ready for Trial Statement (https://www.nycourts.gov/judges/cji/8-Colloquies/1MCTOC). Should the People fail to meet the benchmarks for readiness during the Section 5 inquiry, the People will be deemed not ready, and where appropriate, their non-readiness may reach back to the date of an earlier declaration of readiness (see People v. Sibblies, 22 NY3d 1174 [2014]).[FN8]

Trial readiness also requires a proper accusatory instrument. Under both the CPL and binding precedent, in order to proceed to trial on a misdemeanor case, the People must have "an [*7]information" — that is, an accusatory instrument that contains non-hearsay factual allegations of an evidentiary nature which, if true, provide reasonable cause for every element of the offense(s) charged and the defendant's commission thereof (see CPL 100.15 [3]; 100.40 [1] [b] and [c]; see also CPL 100.10 [4] (misdemeanor complaint may only commence an action); see also CPL 170.65 [1] ("for purposes of prosecution, [a misdemeanor complaint] must, except [where waived], be replaced by an information"]; People v Alejandro, 70 NY2d 133, 137 [1987]; People v Kalin, 12 NY3d 225, 229 [2009]; People v. Colon, 110 Misc 2d 917, 920 [Crim Ct, NY County 1981] aff'd, 59 NY2d 921 [1983] ("the People cannot be ready for trial if they have not converted the complaint[s] to jurisdictionally sufficient information[s] within [the statutory] time period"). Because of this requirement for trial readiness, any statement of readiness filed on a deficient accusatory instrument is illusory (see e.g. People v. Santini, 59 Misc 3d 223 [Crim Ct, New York County 2018] (statement of readiness deemed illusory where complaint facially insufficient); People v. Velerio, 54 Misc 3d 791, 799 [Crim Ct, NY County 2016] (statement of readiness illusory where complaint never converted); People v. Tisdale, 18 Misc 3d 1125 [A], 2008 NY Slip Op 50201[U] [Crim Ct, Kings County 2008]; People v. Peluso, 192 Misc 2d 33 [Crim Ct, Kings County 2002]).

The Court's duty to assess the People's "actual readiness" is newly imposed under the recent reform of the discovery laws (Adrovic, 69 Misc 3d at 575). However, the Court has long held the obligation to assess the sufficiency of the accusatory instrument (e.g. People v Case, 42 NY2d 98 [1977]; People v. Dreydon, 15 NY3d 100 [2010]). Indeed, over the course of the prosecution of a case, the Court's obligation to evaluate legal sufficiency starts with the first appearance of the criminal defendant at arraignments: under CPL 140.45, the arraigning judge must dismiss an accusatory instrument that is insufficient on its face "if the court is satisfied that on the basis of the available facts or evidence it would be impossible to draw and file an accusatory instrument which is sufficient on its face" (see CPL 140.45).[FN9] Nor is the Court's obligation lifted when the parties reach a disposition: that same responsibility prevents the Court from allowing the defendant to plead guilty to an insufficient count (People v. Thiam, 34 NY3d 1040 [2019]; People v. Hightower, 18 NY3d 249 [2011]). Now too, during the Court's newly mandated inquiry into the People's declaration of trial readiness under Section 5, the Court must engage in the same sufficiency analysis as it is a necessary component of trial readiness.

Section 5-a expressly addresses one aspect of the legal sufficiency standard the Court must apply (CPL 30.30 [5-a]). This provision states:

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 30.30 [5-a] (emphasis added). The requirement under Section 5-a that "all counts charged" meet the facial sufficiency requirements abrogates existing precedent that had allowed for the partial conversion of an accusatory instrument (see William C. Donnino, Practice Commentary, [*8]McKinney's Cons of NY, Book 11A, CPL 30.30; People v. Minor, 144 Misc 2d 846 [App Term, 2nd Dept 1989]). Under this line of precedent, the People were permitted to proceed forward on a misdemeanor prosecution if at least one of the charged counts was fully converted (see People v. Gray, 7 Misc 3d 127 (A) [App Term, 2nd Dept 2004]; People v. Brooks, 190 Misc 2d 247 [App Term, 1st Dept 2001]; People v. Ausby, 46 Misc 3d 126 (A) [App Term, 1st Dept 2015]). Now, the People cannot state ready for trial unless every count of their accusatory instrument is converted and facially sufficient according to the standards of CPL 100.15 and 100.40 (See CPL 30.30 [5-a]; see Donnino [CPL 30.30], citing legislative history and memorandum of Senate Bill 1738, L. 2019, c 59, pt. KKK §1 [eff Jan. 1, 2020] [that addresses prior negative commentary on partial conversion doctrine and states amendments will require conversion of all counts]).

Here, the defendant is charged in a misdemeanor information with two different charges of Trespass and Criminal Trespass in the Second Degree, and Criminal Possession of Stolen Property in the Fifth Degree. The People have filed a supporting deposition from the named complainant for all counts charged. The defendant does not argue here that the accusatory instrument fails to meet the standards of CPL 100.15 and 100.40 as a substantive matter, nor is there any argument that the information is only partially converted. Rather, the defendant argues that because the People have not "certified" their compliance with Section 5-a of CPL 30.30, the People's statement of readiness dated July 3, 2020 cannot be deemed valid by this Court (Defense Motion at 10).

As an initial matter, the Court is not persuaded that the People's certification of compliance with Section 5 in this case falls short of the Section 5-a certification requirement. An affirmation that the People are ready for trial "in compliance with CPL 30.30 (5)" contains within it an affirmation that the People have a sufficient accusatory instrument to proceed to trial, given that this question falls squarely within the Court's "actual readiness" inquiry under CPL 30.30 (5).Thus, to the extent that Section 5-a is construed to require an affirmation of compliance at the time readiness is declared, the Court finds the affirmation made by the People in this particular case meets the statutory requirement.

However, the Court is not persuaded that either the statutory language of Section 5-a or the legislative intent, requires a specific affirmation of compliance with facial sufficiency standards at the time the People declare readiness (New York County Lawyers' Ass'n v. Bloomberg, 19 NY3d 712 [2012] citing Patrolmen's Benevolent Assn. of City of NY v. City of New York, 41 NY2d 205, 208 [1976] ("It is fundamental that a court, in interpreting a statute, should attempt to effectuate the intent of the Legislature"); Majewski v. Broadalbin—Perth Cent. School Dist., 91 NY2d 577, 583 [1998] (statutory text, is "the clearest indicator of legislative intent")). The text of Section 5-a does not require that the People certify compliance with CPL 100.15 and 100.40 prior to the Court's inquiry under Section 5, nor that it must be done contemporaneously with a declaration of readiness for trial (compare CPL 245.50 [3] [requiring the prosecution to file a certificate of discovery compliance before they can be deemed ready for trial). Nor is there any requirement that an actual certificate be filed with the Court (compare CPL 245.50 [3] requiring filing of certificate of discovery compliance). Therefore, there is nothing in the text to suggest that the People may not "certify" to the facial sufficiency of the accusatory instrument during the on-the-record inquiry by the Court under Section 5, whether by handing up a written affirmation or representing the same orally (see Black's Law Dictionary, [11th ed 2019] [online version] [defining "certify" as "to authenticate or vouch for a thing in [*9]writing; to attest as being true or as represented"]).[FN10]

A reading of Section 5-a which requires a separate written filing of compliance with facial sufficiency standards at the time readiness is first declared, leads to the automatic defeat of a statement of readiness where it is missing, regardless of the People's substantive compliance with CPL 100.15 and 100.40 or the Court's determination of the same. This reading imposes a pro forma obligation on the People that is not explicit in the statutory text, ignores the revision to CPL 30.30 that requires the Court to determine "actual readiness," and undermines the Court's well-established role as the arbiter of facial sufficiency. Generally, courts are admonished to avoid adhering to an overly formalistic reading of statutory text in isolation that will risk such unintended and absurd results (see Natural Res. Def. Council, Inc. v. Muszynski, 268 F.3d 91, 98 [2d Cir 2001]). The importance of this principle is readily demonstrated here by an alternate possible "strict" reading of Section 5-a: on its face, the text of this provision requires only that "all counts charged" satisfy the "requirements of sections 100.15 and 100.40" without designating any subsection of those provisions. CPL 100.40 contains the facial sufficiency requirements for multiple accusatory instruments, including a misdemeanor complaint which does not require conversion of any of its counts (see CPL 100.40 [4] [b]).[FN11] Thus, a possible literal reading of Section 5-a would require the People to certify only to a facially sufficient misdemeanor complaint where none of the counts need be converted (see CPL 100.40 [4] [b]) (misdemeanor complaint sufficient where each count provides provide reasonable cause that the defendant engaged in the charged conduct; no conversion required). Of course, such a reading should not be adopted as it would run contrary to other provisions of the CPL and binding precedent interpreting the same, as well as clear indications of the legislator's intent to require full conversion of all counts of a misdemeanor information to answer ready for trial (see e.g. CPL 170.65; Donnino [CPL 30.30], citing legislative history indicating the same).

This Court does not agree that Section 5-a means to imperil a case which meets all of the substantive requirements for trial readiness, including an accusatory instrument free from jurisdictional defects, because the People failed to file a separate certification of the same prior to the Court's on-the-record inquiry into trial readiness. The Court acknowledges numerous trial court decisions that have resolved this issue differently and respectfully declines to follow the same (Cf. e.g. People v. Ramirez- Correa, 71 Misc 3d 570 [Crim Ct, Queens County 2021]; People v. Paez, NYLJ, CR-023300-20KN, ID/1620412183NYCR023300 [Crim Ct, NY County 2021]; People v. Hines, Crim Ct, NY County, April 2, 2021, Kitsis, J., CR-044481-19KN)

Accordingly, the Court finds the People's statement of readiness is not invalidated under [*10]Section 5-a of CPL 30.30, as the certification that the People filed can be construed as meeting the requirements of that provision, or in the alternative, the People may still attest to the legal sufficiency of their accusatory instrument during the Section 5 inquiry into their "actual readiness."

CONCLUSION

The Court finds that the certificate of compliance filed by the People on July 3, 2021 effectively stopped the speedy trial clock as of that date. The People are charged with 73 days. As the People have not exceeded the statutory time to prosecute this case under CPL 30.30, the defendant's motion to dismiss is denied. The People are directed to provide the outstanding discoverable material, as detailed supra, within two weeks of the date of this decision.

Dated: May 24, 2021

Brooklyn, New York

Elizabeth N. Warin, J.C.C. Footnotes

Footnote 1:The deadlines for disclosure under the revised discovery laws have been suspended since March 2020 due to the COVID-19 pandemic.

Footnote 2:CPL 30.30 (5) states, in relevant part, "[w]henever pursuant to this section a prosecutor states or otherwise provides notice that the people are ready for trial, the 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." The Court notes that this provision abrogates the previous standard where a statement of readiness was presumed to be truthful and accurate (see People v Brown, 28 NY3d 392, 405 [2016]).

Footnote 3:The language of 245.50 [1] permits the filing of a certificate of compliance where "any items or information" are subject to "an order" under CPL 245.70. While subdivisions (1) and (3) of CPL 245.70 relate to protective orders, subdivision (2) allows for a motion by any party to the court for a good cause modification of the discovery deadlines (see CPL 245.70 [2]).

Footnote 4:The motion was described as a request for a "protective order" but in fact requested additional time for discovery under CPL 245.70(2).

Footnote 5:This exclusion of time under CPL 30.30 (4)(a) is raised sua sponte by the Court. The alternate claims raised by the parties regarding the speedy trial calculations for this time period are rendered moot and will not be addressed further.

Footnote 6:The defendant claims that the People failed to produce the Scratch DIR for the July 6, 2019 incident, contact information for the complainant, and the notice of voluntary disclosures (Defendant's Motion at 4). The People state that each of these items were disclosed to the defense prior to filing the certificate of compliance (People's Response at 16-17).

Footnote 7:The People also filed an additional certification dated May 4, 2021 that "all counts in the accusatory instrument. . . meet the requirements of CPL 100.15 and 100.40" and that "those counts not meeting the requirements of those sections have been dismissed" (see Certification CPL 30.30 [5-A]).

Footnote 8:As noted in the practice commentary, an on-the-record inquiry is mandated "whenever" the People declare readiness, but an immediate inquiry is not possible where the People file a statement of readiness off-calendar: any finding of illusoriness made afterwards would relate back to the date of filing (see William C. Donnino, Practice Commentary, McKinney's Cons of NY, Book 11A, CPL 30.30).

Footnote 9:CPL 140.45 applies where the defendant is arrested without a warrant. A parallel obligation falls on the court when issuing an arrest warrant pursuant to CPL 120.20 ("such court, may, if such accusatory instrument is sufficient on its face, issue a warrant for such defendant's arrest").

Footnote 10:Of course, a certification by the People that the accusatory instrument is sufficient during the Section 5 inquiry does not absolve the Court of its obligation to assess the same. Moreover, if the Court discovers that a prior declaration of readiness was made on an insufficient accusatory instrument during this inquiry, the People will be deemed not ready from the time that prior declaration was made (see People v. Sibblies, 22 NY3d 1174 (2014)).

Footnote 11:While section (1) of CPL 100.40 sets forth the standards for non-hearsay factual allegations for an information, section (4)(b) of CPL 100.40 explains that a misdemeanor or felony complaint is sufficient as long as it substantially conforms to CPL 100.15 and contains factual allegations that provide "reasonable cause to believe the defendant committed the offense charged."