On December 20, 2023, defendant moved for an order dismissing the accusatory instrument on speedy trial grounds pursuant to Criminal Procedure Law ("CPL") § 30.30. On January 19, 2024, the People opposed the motion. Upon review and consideration of the submissions, court file and relevant legal authority, the Court GRANTS defendant's motion.

On May 19, 2023, defendant Jose Garcia Mendoza was arrested and charged with violating Vehicle and Traffic Law ("VTL") §§ 1212 (reckless driving) and 1192 (3) (driving while intoxicated), both misdemeanors, and 1192 (1) (driving while impaired), a violation. Defendant was arraigned on May 19, 2023, and released on his own recognizance.

On August 8, 2023, the People filed their CoC, statement of readiness ("SoR"), and supporting depositions ("SDs") from Lt. Brian Kovall of the 49th Precinct, to whom defendant purportedly stated, "I HAD ONLY ONE BEER", and Luis Santos, an Emergency Services employee of Senior Care Ambulance, who assisted defendant at the arrest scene. On September 26, 2023, Police Officer ("PO") Patricia Leonard, the arresting officer, appeared at a blood warrant hearing presided over by Hon. Matthew Grieco, who issued the search warrant to obtain sample taken from defendant at the Jacobi Hospital Emergency Room.

On November 20, 2023, the People served a supplemental CoC to which they annexed reports, including the forensic toxicology lab, curriculum vitae for the reviewing Chief Medical Examiner and physician, NYS Department of Health certifications for 2017-2023, and the search warrant affidavit. At a discovery compliance conference held on October 3, 2023, the court noted that a search warrant had been issued on September 26, 2023, to obtain defendant's urine and/or blood work which was drawn at Jacobi Hospital on the date of defendant's car crash. At a subsequent conference held on December 18, 2023, the court noted that the People had disclosed the analytics provided by the Office of the Chief Medical Examiner ("OCME") on November 20, 2023, and the instant motion schedule was set for defense counsel to challenge the validity of the People's CoC.

Counsel avers that the People knew or should have known that blood work was drawn from defendant following his car accident because the Criminal Complaint alleges that the arresting officer was "present for the administration of a chemical test analysis of defendant's blood, and defendant submitted to the aforementioned test" (affirmation of defendant's counsel at ¶ 5). Counsel further maintains that the prosecution served Jacobi Hospital with a Preservation Letter which requested that defendant's sample not be destroyed because of a pending criminal case (affirmation of defendant's counsel at ¶ 9). Defendant argues that the People failed to demonstrate due diligence prior to certifying their compliance because they did not request a search warrant until September 28, 2023, months after initially contacting Jacobi Hospital (affirmation of defendant's counsel at ¶ 10). Defendant also asserts that discovery remains outstanding pertaining to voucher receipts and "other documents relating to the blood" (affirmation of defendant's counsel at ¶ 15). Counsel asserts that if the People were charged for their delay in obtaining OCME reports the case should be dismissed because of their failure to prosecute within the statutorily allotted time (affirmation of defendant's counsel at ¶ 17).

Initially, the People assert that their CoC was filed after exercising reasonable due diligence (affirmation in opposition at 5). The assigned ADA maintains that he diligently endeavored to clarify inconsistencies in the record, including an NYPD "Intoxicated Driver Examination" report which indicated that defendant refused both the PBT and the chemical blood test (affirmation in opposition at 5). Thereafter, the prosecution confirmed that blood was drawn at Jacobi and the assigned arranged, after numerous unsuccessful attempts, for PO Leonard to appear in Court in support of the warrant application (affirmation in opposition at 5-6).

The People aver that OCME is not a law enforcement agency under their control and, thus, they satisfied their CPL § 245.20 (1) mandate by disclosing the existence of the blood toxicology report and further DOH certifications (affirmation in opposition at 10). The prosecution argues that after the execution of the warrant, a request for testing was sent to OCME on October 6, 2023, who advised on November 1, 2023, that the report could not be shared until completion of the testing (affirmation in opposition at 11). Additionally, the People argue that although the OCME reports did not exist when their CoC was filed, this outstanding discovery was disclosed with their supplemental CoC in furtherance of their continuing duty to disclose pursuant to CPL § 245.60 (affirmation in opposition at 14). Lastly, the prosecution alternatively contends that defendant has demonstrated no prejudice from the belated OCME disclosure to warrant a finding that their CoC should be deemed invalid (affirmation in opposition at 16-18).

Criminal Procedure Law § 245.20 (1) (j) provides, in pertinent part, that:

"If the prosecution submitted one or more items for testing to, or received results from, a forensic science laboratory or similar entity not under the prosecution's direction or control, the court on motion of a party shall issue subpoenas or orders to such laboratory or entity to cause materials under this paragraph to be made available for disclosure"

In the case at bar, the forensic science laboratory in question is the OCME, long recognized as an "independent, non-law enforcement agency that is not within the direction or [*2]control of the New York City's District Attorneys' offices" (see People v Lustig, 68 Misc 3d 234, 245 [Crim Ct, Queens County 2020] citing People v Washington, 86 NY2d 189, 192 [1995]).

Accordingly, although this Court finds that as a threshold matter, OCME reporting falls within the ambit of automatic disclosures, it must be axiomatic that where the outstanding discovery is not within the prosecution's possession, custody or control, consideration of whether the People complied with their discovery mandate is governed by CPL § 245.20 (2) and the diligence employed to obtain those materials, or cause them to be available for discovery (see CPL § 245.20 [2]).

Contrary to counsel's assertion that a CoC cannot be filed until the People have actually obtained and disclosed outstanding material to the defense, CPL § 245.60 provides that both the prosecution and the defendant have a continuing duty to disclose information which is subsequently (post-CoC filing) obtained (see CPL § 245.60; see also People v Bay, — NE3d —, 2023 NY Slip Op 06407, *2 [2023]). In Bay, the Court of Appeals, rejecting a standard of strict compliance to gauge the prosecution's discharge of CPL § 245.20 automatic disclosure obligations, instead emphasized several factors that courts should consider to gauge whether the prosecution exercised due diligence, including "the volume of discovery provided and outstanding, the complexity of the case, how obvious any missing material would likely have been to a prosecutor exercising due diligence, the explanation for any discovery lapse, and the People's response when apprised of any missing discovery" (see Bay, 2023 NY Slip Op 06407, *6).

Here, the People's reliance on the holding in People v Berkowitz for the proposition that their CoC and SoR filings should not be impugned because of their belated disclosure of the OCME reporting is misplaced (see Berkowitz, 68 Misc 3d 1222[A], 2020 NY Slip Op 51044[U], * 5-6 [Crim Ct, Kings County 2020] [The court found an "exceptional circumstance" under CPL § 245.50 [3] which permitted the People to validly declare trial readiness without having obtained and disclosed the OCME toxicology report]). This Court respectfully finds that the Berkowitz court may have conflated the People's ability to proceed to trial based upon the "prosecutorial decision of whether to seek out additional evidence" to strengthen the case with the People's duty to cause outstanding discoverable materials to be made available for discovery where it exists but is not within their control (see Berkowitz, 2020 NY Slip Op 51044[U], *6; CPL § 245.20 [1] and [2]).

The record at bar demonstrates that the People initially acted diligently to send a Preservation Letter to Jacobi Hospital which likely prevented defendant's sample from being discarded or destroyed; this was a critical preliminary measure by the prosecution because NYPD's paperwork contained discrepancies erroneously indicating that defendant had refused to submit to a chemical blood test. However, it is equally uncontroverted that over four months ensued from when the blood sample was taken on May 19, 2023, until the People sent their request to OCME for testing of defendant's blood work on October 6, 2023.

Courts of concomitant jurisdiction have repeatedly held that CPL § 245.20 (2) specifically provides that the prosecution is not required to obtain by subpoena that which the defendant may thereby obtain, and we also recognize that defendant could have subpoenaed OCME for his results (see Lustig, 68 Misc 3d at 245 [The People's belated disclosure of OCME records was not determinative of their due diligence because "defendant could have obtained it himself from OCME by subpoena or court order"]; see also People v Argueta, 80 Misc 3d [*3]1224[A], 2023 NY Slip Op 51074[U], *2 [Crim Ct, Kings County 2023]["Although the People disclosed the complete OCME report immediately upon receiving it, the defendant could have obtained a subpoena for the disclosure of the OCME reports and failed (to) do so"]; People v Alford, 66 Misc 3d 1233[A], 2020 NY Slip Op 50349[U], *3 [Crim Ct, New York County 2020][Defendant's motion to strike the CoC denied partly because OCME records were not deemed to be within the prosecution's custody or control]; CPL § 245.20 [2]). Where the Berkowitz court found that the prosecution's decision to request a search warrant five months after blood work was taken could not be equated with a lack of diligence, the circumstances at bar, considered through the Bay lens, warrant a different outcome because the issue before this Court is whether the People exercised due diligence to obtain defendant's blood work to initiate OCME testing.

Notwithstanding the fact that the District Attorney sent a Preservation Letter to Jacobi Hospital concurrent with defendant's arrest on May 19, 2023, the prosecution acknowledges that efforts to coordinate with the arresting officer concerning the warrant did not commence until August 14, 2023, notably six days after the CoC filing. We credit the ADA's representations that after he was reassigned to this matter on June 22, 2023, he endeavored to investigate contradictions in the paperwork to confirm whether defendant's blood had been drawn. However, the Criminal Complaint unambiguously states that the arresting officer was present for the administration of the chemical test analysis and that defendant submitted to the test. As such, we hold that the likely existence of defendant's blood sample should have been obvious and that the People, already having served a Preservation Letter, were primed to begin the blood warrant application process but did not until after the CoC filing when the assigned ADA repeatedly rescheduled PO Leonard's appearance for a warrant hearing due to her unavailability (see Bay, 2023 NY Slip Op 06407, *6).

Despite the statutory caveat that relieves the People of any duty to obtain by subpoena records deemed outside of their control, it cannot be credibly argued that defense counsel could have issued a subpoena or requested a court order for OCME records before October 6, 2023, the date the prosecution finally submitted the testing request (see CPL § 245.20 [2]).

The People contend that they should not be charged for belated disclosure of outstanding discovery, which was not within their control, yet the opposition elides a reasonable explanation for what occasioned the delay from: May 19, 2023, when Jacobi Hospital was first contacted, to June 22, 2023, when the ADA was reassigned, to August 14, 2023, when the assigned ADA began outreach to PO Leonard concerning the warrant application, to September 26, 2023, when the warrant was issued to Jacobi Hospital, to October 6, 2023, when the People sent their submission to OCME, nor why the prosecution did not request an extension to obtain the sample for OCME (see Bay, 2023 NY Slip Op 06407, *8 ["In addition to exercising due diligence to ensure COCs are not later deemed improper, the People can request additional time for discovery upon a showing of good cause"]; see also CPL § 245.70 [2]).

Consequently, we hold that the People have not established that they exercised due diligence and made reasonable inquiries to initiate the OCME analysis in furtherance of their duties pursuant to CPL § 245.20 (1) (j) and (2) and, thus, the People's CoC, filed August 8, 2023, is deemed illusory.

In a motion to dismiss misdemeanor charges pursuant to CPL § 30.30 (1), the defendant has the initial burden to demonstrate that the prosecution failed to declare trial readiness within [*4]the statutorily prescribed time, 90 days (see CPL § 30.30 [1][b]); People v Luperon, 85 NY2d 71, 77-78 [1995]). The burden then shifts to the People to identify excludable delays (see Luperon, 85 NY2d at 78).

Here, the People's 30.30 calculation commenced on May 20, 2023, the day following defendant's arraignment. The People's CoC, now deemed illusory, did not toll their speedy-trial time (May 20, 2023, to December 18, 2023 = 212 days). Thus, the People did not validly declare trial readiness within their statutorily prescribed time, ninety days, nor has the prosecution advanced any argument that any of this time should be excluded (see CPL §§ 30.30 [1][b]), [4]).

Accordingly, defendant's motion to dismiss the accusatory instrument is granted and there are no unresolved issues which warrant a hearing pursuant to People v Allard, 28 NY3d 41 [2016].

Based upon the foregoing, the Court GRANTS defendant's motion to dismiss the accusatory instrument for failure to timely prosecute.

This constitutes the opinion, decision, and the order of the Court.