The Defendant, Francisco Daniel Trejo Mendoza, filed a motion, dated January 30, 2025, seeking various forms of relief including suppression of physical evidence, controversion of the search warrant, and invalidation of the People's original certificate of compliance. The People's response, dated February 21, 2025, urged this Court to deny the requested relief. The Court's staff held a discovery conference with the parties on February 24, 2025. In a Decision and Order dated February 28, 2025, this Court ordered that a Mapp / Payton hearing would be held prior to trial, denied the Defendant's motion to controvert the search warrant, and ordered a hearing to determine the motion to invalidate the People's certificate of compliance.^[FN1] Pursuant to that Decision and Order, this Court conducted a discovery hearing on April 25, 2025.

The Defendant has moved to invalidate the People's certificate of compliance (which was served and filed on April 16, 2024), arguing that the belated disclosure of the digital contents of the Defendant's three cell phones (which was obtained via search warrant) should render their [*2]original certificate of compliance invalid.^[FN2] At the discovery conference and discovery hearing, the Defendant raised an additional challenge to the People's original certificate of compliance based upon the belated disclosure of photographs from the complainant's medical records. The People's written response argued that obtaining a search warrant for the Defendant's cell phones is not a condition precedent to the People's certification of compliance and cites to People v Banks, 83 Misc 3d 559 (Sup Ct, NY Cty 2024). The People further indicate that they were able to present their case to the grand jury without the contents of the Defendant's cell phones and, therefore, the People's statement of readiness without the digital contents of the Defendant's cell phones was not illusory. The Court's staff held a discovery conference with the parties on February 24, 2025.

At the discovery conference, the People stated that they did not seek a search warrant for the Defendant's cell phones until it became apparent that this case could not be resolved without a trial. However, at the time they filed their original certificate of compliance, the People listed (as required by CPL §§245.10[m] and [o]) the Defendant's three cell phones as tangible property which they sought to introduce at trial.

At the discovery hearing, the People contend that they had not sought a search warrant for the Defendant's cell phones before filing their original certificate of compliance because the complaining witnesses was cooperative and because they had intended on having her testify at trial about the facts of this case. However, after the People had filed their original certificate of compliance the complaining witness became uncooperative. The People stated that they then reevaluated their case and decided that they might pursue a Sirois / forfeiture by wrongdoing hearing.

Further complicating their decision to seek a search warrant, the People indicated that they were unsure if they would be able to establish probable cause for a search warrant for the Defendant's phones without the complainant's input as to the relevancy of the content of the text messages which were on the Defendant's phones. The People later decided to seek a search warrant for the phones under the theory that there was a full order of protection in effect during the time when text messages were sent by the Defendant to the complainant. Each of those text messages was evidence of a violation of the order of protection.

On October 2, 2024, which was approximately six months after they filed their original certificate of compliance, the People applied for a search warrant for the contents of the Defendant's three cell phones. The search warrant mandated that the Defendant's cell phones had to be delivered to the forensic investigators within ten days in order for the search warrant to be deemed timely executed. The People stated that the cell phones were delivered to the New York City Police Department (NYPD) computer crimes department on October 9, 2024. The NYPD did not begin their analysis of the Defendant's devices until November 12, 2024. The [*3]NYPD generated reports based on their analysis on November 13, 2024, November 15, 2024, and November 18, 2024. The People indicated that they received the completed search warrant results on November 21, 2024. The People further argue that the assigned Assistant District Attorney (ADA) then had to review the contents of the search warrant results for sensitive information which needed to be redacted and could not be disclosed to the defense due to the sexual nature of this offense. Indeed, the People indicate that there was, in fact, sexually explicit content in the search warrant results which needed to be redacted before it could be disclosed to the defense. The People then disclosed the search warrant results to the Defendant on December 4, 2024.^[FN3] The People indicated in their supplemental certificate of compliance that they would only be seeking to use the contents of the Defendant's phones pursuant to rulings by the court on pre-trial Sandoval and Molineux applications (see People v Sandoval, 34 NY2d 371 [1974]; People v Molineux, 168 NY 264 [1901]).

At the discovery hearing, the Court asked the ADA whether she believed that the People could access the contents of the Defendant's phones without a judicial order and the ADA stated that she did not believe the People could have done so lawfully. Also at the discovery hearing, defense counsel stated that his argument was not that the People should be required to seek a search warrant for the digital contents of all cell phones that are recovered in all cases. Instead, the Defendant argues that the People applied for a search warrant on October 2, 2024 but did not make the defense aware of this search warrant until December 3, 2024.

At the discovery conference and the discovery hearing, defense counsel also alleged that the People failed to disclose photographs from the complainant's medical records until February 21, 2025, and that the People's failure to do so should render their original certificate of compliance invalid. In response, the People indicated that they had sent a subpoena for any and all medical records for the complainant on January 8, 2024. However, in preparing for trial, the People noticed the word "photographs" was listed within the complainant's medical records. On February 14, 2025, the ADA asked her paralegal to contact Elmhurst Hospital to see if there were any photographs associated with the complainant's medical records. Elmhurst Hospital's response to the People's original January 8, 2024 subpoena had included only diagrams of the complainant's injuries. On February 21, 2025, the ADA received eight photographs of the complainant's injuries from Elmhurst Hospital and immediately disclosed them to the defense within one hour ^[FN4] of receiving them.

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 [*4]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 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 various 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 (as this Court has held previously on July 30, 2024) that the People have exercised due diligence. It is not in dispute that the People have turned over voluminous discovery, including hundreds of files, which contained thousands of pages of material and attachments including at least 32 body-worn camera videos, hundreds of pages of DD5s, vouchers, and police disciplinary records, and medical records. In contrast, the outstanding discovery which the People had not disclosed prior to January 30, 2025 consisted of the digital contents of the Defendant's three cell phones (which the People could not legally access without judicial intervention; thus those digital contents were not yet in the People's possession) and [*5]eight photographs of the complainant's injuries. It is self-evident that the comparison of the discovery turned over to the discovery outstanding 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 not a particularly complex case.

Fourth, it does not appear to this Court that the People missed any discoverable material at the time they filed their original certificate of compliance other than the eight photographs of the complainant's injuries which were not in the People's possession despite having been subpoenaed. (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.)

As to the digital contents of the Defendant's three cell phones, the question presented is whether those digital contents were available to the People at the time they filed their original certificate of compliance. Although the Defendant's three cell phones were lawfully in the People's possession ^[FN5] , the digital content of these phones were unavailable to everyone — the Queens County District Attorney's Office, the New York City Police Department, as well as the Defendant and his attorneys — until a lawful court order was issued authorizing the access and search of those phones. Those digital contents, although stored on the physical phones in the People's possession, remained unavailable. What was required in order to access those digital contents was: 1) a relevant investigatory need and 2) a court order in the form of a search warrant which authorized access to the contents of those phones.^[FN6] In the absence of either side having a relevant investigatory need, a criminal case can be litigated to disposition without ever affecting the privacy interest a Defendant has in the digital contents of his cell phone.

Upon a review of statutory and case law, there is no legal obligation to obtain a search warrant for every phone which comes into the possession of the NYPD, nor is the Defendant arguing that such a rule be fashioned. In fact, to seek a search warrant for every digital device without a relevant investigatory need would appear to result in a violation of a Defendant's privacy rights. "To require . . . a prosecutor to apply for any possible search warrants before they certify compliance would lead to an absurd result in many cases; where prosecutors, afraid of violating the constraints of CPL §245.20 and accruing speedy trial time under CPL §30.30, apply for search warrants on any device in their possession, whether or not they have determined that the reliable information and thereby probable cause exists to support the warrant (People v Banks, 83 Misc 3d 559 [Sup Ct, NY Cty 2004] [Beller, J.]).

In this case, the People prepared for trial with a cooperative complainant. However, for reasons that are still unknown, as the case proceeded towards a trial, the complainant became uncooperative and the People deemed it necessary to seek the contents of the Defendant's three [*6]cell phones in order to obtain potential Molineux and Sandoval evidence about the Defendant's violations of the full order of protection. In an effort to gain access that they otherwise did not have, the People then sought and obtained a search warrant for the contents of the Defendant's three cell phones on October 2, 2024. The search warrant was executed when the People delivered the three cell phones to the New York City Police Department's computer crimes unit on October 9, 2024 (see page 2 of the Search Warrant ["ORDERED that this warrant shall be deemed executed upon delivery of the subject mobile telephones for analysis"]). The People received the results of this analysis on November 21, 2024. The ADA then contends that she needed to inspect the results of the analysis for sensitive material involving the complaining witness which had to be redacted before it could be disclosed to the defense. Indeed, the ADA did find sensitive material which needed to be redacted from the results before disclosure. The People then disclosed the results of the search warrant to the defense on December 4, 2024. The Court finds that the People acted in good faith and with due diligence under the specific circumstances of this case in disclosing the search warrant results to the defense within twelve days of receiving those results from the New York City Police Department.

As the digital contents of the Defendant's phones were not accessible to the People without a judicial order, those contents were not "in the possession, custody, or control of the prosecution or persons under the prosecution's direction or control" (see CPL §245.20[1]). As such, the Court finds that those digital contents were not subject to automatic discovery and, thus, cannot be considered "missing discoverable material" as that term was utilized by the Court of Appeals in its analysis in Bay. However, once the digital contents of electronic devices come into the People's possession, their automatic discovery obligation requires that they promptly disclose those contents in good faith and with due diligence. Delayed disclose of digital contents could theoretically result in a discovery violation. However, that was not the case here. "Accordingly, in a case like the one before this Court, the Court finds that a search warrant for a device is not a condition precedent to certifying compliance and readiness. Once the People applied for the search warrant[] at issue and obtained the results, they promptly provided those results to the defense" (Banks at 568). Thus, in this case the People did not miss any discoverable material other than the eight photographs, and that 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 explanation for the missing photographs is reasonable.^[FN7] The People promptly sent a subpoena for "any and all" of the complainant's hospital records just eight days after she was discharged from the hospital. The People received hospital records in response to that subpoena and disclosed those records (including diagrams) to the Defendant. There were no photographs received with the initial medical records response. This explanation, in the context of this particular case, is reasonable and it 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 that there might have been missing photographs associated with the complainant's medical records further indicates an exercise of due diligence. The Court notes that it was not the defense who pointed out the missing [*7]photographs. Instead, the ADA, who was preparing for trial, noticed that there might be photographs which were not in the People's possession despite having sent a subpoena to Elmhurst Hospital more than one year ago. Rather than ignoring this, or simply assuming that the diagrams sent by Elmhurst Hospital were the "photographs" referenced in the medical records, the ADA asked her paralegal to follow up with Elmhurst hospital, which resulted in the receipt of eight photographs of the complainant's injuries. When eight photographs were received by the People on February 21, 2025, the People disclosed those photographs to the defense within one hour of their receipt. The Court again finds, as it did on July 30, 2024, that the People have timely pursued all discovery corrections in this case, and that also supports a finding of due diligence on the part of the Queens County District Attorney's Office in fulfillment of their discovery obligations in this case.

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.