By motion dated, October 28, 2025, defendant, Angel Talavera, moves for an order deeming the People's Certificate of Compliance ("CoC") invalid due to the prosecution's failure to disclose discoverable materials pursuant to CPL §§ 245.20 (1) and 245.50 (1) and for an order dismissing the accusatory instrument pursuant to CPL §§ 170.30 (1) (e) and 30.30. If his motion is not granted, defendant requests a hearing pursuant to People v Allard to resolve any disputed issues of material fact. Lastly, defendant seeks to reserve his right to file additional motions as necessary. The prosecution opposes the motion in its entirety.

Upon review and consideration of the submissions, court file and relevant legal authority, the Court finds that the People's CoC dated, filed September 23, 2025, was VALID; and further;

The prosecution pursuant to CPL §§ 170.30 (1) (e) and 30.30 was TIMELY; and

Defendant's motion to dismiss the accusatory instrument is DENIED; and

Defendant's application seeking the right to make further motions is GRANTED to the extent provided by CPL § 255.20 (3); and

The People are DIRECTED to disclose any records concerning unsubstantiated allegations which relate to the subject matter of this case within 30 days of this Decision and Order or, in the alternative, move for a protective order pursuant to CPL § 245.70. If there are no unsubstantiated Giglio disclosures concerning PO Delohery, the People are to notify defense counsel in writing within 30 days of this Decision and Order.

On June 23, 2025, defendant Angel Rivera was arrested and charged with violating Penal Law §§ 130.52 (1) (forcible touching), 130.20 (1) (sexual misconduct), 130.55 (sexual abuse in the third degree), all misdemeanors, and 240.26 (harassment in the second degree), a violation. Defendant was arraigned on June 25, 2025, and released on his own recognizance. At the court appearance held on March 13, 2025, the Court was advised that the People had filed and served [*2]their superseding information, upon which defendant was arraigned, and the criminal complaint was deemed converted.

At the appearance dated July 2, 2025, the People filed and served their supporting deposition. On October 1, 2025, the court was advised that the People had filed their automatic disclosures, CoC, Statement of Readiness ("SoR") on September 23, 2025, and the People's motion to consolidate this case with defendant's companion docket, CR-032082-24BX, was granted. At the appearance held October 31, 2025, the court noted that defense counsel had filed a motion to invalidate the People's CoC which was pending as of the date of this Decision and Order.

Defense counsel identifies several items which were belatedly disclosed or remain outstanding, to wit: an activity log for Police Officer ("PO") Vincent Figueroa ^[FN1]; medical records for the complainant ^[FN2]; defendant's arraignment and pedigree cards; a command log; a pre-arraignment notification report; defendant's I-card; the prisoner holding pen roster; and Giglio disclosures pertaining to IAB attachment to log #22-3939, including all documents concerning a referral to the CCRB (affirmation of defendant's counsel at ¶¶ 11-15). Regarding the complainant's medical records, defendant avers that the assigned ADA initially subpoenaed the wrong provider and, thereafter, submitted records to the DVM part on May 15, 2025, but was unaware that the records were never received as of the date of their CoC filing months later (affirmation of defendant's counsel at ¶ 14). Defense counsel maintains that despite good faith attempts to confer with the People concerning these nondisclosed materials, the prosecution has failed to demonstrate due diligence to make reasonable inquiries to confirm the existence of and provide discovery as required by CPL §§ 245.20 and 245.50 (affirmation of defendant's counsel at ¶¶ 28-35)

Defendant's reply disputes the People's contention that they were deprived of an opportunity to confer regarding disputed items (defendant's reply affirmation at 4). Counsel further contends that the defense was prejudiced by the belated disclosure of the complainant's medical records because where the complainant did not test positively for an STI, defendant, who is charged with sexual assault, was denied an opportunity to be tested himself which could have provided a potential defense had he tested positively (defendant's reply affirmation at 5-6).

The People maintain that the August 2025 amendments, which apply to all criminal cases pending as of August 7, 2025, require consideration of prejudice to the defense before their CoC can be invalidated (People's affirmation at 7-8). The People also assert that they acted diligently under the totality of circumstances standard articulated in CPL § 245.50 (5) and they argue that defendant did not provide notice of his discovery objections until the 34th day after their CoC filing (People's affirmation at 12-13). The assigned ADA asserts that within two days of [*3]receiving defense counsel's notice concerning disputed items, she responded at length to explain that the pedigree card, command log, and Officer Figueroa's activity log did not exist; the arraignment card, the I-card, and prisoner holding pen roster had already been disclosed; the complainant's medical records were still outstanding; she was unfamiliar with a "pre-arraignment notification report" (People's affirmation at 13-16).

Concerning Giglio materials, the People aver that the only substantiated claim for PO Delohery does not involve any allegation concerning credibility and, thus, is not discoverable, and, further, the assigned ADA recounts her efforts to confirm that although there was a referral to CCRB, there is no CCRB investigation in the officer's disciplinary history (People's affirmation at 16). Additionally, while the People acknowledge a lapse from May 14 to October 1, 2025, regarding following up for the complainant's medical records, the assigned ADA asserts that once aware that the records were still outstanding, she remedied the omission by having the complainant execute another HIPAA which was sent with a new subpoena for medical records on October 20, which records were disclosed on November 6, 2025 (People's affirmation at 19-20). Lastly, the prosecution contends that defendant has failed to establish that his defense has been prejudiced (People's affirmation at 21-22).

In People v Bay, the Court of Appeals found that, in evaluating prosecutorial due diligence, the "key question in determining if a proper certificate of compliance has been filed is whether the prosecution has exercised due diligence and made reasonable inquiries to determine the existence of material and information subject to discovery," a case-specific inquiry of the record at bar (see Bay, 41 NY3d 200, 211-213 [2023] [emphasis added]; CPL §§ 245.20 [1], 245.50 [1]). The Bay Court further emphasized that to oppose a motion to dismiss which claims that the prosecution's CoC is illusory, the People "bear the burden of establishing that they did, in fact, exercise due diligence and made reasonable inquiries prior to filing the initial COC despite a belated or missing disclosure" (see Bay at 213 [emphasis added]).

Many of the factors set forth in the Bay decision animate the amendments to New York's discovery law with one notable exception: the People are no longer required to provide automatic discovery before filing their CoC if they demonstrate that they exercised due diligence and acted in good faith to fulfill their disclosure mandate (see 245.50 [1]). Moreover, the 2025 Legislative reforms enumerate several factors a court must consider when assessing the opposing party's due diligence, including the volume of discovery provided, whether the prosecution's lapse was self-reported, if the omission was corrected and whether the assigned ADA knew that missing or belatedly disclosed information existed (see CPL § 245.50 [5] [a]). However, the statute specifically provides that the court's determination shall be based on the totality of the party's efforts to comply rather than any one factor referenced therein (see CPL § 245.50 [5] [a], [b] [emphasis added]).

In a motion to dismiss misdemeanor charges pursuant to CPL § 30.30 (1), the defendant has the initial burden to demonstrate that the prosecution failed to declare trial readiness within the statutorily prescribed time, 90 days (see CPL § 30.30 [1] [b]); People v Luperon, 85 NY2d 71, 77-78 [1995]). The burden then shifts to the People to identify excludable delays (see Luperon, 85 NY2d at 78).

Additionally, the prosecution must declare readiness for trial on the record (see People v [*4]England, 84 NY2d 1, 4 [1994] ["Trial readiness in CPL § 30.30 means both a communication of readiness by the People on the record and an indication of present readiness"] citing Kendzia at 337). Lastly, the People must satisfy their statutory obligation pursuant to CPL § 245.50 (3), which provides that "the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper certificate pursuant to subdivision one of this section" (see Id.).

Even before the latest statutory amendments, the Bay decision advised courts that "belated disclosure will not necessarily establish a lack of due diligence or render an initial COC improper" (compare Bay at 212, with People v Henry, 82 Misc 3d 828, 832, 2024 NY Slip Op 24025 [Crim Ct, Queens County 2024] [internal quotation marks omitted]). The reasonableness of the People's efforts to comply with their discovery obligations prior to their CoC filing- despite belated or missing disclosures- must be examined whether the belated/missing discovery is known or unknown to the People, and this Court submits that to do otherwise is tantamount to invoking a strict liability standard which the Legislature did not create (see Bay at 212-213).

Initially, the People provided compelling evidence that defense counsel's conferral specifically regarding discovery objections was not communicated until the 34th day following the prosecution's CoC filing. Specifically, Exhibit A to the People's opposition includes an email from defense counsel dated October 27, 2025, which begins with "I wanted to provide you with the following discovery objections before filing my motion with the court." The assigned ADA responded to the defendant's objections two days later and advised which items did not exist and others which had already been disclosed. Notably, defense counsel's reply does not rebut the prosecution's assertions that some disputed items did not exist and others had already been disclosed: the pedigree card, command log, and Officer Figueroa's activity log, and the arraignment card, the I-card, and prisoner holding pen roster, respectively; nor did counsel elaborate regarding the pre-arraignment notification report with which the assigned ADA was unfamiliar. This Court finds that the prosecution demonstrated due diligence after conferral and, further, that the People had no duty to disclose evidence which was never created (see People v Polanco, 83 Misc 3d 1287 [A], 2024 NY Slip Op 51235[U], *4 [Crim Ct, Bronx County 2024]).

Further, this Court finds that the People acknowledged their lapse in procuring the complainant's medical records, an obligation pursuant to CPL § 245.20 (2), not CPL § 245.20 (1) (j) as suggested by defense counsel, because these records were not within the prosecution's possession, custody or control. To be sure, the 140-day delay in ascertaining that the records had not been received by the court was not insignificant but, the record demonstrates that the assigned ADA thereafter took prompt action to correct her omission without court intervention, and the records have been disclosed.

Moreover, we agree with the prosecution's assessment that Giglio materials for PO Delohery concerning the failure to complete memo book entries were not discoverable as impeachment material because that allegation does not relate to the subject matter of the case. Nonetheless, the Court finds that the People are still required to ascertain the existence of unsubstantiated claims that do relate to the subject matter at bar insofar as CPL § 245.20 (1) (k) requires the disclosure of "all evidence and information," language which suggests that the Legislature intended a broad, rather than a narrow, scope of discovery provided to defendant under this subsection (see People v Coley, 240 AD3d 122, 134 [2d Dept 2025]). The People are [*5]directed to disclose any records concerning unsubstantiated allegations which relate to the subject matter of this case within 30 days or, in the alternative, move for a protective order pursuant to CPL § 245.70. If there are no unsubstantiated Giglio disclosures concerning PO Delohery, the People are to notify defense counsel in writing within 30 days of this Decision and Order.

Criminal Law Procedure § 245.50 (5) provides that "(i)n assessing a party's due diligence, the court shall look at the totality of the party's efforts to comply with the provisions of this article, rather than assess the party's efforts item by item" (see § 245.50 [5]). Accordingly, we decline to invalidate the prosecution's CoC based upon the belated disclosure of medical records and the potentially outstanding Giglio records concerning unsubstantiated claims against PO Delohery.

Generally, a criminal action is commenced by the filing of an accusatory instrument against a defendant, and it is settled law that the date on which the action is commenced is excluded from the CPL § 30.30 computation (see CPL § 1.20 [17]; see also People v Stiles, 70 NY2d 765, 767 [1987]). Accordingly, the People's speedy trial time began to accrue on June 26, 2025, the day following defendant's arraignment. The People validly declared readiness for trial by filing their CoC and SoR on September 23, 2025 (June 26 — September 23, 2025 = 89 days), within their statutorily allotted time (see CPL § 30.30 [1] [b]). Defendant's motion to dismiss the accusatory instrument is denied.

Based upon the foregoing, the People's CoC dated September 23, 2025, was VALID; and further:

The prosecution pursuant to CPL §§ 170.30 (1) (e) and 30.30 was TIMELY; and

Defendant's motion to dismiss the accusatory instrument is DENIED; and

Defendant's application seeking the right to make further motions is GRANTED to the extent provided by CPL § 255.20 (3); and

The People are DIRECTED to disclose any records concerning unsubstantiated allegations which relate to the subject matter of this case within 30 days of this Decision and Order or, in the alternative, move for a protective order pursuant to CPL § 245.70. If there are no unsubstantiated Giglio disclosures concerning PO Delohery, the People are to notify defense counsel in writing within 30 days of this Decision and Order.

This constitutes the opinion, decision, and order of the Court.