by Matt Clarke

The New York Court of Appeals held that the prosecution’s failure to turn over fundamental discovery items that were in its possession and control prior to filing a Certificate of Compliance (“COC”) with its statutory disclosure obligations pursuant to Criminal Procedure Law (“CPL”) 245.50(1), (3) rendered the COC illusory and thus incapable of proving the prosecution was ready for trial within the applicable speedy trial period.

On April 22, 2021, Michael Bay was arrested after becoming physically aggressive with his mother. He was arraigned in City Court on an information charging him with second-degree harassment under Penal Law § 240.26(1). He pleaded not guilty and was released on his own recognizance.

A subsequent April 28 appearance was adjourned until May 26, after defense counsel informed the court that she had not received discovery from the prosecution. The court charged the delay to the prosecution.

On April 29, the prosecution provided defense counsel with some discovery materials. On May 4, the prosecution filed a COC pursuant to CPL 30.30, declaring readiness for trial and a discovery compliance report documenting its submissions.

At the May 26 appearance, defense counsel told the court that she had not received an arrest report, police report, or 911 call recording. The prosecutor responded, “I just checked, the discovery, as it exists in this case, has been turned over,” later stating that Bay “wouldn’t have been arrested” and that the requested “discovery items don’t exist.”

Based upon the prosecutor’s assertion that “we have provided all disclosure,” the court concluded that the prosecution was ready for trial and set a date for a nonjury trial. A week before that date, defense counsel called the District Attorney’s office to inquire again about discovery. She spoke with a different prosecutor who checked and found a domestic incident report, a police report, and a 911 call, all of which were provided to the defense the next day.

Bay filed a motion to dismiss pursuant to CPL 30.30(1)(d) arguing that the failure to provide materials discoverable pursuant to CPL 245.20 rendered the COC illusory and incapable of stopping the 30-day speedy trial clock, which had already expired. The prosecutor acknowledged the belated discovery and gave no explanation for it, arguing instead that the prosecution could “upgrade” a COC by making subsequent disclosures.

The court denied the motion but precluded the prosecution from using the 911 call as a discovery sanction. Bay was convicted. The County Court affirmed, citing a lack of proven bad faith by the prosecution. Aided by attorney Kayla Hardesty, Bay timely appealed.

The Court of Appeals noted that the Legislature adopted significant criminal case discovery reforms in response to the state’s Justice Task Force’s concerns that the then available discovery was “highly circumscribed” and “often comes too late to permit both sides to investigate facts fully and make informed decisions before trial.”

The reforms included “automatic discovery” requiring disclosure to a defendant of “all items and information” related to a case that the prosecution and law enforcement agencies possess. CPL 245.20(2). The prosecution argued that the standard for determining whether a COC meets the statutory obligations is that of good faith and reasonableness. However, the Court rejected that as the standard and instead held that the standard is that of due diligence, instructing that CPL 245.50(1) requires the filing of a COC only after due diligence and reasonable inquiries regarding discovery material in its possession and control.

The Court instructed that the determining as to whether the prosecution made sufficiently reasonable efforts to meet its discovery obligations to satisfy CPL article 245 is “fundamentally case-specific … and will turn on the circumstances presented.” The Court provided the following guidance for reviewing courts: “Although the relevant factors for assessing due diligence may vary from case to case, courts should generally consider, among other things, the efforts made by the prosecution and the prosecutor's office to comply with the statutory requirements, 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.”

The Court further instructed that the requisite due diligence must be conducted before filing a COC.

In the event a defendant brings a CPL 30.30 motion to dismiss on the basis that the prosecution failed to exercise due diligence and thus improperly filed a COC, the Court stated that the prosecution bears the burden of establishing that it did, in fact, excise the required due diligence and made reasonable inquiries before filing the initial COC. The Court announced: “If the prosecution fails to make such a showing, the COC should be deemed improper, the readiness statement stricken as illusory, and – so long as the time chargeable to the People exceeds the applicable CPL 30.30 period – the case dismissed.”

The Court rejected the prosecution’s argument that the defendant must show prejudice in order for a speedy trial dismissal based on a failure to timely comply with its discovery obligations. See People v. Hamilton, 388 N.E.2d 345 (N.Y. 1979); see also CPL 30.30(1).

Applying the foregoing principles to the present case, the Court held that the COC filed by the prosecution was illusory based on the facts showing that there was no explanation for the delayed disclosure and no evidence that due diligence was conducted prior to the COC being filed. In the absence of a valid COC to toll the speedy trial clock, the applicable 30-day period under CPL 30.30(1) was exceeded, the Court concluded. Thus, the Court held that Bay’s motion to dismiss should have been granted.

Accordingly, the Court reversed the County Court’s order, granted Bay’s CPL 30.30 motion, and dismissed the accusatory instrument. See: People v. Bay, 41 N.Y.3d 200 (2023).

Editor’s note: Anyone interested in the statutory scheme involving the interplay among the COC, discovery obligations, and speedy trial rights is strongly encouraged to read the Court’s full opinion, which contains a thorough examination and explanation of the statutory scheme.

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