On October 12, 2024, Everol McLeod (hereinafter referred to as "Defendant"), was arrested and charged with Vehicle and Traffic Law ("V.T.L.") § 1192[3], an unclassified misdemeanor, and related charges. The Defendant was arraigned the next day and released on his own recognizance.

Defendant moves for dismissal of the accusatory instrument pursuant to Criminal Procedure Law ("C.P.L.") §§ 30.30.[1][b] and 170.30[1][e]. Defendant contends that the statutory speedy trial period has elapsed because the People did not comply with their discovery obligations pursuant to C.P.L. §§ 245.20[1] and 245.50[3].

Upon review and consideration of the submissions, court file and relevant legal authority, the Court finds that the prosecution has not exercised due diligence to disclose all discoverable materials in its possession prior to filing the certificate of compliance. Therefore, Defendant's motion is GRANTED.^[FN1]

On October 13, 2024, the Defendant was arraigned by misdemeanor information on charges of V.T.L. § 1192[3], driving while intoxicated ("DWI"), and V.T.L. § 1192[1], driving while ability impaired by alcohol. The case was adjourned to December 11, 2024, for discovery compliance.

On December 11, 2024, the prosecution was not discovery compliant. The case was [*2]adjourned to January 29, 2025, for the People to file their certificate of compliance and statement of readiness. However, on January 6, 2025, the prosecution filed and served, off-calendar, a certificate of compliance ("COC"), and statement of readiness ("SOR").

At the appearance on January 29, 2025, defense counsel requested additional time to complete her review of discovery and confer with the prosecution. The case was adjourned to February 19, 2025, for discovery conference. On February 4, 2025, defense counsel e-mailed the assigned prosecutor a list of key outstanding materials; the same day, the People disclosed additional discovery comprised of the Intoxicated Driver Testing Unit ("IDTU") videos.

On February 19, 2025, Defendant maintained that, despite continued conferral, important items remained undisclosed. As the assigned prosecutor was unavailable for the discovery conference, the case was adjourned to February 25, 2025. On February 24, 2025, the prosecution disclosed additional discovery and filed, off-calendar, a supplemental certificate of compliance ("SCOC").

At the discovery conference on February 25, 2025, defense counsel objected to the validity of the COC, and the instant motion schedule was set. On March 7, 2025, the People shared additional discovery with the Defendant and filed another SCOC.

On March 25, 2025, Defendant moved to strike the COC and demanded dismissal of the accusatory instrument pursuant to C.P.L. §§ 245.50[4][c], 30.30[1][b], and 170.30[1][e], as the prosecution was not ready for trial within the statutorily allotted ninety-day period. The People filed their opposition on April 22, 2025; the defense reply followed on May 9, 2025.

The prosecution must be ready for trial within ninety days of the commencement of the criminal action where, as here, the top count charged is a misdemeanor punishable by more than three months' imprisonment (C.P.L. § 30.30[1][b] and V.T.L. § 1193[1][b][i]).

The speedy trial clock begins to run with the commencement of the criminal action—here, the filing of the accusatory instrument (C.P.L. § 1.20[17]; People v. Smietana, 98 NY2d 336, 340 [2002]). The speedy trial clock is tolled when the People file and serve a valid certificate of discovery compliance and statement of readiness for trial (C.P.L. §§ 245.50[3] and 30.30[5]). A valid statement of readiness certifies that the People "have done all that is required of them to bring the case to a point where it may be tried" (People v Englund, 84 NY2d 1, 4 [1994].

The People must fulfill their discovery obligations pursuant to C.P.L. Article 245 before they may be deemed ready for trial. The prosecution must automatically disclose to the defense "all items and information which 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" (C.P.L. §§ 245.20[1]). Discoverable items possessed by "any New York state or local police or law enforcement agency" are deemed to be in the prosecution's possession (C.P.L. § 245.20[2]). The prosecution must provide all discoverable material to the defense except that which has been lost or destroyed (C.P.L. § 245.80) or is the subject of a protective order (C.P.L. § 245.70[1]).

After the People have turned over all materials subject to discovery, they must file with the court and serve on the defense a certificate of compliance, certifying that, "after exercising due diligence and making reasonable inquiries to ascertain the existence of material and [*3]information subject to discovery, the prosecutor has disclosed and made available all known material and information subject to discovery" (C.P.L. § 245.50[1]. Absent "an individualized finding of special circumstances," the People may not validly declare their readiness for trial until they have provided all discoverable material to the defense and filed a proper COC (C.P.L. § 245.50[3]).

The defense is required to notify the prosecution regarding "any potential defect or deficiency" with the certificate of compliance—such as missing or incomplete items of discovery—"as soon as practicable" (C.P.L. § 245.50[4][b]).

When the defense disputes the validity of a certificate of compliance, the burden is on the prosecution to show "that they did, in fact, exercise due diligence and [make] reasonable inquiries prior to filing the initial COC" (People v Bay, 41 NY3d 200, 213 [2023]). In People v. Bay, the Court of Appeals articulated a non-exhaustive list of factors to consider when evaluating due diligence, including the prosecution's efforts to comply with their discovery obligations; the volume of discovery provided, and the amount of discovery outstanding; the complexity of the case; how obvious missing discovery would be to a prosecutor exercising due diligence; any explanations for the discovery lapse; and the prosecution's response when apprised of missing discovery (id. at 212).

A. The Missing Items

The defense moves to invalidate the COC based on multiple items that were not disclosed prior to its filing. First, Defendant asserts that the IDTU videos were missing from the disclosed material (citing C.P.L. § 245.20[1][g], which requires disclosure of "[a]ll tapes or other electronic recordings" in the People's possession that "relate to the subject matter of the case"). Second, Defendant asserts that the people did not timely share adequate contact information for multiple civilian witnesses at the scene (citing C.P.L. § 245.20[1][c], which directs the People to disclose "the names and adequate contact information for all persons other than law enforcement personnel whom the prosecutor knows to have information relevant to any offense charged"). Finally, Defendant asserts that multiple police reports were not timely shared, including the NYPD police accident report, the scratch arrest report, and the NYSPIN report (citing C.P.L. § 245.20[1][e], which requires disclosure of, among other things, "all police reports, notes of police and other investigators, and law enforcement agency reports").

B. The Defendant's Argument

The Defense argues that the prosecution's certificate of compliance, dated December January 6, 2025, is invalid, as the prosecution did not exercise due diligence to turn over all discoverable material prior to the filing of the COC.

Defendant contends that the IDTU videos, which were not shared prior to the filing of the COC, are among the most crucial pieces of evidence in a DWI case. Here, the criminal complaint alleges that Defendant refused to take a breathalyzer test; this alleged refusal was [*4]recorded in the IDTU videos. Defendant asserts that the omission of these videos would have been obvious to a diligent prosecutor, and that the People do not adequately explain the omission by citing inadvertent error.

Defendant further notes that the People's COC certified that they were unaware of civilian witnesses who might have information relevant to the offense charged, despite the fact that multiple such witnesses interacted with law enforcement during Defendant's arrest (Defense Motion at 15). The defense points to a civilian witness who had informed officers, on body camera footage, that Defendant had hit his car, as well as two Emergency Medical Services ("EMS") responders who arrived at the scene before the NYPD. Defendant asserts that, though the existence of these civilian witnesses would have been apparent to a diligent prosecutor, the People did not disclose the contact information for the civilian witnesses until February 24, 2025, at the earliest.^[FN2]

Finally, Defendant asserts that the People should have noticed that the police accident report was missing, as this report is routinely generated when the NYPD responds to a car accident. Defendant notes that the People were similarly on notice that the NYSPIN and scratch arrest reports were outstanding, as they were referenced in other disclosed materials. Both documents had been checked off on the disclosed "Arrest Checklist," indicating that they had been generated as part of the NYPD's arrest packet.

C. The People's Argument

The People assert that they exercised due diligence prior to the COC's filing, noting that "the balance of required materials [had been] disclosed" (People's Opposition at 6). The prosecution emphasizes that the discovery shared was voluminous, as it contained, among other items, "over one thousand three hundred (1,300) pages of paperwork including. . .arrest reports authored at the precinct as well as memo books. . .calibration reports, simulator solutions, and health card permits" (id.).

The People explain that the IDTU videos were not shared prior to the COC's filing due to "inadvertent error," and stress that the videos were shared with Defendant the same day the People became aware of this omission (People's Opposition at 8).

The People concede that the contact information for civilian witnesses at the scene is automatically discoverable under C.P.L. § 245.20[1][c] but note that, prior to the COC's filing, "the newly assigned ADA was not aware the Adequate Contact List was not shared with defense" (People's Opposition at 9). While the People acknowledge that the witness list was [*5]"mistakenly not obtained prior to the filing of the COC," they emphasize that this omission must be viewed in context, as the People shared voluminous discovery with defense counsel and took action to remedy the error upon being alerted by Defendant.

With regard to the missing police reports, the People note that they had a good faith belief that the police accident report had been shared, as they had previously shared the motor vehicle collision report and believed the police accident report and the motor vehicle collision report to be one and the same (People's Opposition at 8-9). As to the NYSPIN report, the People contend that this document was shared prior to the filing of the COC, as they had disclosed a document captioned "NYSPIN — Report, Drivers License Inquiry DMV" (id. Exhibit 14). As to the scratch arrest report, the People affirm that a discovery liaison at the police precinct notified them on April 17, 2025, that this report was not generated (id. at 10).

A. The January 6, 2025, Certificate of Compliance

When the People filed the January 6, 2025, COC, numerous key items had not been disclosed, most notably, the three IDTU videos. IDTU videos depict the DWI arrestee's interactions with law enforcement at the precinct, including the administration of chemical tests and field sobriety tests. The events recorded in IDTU videos are so crucial to a DWI prosecution that they are frequently recorded from multiple angles. IDTU video is "a critical piece of evidence about an essential element of driving while intoxicated—namely whether the person was intoxicated" (People v Vargas, 171 NYS 3d 877, 881 [Crim Ct, Bronx County 2022]).

The People contend that the omission of the IDTU video was due to "inadvertent error." The COC itself does not list the IDTU videos as having been shared along with the other discoverable electronic recordings, such as the body worn camera footage, 911 call, and radio run (People's Opposition Exhibit 1 at 5). Upon being notified by defense counsel that no IDTU videos had been shared, the prosecution "inquired with NYPD and conducted an internal review for said videos," then "located the videos and shared [them] with defense" (People's Opposition at 8). However, the People's explanation for the discovery lapse does not adequately explain the omission of such a critical piece of evidence, and the People's subsequent action to rectify the error does not cure their previous failure to realize that the videos had not been obtained from the NYPD and disclosed to defense. Ultimately, the Court cannot find that the prosecution acted with due diligence with regard to the videos prior to filing the COC, as a diligent prosecutor who had reviewed their own discovery materials would have noticed the videos were outstanding.

Similarly, the People failed to act with due diligence to disclose adequate contact information for multiple civilian witnesses, including the occupant of the car that Defendant allegedly struck and the EMS personnel who first responded to the scene. As automatically discoverable material (C.P.L. § 245.20[1][c]), this contact information should have been disclosed within thirty-five days following Defendant's arraignment (C.P.L. § 245.10[1][a][ii]). Ultimately, however, the information was not disclosed until more than four months after arraignment, and at least forty-nine days after the COC was filed.

Moreover, the People explicitly certified that they were unaware of any civilian witnesses with information relevant to the case (People's Opposition Exhibit 1 at 4). This assertion by the People further highlights their failure to review the discovery in their possession prior to filing [*6]the COC and declaring their readiness for trial—as the existence of civilian witnesses was apparent in multiple other items of discovery. Defense counsel notes that the Defendant can be seen on an officer's body camera footage stating that the occupant of the other vehicle had punched him, and that the 911 call mentions the altercation between Defendant and another witness (Defense Motion at 7). In the criminal complaint itself, the arresting officer states that he "observed defendant . . .exchanging insurance information with the owners of a white, 2018 Chevrolet Equinox" (Criminal Complaint at 1). Consequently, the existence of the civilian witnesses should have been apparent to a diligent prosecutor, triggering action to comply with the obligation to disclose these witnesses' contact information.

With regard to the police reports, the Court finds that, under the facts presented, Defendant's arguments would not suffice to invalidate the COC—had these been the sole items in dispute. The People affirm that they had a good faith belief that the vehicle accident report had been disclosed, as they had previously shared with Defendant the motor vehicle collision report and believed this to be the same document. Upon being informed by defense counsel that the police accident report was a different document, the People obtained the correct report and shared it with defense counsel (People's Opposition at 9). With regard to the scratch arrest report, the People reached out to the precinct's discovery liaison on multiple occasions, both before and after the filing of the COC, and were ultimately informed it had not been generated (id. at 10). The NYSPIN report appears to have been disclosed to Defendant prior to the COC's filing, with confusion arising because the report is referred to on the COC as "Drivers License Inquiry DMV" (People's Opposition Exhibits 1 and 14).

B. The February 24, 2025, Supplemental Certificate of Compliance

The February 24, 2025, SCOC further corroborates that the original COC was invalid. The SCOC certifies that, following the COC's filing, the People disclosed the IDTU videos, as well as an "Adequate Contact List." However, confusingly, the February 24, 2025, SCOC also lists the names and adequate contact information for the responding EMS personnel as "requested" but "not yet within the People's control" (People's Opposition Exhibit 10).^[FN3]

As to the explanation for the items' belated disclosure—required by C.P.L. § 245.50[1-a] —the prosecution affirms that, following the COC's filing, "the People learned that they had been provided this material but inadvertently failed to disclose this information." This vague explanation fails to establish that the People acted with the requisite due diligence to comply with their discovery obligations prior to the COC's filing.

C. Due Diligence and the Bay Factors

As the discoverability of the belatedly disclosed items is not in dispute, the Court's sole inquiry is whether the People exercised due diligence and made reasonable inquiries to disclose [*7]all material subject to automatic discovery prior to filing the COC.^[FN4] A court considering the People's diligence should consider, among other factors, the prosecution's efforts to comply with their discovery obligations; the volume of discovery provided, and the amount of discovery outstanding; the complexity of the case; how obvious missing discovery would be to a prosecutor exercising due diligence; any explanations for the discovery lapse; and the prosecution's response when apprised of missing discovery (People v Bay, 41 NY3d 200, 212 [2023]). While there is no rule of "strict liability" requiring the invalidation of a COC when discovery items are missing or belatedly disclosed, "the plain terms of the statute make clear that while good faith is required, it is not sufficient standing alone and cannot cure a lack of diligence" (id. at 11).

Here, the Court cannot find that the People exercised due diligence to fulfill their discovery obligations prior to filing the COC, specifically with regard to the IDTU videos and witness contact information. Although a significant amount of discoverable material was disclosed prior to the COC's filing, some of the most essential items remained outstanding when the People certified their discovery compliance. Fundamentally, due diligence in the discovery context "must include a review of the evidence" in the People's possession; otherwise, "there is no way for a diligent prosecutor to know that discovery is complete" (People v Martinez, 229 NYS 3d 329, 332 [Sup Ct, Kings County 2025]; see also People v. Guzman, 75 Misc 3d 132(A) [App Term 2d Dept, 9th and 10th Jud Dists 2022] [COC invalidated where missing video was referenced in shared discovery, and the People provided no information as to why they failed to check materials received from police against items referenced in police reports]). It is the People's duty, and the People's duty alone, to exercise due diligence and make reasonable inquiries to ascertain the existence of and share discoverable material; this duty cannot be abdicated to the police, or shifted to the defense (see People v Martinez, 229 NYS 3d 329, 332 [Sup Ct, Kings County 2025] ["Our discovery statute describes a proactive prosecutor making reasonable inquiries, not a courier blindly rubber-stamping delivery from the police to the defendant."]). In the instant matter, it seems, the People did not review their own discovery prior to filing the COC and stating ready for trial; otherwise, it would have been immediately apparent that the IDTU videos remained outstanding, and the People would not have certified, inaccurately, that they were unaware of civilian witnesses with relevant information. Moreover, the People's subsequent explanation that they "inadvertently failed" to provide this material prior to filing the COC does not establish that they acted with the requisite due diligence.

The Court holds that the People's January 6, 2025, COC was invalid, and its accompanying statement of readiness was illusory (People v Bay, 41 NY3d 200, 204 [2023]).

The first day counted for speedy-trial purposes is October 14, 2024, the day following the [*8]commencement of the criminal action ^[FN5] (People v Stiles, 70 NY2d 765, 767 [1987]]. The prosecution filed and served a COC on January 6, 2025. However, as discussed supra, the COC was invalid and failed to toll the speedy trial clock. The prosecution served additional discovery and filed a supplemental certificate of compliance on February 24, 2025. Assuming, arguendo, that the first SCOC was valid, the earliest date the speedy trial clock was tolled was February 24, 2025 (October 14, 2024 — February 24, 2025 = 134 days charged). Accordingly, at least 134 days are chargeable to the People, and their ninety-day speedy trial period has elapsed.

Upon review and consideration of the submissions, court file and relevant legal authority, Defendant's motion to dismiss pursuant to CPL §§ 245.50[4][c], 30.30[1][b], and 170.30[1][e] is GRANTED.

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