Article 245 of the Criminal Procedure Law governs the discovery obligations of the parties. The defendant moved to invalidate the prosecution's certificate of compliance because the prosecution redacted impeachment material of a corrections officer and did not disclose body-worn camera footage, the body-worn camera table of contents and audit trails. The prosecution opposed invalidation, claiming that it appropriately redacted the impeachment material, and that the body-worn camera footage and related items did not exist. Should the court invalidate the certificate of compliance?

The defendant, an incarcerated person on Riker's Island, allegedly slapped the buttocks of a corrections officer on September 23, 2025. The misdemeanor complaint was filed, and the defendant was arraigned on October 6, 2025. At arraignment, the court deemed the complaint to be a misdemeanor information. The court adjourned the case for the prosecution's discovery compliance. The People filed and served their certificate of compliance (COC) and statement of readiness on November 10, 2025. The court adjourned the case for the defendant to file a motion to invalidate the COC. On November 14, 2025, the People filed a supplemental COC (sCOC) and SOR. After receiving additional discovery, the People filed a second supplemental COC (sCOC2) on December 17, 2025. On the case's return date of January 7, 2026, the court relieved the defendant's assigned counsel of the assignment and assigned current defense counsel to represent the defendant. The court set an omnibus motion schedule allowing for defense motions, the People's opposition and cross-motions, and the defendant's reply. On January 20, 2026, defense counsel asked for a good cause extension under CPL 245.70 (2), which the court granted in a written decision the next day. On February 26, without the court's permission, the People filed and served a surreply.^[FN1]

Under CPL 245.20 (1), the People must automatically disclose to the defense 21 types of items and information that "are in the possession, custody or control of the prosecution or persons under the prosecution's direction or control." Some discovery categories must "relate to the subject matter of the charges" while others require the narrower standard: "are relevant to any offense charged."In fulfilling their discovery obligations, the People must exercise due diligence and make reasonable inquiries to ascertain the existence of discoverable material and information.^[FN2] When material is not in the People's possession, custody, or control, the People must "make a diligent, good faith effort to ascertain the existence of material or information . . . and cause such material or information to be made available for discovery."^[FN3]

Once the People satisfy their automatic discovery obligations, the People must file and serve a certificate of compliance (COC) certifying their fulfillment of CPL 245.20 (1).^[FN4] Any statement of readiness (SOR) must be accompanied by or preceded by a valid COC.^[FN5] "No adverse consequence to the prosecution or the prosecutor shall result from the filing of a certificate of compliance in good faith and reasonable under the circumstances."^[FN6]

If the prosecution provides additional discovery after filing the initial COC, it must file a supplemental COC,^[FN7] detailing the basis for the delayed disclosure so that the court can assess the initial COC's validity.^[FN8] The original COC will not be impacted so long as the COC was filed in good faith and after exercising due diligence or the delayed discovery did not exist when the COC was filed.^[FN9]

When assessing the People's due diligence, the court "shall look at the totality of the party's efforts to comply with [Article 245], rather than assess the party's efforts item by item."^[FN10] The court must consider the listed statutory factors ^[FN11] and may consider others. Finally, the [*2]People bear the burden of proving that they exercised due diligence prior to filing their certificate of compliance.^[FN12] Vague assertions regarding their efforts are insufficient to meet their burden.^[FN13] In their affirmation, the People must provide details regarding initial and follow-up efforts made.

Here, the defendant alleged that the People's November 13, 2025, COC was invalid because the People did not turn over a corrections officer's Giglio ^[FN14] material before certification; when they turned the Giglio material over, it was improperly redacted; the People never disclosed body-worn camera (BWC), the index of BWC, and the audit trails of the BWC; and that, after filing the COC, the People turned over an audio recording from an infraction hearing and additional reports from the Department of Corrections. The People countered that they did disclose Giglio material before filing their COC; the Giglio material was properly redacted; no BWC exists, and that, pursuant to a subpoena, the New York City Department of Corrections (NYCDOC) did not turn over the belatedly disclosed reports and audio recording until after the People filed their COC.

The People's initial discovery obligation, under CPL 245.20 (1), extends only to discovery in the People's actual or constructive possession.^[FN15] CPL 245.20 (2) deems "all items and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency" to be in the People's constructive possession. Only failures to turn over initial discovery can invalidate a COC. In Walker, the court explained that for an item to be initial discovery, it must satisfy two prongs: relevancy and possessory. Material that is either related to the subject matter or relevant to the charges satisfies the relevancy prong. To satisfy the possessory prong, the prosecution or state or local law enforcement must have the item. Items and information that individuals or groups other than state or local police or law enforcement possess cannot invalidate a COC. Instead, such discovery lapses may be remedied only under CPL 245.80.

The defendant here seeks discovery that does not satisfy the possessory prong. The [*3]NYCDOC is an administrative and not a local law enforcement agency.^[FN16] None of the belatedly disclosed or undisclosed items are deemed to be in the People's possession. Thus, the alleged discovery lapses cannot invalidate the COC.

As for the BWC and related materials, the court credits the People's unopposed claim that those materials do not exist. To be sure, the prosecution cannot disclose things that do not exist. Even if the BWC existed, because NYCDOC is not a law enforcement agency for CPL 245.20 (2) purposes, the items were not in the People's constructive possession. Thus, the BWC could not have been a basis to invalidate the COC.

As for the disputed Giglio material, the court notes that the People's COC stated as item "w" that they disclosed the Giglio material for three corrections officers. In his omnibus motion, the defendant did not refute the fact that the material was listed as disclosed. In his reply, the defendant shared a screenshot of the discovery folders. The "Giglio" folder shows that the assigned ADA last modified that folder on November 7, which was six days before the People certified their discovery compliance. Thus, the credible evidence shows that the People disclosed the disputed Giglio material before filing and serving their COC. As to the redactions of the Giglio material, the court accepts the People's representation that they redacted only personal home addresses, personal telephone numbers, dates of birth, Social Security numbers, and names of officers not involved in this matter.^[FN17] Thus, the Giglio material is not a basis to invalidate the COC.

Because the defendant sought only COC invalidation and not sanctions, the court denies the defendant's motion to invalidate the COC and does not impose sanctions on the People.

The defendant moved to suppress statements that the People provided notice of under CPL 710.30 (1) (a) or, alternatively, a Huntley hearing.^[FN18] The People opposed suppression and a hearing, arguing the statements for which they provided notice were res gestae, or made during the crime. The People, however, in their statement notice expressly admitted "that statements in the form . . . below were made by the defendant, other than in the course of the criminal transaction." Based on the People's representation in the statement notice, the court finds no merit in the People's argument. Thus, the court will grant a hearing to determine whether defendant's alleged statements were involuntary in the traditional and modern ^[FN19] senses or, alternatively, a Huntley hearing.

The defendant sought to suppress the identification procedure of which the People served [*4]timely notice under CPL 710.30 (1) (b) or, alternatively, a Wade hearing.^[FN20] The People opposed suppression and a hearing, arguing that the corrections officer who identified the defendant in a photo array knew the defendant "since 2023 through her employment at Rikers Island."^[FN21] The People, however, did not address the parties alleged familiarity in their affirmation, where sworn allegations of fact belong. Instead, the prosecution stuck the factual allegation in its legal memorandum, making it an unsworn fact. The People compounded their mistake by not revealing the source of that allegation. To be sure, the assigned Assistant District Attorney lacks first-hand knowledge of the parties' alleged interactions. Because the People's factual allegation is unsworn and unsourced, the court gives the allegation no evidentiary weight. Thus, the court orders a hearing to determine whether the properly noticed photo array was unduly suggestive or, alternatively, a Wade hearing.

The defendant also sought to suppress the defendant's alleged statement and the photo array as fruits of an unlawful arrest or, alternatively, a Dunaway hearing.^[FN22] The defendant, however, proffered no facts challenging the propriety of the warrantless arrest. Accordingly, the court denies a hearing to determine whether the defendant's arrest was supported by probable cause or a so-called Dunaway hearing.

Lastly, the defendant sought to "suppress" the defendant's criminal record and prior bad acts. The People opposed. The court denies the in limine motion to exclude the defendant's prior bad acts and criminal convictions at trial without prejudice because the evidentiary motion is unripe. The court grants the defendant leave to renew the motion before a trial judge.

Based on the court's reasoning, it is

ORDERED that the defendant's motion to invalidate the COC is DENIED; the COC continues to be valid; it is further

ORDERED that the defendant's motions to suppress the defendant's statements and an identification procedure are held in abeyance, pending a so-called Huntley/Wade hearing that the court GRANTS; it is further

ORDERED that the defendant's motion to suppress the fruits of an unlawful arrest or, alternatively, a Dunaway hearing is DENIED; it is further

ORDERED that the motion in-limine is DENIED without prejudice with leave to renew before the trial judge; it is further

ORDERED that any relief not granted is denied.

This constitutes the court's order and decision.