People v Smith

[*1] People v Smith 2023 NY Slip Op 23127 Decided on March 30, 2023 Supreme Court, Queens County Johnson, 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 March 30, 2023
Supreme Court, Queens County

The People of the State of New York

against

Donte Smith, Defendant.



Ind. No. 1009-2020


Defendant
Risa Procton, Esq., Queens County Legal Aid Society, affirm

People
ADA Brian Woo, Queens County District Attorney's Office, affirm Michelle A. Johnson, J.

Recitation, as required by CPLR 2219[a], of the papers considered in the review of this motion

Papers Considered

Defendant's n/m to Invalidate the COC and Dismiss pursuant to CPL §§ 30.30(l)(a) and 210.20(l)(g) dated January 25, 2023, Risa Procton, Esq., Queens County Legal Aid Society, affirm

Defendant's Motion to Reargue the court's Decision and Order, denying defendant's motion to dismiss/reduce the charge of Grand Larceny in the Third Degree as legally insufficient dated January 27, 2023, Risa Procton, Esq., Queens County Legal Aid Society, affirm

People's response to Defendant's motion to Invalidate the COC and Speedy Trial Motion dated February 16, 2023, ADA Brian Woo, Queens County District Attorney's Office, affirm

People's response to defendant's Motion to Reargue the court's Decision and Order denying defendant's motion to dismiss/reduce the charge of Grand Larceny in the Third Degree as legally insufficient dated February 16, 2023, ADA Brian Woo, Queens County District Attorney's Office, affirm

People's Certificate of Compliance and Statement of Readiness filed November 30, 2020

People's Supplemental Certificate of Compliance and Statement of Readiness filed November 4, [*2]2022

People's Supplemental Certificate of Compliance and Statement of Readiness filed January 26, 2023

People's Email to Defense Counsel and the Court dated March 4, 2023, regarding BWCs and metadata, ADA Christine Thambuswamy, Queens County District Attorney's Office, affirm

Defendant's Supplemental Reply to People's Response, dated March 8, 2023, Risa Procton, Esq., Queens County Legal Aid Society, affirm

Defense counsel's reply email regarding BWCs and metadata dated March 8, 2023, Risa Procton, Esq., Queens County Legal Aid Society, affirm

Suppression Hearing Minutes dated October 14, 2022, and October 31, 2022

Court File

By motion dated January 25, 2023, defendant moves to dismiss the instant indictment pursuant to CPL §§ 30.30(l)(a) and 210.20(l)(g) on ground that the People's Statement of Readiness (SOR) filed on November 30, 2020, was invalid due to the People's failure to file a proper Certificate of Compliance (COC) with the requisite discovery disclosure mandates pursuant to CPL § 245.20. Specifically, defendant contends that the People failed to disclose the body worn camera (BWC) footage and IAB/CCRB records of police officers who responded to the scene. Defendant also moves to reargue the Decision and Order dated June 14, 2021 (Knopf, J.) denying his motion to dismiss/reduce the Grand Larceny in the Third Degree count of the indictment as legally insufficient.

Defendant stands charged by indictment with Criminal Possession of a Weapon in the Second Degree [PL § 265.03(l)(B)] and related counts from an incident which allegedly occurred on September 27, 2020.

PEOPLE'S STATEMENT OF READINESS FILED NOVEMBER 30, 2020

Defendant contends that the People failed to meet its automatic discovery obligations pursuant to CPL § 245.20(1) which rendered the SOR filed on November 30, 2020, invalid. CPL § 245.20(1) provides, in pertinent part, that

The Prosecution shall disclose to the defendant all items and information that relates 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.

CPL § 245.20(7) directs this Court to apply a presumption in favor of disclosure when interpreting the statutory text of CPL §§ 245.10, 245.25, and 245.20. All items and information related to the prosecution of a charge in the possession of any New York State or local police department or law enforcement agency are explicitly deemed to be in the prosecutor's possession, custody, or control (CPL § 245.20[2]). The statute further imposes an automatic and [*3]affirmative duty upon the prosecutor to make diligent, good-faith efforts to determine the existence of material and/or information to be made available for discovery where it exists but is not (emphasis added) within the prosecutor's possession, custody, or control (CPL § 245.20[7]). Where, despite diligent, good faith efforts and reasonable inquiry, the People are unable to secure and disclose mandated discoverable material within the statutorily allotted time periods, the law prescribes that the People make an application to the court to enlarge the time to comply with its disclosure requirements (CPL § 245.70[2]). The statute goes on to enumerate a non-exhaustive list of materials subject to the prosecution's automatic disclosure mandate (Id.).

The new discovery statute imposes an affirmative and ongoing duty for the People to obtain and disclose additional material and information that is subject to automatic mandatory discovery pursuant to CPL § 245.20 (see, CPL § 245.60). Moreover, the new law now directly links the People's compliance with its automatic discovery obligations, as a condition precedent, to the validity of its Statement of Readiness (SOR) and speedy trial calculations.

To be sure, notwithstanding the provisions of any other law, CPL § 245.50(3) provides that absent an individualized finding of special circumstances by the court before which a charge is pending, the prosecution shall not be deemed ready for trial pursuant to CPL § 30.30 until it has filed a proper Certificate of Compliance pursuant to CPL § 245.50(1). Similarly, CPL § 30.30(5) requires that any statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of CPL § 245.20.

In order for the People to file a valid SOR, the People must first: (1) file a COC upon satisfaction of its discovery obligations under CPL § 245.20(1), except for discovery that is lost or destroyed, or any items or information that are the subject of a protective order pursuant to CPL § 245.70; (2) affirm that it has disclosed and made available all known material and information subject to discovery after having exercised due diligence and making reasonable inquiries to ascertain the existence of such material and information; and (3) must include a list identifying the discovery materials provided (CPL § 245.50[1]). If additional discovery is subsequently provided or required prior to trial, the statute provides for a supplemental certificate which shall be served upon the defendant and filed with the court identifying the additional material and information provided (CPL § 245.60). 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; but the court may grant a remedy or sanction for a discovery violation as provided in CPL § 245.80.

Defendant alleges that the People failed to disclose the body worn camera (BWC) footage and IAB/CCRB records of three (3) police officers who responded to the scene. The People concede that they failed to disclose the BWC footage of three responding officers;[FN1] and represent that all LEOW and CCRB records of testifying officers were disclosed to defendant on [*4]or before November 30, 2020, except that of Officer Campisi,[FN2] one of the officers who responded to the scene (see People's Affirmation in Opposition filed 2/16/2023, Pg 4 — 5, Para 18). The People also disclosed the metadata for the missing BWC videos on January 23, 2023. Since its original filing, the People filed two supplemental COC's on November 4, 2022, and January 26, 2023, respectively.

Unquestionably, BWC video footage of responding police officers constitute electronic recordings; and LEOW/CCRB records of testifying witnesses are both subject to the automatic disclosure mandates prescribed by CPL §§ 245.20(1)(g) and (k)(iv). Hence, the People were required to disclose same to defendant in order to satisfy its obligations under CPL § 245.20(1). Despite the clear mandate of the statute, the People filed a COC on November 30, 2020, wherein the People affirm that it had disclosed . . . all existing known material and information subject to discovery [emphasis added], except . . . items or information subject to a protective order under section 245.70 of the Criminal Procedure Law (People's COC filed 11/30/2020, pg 1), when in fact, it had not. The People concede that the aforementioned discoverable materials were known to have existed at the time the original COC was filed (see People's Supplemental COC filed 11/4/2022). Further, the People's awareness of the existence of the missing BWC footage for the three named officers is clear upon review of its original COC filing wherein the officers' names appear on the "NYPD District Attorney Body Worn Camera Checklist" form which was disclosed to defendant on or before November 30, 2020. Significantly, defense counsel also confirms receipt of the BWC checklist which named all of the officers that responded to the scene, on November 5, 2020 (see Defendant's Motion to Dismiss dated 1/24/2023).

On October 14, 2023, upon the Court's inquiry regarding the issue of missing BWC footage first raised by defense counsel moments earlier, the People offered the following:

...I was not the original assistant on this case. A different ADA had certified this case. I am not sure why they were not provided to defense counsel, but this case has been pending since 2020, and this is the first time that we are hearing about missing body worn camera. So, I can look into it (Hearing Minutes, 10/14/22, Pg 5, Line 14)

As such, the People have failed to articulate any valid reason why the requisite BWC video footage and/or the LEOW/CCRB records of Officer Campisi were not disclosed prior to filing the COC and SOR on November 30, 2020 (see People v. Wessinger, 2022 NY Slip Op 50221[U], 74 Misc 3d 1225[A] [NY Justice Court 2022]). By Affirmation in Response, the People cannot point to a statutory exception exempting non-disclosure of the BWC footage and/or LEOW/CCRB records from officers responding to this incident. Nor have the People proffered any basis for authorizing a declaration of readiness for trial in spite of such obvious missing discovery. Since a proper COC is a condition precedent to the filing of a valid statement of readiness (CPL § 30.30[5]), I find the People's COC filed on November 30, 2020, was neither accompanied with and/or preceded by the requisite good faith certification of compliance with the disclosure requirements of CPL § 245.20 (See CPL §§ 245.50[3] and 30.30[5]); and is therefore illusory.

In this case, however, the Court's analysis does not end there. The issue remains, [*5]whether defendant, by waiting almost two years to contest the validity of the People's COC, can now request that all of the time accrued since the People's now deficient COC filing be charged against the People. In enacting the new discovery statute, the Legislature did not intend to promote gamesmanship, but rather to ensure the free flow of information from the police to the prosecutor and ultimately to the defendant (see People v. Barralaga, 73 Misc 3d 510 [Crim Ct. NY Co. 2021]; CPL § 245.55). To that end, the statute also requires the parties to affirmatively confer with each other regarding discovery disclosure matters to facilitate compliance (CPL § 245.35; Id.). Indeed, CPL § 30.30(5) was enacted to ensure that a defendant was not unfairly disadvantaged at trial by the People's failure to disclose discovery material (Id.). Where it is apparent that the People's COC filing is inadequate under Article 245, the defendant must within a reasonable period of time under the circumstances confer with the People regarding discovery deficiencies and/or seek relief from the court to resolve any discovery disputes (Id.).

Prior to May 9, 2022, CPL § 245.50(4) required only that challenges to a certificate of compliance be made by motion to the court; and remained silent on the timing of such motion. Undoubtedly, to diminish any opportunity for manipulation and to provide some guidance on a party's duty to challenge a COC within a reasonable period of time, the Legislature amended the statute to require that the actions necessary to challenge a COC be made "as soon as practicable" (CPL §§ 245.50[4][b] & [c], effective 5/9/2022). But, here again, the statute offers no definition of the term "as soon as practicable."

The amended statute now provides that,

(a) challenges to, or questions related to a certificate of compliance shall be addressed by motion; (b) to the extent that a party is aware of a potential defect or deficiency related to a certificate of compliance or supplemental certificate of compliance, the party entitled to disclosure shall notify or alert the opposing party as soon as practicable; and (c) provided that nothing in this section shall be construed to waive a party's right to make further challenges, including but not limited to a motion pursuant to section 30.30 of this chapter.

There is currently no binding appellate authority directly addressing the timeliness of a party's motion to challenge a COC. Nor is there a general consensus among courts of concurrent jurisdiction on this issue; although, several courts have held that a defendant cannot unreasonably delay moving to challenge a COC while simultaneously asking the court to charge the People with all time upon the COC being found illusory (see People v. Florez, 74 Misc 3d 1222[A], 2022 Slip Op 50202[U] [Sup. Ct. Nass Co 2022]; People v. Lanfair, 2023 Slip Op 23011, — NYS2d — [2023][City Ct. Albany Co 2023]; People v. Barralaga, 73 Misc 3d 510 [Crim. Ct. NY Co 2021]; People v. Knorr, 73 Misc 3d 285 [Justice Ct, Monroe Co. 2021]; People v. Nova-Ceballos, Ind. No. 98/2019 [Sup. Ct., NY Co. 2021][Kiesel, J]; People v. Guevara-Ramirez, Docket No. CR-007083-21BX (Crim. Ct, Bronx Co. 2022][McCormack, J.]; People v. Mann, 74 Misc 3d 1037 [Crim. Ct. Bx. Co. 2022]).

Further, a review of cases throughout New York State's criminal jurisprudence reveals no appellate guidance on the meaning of the term "as soon as practicable." However, in the context of state civil jurisprudence, the Court of Appeals has defined the term as it relates to the notice requirements for automobile insurance claims. In Matter of Metropolitan Prop. And Cas. Ins. Co. v. Mancuso, 93 NY2d 487 [1999]), the court held that "as soon as practicable" means that the insured must give notice with reasonable promptness after the insured knew, or should [*6]reasonably have known, judged by an objective standard, that the tortfeasor was underinsured. The Mancuso court cautioned that this standard necessarily contemplates elasticity and requires an intensely fact-specific, case-by-case analysis (Matter of Metropolitan Prop. And Cas. Ins. Co. v. Mancuso, supra).

Against that backdrop, I find concrete similarities in criminal law jurisprudence relating to the notice requirements for a challenge to the COC. As such, I now hold that the term "as soon as practicable," as it pertains to notice requirements pursuant to CPL § 245.50(4), should also be applied as an objective standard based on principals of reasonableness under the circumstances; and that it means to the extent that a party knows, or reasonably should have known, of a potential defect or deficiency related to a COC or supplemental COC, the party entitled to disclosure must give notice or alert the opposing party with reasonable promptness. Further, any analysis in this regard must be undertaken on a case specific basis owing to the particular facts and circumstances presented.

At least one court has set forth a number of factors relevant to the court's determination of whether a party knew or reasonably should have known of the existence of a COC deficiency (see People v. Lanfair, supra). The Lanfair Court found that the People's late disclosure of videos invalidated its original COC and SOR. Nonetheless, relying on the Legislative amendment to CPL § 245.50(4)(b), the court offered several factors relevant to a court's assessment of whether the challenging party notified or alerted its adversary "as soon as practicable" as prescribed by the statute,

A two-month delay in a major case may be less severe than a two-week delay in a petty one. Nevertheless, some factors will apply no matter the controversy. These include the length of the delay; the underlying charges; the nature of the discovery violation; whether the violation is obvious, and susceptible to easy detection, or obscure, and more likely to escape notice; whether there's evidence that the defense knew or should have known of the error; the volume of discovery in the case; and the applicability of any statutory deadlines (see, e.g., § CPL 245.20). Another factor worth considering is the resources available to the defense attorney; for example, a larger law firm, with superior technologies and more support staff, may be better equipped to unearth a discovery error than an overburdened solo practitioner or legal aid attorney. That certainly is something that this Court would consider in assessing whether the defense acted "as soon as practicable" in raising a COC challenge.

In this case, the matter was sent forthwith from TAP-A to this Court to conduct pre-trial suppression hearings on October 14, 2022. Prior to commencing the hearings, defense counsel notified the court and the assistant district attorney that the BWC video of three responding police officers had not been disclosed in accordance with the People's discovery obligations under CPL § 245.20(1)(g) (Hearing Minutes, Pg 4, Line 12). Defense counsel further explained that she first realized said BWC videos were missing from her discovery disclosures the night before (October 13, 2022) when preparing for the hearing (Hearing Minutes, Pg 6, Line 17). Although, as indicated above, defense counsel also acknowledges receipt of the NYPD BWC Checklist on or before the People's original COC filing on November 30, 2020. This form clearly named all responding officers to the incident; indicated whether such officers had BWC; the missing BWC videos complained of were from officers identified on that checklist; and the missing LEOW/CCRB records pertained to another officer identified on that checklist and whom the People's COC identified as a testifying witness. Despite having timely received the BWC [*7]checklist disclosure and the COC itself, defendant delayed notifying the assistant district attorney of any discovery deficiencies and/or moving to contest the validity of the People's COC until October 14, 2022 (almost two years later). On that date defense counsel agreed to go forward with suppression hearings provided that she be granted an adjournment to receive and review the missing BWC footage prior to commencing cross examination of the People's witness. Thereafter, the hearing commenced. Both parties agree that the People, in fact, disclosed six BWC videos, including the three missing BWC videos in question on October 16, 2022 (Hearing Minutes, Pg 37, Line 19), only two (2) days after being notified of such discovery defect. On October 31, 2022, the suppression hearing concluded, and the case adjourned to December 20, 2022, for defendant to submit a memorandum of law and court decision on hearings. Subsequently, on or about January 26, 2023, new defense counsel, Risa Procton, Esq., was assigned to assume defendant's representation. On that date, Ms. Procton informed the court that she filed a motion, the day before, challenging the People's COC for the first time since November 30, 2020 — almost two years earlier.

While this court takes no position on whether defense counsel's delay in challenging any deficiencies in the People's COC filing was intentional, her failure to minimally peruse the items disclosed for almost two years is so clearly unreasonable, by any objective measure, that defendant forfeited the statutory claim that the People's SOR filed on November 30, 2020, be declared null and void and all time since then, consequently, be charged to the People pursuant to CPL § 30.30(5). Particularly, in this case where the alleged discovery deficiencies were obvious on the face of the People's COC filing itself. Had defense counsel simply reviewed the COC document and the checklist of items purportedly electronically shared therewith, without opening a single electronic file, the nature of the discovery violations should have been readily apparent. Simply put, a two-year delay in notifying the People of a discovery violation and/or challenging a COC where the nature of the discovery violations are obvious and susceptible to easy detection upon a cursory review of the discovery disclosures is highly unreasonable. Under these circumstances, I find that defense counsel's actual awareness of such disclosure defects is of no consequence. Consequently, because of defendant's unreasonable inaction and undue delay in notifying the People of discovery defects and/or challenging the People's COC as soon as practicable, this Court declines to charge the People with all speedy trial accruals since its filing of the original COC on November 30, 2020 (CPL § 245.35[4][b] and [c]; see also People v. Florez; People v. Barralaga, supra).

This Court recognizes, however, that the People are also without clean hands. For the reasons stated above, the People's original COC was not properly filed in good faith; and is, therefore illusory. The discovery disclosure deficiencies, in this case, should have been as obvious to the People as to the defense. Should there not be consequences for the People's statutory non-compliance as well? Or does the defendant's unreasonable delay nullify the People's statutory discovery violations? To answer this question, the Court turns to the statutory guidance governing the timeliness of pre-trial motion practice in general under CPL Article 255.CPL § 255.20 provides, in pertinent part, that

[E]xcept as otherwise expressly provided by law all pre-trial motions shall be served or filed within forty-five days after arraignment and before commencement of trial ...

(CPL § 255.20[1]).[FN3] Further, in certain specified instances where People are required to serve notice of the existence of and/or its intention to introduce evidence against defendant, this forty-five (45) day period shall be extended until forty-five days after the last date of such service and/or notice (Id.).Additionally, the court must entertain and decide on the merits, at anytime before the end of the trial, any appropriate pre-trial motion based upon grounds of which the defendant could not (emphasis added), with due diligence, have been previously aware, or which, for other good cause, could not reasonably have been raised within the forty-five (45) day window (CPL § 255.20[3]). Finally, any other pre-trial motion made after the forty-five (45) day period may be summarily denied, although the court may opt, in its discretion, and for good cause shown, to entertain and resolve any such motion on the merits (Id.).

Notably, both Article 255 pertaining to pre-trial motion procedure; and the new Article 245 pertaining to discovery were both enacted and became effective on January 1, 2020. Against this backdrop, it appears that the Legislature deems forty-five (45) days to be a generally reasonable amount of time for a party to file pre-trial motions in most instances. The statute recognizes that in some instances, this forty-five (45) day window may be unreasonable, for example, in the case of eavesdropping warrants and applications pursuant to CPL § 700.70 or where a defendant, with due diligence, could not have previously been aware of the grounds upon which to make such motion (CPL §§ 255.20[1] and [3]). In the latter circumstance, extension of the forty-five (45) day window to file motions is warranted (Id.).

Certainly, a motion challenging the validity of the People's COC and SOR constitutes a pre-trial motion. This Court has already determined that it would be inappropriate, under the circumstances, to charge the People with the entire 785 days from the original COC filed on November 30, 2020, to the date defendant filed the instant motion on January 25, 2023. However, the question remains what, if any period of time, should be charged against the People. In this case, neither party should benefit by its egregious inaction. Not the People, by failing to exercise the requisite due diligence in filing a certificate of compliance in good faith; nor the defendant, by sitting idly by as the speedy trial clock ticked along without alerting the People or the court of any discovery compliance deficiencies for almost two years. As such, I find that under the particular facts presented here, defendant should reasonably have lodged an objection to the People's original COC and SOR within forty-five days of its filing on November 30, 2020. Accordingly, the People shall be charged a total of forty-five days for having filed an illusory COC and SOR on November 30, 2020; and defendant is deemed to have forfeited any additional claim of speedy trial accruals against the People due to his failure to challenge the People's COC filing as soon as practicable.

MOTION TO REARGUE

A motion to reargue is addressed to the sound discretion of the judge who decided the prior motion (CPLR § 2221(d); People v. Cordes, 270 AD2d 430 (2d Dept. 2000); Rodney v. New York Pyrotechnic Products Co., Inc., 112 AD2d 410, 411 [2d Dept. 1985]; Foley v. Roche, 68 AD2d 558 [1st Dept. 1979]). Such motion is not based upon new proof but seeks to convince the judge that he/she was incorrect and to change his/her earlier decision. When re-argument is sought, the moving party must demonstrate that the court has either overlooked or [*8]misapprehended relevant facts or misapplied controlling principles of law (Rodney v. Pyrotechnic Products Co., Inc., supra; 300 West Realty Company v. City of New York, 99 AD2d 708 [1st Dept. 1984]). A motion for leave to reargue may not include any newly discovered information or factual matters not offered on the initial motion (CPLR § 2221[d][2]).

On June 14, 2021, a court of concurrent jurisdiction denied defendant's motion to reduce any of the counts contained in the indictment (see Decision and Order dated 6/14/2021[Knopf. J]). In his motion to reargue, defendant seeks to have this Court reinspect the grand jury minutes and reduce/dismiss the charge of Grand Larceny in the Third Degree. After conferring with Justice Knopf, defendant's motion to reargue is granted in the interest of justice. Further, upon reinspection of the Grand Jury minutes, defendant's motion to dismiss/reduce Count 4 of the indictment, Grand Larceny in the Third Degree (PL § 155.35[1]) is also GRANTED.

In order to sustain the charge of Grand Larceny in the Third Degree, the People are required to present legally sufficient evidence establishing all essential elements of the charge. In this case, an essential element of the Grand Larceny in the Third Degree count is that the value of the alleged stolen property "exceeds three thousand dollars" (PL § 155.35[1]). A review of the Grand Jury minutes reveals that the record is devoid of any evidence establishing the value of the purportedly stolen 2003 Ford Durango. Instead, the complainant testified that he previously purchased a Ford Escape vehicle from the defendant and wished to trade that vehicle in for the Dodge Durango. The People posit that,

[o]nce the parties met for the purpose of exchanging cars, a reasonable inference could be made that without more or less from the defendant, the parties agreed that the value of the Dodge Durango was tied to the value of the Ford Escape (People's affirmation page 7).

The People's averments are flawed in this regard. First, the statute requires that the People establish that the value of the Dodge Durango exceeds (emphasis added) three thousand dollars not equals three thousand dollars. Second, even assuming that the parties agreed or estimated that the Dodge Durango was worth three thousand dollars, there exists no evidentiary basis for the valuation of either vehicle from which the Grand Jury could reasonably infer, rather than merely speculate, that its value exceeded the requisite minimum statutory thresholds. See People v. Lopez 79 NY2d 402 (1992). Accordingly, the fourth count of the indictment charging Grand Larceny in the Third Degree (PL § 155.35[1]) is legally insufficient and must be reduced to the lesser included offense of Petit Larceny (PL § 155.25).

SPEEDY TRIAL CALCULATIONS

Defendant contends that the People's COC and SOR filed on November 30, 2020, was illusory and therefore, ineffective to halt the speedy trial clock. As such, defendant avers that the entire period from November 30, 2020, through January 25, 2023, seven hundred and eight-five (785) days (the date defendant filed the instant motion) should be charged to the People, and the instant indictment dismissed pursuant to CPL § 30.30. As stated above, the People are charged with forty-five (45) days for filing an improper COC.

This criminal action commenced on September 28, 2020, upon defendant's arraignment on the felony complaint at the Queens County Criminal Court. As is relevant here, beginning March 20, 2020, New York State's Governor issued an Executive Order suspending and tolling speedy trial calculations pursuant to the Criminal Procedure Law because of a global pandemic (See Governor's Executive Order 202.8 effective 3/20/20). Thereafter, the Governor issued multiple successive Executive Orders which continued to extend the suspension and tolling of [*9]speedy trial time under the Criminal Procedure Law through and including May 23, 2021.

For defendants whose cases were indicted but not yet arraigned on the indictment and/or whose felony complaints were still pending as of October 4, 2020, the speedy trial clock pursuant to CPL § 30.30 resumed on the date said defendants were arraigned on the indictment in supreme court or May 24, 2021, whichever occurred later (See Executive Orders 202.67 [eff. 10/4/2020]; 202.87 [eff. 12/30/2020]; and 202.106 [eff. 5/6/2021]). This action commenced against defendant during the Governor's initial suspension of the speedy trial clock (See Executive Order 202.8 [eff. 3/20/2020]). The People filed the instant indictment on or about October 29, 2020; and defendant was arraigned on the indictment at the Queens County Supreme Court on December 3, 2020. Hence, the speedy trial clock, in defendant's case, resumed on December 3, 2020, upon his arraignment on the instant indictment at the Supreme Court.

In determining whether the People have satisfied their obligation to be ready for trial under Criminal Procedure Law § 30.30, this Court must calculate the time between the filing of the first accusatory instrument and the People's declaration of readiness, then subtract any statutorily excludable periods of delay, and finally add any periods of post-readiness delay that are attributable to the People for which statutory exclusions apply (see People v. Cortes, 80 NY2d 201 [1992). Once the defendant has shown the existence of a delay greater than the statutory period, the burden rests on the people to show any pre-readiness exclusions, and on the defendant to show any post-readiness inclusions (People v. Chavis, 91 NY2d 500, 504-505 ([1998]). The People also bear the burden of producing a record of the proceedings sufficient for the court to reach "an informed decision" regarding what time may be excludable (People v. Stirrup, 91 NY2d 424 [1998]; People v. Cortes, supra, at 215 [1992]).

On December 3, 2020, defendant was arraigned on the instant indictment at the Queens County Supreme Court. The People announced ready for trial and advised that they served and filed a COC and SOR three days earlier on November 30, 2020. The court set a motion schedule and adjourned the case to February 24, 2021, for a decision on motions and to set a pre-trial hearing date. This period is excluded for motion practice (CPL § 30.30[4][a]). {Zero [0] days charged to the People for a total of forty-five [45] days}

On February 24, 2021, defendant had yet to file motions. The court set a new motion schedule and adjourned the case to April 22, 2021, for decision on motions. This period is excluded for motion practice (CPL § 30.30[4][a]). {Zero [0] days charged to the People for a total of forty-five [45] days}

On April 22, 2021, motions were still pending court decision. The court adjourned the case to June 14, 2021, for decision on motions. This period is excluded for motion practice (CPL § 30.30[4][a]). {Zero [0] days charged to the People for a total of forty-five [45] days}

On June 14, 2021, the court issued a decision on motions and ordered pre-trial hearings. The case was adjourned to August 18, 2021, to set a hearing date. This period is excluded since the People are entitled to a reasonable adjournment following the court's decision on Omnibus motions (People v. Green, 90 AD2d 705 [1st Dept.1982], lv. denied, 5 NY2d 784 [1982] [People entitled to reasonable adjournment for hearings and trial following court's decision on motions]); People v. Davis, 80 AD3d 494 [1st Dept 2011]; People v. Solano, 206AD3d 432 [1st Dept 2022]). {Zero [0] days charged to the People for a total of forty-five [45] days}

On August 18, 2021, the case was on the virtual court calendar to set a hearing date. The court adjourned the case to October 13, 2021, for pre-trial hearings on consent of the parties; and directed all parties to appear in person for this purpose. This period is excluded since defendant [*10]consented to the adjournment (CPL § 30.30[4][b]). {Zero [0] days charged to the People for a total of forty-five [45] days}

On October 13, 2021, the People announced ready for hearings and trial. Defendant requested an adjournment for control to set a pre-trial hearing date. The court adjourned the case to October 26, 2021, at defendant's request, to set a hearing date. This period is excluded as a continuance granted at defendant request (CPL § 30.30[4][b]). {Zero [0] days charged to the People for a total of forty-five [45] days}

On October 26, 2021, the case was on the virtual court calendar to re-schedule a pre-trial hearing date. The court adjourned the case to November 8, 2021, for control to set a hearing date; and directed all parties to appear in person. This period is excluded since the People previously announced ready for trial. {Zero [0] days charged to the People for a total of forty-five [45] days}

On November 8, 2021, defendant failed to appear in court as directed. The court ordered and stayed a bench warrant and adjourned the case to November 10, 2021, for defendant to appear. This period is excluded as an adjournment resulting from defendant's absence (CPL § 30.30[4][c][i]). {Zero [0] days charged to the People for a total of forty-five [45] days}

On November 10, 2021, defendant did not appear in court. The parties advised the court of defendant's rearrest on unrelated charges. The court adjourned the case to November 16, 2021, for defendant to appear. This period is excluded as an adjournment resulting from defendant's absence (CPL § 30.30[4][c][i]). {Zero [0] days charged to the People for a total of forty-five [45] days}

On November 16, 2021, defendant appeared with his attorney. The case was adjourned to December 14, 2021, to track defendant's other pending indictment.[FN4] This period is excluded since it resulted from other proceedings concerning defendant (CPL § 30.30[4][a]). {Zero [0] days charged to the People for a total of forty-five [45] days}

Subsequently, between December 14, 2021, and May 3, 2022, this case was scheduled on the court calendar eleven (11) times.[FN5] On each date, the court adjourned the case to track defendant's other pending indictment. Hence, the entire period from December 14, 2021, to May 3, 2022, is excluded as it resulted from other proceedings concerning defendant (CPL § 30.30[4][a]). {Zero [0] days charged to the People for a total of forty-five [45] days}

On May 3, 2022, the case was on the calendar for a conference. The court adjourned the case, with defendant's consent, to June 8, 2022, for pre-trial hearings; and directed all parties to appear in person. This period is excluded as a continuance granted with defendant's consent (CPL § 30.30[4][b]). {Zero [0] days charged to the People for a total of forty-five [45] days}

On June 8, 2022, the People announced ready for hearings. Defense counsel stated not ready for pre-trial hearings and requested and adjournment to June 16, 2022, for court to schedule a new date for pre-trial hearings. This period is excluded as a continuance granted at [*11]defendant's request (CPL § 30.30[4][b]). {Zero [0] days charged to the People for a total of forty-five [45] days}

On June 16, 2022, the case was on the calendar to re-schedule a hearing date. Plea negotiations were ongoing, and defendant consented to an adjournment for possible disposition. The court adjourned the case to June 21, 2022, for possible disposition. This period is excluded as a continuance granted at defendant's request (CPL § 30.30[4][b]). {Zero [0] days charged to the People for a total of forty-five [45] days}

On June 21, 2022, the case was scheduled on the calendar for possible disposition. There being no disposition of the matter, the court adjourned the case to July 18, 2022, to track defendant's other pending indictment. This period is excluded since it resulted from other proceedings concerning defendant (CPL § 30.30[4][a]). {Zero [0] days charged to the People for a total of forty-five [45] days}

On July 18, 2022, the case was on the calendar to track defendant's other case. The court again adjourned the case to July 20, 2022, to track defendant's other pending indictment. This period is excluded since it resulted from other proceedings concerning defendant (CPL § 30.30[4][a]). {Zero [0] days charged to the People for a total of forty-five [45] days}

On July 20, 2022, the parties advised that plea negotiations were unsuccessful. The court adjourned the case to August 18, 2022, for pre-trial hearings. This period is excluded since the People previously announced ready for trial and are entitled to a reasonable adjournment following failed plea negotiations (see People v. Delvalle, 265 AD2d 174, 175 [1st Dept. 1999]). {Zero [0] days charged to the People for a total of forty-five [45] days}

On August 18, 2022, the case was added to the Gun Trial Assignment Part calendar (G-TAP) for the first time. The court held a conference with all parties and adjourned the case to September 8, 2022, for possible disposition with defendant's consent, or pre-trial hearings. This period is excluded as a continuance granted with defendant's consent (CPL § 30.30[4][b]). {Zero [0] days charged to the People for a total of forty-five [45] days}

On September 8, 2022, the People were not ready for pre-trial hearings. Defendant consented to an adjournment to continue plea negotiations. The court adjourned the case to September 29, 2022, for possible disposition with defendant's consent, or pre-trial hearings. This period is excluded as a continuance granted with defendant's consent (CPL § 30.30[4][b]). {Zero [0] days charged to the People for a total of forty-five [45] days}

On September 29, 2022, the parties advised that plea negotiations were again unsuccessful. The court adjourned the case to October 14, 2022, for pre-trial hearings. This period is excluded since the People previously announced ready for trial and are entitled to a reasonable adjournment following failed plea negotiations (see People v. Delvalle, 265 AD2d 174, 175 [1st Dept. 1999]). {Zero [0] days charged to the People for a total of forty-five [45] days}

On October 14, 2022, the case was scheduled on a trial part calendar for pre-trial hearings. All parties announced ready for the hearings which commenced before the Honorable Michelle A. Johnson in Part K-11. The court adjourned the case to October 17, 2022, for continued hearings.This period is excluded for motion practice since the People were ready for suppression hearings (CPL § 30.30[4][a]). {Zero [0] days charged to the People for a total of forty-five [45] days}

On October 17, 2022, defense counsel reported that she was unavailable to appear in court. The case was adjourned, at defendant's request, to October 31, 2022, for continued [*12]hearings. This period is excluded as a continuance granted at defendant's request (CPL § 30.30[4][a]). {Zero [0] days charged to the People for a total of forty-five [45] days}

On October 31, 2022, all parties appeared, and the pre-trial hearings concluded. Defendant requested that the court set a briefing schedule for submission of memoranda of law in lieu of oral arguments. The court set a briefing scheduled and adjourned the case to December 20, 2022, for decision on hearings. This period is excluded for motion practice since the matter remained under court consideration (CPL § 30.30[4][a]). {Zero [0] days charged to the People for a total of forty-five [45] days}

On December 20, 2022, defendant appeared with newly assigned counsel who advised that defendant's former attorney was now on indefinite medical leave. The case was adjourned to January 25, 2023, at defendant's request, for control to provide new counsel an opportunity to become familiar with the case, and for the court's decision on hearings. This period is excluded as a continuance granted at defendant's request, and since suppression motions remain under court consideration (CPL § 30.30[4][a] and [b]). {Zero [0] days charged to the People for a total of forty-five [45] days}

On January 25, 2023, due to the court's unavailability, the case was administratively adjourned to January 26, 2023, for the court's decision on hearings. This period is excluded since the People previously announced ready for trial and suppression motions remain under court consideration (CPL § 30.30[4][b]). {Zero [0] days charged to the People for a total of forty-five [45] days}

On January 26, 2023, the case was on the court's calendar for decision of suppression motions. The court distributed its decision. Defendant advised that he served and filed the instant motion the day before. The court set a schedule for the People's response and adjourned the case to March 2, 2023, for decision on motions. This period is excluded for motion practice (CPL § 30.30[4][b]). {Zero [0] days charged to the People for a total of forty-five [45] days}

On March 2, 2023, the case was administratively adjourned to March 21, 2023, for defendant to file a sur-reply to the People's response and the court's decision on motions. This period is excluded for motion practice (CPL § 30.30[4][b]). {Zero [0] days charged to the People for a total of forty-five [45] days}

On March 21, 2023, the instant motion remained under court consideration. The court adjourned the case to March 30, 2023, for decision on motions. This period is excluded for motion practice (CPL § 30.30[4][b]). {Zero [0] days charged to the People for a total of forty-five [45] days}

On March 30, 2023, the court rendered its oral decision on motions on the record and advised that a written decision shall follow. The court adjourned the case to May 15, 2023, for trial. This period is excluded since the People are entitled to a reasonable adjournment to prepare for trial following the court's decision on speedy trial motions (People v. Douglas, 156 AD2d 173 [1st Dept. 1989]). {Zero [0] days charged to the People for a total of forty-five [45] days}

For the reasons stated herein, this Court calculates that the People have accrued a total of forty-five (45) days speedy trial time since commencement of this action. Accordingly, defendant's motion to invalidate the People's original COC filed on November 30, 2020, as illusory is granted. However, due to defendant's unreasonable delay in challenging the People's COC, defendant's motion to dismiss the indictment on ground of a statutory speedy trial violation is DENIED in its entirety.

The foregoing Constitutes the Opinion, Decision and Order of the Court.

Dated: March 30, 2023
Kew Gardens, New York
MICHELLE A. JOHNSON, J.S.C. Footnotes

Footnote 1: The assistant district attorney represented, and defense counsel acknowledged receipt of six BWC videos on October 16, 2022, including the three missing BWC videos in question (Hearing Minutes, Pg 37, Line 19); and three additional BWC videos from officers, not previously identified in any of the People's COC's or discovery disclosures, who also apparently responded to the scene. Shortly after making these disclosures, the People filed a supplemental COC on November 4, 2022.

Footnote 2:The People disclosed LEOW/CCRB records for Officer Campisi on January 20, 2023, followed shortly thereafter by the filing of a supplemental COC on January 26, 2023

Footnote 3:Effective January 1, 2020

Footnote 4:Defendant had another indictment pending simultaneously with the instant case under Ind. No. 1010/2020 which was subsequently dismissed and sealed.

Footnote 5:The calendar dates were December 14, 2021; January 5, 2022; January 26, 2022; February 8, 2022; February 25, 2022; March 3, 2022; March 14, 2022; March 23, 2022; April 4, 2022; April 14, 2022; and May 3, 2022.