Defendant, Kara Brown, stands charged with aggravated harassment in the second degree and criminal contempt in the second degree. Penal Law §§240.30(2) and 215.50(3). The jury trial of these charges is scheduled to begin on May 2, 2022.

Defendant now moves, based upon a recent document disclosure by the People, for an order invalidating the People's December 17, 2021 Certificate of Compliance ("CoC") and Statement of Trial Readiness ("STR"). The People opposed the motion, which is now fully submitted. Because the People failed set forth any facts to demonstrate their due diligence, reasonable inquires, or good faith in ascertaining the existence of the previously undisclosed document, defendant's motion is granted.

Starting with CPL §245.20(2)'s unambiguous discovery directive, the "prosecutor shall make a diligent, good faith effort to ascertain the existence of material or information [*2]discoverable under subdivision one of this section and to cause such material or information to be made available for discovery..." The statutory obligation is twofold: the People must make a "diligent, good faith effort to ascertain" discoverable material and information, and then make it "available" to the defense.

After completing their CPL §245.20(2) obligations, the People must certify their discovery compliance. CPL §245.50(1). The People must certify that they first "exercis[ed] due diligence and ma[de] reasonable inquiries [and then, second,] disclosed and made available all known material and information subject to discovery." Id. This certification requirement explicitly recognizes that not all discoverable items will be turned over. Some materials may be "lost or destroyed [or the] subject of [a protective] order." Id. In such case, the People may file a "proper" certificate of discovery compliance by providing the defense with "information" about the discovery not actually provided. CPL §245.50(1) and (3).

Where the propriety of the People's CPL §245.50(1) certification is at issue, as it is here, the legislature provided specific guidance:

"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 section 245.80 of this article."

CPL§ 245.50(1). Of course, if the People fail to demonstrate that they proceeded with "due diligence and ma[de] reasonable inquiries" or they fail to establish that their efforts were made "in good faith reasonable under the circumstances" their CPL §245.50(1) certification would not be "proper."

Within this statutory structure, a burden shifting analysis is readily apparent. First, the defendant must identify a specific defect with the People's CPL §245.50(1) certificate of discovery compliance. In response, the burden shifts to the People to demonstrate the propriety of their certification. The People must make a factual showing that establishes their due diligence and reasonable inquiries with respect to the specific items of discovery at issue. They must demonstrate that their efforts were made in good faith and reasonable under the specific circumstances of the case. see generally People v Pierna, — Misc 3d —, 2022 WL 700447, at *9 (Crim Ct, Bronx County, Mar 2, 2022). "This may be accomplished by recounting the steps they took to obtain certain materials or ascertain the existence thereof, explaining the reasons why particular items are outstanding, lost or destroyed, and submitting their good faith arguments for why certain materials are not discoverable under the statute." People v Rodriguez, 73 Misc 3d 411, 152 NYS 3d 879, 884 (Queens County Ct 2021). "[W]here the People fail to set forth their efforts to locate items of discovery or determine that they do not exist or the efforts they describe do not amount to due diligence, their certificate may be invalidated." People v Knorr, 73 Misc 3d 285, 152 NYS 3d 556 (Henrietta Just Ct 2021), quoting People v Adrovic, 69 Misc 3d 563, 574 (Crim Ct, Kings County 2020).

Here, defendant amply identified a specific document that the People were required to "ascertain the existence of [and make] available for discovery" under CPL §245.20(2). On March 1, 2022, the People filed and served a Molineux/Sandoval Proffer which attached an Albany Police Department incident report dated 9/21/21 ("Incident Report"). As is uncontested by the People, the defense established that the Incident Report was not made available with the December 17, 2021 CoC. It was not turned over until March 1, 2022.

The defense also demonstrated that the Incident Report should have been "ascertain[ed [*3]and] made available" under CPL §§245.20(1)(e), (1)(k)(iv), and (2). To demonstrate that the Incident Report constitutes a CPL §245.20(1)(e) "police report" that relates to the charges herein, defendant notes that the Incident Report's "case number" is identical to the accusatory instruments' "INC. No.[s]". Moreover, the Incident Report's "overview" section includes allegations that are substantially similar to the accusatory instruments' factual assertions. The Incident Report alleges that the defendant violated a Family Court order by calling the protected party and stating that he was a child molester. Similarly, the accusatory instruments allege that the defendant violated a Family Court order of protection by calling the protected party and stating that he was molesting his son. The People acknowledge these parallels and do not contest defendant's claim that the Incident Report contains "information relevant to [an] offense charged." CPL §245.20(1)(e). The defense also demonstrated that the document was required to be turned over pursuant to CPL §245.20(1)(k)(iv) because it could be used to "impeach the credibility of a testifying prosecution witness." Specifically, the Incident Report alleges that the phone call at issue occurred on September 21, 2021 at 9:12, whereas the accusatory instruments allege that it occurred on September 20, 2021 at 4:38 pm. This unexplained inconsistency could be the subject of impeachment questioning of a prosecution witness.

On this record, defendant identified a specific defect with the People's CPL §245.50(1) certificate of discovery compliance: the People's failure to ascertain and disclose the Incident Report.

With the burden shifted, the People made no factual showing to establish their due diligence, their reasonable inquiries, or their good faith. In their single "good faith" assertion, the People state: "[t]he People allege the filing of the COC and statement of readiness was made in good faith." This bare conclusory statement is entirely unsupported. The People offer neither facts nor legal analysis to substantiate their "good faith" in filing the CoC, and do not even allege "good faith" in their late production of the Incident Report. Specifically, the People did not recount the steps they took to obtain the Incident Report, or even to ascertain its existence. They offered no reason for why the Incident Report did not come into their possession until, according to the People, "just before it was filed with the People's proffer." The People also wholly failed to address the presumption that the Incident Report was "deemed to be in the possession of the prosecution" because it is related to the charges pending in this action. CPL §245.20(2). Lastly, the People made no good faith claim that the Incident Report was not discoverable. On this record, the People failed to explain their efforts to locate the Incident Report, to describe their due diligence, or to demonstrate their good faith under the specific circumstances of this case.

Accordingly, the People failed to demonstrate that their CoC was "proper."

In turn, because the CoC was not "proper" the People "shall not be deemed ready for trial." CPL §245.50(3), see also CPL §30.30(5).

Where the People fail to file a "proper" certificate of discovery compliance two statutory provisions specifically prohibit the People from validly announcing ready for trial.

CPL §245.50(3) states:

Notwithstanding the provisions of any other law, absent an individualized finding of special circumstances in the instant case by the court before which the charge is pending, the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper certificate pursuant to subdivision one of this section...

Similarly, CPL §30.30(5) states:

Any statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of section 245.20 of this chapter and the defense shall be afforded an opportunity to be heard on the record as to whether the disclosure requirements have been met.

The People's statutory obligation to file a "proper" certificate of compliance before validly announcing ready for trial is mandatory, with a minimal "special circumstances in the instant case" exception.

Just as the People made no factual showing of due diligence, reasonable inquiries, or good faith in filling their CoC, they offered no facts or law demonstrating "special circumstances in the instant case." The record is silent on any "special circumstances." Without any factual showing or legal analysis, the People failed to demonstrate that their STR is valid due to "special circumstances in the instant case." As such, because the People failed to file a "proper" CoC and offered no "special circumstances" to excuse the deficiency, the People "shall not be deemed ready for trial." CPL §245.50(3).

Due to the foregoing, Defendant's motion is granted. The Court finds that the People's December 17, 2021 CoC is not "proper" and that the STR is invalid. The People shall file, if at all, a proper certificate of discovery compliance and a valid statement of trial readiness at their earliest possible convenience but not later than one week from the date of this Decision and Order.