The Defendant, Mathew Arbaszewski, has submitted an omnibus motion, dated January 6, 2025, seeking: inspection of the Grand Jury minutes and reduction or dismissal of the indictment; suppression of physical evidence; preclusion of statement evidence; preclusion of identification evidence; any and all Brady and Rosario material; invalidation of the People's certificate of compliance; and the reservation of rights to make further motion. The People's response, dated January 27, 2025, opposes the relief sought. The Court decides the motion as follows:

The branches of the motion seeking to inspect the Grand Jury minutes and dismiss or reduce the indictment are granted only to the extent that the Court has inspected the minutes of the Grand Jury. "A court reviewing the legal sufficiency of an indictment must view the evidence in the light most favorable to the People and determine whether the evidence, if unexplained and uncontradicted, would be legally sufficient to support a verdict of guilt after trial" (People v Dunn, 223 AD3d 806 [2d Dept 2024], quoting People v Holloway, 210 AD3d 1007 [2d Dept 2022]). "In the context of grand jury proceedings, legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt" (id., quoting Holloway at 1008). "This Court's inquiry is limited to assessing whether the facts, if proven, and the logical inferences flowing therefrom, supply proof of each element of the charged crimes" (id., quoting Holloway at 1008). "The existence of innocent inferences arising from the evidence has no bearing upon the legal sufficiency inquiry" (id., quoting People v Castro, 202 AD3d 815 [2d Dept 2022]).

The Court finds that the evidence adduced before the Grand Jury was legally sufficient to support all of the counts of the indictment. The People "maintain broad discretion in presenting their case to the Grand Jury and need not seek evidence favorable to the defendant or present all of their evidence tending to exculpate the accused" (People v Thompson, 22 NY3d 687 [2014]; People v Mitchell, 82 NY2d 509, 515 [1993], citing People v Lancaster, 69 NY2d 20, 25 [*2][1986]).

Moreover, the District Attorney properly instructed the Grand Jury on the relevant law (People v Tunit, 149 AD3d 1110 [2d Dept 2017], citing People v Calbud, Inc., 49 NY2d 389 [1980]). To the extent that the Defendant alleges defects in the presentation of the case to the Grand Jury, the Court finds that the presentation was not defective as a matter of law. The minutes reveal that a quorum of the grand jurors was present during the presentation of evidence and at the time that the District Attorney instructed the Grand Jury on the law. No unauthorized person within the meaning of CPL §190.25 was present at any time during the proceedings (see People v Sayavong, 83 NY2d 702 [1994]). Also, no irregularity that would impair the integrity of the Grand Jury occurred (see People v Adessa, 89 NY2d 677 [1997]; People v Huston, 88 NY2d 400 [1996]). The release of additional Grand Jury minutes beyond what has been turned over by the People pursuant to the discovery provisions of Article 245 of the Criminal Procedure Law is denied since defense counsel has failed to demonstrate any compelling need for such action and the Court is able to determine the motion without assistance (see CPL §210.30[3]). The Court has considered the Defendant's specific arguments with respect to robbery and serious physical injury and finds them to be without merit.

The branch of the motion seeking to suppress physical evidence is granted to the extent that a Mapp hearing shall be held prior to the trial of this indictment. The Court notes that the People consented to a Mapp hearing.

The branch of the motion seeking preclusion of unnoticed statements made by the Defendant to members of law enforcement is granted. Absent a showing of good cause, the People are precluded from the use of any unnoticed statements on their direct case (People v Porter, 192 AD3d 222 [2d Dept 2020], citing People v O'Doherty, 70 NY2d 479 [1987]).

The branch of the motion seeking to preclude identification testimony is granted. Absent a showing of good cause, the People are precluded from the use of any unnoticed police-arranged identifications on their direct case (People v Nolasco, 70 AD3d 972 [2d Dept 2010], citing People v McMullin, 70 NY2d 855 [1987]).

The branch of the motion seeking all Brady material is granted to the extent that the Court reminds the People of their obligations under Brady v Maryland, 373 US 83 (1963) (see CPL §245.20[1][k]).

The People are directed to make every effort to preserve Rosario material as well as all 911 calls, radio runs, sprint reports, surveillance footage, and any other recordings that are relevant to this case and make them available to the Defendant at the appropriate time as prescribed by CPL §245.10 and CPL §245.20(1)(g) (see People v Rosario, 9 NY2d 286 [1961]; People v Consolazio, 30 NY2d 446 [1976]).

The branch of the motion reserving the right to make further motions is granted to the extent permitted by CPL §255.20.

The Defendant has moved to invalidate the People's certificate of compliance (which was served and filed on November 8, 2024) because he argues that there were seven categories of discovery which were in dispute at the time the People filed their original certificate of compliance: 1) the entire transcript of the grand jury proceeding; 2) the names and contact information for the Defendant's parents; 3) the names and affiliation of two law-enforcement officers whose information is contained in the DD5s; 4) photographs of the scene; 5) final activity logs for Police Officer Tjortjoglou and Gravagna and activity logs for Detectives [*3]Tringali, Gallagher, Kamma, and Fragoso; 6) police paperwork; 7) body-worn camera audit trail logs; and 8) disciplinary records for law enforcement officers. The Court's staff held a discovery conference with the parties on January 27, 2025. The Court will now address each category in dispute:

The Defendant argues that the People's failure to disclose the entire transcript of the grand jury proceedings (including the cover page, legal instructions, and exhibits) should invalidate the People's certificate of compliance. In response, the People state that they turned over the sworn testimony of all witnesses who testified before the grand jury, and argue that the law does not require that they turn over the grand jury charge, cover page, or exhibits; thus, they did not disclose these items.

The Defendant further argues that the People's failure to disclose the identity and contact information for the Defendant's parents (who are depicted on body-worn camera video) should render their original certificate of compliance invalid. The People indicate that those individuals are the Defendant's parents and that the People are unaware if they have any relevant information regarding this case as they were not at the scene of the incident when it occurred. Furthermore, the People note that the name of the Defendant's father appeared in a DD5 which was disclosed to the Defendant. Finally, the People asked Detective Michael Tansey if he obtained the name or contact information for the Defendant's mother and the Detective indicated that he did not believe that he had but would search for it.

The Defendant argues that the People's failure to disclose the names and work affiliations of two law enforcement officers (Ridhwanul Rabbe and Eric Velez) mentioned in Detective Tansey's DD5s should render their original certificate of compliance invalid. In response, the People indicate that they did, in fact, disclose this information to the Defendant by disclosing Detective Tansey's DD5s, which is how the Defendant knew that these officers were involved with the case. Also, the People indicate that they do not intend on calling these witnesses at trial.

The Defendant argues that the People's failure to disclose six photographs (which defense counsel realized had been taken based upon a review of body-worn camera videos) should render their original certificate of compliance invalid. In response, the People indicate that they disclosed fourteen photographs before filing their original certificate of compliance. Once alerted to the existence of additional photographs by the Defendant's motion, the People contacted the discovery liaison at the 111th Precinct on January 22, 2025, obtained those six photographs and disclosed them to the Defendant the same day, along with a supplemental certificate of compliance.

The Defendant argues that the People's failure to disclose final activity logs for Police Officer Tjortjoglou and Gravagna and activity logs for Detectives Tringali, Gallagher, Kamma, [*4]and Fragoso should render their original certificate of compliance invalid. The People contend that the "in progress" activity logs for Police Officer Tjortjoglou and Gravagna were disclosed prior to the filing of their original certificate of compliance and that they obtained those "final" activity logs on January 22, 2025 and disclosed them to the Defendant the same day along with a supplemental certificate of compliance. As for the activity logs for the listed detectives, the People argue that the Queens County District Attorney's Office generally does not request activity logs or memobooks for law enforcement officers who did not respond to the scene of the crime because typically officers who assist with an investigation away from a crime scene would document their case involvement in a DD5. The People also stated that on January 22, 2025, they requested activity logs for Detectives Tringali, Gallagher, Kamma, and Fragoso for each date which they made DD5s related to this case. The People received those activity logs the same day and disclosed them to the Defendant along with a supplemental certificate of compliance.

The Defendant argues that the People's failure to disclose the following NYPD documents should render their original certificate of compliance invalid: a) arrest to arraignment monitor; b) pre-arraignment notification report; c) court verification / arraignment card; d) roll call log; e) interrupted patrol log; f) and prisoner holding pen roster. In response, the People state that they consulted with Detective Eric Iocco of the 111th Precinct and he confirmed that none of those documents exist for this case.

The Defendant argues that the People's failure to disclose body-worn camera "device" audit trails should render their original certificate of compliance invalid. In their response, the People contend that only one of the three types of body-worn camera audit trails could arguably relate to the subject matter of the case — the "evidence" audit trails — and, therefore, the other two types — "device" audit trails and "user" audit trails — are not automatically discoverable under CPL §245.20. The People indicate that they did disclose "evidence" audit trails for all of the body-worn camera videos related to this case to the Defendant before filing their original certificate of compliance.

The Defendant argues that the People's failure to disclose all law enforcement disciplinary records should render their original certificate of compliance invalid. In response, the People state that they disclosed Law Enforcement Officer Witness (LEOW) letters for all potentially testifying witnesses as well as all Civilian Complaint Review Board (CCRB) records, all civil litigation records, and all underlying IAB records for those witnesses.

CPL §245.20(1) requires the People to disclose to the defendant "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". The People must disclose this initial automatic discovery within twenty calendar days of the Defendant's arraignment where the defendant is in custody (CPL §245.10[1][a][i]) unless the discoverable materials are "exceptionally voluminous or, despite diligent, good faith efforts, are otherwise not in the actual possession of the prosecution," in which case an extension may be granted pursuant to CPL §245.70 (CPL §245.10[1][b]). Furthermore, pursuant to CPL §245.60, both the People [*5]and the Defendant have a continuing duty to disclose "additional material or information which it would have been under a duty to disclose pursuant to any provisions of this article had it known of it at the time of a previous discovery obligation or discovery order".

"[W]hether the People made reasonable efforts to satisfy CPL article 245 is fundamentally case-specific, as with any question of reasonableness, and will turn on the circumstances presented" (People v Bay, 41 NY3d 200 [2023]). "Although the statute nowhere defines 'due diligence,' it is a familiar and flexible standard that requires the People 'to make reasonable efforts' to comply with statutory directives (id. quoting People v Bolden, 81 NY2d 146, 155 [1993]).... Although the relevant factors for assessing due diligence may vary from case to case, the courts should generally consider, among other things, the efforts made by the prosecution and the prosecutor's office to comply with the statutory requirements, the volume of discovery provided and outstanding, the complexity of the case, how obvious any missing material might have been to a prosecutor exercising due diligence, the explanation for any discovery lapse, and the People's response when apprised of missing discovery" (Bay at 212).

The Court has considered the factors that the Court of Appeals listed in Bay and finds that the People have exercised due diligence in providing discovery for this case. First, considerable efforts have been made by the People to generate the discovery they are obligated to turn over in this and every case. For example, the Queens County District Attorney's Office has established a Discovery Compliance Unit to coordinate with law enforcement agencies in an effort to streamline both interagency communication and the exchange of discoverable information. Additionally, the Queens County District Attorney's Office has also established a Law Enforcement Officer Witness Unit to obtain disciplinary information for their witnesses as well as a Forensic Science Unit to obtain scientific and forensic evidence that may exist in any case. Finally, the Queens County District Attorney's Office has also embedded paralegal discovery liaisons in many of its bureaus, whose duties and responsibilities include interacting with a variety of law enforcement agencies in an effort to oversee discovery compliance and to troubleshoot any outstanding discovery issues. The creation of these additional units and allocation of resources to generally address their discovery obligations under CPL Article 245 support a finding of due diligence on the part of the Queens County District Attorney's Office in fulfillment of their discovery obligation in this case.

Second, in comparing the amount of discovery turned over to the amount of discovery outstanding, it is clear that the People have exercised due diligence. It is not in dispute that the People have turned over voluminous discovery, including approximately 200 files, which contained hundreds of pages of material and attachments including 18 body-worn camera videos, seven sets of DD5s from four police precincts, ten sets of memobook entries, and sixteen LEOW letters. In contrast, the outstanding discovery related to the subject matter of the case at the time the People filed their original certificate of compliance (and that must be turned over), rather that every imaginable document requested by the Defendant,^[FN1] consisted of six photographs and six [*6]activity logs. Those items have since been obtained by the People and disclosed to the Defendant. (Also, it does not appear that there is any outstanding discovery related to the subject matter of the case as of the date of this decision.) It is self-evident that the comparison of the discovery turned over to the outstanding discovery supports a finding of due diligence on the part of the Queens County District Attorney's Office in fulfillment of their discovery obligation in this case.

Third, in analyzing the complexity of this case, all indications provided to this Court is that the instant case is a somewhat complex case. During the discovery conference, the People stated that this case was not particularly complex for a domestic violence case. However, defense counsel did concede that this case was complex.

Fourth, it appears to this Court that the only discoverable material that the People missed in this case at the time they filed their original certificate of compliance was six photographs and six activity logs.^[FN2] The fact that the People only missed these twelve items supports a finding of due diligence on the part of the Queens County District Attorney's Office in fulfillment of their discovery obligation in this case.

Fifth, the People's explanations for the alleged discovery errors are reasonable. The People are not required to disclose the grand jury charge and exhibits to the Defendant. Indeed, Criminal Procedure Law §245.20(1)(e) only requires the People to disclose testimony of witnesses. Furthermore, the People indicate that they did not have the Defendant's mother's name or contact information because the Detectives did not gather it. The People also suggest that this information is not related to the subject matter of the case. The Court agrees and finds that the Defendant is reasonably presumed to be in possession of this information. As to photographs, the People disclosed fourteen photographs of injuries, the expandable baton, and the Defendant before they filed their original certificate of compliance. The People state that they were unaware that there were additional photographs until they were alerted to that possibility by the defense. The Court finds it reasonable for the People to have requested all photographs from the law enforcement officers who were at the crime scene and then disclosed those photographs to the Defendant. It is not reasonable to expect the assigned ADA to watch all 18 body-worn camera videos disclosed in this case from start to finish at this stage of the proceedings in an effort to double-check that there were not additional photographs taken.

Furthermore, the People's explanation for their policy to not request activity logs for law [*7]enforcement officers who did not respond to the scene of the crime is reasonable. The People contend that officers and detectives who assist with the later stages of investigation frequently document their contributions in DD5s rather than activity logs.^[FN3] The People have provided the activity logs for these six detectives to the Court for consideration in rendering this decision. The Court has reviewed these activity logs and holds that the activity logs are not relevant to the subject matter of this case. The activity logs contain information about the start and end time of the detectives' tours of duty, whom their supervisors and partners were, and about the police vehicle they were assigned that day. These documents do not contain any information relating to the subject matter of this case. Accordingly, the People's decision to not request the activity logs for non-responding detectives was reasonable considering the facts and circumstances of this case, and they are not obligated to obtain and disclose them in this case.

As for body-worn camera audit trails, the People indicate that they disclosed only the evidence audit trails because the device audit trails are not related to the subject matter of the case.^[FN4] This supports a finding of due diligence on the part of the Queens County District Attorney's Office in fulfillment of their discovery obligation in this case.

The Court also finds that the People's decision to not request (until the Defendant made a request for these documents) or disclose to the Defendant additional NYPD paperwork including the arrest-to-arraignment monitor, pre-arraignment notification report, court verification / arraignment card, roll call log, interrupted patrol log, and prisoner holding pen roster is reasonable because these documents (should they all exist for this case) have nothing to do with the subject matter of the case. Instead, all of these documents are related to the arrest processing, custody, and arraignment of the Defendant and are administrative documents which deal with the mechanical operation of the criminal justice system. The fact that the People's explanations for the alleged discovery errors are reasonable given the facts and circumstances of this case supports a finding of due diligence on the part of the Queens County District Attorney's Office in fulfillment of their discovery obligation in this case.

Finally, the response by the People when they learned of the missing photographs and activity logs was reasonable. When the People were alerted that body-worn camera videos seemed to suggest that additional photographs were taken at the crime scene the assigned Assistant District Attorney contacted the discovery liaison at the 111th Precinct and obtained all [*8]six of those photographs. Those photographs were then disclosed to the Defendant the same day along with a supplemental certificate of compliance. After the Defendant's motion alleged that the People had not turned over six activity logs, the People requested those activity logs from the discovery liaison at the 111th Precinct, received them the same day, and immediately disclosed them to the Defendant.

In total, the People have exercised due diligence and made reasonable efforts to both identify and disclose mandatory discovery prior to filing their certificate of compliance in this case. Accordingly, the Defendant's motion to invalidate the People's certificate of compliance, deem their statement of readiness illusory, and to dismiss the indictment due to a violation of his right to a speedy trial is denied.

This constitutes the decision and order of the Court.