§ 245.50 — Certificates of compliance; readiness for trial

New York § 245.50

• Jurisdiction: New York
• Law CPL: Criminal Procedure
• Title J: Prosecution of Indictments In Superior Courts--plea to Sentence
• Part 2: The Principal Proceedings
• Art. 245: Discovery

Text

§ 245.50 Certificates of compliance; readiness for trial.\n 1. By the prosecution. When the prosecution has, pursuant to this\nsection, exercised due diligence and acted in good faith in making\nreasonable inquiries and efforts to obtain and provide the discovery\nrequired by subdivision one of section 245.20 of this article, except\nfor discovery that is lost or destroyed as provided by paragraph (b) of\nsubdivision one of section 245.80 of this article and except for any\nmaterial or information that is the subject of an order pursuant to\nsection 245.70 of this article, it shall serve upon the defendant and\nfile with the court a certificate of compliance. The certificate of\ncompliance shall state that, after exercising due diligence and making\nreasonable inquiries and efforts to ascertain the existence of, obtain,\nand disclose material and information subject to discovery, the\nprosecution has disclosed and made available all known material and\ninformation it has obtained subject to discovery. It shall also identify\nthe items provided. The prosecution shall also identify the items that\nthe prosecution is required to disclose and of which the prosecution is\naware, but has been unable to obtain despite the exercise of due\ndiligence as evaluated under this section. If the prosecution provides\nadditional discovery prior to trial pursuant to section 245.60 of this\narticle, a supplemental certificate shall be served upon the defendant\nand filed with the court identifying the additional material and\ninformation provided. No adverse consequence to the prosecution or the\nprosecutor shall result from the filing of a certificate of compliance\nin good faith and reasonable under the circumstances; but the court may\ngrant a remedy or sanction for a discovery violation as provided in\nsection 245.80 of this article. The filing of a supplemental certificate\nof compliance shall not impact the validity of the original certificate\nof compliance if filed in good faith and after exercising due diligence\nas assessed under this section.\n 1-a. Any supplemental certificate of compliance shall detail the basis\nfor the delayed disclosure so that the court may determine whether the\ndelayed disclosure impacts the propriety of the certificate of\ncompliance. The filing of a supplemental certificate of compliance shall\nnot impact the validity of the original certificate of compliance if\nfiled in good faith and after exercising due diligence pursuant to\nsection 245.20 of this article, or if the additional discovery did not\nexist at the time of the filing of the original certificate of\ncompliance.\n 2. By the defendant. When the defendant has provided all discovery\nrequired by subdivision four of section 245.20 of this article, except\nfor any items or information that are the subject of an order pursuant\nto section 245.70 of this article, counsel for the defendant shall serve\nupon the prosecution and file with the court a certificate of\ncompliance. The certificate shall state that, after exercising due\ndiligence and making reasonable inquiries to ascertain the existence of\nmaterial and information subject to discovery, counsel for the defendant\nhas disclosed and made available all known material and information\nsubject to discovery. It shall also identify the items provided. If\nadditional discovery is subsequently provided prior to trial pursuant to\nsection 245.60 of this article, a supplemental certificate shall be\nserved upon the prosecution and filed with the court identifying the\nadditional material and information provided. No adverse consequence to\nthe defendant or counsel for the defendant shall result from the filing\nof a certificate of compliance in good faith; but the court may grant a\nremedy or sanction for a discovery violation as provided in section\n245.80 of this article.\n 3. Trial readiness. Notwithstanding the provisions of any other law,\nabsent an individualized finding of special circumstances in the instant\ncase by the court before which the charge is pending, the prosecution\nshall not be deemed ready for trial for purposes of section 30.30 of\nthis chapter until it has filed a valid certificate pursuant to\nsubdivision one of this section. A court may deem the prosecution ready\nfor trial pursuant to section 30.30 of this chapter where information\nthat might be considered discoverable under this article cannot be\ndisclosed because it has been lost, destroyed, or otherwise unavailable\nas provided by paragraph (b) of subdivision one of section 245.80 of\nthis article, despite diligent and good faith efforts, reasonable under\nthe circumstances. Provided, however, that the court may grant a remedy\nor sanction for a discovery violation as provided by section 245.80 of\nthis article.\n 4. Challenges. (a) Challenges to, or questions related to a\ncertificate of compliance shall be addressed by motion.\n (b) To the extent that the party is aware of a potential defect or\ndeficiency related to a certificate of compliance or supplemental\ncertificate of compliance, the party entitled to disclosure shall notify\nor alert the opposing party in accordance with the procedure set forth\nin this subdivision.\n (c) Challenges to the validity of a certificate of compliance or\nsupplemental certificates of compliance served on the defense and filed\nwith the court pursuant to subdivision one of this section shall be\naddressed by motion within thirty-five days of the service of the\ncertificate provided that the prosecution has filed an indictment or\ninformation prior to filing the certificate of compliance. Nothing in\nthis section shall be construed to waive a party's right to file a\nmotion pursuant to section 30.30 of this chapter on grounds unrelated to\nthe validity of a certificate of compliance. Provided, however, that any\nchallenges to a certificate of compliance or supplemental certificate of\ncompliance shall be accompanied by an affirmation by the moving party\nthat, after the filing of the opposing party's certificate of\ncompliance, such moving party timely conferred in good faith or timely\nmade good faith efforts to confer with the opposing party regarding the\nspecific and particularized matters forming the basis for such\nchallenge, that efforts to obtain the missing discovery from the\nopposing party or otherwise resolve the issues raised were unsuccessful,\nand that no accommodation could be reached. For the purposes of this\nsubdivision, the parties may confer informally, including but not\nlimited to communication by email, telephone, or any other reasonable\nmeans.\n (i) Upon request, the court may extend the time period to challenge a\ncertificate of compliance or supplemental certificate of compliance\nbeyond the thirty-five days for good cause shown. A request for\nextension shall be made before the expiration of the thirty-five days.\nUnless the court finds that the prosecutor unreasonably delayed in\nresponding to the defense's good faith efforts to confer or that the\nprosecutor did not file the certificate of compliance in good faith, any\nsuch extension shall be excluded from a speedy trial calculation\npursuant to paragraph (b) of subdivision four of section 30.30 of this\nchapter.\n (ii) Notwithstanding the provisions of this subdivision, a party may\nchallenge the validity of the certificate of compliance after the\nexpiration of the thirty-five day period where the grounds for such\nchallenge are based upon a material change in circumstances, including\nbut not limited to the belated disclosure of discoverable material\npursuant to section 245.20 of this article, or, where the party entitled\nto disclosure could not, with due diligence, have known of the specific\nand particularized matters forming the basis of the challenge prior to\nthe expiration of such period.\n (iii) Nothing in this subdivision shall limit the court's authority to\nfacilitate compliance pursuant to section 245.35 of this article. Any\nextension of time granted pursuant to section 245.35 shall be excluded\nfrom a speedy trial calculation pursuant to paragraph (b) of subdivision\nfour of section 30.30 of this chapter.\n 5. Assessing due diligence. In assessing a party's due diligence, the\ncourt shall look at the totality of the party's efforts to comply with\nthe provisions of this article, rather than assess the party's efforts\nitem by item.\n (a) Relevant factors for assessing the prosecutor's due diligence\ninclude, but are not limited to: the efforts made by the prosecutor to\ncomply with the requirements of this article; the volume of discovery\nprovided and the volume of discovery outstanding; the complexity of the\ncase; whether the prosecutor knew that the belatedly disclosed or\nallegedly missing material existed; the explanation for any alleged\ndiscovery lapse; the prosecutor's response when apprised of any\nallegedly missing discovery; whether the belated discovery was\nsubstantively duplicative, insignificant, or easily remedied; whether\nthe omission was corrected; whether the prosecution self-reported the\nerror and took prompt remedial action without court intervention; and\nwhether the prosecution's delayed disclosure of discovery was\nprejudicial to the defense or otherwise impeded the defense's ability to\neffectively investigate the case or prepare for trial.\n (b) The court's determination shall be based on consideration of all\nfactors listed in paragraph (a) of this subdivision and no one factor\nshall be determinative. The court shall explain the basis for its\ndetermination on the record or in writing.\n (c) A finding of a valid certificate under this section shall\nconstitute a valid certificate pursuant to subdivision five of section\n30.30 of this chapter. Upon a finding of a valid certificate, the court\nshall, if warranted, fashion an appropriate and proportional remedy for\nany discovery violation resulting from the belated disclosure pursuant\nto subdivision two of section 245.80 of this article.\n 6. Determinations by the court. Notwithstanding any other section of\nlaw to the contrary, a court shall not invalidate a certificate of\ncompliance where the party has exercised due diligence and acted in good\nfaith in making reasonable inquiries and efforts to obtain and provide\nthe material required to be disclosed pursuant to section 245.20 of this\narticle.\n