Summary

Karen Bautista was arrested on July 15, 2025 and charged with assault in violation of Penal Law § 120.00(1) and related charges. She was arraigned in Bronx Criminal Court on July 16, 2025 and released on her own recognizance. The case was adjourned for conversion, a Crawford hearing ^[FN1] and the filing of the prosecution's Certificate of Compliance (COC) to July 22, 2025. On July 22, 2025 a Crawford hearing was held and a Temporary Order of Protection (TOP) that had been issued at arraignment was adjusted to a limited TOP. At this appearance the prosecution submitted a supporting deposition and stated that they would file an affirmation of translation at a later date. The case was adjourned to July 24 and August 13, 2025 for conversion and the filing of the prosecution's COC. On July 24, 2025 the prosecution was not converted and not compliant. On August 13, 2025 the prosecution submitted an affidavit of translation. The complaint was deemed an information, but Ms. Bautista was not present. The court adjourned the case to September 2, 2025 for Ms. Bautista to appear and be arraigned. On September 2, 2025 Ms. Bautista appeared and was arraigned, but the prosecution had not filed their COC. The [*2]case was adjourned to October 23, 2025 for the filing of the prosecution's COC. On October 1, 2025 the prosecution filed their Automatic Disclosure Form (ADF). On October 2, 2025 (78 days after arraignment) the prosecution filed their COC. On October 23, 2025 Ms. Bautista was not present and the case was adjourned to October 30, 2025 for Ms. Bautista to appear. Later on October 23, the case was recalled with Ms. Bautista present and the case was adjourned to November 14, 2025 for a discovery conference. On November 6, 2025 the defense filed the instant motion. On November 14, 2025 the court set a motion schedule and adjourned the case to February 6, 2026 for decision on the motion. On December 3, 2025 (140 days after arraignment) the prosecution filed a supplemental COC (SCOC) and SOR.

This case comes before this court on a defense motion to dismiss pursuant to CPL § 30.30. The defense argues that despite their timely, good-faith efforts to confer with the prosecution regarding missing discovery, the prosecution failed to disclose body-worn camera (BWC) footage for Police Officer Julio Arias, surveillance footage from the precinct, complainant's medical records, Domestic Violence Officer BWC and Home Visit Worksheets, attachments to a disclosed IAB Log, Central Personnel Indexes (CPI) for testifying Officers Julio Arias and Manuel Davila, and the NYPD Online Prisoner Arraignment Database (commonly referred to as ZOLPA).

The prosecution argues that the defense failed to make timely, good-faith efforts to resolve the discovery dispute by means other than motion practice, and that the defense did not suffer prejudice as a result of any missing discovery. The prosecution argues that they exercised due diligence by making reasonable efforts to obtain missing discovery when apprised of the alleged discovery violations.

On July 22, 2025, at the Crawford hearing, the prosecution disclosed some discovery including photographs and Domestic Incident Reports. On September 5, 2025 (51 days after Ms. Bautista was arraigned) the prosecution requested copies of all 911 messages, recordings, and radio runs associated with this incident from the NYPD Tapes and Records Department, as well as NYPD documents associated with the Ms. Bautista's arrest and a general request for all other information possessed by the NYPD that had not already been turned over to the People. (Opposition at 3.) "On September 8, 2025, the People received a single scanned document from the 44th NYPD Precinct Discovery Liaison containing memo books, arrest report, prisoner movement slip, roll call log, aided report, and a typed Domestic Incident Report; in the email was a typed notation that 'All other Paperwork does not exist'." Id. On October 13, 2025 the defense sent the prosecution a list of missing discovery. On October 14, 2025 (89 days after arraignment) the prosecution emailed the NYPD to inquire about the missing materials described by the defense. On October 15, 2025 the NYPD re-shared the same discovery previously disclosed, with no additional materials disclosed. On October 30, 2025 (106 days after arraignment) the prosecution emailed the NYPD "clarifying specifically that the People were requesting information about the new materials mentioned by defense." (Opposition at 7.) On November 2, 2025 the prosecution received the ZOLPA and were informed that officers assigned to the Domestic Violence Unit would respond to the prosecution concerning some of the other discovery. On November 6, 2025 (113 days after arraignment) the prosecution sent a follow-up email to the NYPD, the arresting officer and the Domestic Violence Unit. On November 10, 2025 (117 days after arraignment) the prosecution called the arresting officer to discuss missing discovery issues. On November 17, 2025 (124 days after arraignment) the prosecution left a voicemail for the arresting officer about the outstanding discovery, and sent [*3]emails to the arresting officer and the Domestic Violence Unit. That same day the Domestic Violence Unit shared their files with the prosecution. On November 24, 2025 (131 days after arraignment) the prosecution left a voicemail for, and sent an email to, the arresting officer. On November 25, 2025 the arresting officer sent the prosecution the ZOLPA and stated that the surveillance video from the precinct was inaccessible.

Relevant to this decision the prosecution concedes that on November 26, 2025 (133 days after arraignment) they belatedly disclosed the following materials: two photographs depicting injuries of the complaining witness; a five-page activity log for Officer Navarro; an eight-page PDF with one cover page and seven pages of a scratch NYPD complaint report; and a two-page ZOLPA document.^[FN2] It is unclear what materials, if any, remains outstanding.

Since the top charge in this case is an A misdemeanor, CPL § 30.30(1)(b) requires the People to be ready within 90 days of arraignment (by October 14, 2025 in this case). See People v Brown, 28 NY3d 392, 403 (2016). Under CPL § 245.10(1)(a)(ii), "[w]hen the defendant is not in custody during the pendency of the criminal case, the prosecution shall perform its initial discovery obligations within thirty-five calendar days after the defendant's arraignment." Therefore, initial discovery obligations in this case were due by August 20, 2025.

A valid COC requires the prosecution to make a diligent, good faith effort to determine what discoverable material exists and to disclose those materials to the defense. CPL § 245.20(2).

Read together, CPL 245.50 and CPL 30.30 require that due diligence must be conducted prior to filing a COC (see CPL 245.50[1] [detailing representations that must be included in a COC]; CPL 245.50[3] [directing that "the prosecution shall not be deemed ready for trial for purposes of (CPL 30.30) ... until it has filed a proper certificate pursuant to (CPL 245.50[1]).

People v Bay, 41 NY3d 200, 212 (2023). Due diligence is "[t]he diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation." Id. at 211, quoting Black's Law Dictionary 573 (11th ed 2019). Recent amendments to CPL § 245 introduce a list of factors courts must consider when determining whether due diligence has been exercised. See CPL § 245.50(5)(a). Courts are instructed to evaluate the factors holistically. "The court's determination shall be based on consideration of all factors listed in paragraph (a) of this subdivision and no one factor shall be determinative." CPL § 245.50(5)(b).

From the analysis of these factors below, this court cannot find that the prosecution exercised diligence before the filing of their COC on October 2, 2025. The prosecution has provided little information as to their efforts prior to filing the initial COC. The court will address the factors as they apply to this case.

• Prosecutorial Compliance Efforts. The prosecution does not provide this court with information about their efforts to ascertain the existence of discoverable materials until 51 days after Ms. Bautista's arraignment. This is far beyond the 35 days during which the prosecution is required to complete their discovery compliance (CPL § 245.20[1]), and disclose impeachment materials "expeditiously upon its receipt." CPL § 245.20(1)(k). The prosecution did disclose some materials at the Crawford hearing, but offered no [*4]explanation about when or how they obtained those materials. The court is left to guess if those materials are arraignment materials or if the prosecution exercised diligence to obtain them. From the relevant facts of this case the prosecution only began their diligence after the defense notified the prosecution of missing discovery. The prosecution indicates that they sent only one email requesting discovery prior to filing their COC. They sent five follow-up emails and made three calls after the defense notified them of missing discovery. "Viewed under the proper legal standard, there is no record support that prior to filing the initial COC, the People exercised due diligence and made reasonable inquiries to identify mandatory discovery items relating to this case." Bay, 41 NY3d at 215.

• Volume of Discovery Provided/Outstanding. The prosecution has disclosed most of the materials related to this case, but acknowledges that they belatedly turned over some very basic discovery items for this type of case: photographs depicting injuries, an activity log for one of the officers involved in the case, a scratch NYPD complaint report, and the ZOLPA.

• Complexity of the Case. This is an assault case, one of the more typical cases in the Bronx. The prosecution has not offered any evidence that this case is complex.

• Prosecutorial Knowledge of Missing Material. The prosecution did not note any of this discovery was missing in their COC, and indicated that they believed much of the belatedly disclosed items did not exist.

• Explanation of Discovery Lapse and Response to Discovery Lapse. The prosecution's response to the missing discovery is that they did not know the missing items existed before they made a second request for discovery and were, eventually, provided with the missing discovery. The prosecution also argues that they exercised due diligence by making reasonable efforts when apprised of the discovery violations. However, their duty is to exercise diligence and good faith before filing their COC.

• Belated Discovery was Duplicative, Insignificant or Easily Remedied. The prosecution argues that some of the belatedly disclosed items are duplicative. They argue that the photos show the same injuries that other previously disclosed photos do, the ZOLPA is "arguably" duplicative in that it contains information that is contained cumulatively in other disclosed documents. It is not for the prosecution to decide what is useful to the defense. See People v Zachary, 86 Misc 3d 1209(A) (Crim Ct, NY County 2025). The statute requires the prosecution to disclose all material subject to discovery. CPL § 245.50(1). And all discovery in possession of the NYPD "shall be deemed in the possession of the prosecution." CPL § 245.20(2).

• Omission Corrected. The defense argues that several items remain outstanding. However, the important detail related to this factor is that the prosecution belatedly disclosed numerous items after the filing of their COC.

• Error Self-Reported and Promptly Remedied. The prosecution did not self-report any of the errors, but did make some efforts to remedy and did disclose much of the missing discovery. This raises the issue of whether the prosecution would have been able to meet their discovery and CPL § 30.30 deadlines had they acted diligently sooner.

• Prejudice to Defense. The prosecution argues that there was no prejudice. However, when there is still discovery outstanding — as may be the case here — it is difficult to determine the prejudicial impact.

After consideration of all of the CPL § 245.50(5)(a) factors, this court finds that the prosecution failed to demonstrate that they exercised due diligence to ascertain the existence of material and information subject to discovery and make that discovery available to the defense prior to filing their initial COC.

Because the prosecution has not demonstrated compliance with the statutory mandates of discovery, the court grants the defense motion to invalidate the prosecution's COC and SOR. Without a valid COC and SOR, the prosecution was beyond the 90 days to be ready for trial under CPL § 30.30 and this court must dismiss this case.

The foregoing constitutes the order and decision of the court.