People v Seymour (Kevin)

Aug 12, 2024
2024 NYSlipOp 24234
Versions:

The People of the State of New York, Respondent, v Kevin Seymour, Appellant.

Supreme Court, Appellate Term, Second Department, 9th and 10th Judicial Districts, August 12, 2024

APPEARANCES OF COUNSEL

Suffolk County Legal Aid Society (Amanda E. Schaefer of counsel) for appellant.

Raymond A. Tierney, District Attorney (Kim Marie Carson and Marion Tang of counsel), for respondent.

{**84 Misc 3d at 24} OPINION OF THE COURT

Memorandum.

Ordered that the judgment of conviction is affirmed.

Defendant was charged in an accusatory instrument with criminal trespass in the second degree (Penal Law § 140.15 [1]) and was arraigned thereon on April 8, 2022. On July 5, 2022, the People filed off-calendar a certificate of compliance (COC) with their discovery obligations (see CPL 245.50 [1]) and a statement of readiness. By notice of motion dated September 15, 2022, defendant moved to, among other things, strike the People‘s July 5, 2022 COC and to dismiss the accusatory instrument on statutory speedy trial grounds. The People opposed. By order dated March 3, 2023, the District Court (Edward J. Hennessey, J.), insofar as is relevant to this appeal, denied the aforementioned branches of defendant‘s motion, reasoning, in relevant part, that defendant had not “notif[ied] or alert[ed]” the People to any discovery deficiencies prior to filing the motion (CPL 245.50 [4] [b]) and that defendant had not moved to strike the COC “as soon as practicable” (CPL 245.50 [4] [c]). Immediately after the court handed down its March 3, 2023 order, defendant pleaded guilty to trespass (Penal Law § 140.05, a violation) in full satisfaction of the accusatory instrument, and sentence was imposed. Defendant‘s sole argument on his appeal from the judgment of conviction is that the branches of his motion seeking to strike the COC and to dismiss the accusatory instrument should have been granted.{**84 Misc 3d at 25}

CPL 245.50 [4] [b] provides that “[t]o the extent that the party is aware of a potential defect or deficiency related to a [COC] or supplemental [COC], the party entitled to disclosure shall notify or alert the opposing party as soon as practicable” (emphasis added). In addition, CPL 245.50 [4] [c] provides that “[c]hallenges related to the sufficiency of a [COC] or supplemental [COCs] shall be addressed by motion as soon as practicable” (emphasis added). Here, as defendant‘s first notification of any deficiency in, or challenge to the sufficiency of, the COC was 72 days after the prosecution filed its COC, when defendant filed his motion, defendant‘s motion, under the circumstances presented herein, was properly denied as untimely (see People v Chavers, 80 Misc 3d 1218[A], 2023 NY Slip Op 51030[U], *1-2 [Sup Ct, Kings County 2023]).

Accordingly, the judgment of conviction is affirmed.

Garguilo, P.J., Driscoll and McCormack, JJ., concur.