The defendant has filed a motion to dismiss the indictment pursuant to Criminal Procedure Law ("CPL") § 30.30. The defendant argues that the People's Certificate of Compliance ("COC") is invalid, and that therefore the People have failed to be ready for trial within 184 days of the commencement of the case. The People oppose the defendant's motion. For the reasons set forth below, the defendant's motion is GRANTED.

The People shall disclose to the defense "all items and information that relate to the subject matter of the case and are in the possession, custody or control of the prosecution or persons under the prosecution's direction or control." See CPL § 245.20(1). CPL § 245.20(1) sets forth a detailed, non-exhaustive list of discovery materials that the People are obligated to disclose to defendant soon after the commencement of the action. Even where materials are outside their "possession, custody or control," the People must nevertheless make a "diligent, good faith effort to ascertain the existence of" such material and to "cause such material . . . to be made available for discovery." CPL § 245.20(2). The service of a valid COC is a condition precedent to the People's declaration of trial readiness and serves to toll the statutory speedy trial time. See CPL § 30.30(5).

Due diligence "is a familiar and flexible standard" requiring the People to make "reasonable efforts to comply with statutory directives." People v. Bay, 41 NY3d 200, 211 (2023). Any analysis of whether the People made reasonable efforts sufficient to satisfy CPL 245 [*2]is "fundamentally case-specific, as with any question of reasonableness, and will turn on the circumstances presented." Id. at 212. The statute does not contemplate the "perfect prosecutor"; nevertheless, good faith will be insufficient if there is a lack of diligence. Id. When assessing whether a prosecutor has acted with due diligence, a court should consider (1) the efforts that the prosecutor made to comply with CPL § 245; (2) the volume of discovery "provided and outstanding" in the case at the time of the challenge; (3) whether the missing material would have been obvious to a diligent prosecutor; (4) the "complexity of the case;" (5) the prosecutor's "explanation for any discovery lapse;" and (6) how the People responded when they were informed that discovery was missing. Id.

The defendant argues that the People's COC is invalid, citing the People's non-disclosure of several items. Specifically, she asserts that the People failed to disclose employment records reflecting the complaining victim's ("CV") work absences resulting from his injuries, the CV's "Entity Report," photos of the CV's injuries, and the CV's medical records. Accordingly, the defense contends that 205 days of speedy trial time are chargeable to the People.

In response, the People assert that neither the employment records nor the Entity Report relate to the subject matter of the case, and thus are not subject to automatic discovery. The People claim that CPL 245.20 does not require them to obtain the employment records of a civilian witness; that the employment records qualify as witness statements, which the People must disclose only if within their "possession or control"; and that, in any event, a subpoena to the defendant's employer yielded no response (People's Response at 9-10). The People likewise maintain that the Entity Report is not discoverable, because their "inquiry" into the CV's criminal history yielded no results. Therefore, according to the People, the Entity Report would contain "no information" (People's Response at 10).

In addition, the People maintain that—beyond those the People requested and obtained from the CV—photos of the CV's injuries do not exist. The People cite the internal nature of the injuries and the fact that body-worn camera footage shows responding officers inspecting the CV's injuries, but not taking any photos (People's Response at 7-8). Finally, the People assert that the medical records do not exist. The People note that the CV informed them that he sought medical attention, on his own accord, at Christ Hospital in New Jersey; that the People served a subpoena upon Christ Hospital on May 23, 2024; and that, on October 22, 2024, Christ Hospital conveyed that no records for the CV existed (People's Response at 11). The People assert, without explanation, that they "follow[ed] up" with the hospital regarding the subpoena; that they are "in the process of ascertaining" whether other records may exist; and that they can "only rely on the information provided by" the CV (People's Response at 11).

The People failed to establish that they exercised due diligence and made reasonable inquiries prior to filing the COC. Each category of records is discussed below.

Employment Records. To begin, the court is not convinced either that the CV's employment records are irrelevant to the "subject matter of the case" or that they can be categorized solely as "witness statements," which need only be disclosed if within the People's possession or control. The People have charged the defendant with Robbery in the First Degree (Penal Law § 160.15[3]), under the theory that her accomplice forcibly stole property. It is alleged that the defendant's accomplice repeatedly punched the CV before taking items from the CV's delivery truck and fleeing. Whether a victim suffered physical injury can be relevant in determining whether physical force was used to effectuate a theft. See generally People v. Crespo, 158 AD2d 466, 466 (2d Dep't 1990) (defendant used physical force by striking store [*3]detective in the face); see also People v. Telesford, 149 AD3d 170, (1st Dep't 2017). Thus, the employment records—which, beyond just the CV's statements—could reflect whether or not the CV took time off of work as a result of any injuries, and thus substantiate or discredit the CV's account. Accordingly, the employment records are relevant to the subject matter of the case.

The employment records do not appear to fall within the People's "possession, custody or control." CPL § 245.20(2). Nevertheless, the People are still required to make "diligent, good faith effort to ascertain the existence of" such material and to "cause such material . . . to be made available for discovery." CPL § 245.20(2). The People have failed to demonstrate that they made such efforts here. Although the People apparently subpoenaed employment records from Dashwave LLC, they contend that the subpoena returns did not reflect whether the CV took leave from work. The People do not explain what additional efforts, if any, they undertook to ascertain the existence of relevant records. See generally People v. Simonelli, 83 Misc 3d 1225(A), *10-11 (Sup. Ct. Kings Co. 2024) (People did not demonstrate due diligence where they failed to detail how they determined that the documents in question did not exist, what efforts they made to obtain them, or who they consulted for the documents). These efforts do not support a finding of "due diligence."

Entity Report. Nor can this court conclude that the "Entity Report" is not discoverable. In that regard, the People's reliance on People v. Lampe, 84 Misc 3d 1203(A) (Sup. Ct. Bronx Co. 2024), is misplaced. In Lampe, the court's in camera review of the unredacted Entity Report did not immediately reveal whether the information therein related to the subject matter of the case. 84 Misc 3d 1203(A) at *15. Accordingly, the People were required to move for a protective order before providing the defense with only a redacted copy. Id. Here, the People do not contend that they provided the defense with a redacted copy of the report. Nor have they provided an unredacted copy to the court for in camera review. Instead, they insist that the document contains "no information."

Photos. The People maintain that additional photos of the CV's injuries do not exist. It is axiomatic that the People cannot disclose materials that do not exist. People v. Roman, 2025 NY Slip Op 50132(U), *5 (Crim. Ct. Bronx Co. Feb. 5, 2025). The People could have explained more thoroughly their requests for pictures to the CV. Nevertheless, this court finds the People's explanation for the lack of additional pictures plausible.

Medical Records. To be sure, the medical records—here, from a private hospital in New Jersey—do not fall within the People's "possession, custody or control." CPL § 245.20(2). Nevertheless, the People are still required to make "diligent, good faith effort to ascertain the existence of" such material and to "cause such material . . . to be made available for discovery." CPL § 245.20(2); People v. Kingsberry, 81 Misc 3d 1212(A), *12-13 (Crim. Ct. Bronx Co. 2023) (although medical records "unambiguously" subject to automatic discovery under CPL § 245.20, the People's requirements are circumscribed by CPL § 245.20[2], which requires them to "act diligently to ascertain [the medical records'] existence and cause them to be made available").

The People have failed to demonstrate that they made such efforts here. In particular, although the People assert that they subpoenaed the records from Christ Hospital in May 2024, the People also note that they did not receive any response until October 2024. And although they claim to have "follow[ed] up" with the hospital before October 2024, they do not explain such efforts. Nor did they provide the court with the hospital's response to the subpoena. The People have not explained what additional efforts, if any, they have taken to ascertain the [*4]existence of these records since October. See, e.g., Simonelli, 83 Misc 3d 1225(A) at *10-11; People v. Ajunwa, 75 Misc 3d 1220(A), *6-7 (Sup. Ct. Bronx Co. 2022) (People failed to demonstrate diligence in ascertaining existence of medical records, where People sent subpoena after filing of COC); People v. Hernandez, 80 Misc 3d 1035 (Sup. Ct. Bronx Co. 2023) (People must exercise diligence in obtaining medical records; such records are presumably unavailable to a defendant accused of assaulting the patient); Roman, 2025 NY Slip Op 50132(U) (representation that items did not exist credible where the People provided "affirmative" representations from NYPD that items did not exist); cf. Kingsberry, 81 Misc 3d 1212(A) at *12-13 (People demonstrated diligence in obtaining medical records where they had issued two subpoenas and followed up with entity to obtain the records); People v. Hall, 76 Misc 3d 804, 806, 809-10 (Crim. Ct. Bronx Co. 2022) (People demonstrated diligence in obtaining medical records where they quickly subpoenaed records, and provided them to the defense within one month of mailing the subpoena).

In sum, in light of all the foregoing, the People have failed to establish that they exercised due diligence and made reasonable inquiries prior to filing the COC.^[FN1]

Having invalidated the People's October 31 COC, the court now turns to its speedy-trial time calculation:

May 4, 2024 through June 20, 2024. 47 days are chargeable to the People.

June 20, 2024 through June 27, 2024. 0 days are chargeable to the People.

June 27, 2024 through October 18, 2024. 113 days are chargeable to the People.

October 18, 2024 through November 25, 2024. 38 days are chargeable to the People.

Total Chargeable Time. 198 days.

The People have failed to declare their readiness for trial within six months of the commencement of this case. Accordingly, the motion to invalidate the People's COC and dismiss the indictment pursuant to CPL § 30.30 is GRANTED.

The foregoing is the decision and order of the court.