Defendant O. Guevera ^[FN1] moves, among other things, to dismiss on speedy trial grounds because the People did not timely comply with their discovery obligations. For the reasons set forth below, the branch of the motion seeking dismissal is DENIED. Huntley/Dunaway/Mapp and breath-test hearings are ORDERED. All other requests for relief are either REFERRED to the trial court or DENIED.

As the parties are the primary audience for this decision, familiarity with the facts is assumed. In brief, this is a drunk-driving case. Guevera was charged with driving while ability impaired (V.T.L. § 1192(1)), driving while intoxicated per se (V.T.L. § 1192(2)), aggravated driving while intoxicated per se (V.T.L. § 1192(2-a)(a)), and fourth-degree criminal mischief (P.L. § 145.00(3)). The accusatory instrument alleged that Guevera was involved in a multiple-car collision on Delafield Avenue in the Bronx, with the damage to two of the other cars forming the basis of the criminal mischief charge. An officer observed indicia of intoxication at the scene, and Guevera eventually blew a .160 at the precinct.

Guevera was arraigned on February 23, 2025.^[FN2] The People filed their certificate of [*2]compliance (COC) and declared ready on May 22, 2025, which the defense calculates as 88 days later.

This omnibus motion was filed on October 1. It is fully briefed and ripe for decision.

Guevera's request for dismissal focuses on three main discovery shortcomings.^[FN3] He argues that the COC was invalid because the People failed to timely disclose material either gathered or created at the scene of the incident: (1) photographs taken by officers; (2) EMS/FDNY paperwork related to the care Guevera received, including contact information for EMS/FDNY personnel; and (3) Giglio material for several specified non-testifying officers, as well as any other officers who responded to the scene.

First, though, some preliminaries. This decision assumes, without deciding, that the quality and scope of the People's disclosures should be assessed under the earlier, friendlier-to-the-defense version of Article 245 in effect at the time the COC was filed in May 2025. At the same time, the People's diligence is assessed under the current, revised versions of C.P.L. §§ 30.30(5)(b) & 245.50(5)(a), for substantially the same reasons articulated in People v. Delvalle, 2025 NY Slip Op 51753(U), at *6 (N.Y.C. Crim. Ct., Bronx Co. 2025), and People v. M.Q., — Misc 3d —, 2025 NY Slip Op 25224, at *2—3 (N.Y.C. Crim. Ct., Bronx Co. 2025) (Bahr, J.).

In arguing to the contrary on diligence, Guevera contends that the recent amendments to the discovery laws "do not include any language about retroactivity." Defense's Mot. at 10. He also asserts that language in the amendments about applying to all cases pending as of the August 7 effective date "is not sufficient to overcome the strong presumption against [statutory] retroactivity." Defense's Reply at 1.

But as the decisions mentioned above explain, the pending-case language is enough to give the new diligence standard "retroactive" effect, to the extent any such effect is needed. New York state uses the Landgraf v. USI Film Products, 511 U.S. 244 (1994), test for statutory retroactivity that is also deployed by federal courts. See Regina Metro. Co., LLC v. NY State Div. of Hous. & Cmty. Renewal, 35 NY3d 332, 365 (2020) (observing that the Landgraf "framework [*3]for analyzing retroactivity" was "adopted by [the New York Court of Appeals]"). And as the Second Circuit recently observed, both Landgraf itself and at least one other United States Supreme Court decision have, albeit partially in dicta, interpreted applies-to-pending-cases language as a clear "retroactivity command." U.S. Sec. & Exch. Comm'n v. Ahmed, 72 F.4th 379, 400 (2d Cir. 2023) (citing Landgraf, 511 U.S. at 255—56 & n.8; Martin v. Hadix, 527 U.S. 343, 354—55 (1999)). If a legislature "enacts a provision containing a phrase to which the Supreme Court has previously ascribed a particular meaning," it is reasonable to "presumptively confer that meaning to the [enacted] provision." Id. So even if application of the revised diligence standard to pending cases were the kind of "retroactive" application requiring clear legislative authorization—and it is debatable whether that is the case—the actual language deployed in the statutory amendments would be enough.

Thus, the relevant test for determining diligence is the (nonexhaustive) list of factors found in C.P.L. §§ 30.30(5)(b) & 245.50(5)(a), which includes:

the efforts made by the prosecutor to comply with the requirements of this article; the volume of discovery provided and the volume of discovery outstanding; the complexity of the case; whether the prosecutor knew that the belatedly disclosed or allegedly missing material existed; the explanation for any alleged discovery lapse; the prosecutor's response when apprised of any allegedly missing discovery; whether the belated discovery was substantively duplicative, insignificant, or easily remedied; whether the omission was corrected; whether the prosecution self-reported the error and took prompt remedial action without court intervention; and whether the prosecution's delayed disclosure of discovery was prejudicial to the defense or otherwise impeded the defense's ability to effectively investigate the case or prepare for trial.

Beginning with the People's efforts: as is (too) often the case, those efforts were somewhat wanting. Prior to declaring ready, the People reached out on February 24, May 15, and May 21—in other words, a few days after arraignment, and then again fewer than 10 days before the § 30.30 window would have closed. See Defense's Mot., Ex. C at 2.^[FN4] The People knew, as of the filing of the COC, that materials surrounding Guevera's treatment at the scene were unavailable, yet conceded in the COC itself that they had asked for those documents for the first time in May. Defense's Mot., Ex. A at 4. And although the People were apprised of the defense's discovery objections on May 30—only a few days after the COC was filed—they did not engage in significant post-readiness outreach until mid-July, when they called the arresting officer. Meanwhile, the (partial) set of photos was not disclosed until September.

This case also was not particularly complex. Nothing about the charges or facts would have weighed in favor of requiring more than 90 days to produce all discovery mandated under Article 245.

Yet at the same time, those efforts to secure discovery largely succeeded. According to the COC, the People timely disclosed extensive discovery, including the activity logs and body [*4]cameras for 11 officers, 911 materials, gas chromatography reports, health-card permits, prisoner movement slips, property vouchers, and Giglio impeachment material for at least three officers. See Defense's Mot., Ex. A at 1—3; People's Resp. at 15. This proffer encompassed much of the material often deemed essential in cases like this one. See People v. McLeod, 86 Misc 3d 1235(A), 2025 NY Slip Op 51108(U), at *5 (N.Y.C. Crim. Ct., Bronx Co. 2025) (Moore, J.) (describing video of the chemical test as a "critical" piece of evidence in a drunk-driving case); People v. Othman, 85 Misc 3d 1240(A), 2025 NY Slip Op. 50392(U), at *2 (N.Y.C. Crim. Ct., Kings Co. 2025) (Torres, J.) (observing that activity logs are critical in almost any case involving police activity). Compare with People v. Rivera, 86 Misc 3d 1206(A), 2025 NY Slip Op. 50877(U), at *1—2, 8, 11 (N.Y.C. Crim. Ct., Bronx Co. 2025) (concluding that inadequate, last-minute outreach required invalidating the COC when key documents, including the activity logs for testifying officers, were not disclosed in time).

The People are required to make reasonable inquiries to obtain discovery and reasonable efforts to comply with statutory directives. C.P.L. § 245.50(1); People v. Bay, 41 NY3d 200, 211—12 (2023). While additional pre-readiness and post-readiness outreach would have been far better, it is hard to conclude that this outreach was so unreasonable as to be fatally flawed when it produced extensive discovery before the § 30.30 deadline.

To be clear, the People undeniably failed to disclose certain pieces of discovery in a timely fashion. But none of the three categories tips the scales in favor of dismissal.

Guevera's medical records provide the simplest starting point. In arguing that these records were discoverable and were within the People's possession under C.P.L. § 245.20(2), Defense's Mot. at 15, Guevera relies primarily on People v. Rahman, 79 Misc 3d 129(A), 2023 NY Slip Op. 50692(U) (App. Term, 2d, 11th & 13th Jud. Dists. 2023), and Public Officers Law § 86(8).

But Rahman's conclusion on the discoverability of FDNY/EMS records was cabined to "the circumstances of th[e] case," where the police themselves had summoned emergency services after the complainant went to the precinct. Rahman, 2023 NY Slip Op. 50692(U), at *1—2. In other words, when emergency services or FDNY work under police direction, the documents that result can be deemed within the People's possession or control. See People v. Ajunwa, 75 Misc 3d 1220(A), 2022 NY Slip Op. 50626(U), at *3 n.4 (N.Y.C. Crim. Ct., Bronx Co. 2022) (Licitra, J.). Guevera does not allege similar circumstances here, however. Rather, he says only that "EMT and FDNY personnel were at the scene" and that Guevera received care from them. Defense's Aff. ¶ 6. Accordingly, even if Rahman were binding, it would be distinguishable,

As to § 86(8), Guevera argues that the statute's expansive definition of "law enforcement agency," which encompasses fire departments and emergency service workers, should be used to define the same phrase found in C.P.L. § 245.20(2). Thus, that all items in the possession of those groups should be "deemed to be in the possession of the prosecution" for automatic discovery purposes. C.P.L. § 245.20(2).

However, by its plain terms, § 86 furnishes definitions for "this article" only—which, in context, means the Freedom of Information Law. In other words, § 86(8) does not define terms for the Criminal Procedure Law in general or Article 245 in particular.

Decisional law bears this out. Under § 86(8), for instance, the definition of "law enforcement agency" encompasses "the department of corrections and community supervision." But as at least two Appellate Division Departments have squarely held, DOCCS is not a police [*5]or law enforcement agency for automatic discovery purposes under Article 245. See People v. Branton, 238 AD3d 1429, 1431 (3d Dept. 2025); People v. Walker, 232 AD3d 1214, 1217 (4th Dept. 2024); see also People v. Spruill, 164 AD3d 1270, 1274 (2d Dept. 2018) (rejecting similar argument that a DOCCS record was within the People's control). As those decisions further clarify, the definition of "law enforcement agency" found in § 86(8) does not define that same phrase as it is used in C.P.L. § 245.20(2).

Thus, Guevera has not persuasively shown that these materials were in the People's possession. And regardless of whether these records were within the People's possession or were otherwise automatically discoverable, they were his records. Guevera does not explain why he would have been unable to obtain them himself, either through a subpoena if necessary or through some kind of patient portal. And, presumably, the records would include at least some leads on to whom he spoke at the scene, permitting a further investigation into contact information for those workers.

Moving to the Giglio material, the People are correct about the general rule that they need not disclose impeachment material for non-testifying witnesses. See People v. Henderson, 237 AD3d 853, 854 (2d Dept. 2025); People v. Cooperman, 225 AD3d 1216, 1219 (4th Dept. 2024). This is because section 245.20(k)(iv) limits automatic discovery to material that "impeach[es] the credibility of a testifying prosecution witness" (emphasis added).

At the same time, Guevera also persuasively argues, see Defense's Mot. at 18—19, that disciplinary records of non-testifying officers could be relevant to the subject matter of the case in other ways, even if not relevant as impeachment material because those officers were not testifying. For instance, those records could, in the appropriate case, "support a potential defense to the charged offense" or "negate the defendant's guilt as to a charged offense." C.P.L. § 245.20(k)(i), (iii); cf. People v. Jawad, 84 Misc 3d 31, 34—35 (App. Term, 2d, 11th & 13th Jud. Dists. 2024) (observing, without resolving, that the records of non-testifying officers might still be relevant if related to the subject matter of the case).

Guevera also persuasively argues that these officers were not bit players, as many were actively involved at the scene. For instance, one was among the first to arrive, while another spoke to both Guevera and emergency services personnel, and a third searched Guevera at the precinct. Defense's Mot. at 21.^[FN5] It is not beyond possibility that the disciplinary material in question could, under these circumstances, be relevant to a potential defense.

However, these non-impeachment uses are likely to be narrower than the broad "impeachment" purpose of § 245.20(k)(iv). For instance, the mere fact of a prior misconduct finding, even for something minor, itself might be impeaching in much the way that a prior conviction can (in certain circumstances) be used to show a defendant's willingness to "put her own self-interest above the interests of society." People v. Williams, 24 AD3d 882, 883 (3d Dept. 2005). But that same misconduct finding might not have any bearing at all on a potential defense or on the negation of guilt. Put differently, material relevant to impeachment—to credibility—is sweeping and categorical; "impeachment" material relevant to guilt, innocence, or defenses may be far less so.

And as of right now, at least, the record does not establish whether any material relevant [*6]to a non-impeachment purpose would be available. And the record also indicates that the initial defense objections to the scope of the disciplinary record disclosures were couched purely in terms of impeachment—such as in defense counsel's July 14 email to the assigned Assistant District Attorney, where it was framed as "Giglio for the other officers." Defense's Mot., Ex. B at 1, 3. Instead, the current non-impeachment-use rationale (or, at least, a close cousin of the current rationale) appears to have been raised for the first time in the joint letter prepared for the initial discovery conference. See Defense's Mot., Ex. C at 3 (pdf pag.). Accordingly, the People's initial response—that impeachment material for those non-testifying officers need not be disclosed under Appellate Division precedent—was fundamentally correct.

Following from the above, the nondisclosure of "impeachment" material for those officers occupies a middle ground. The People relied on a correct initial premise in not categorically disclosing the disciplinary records of non-testifying officers. At the same time, they may have been obligated to investigate whether any of that disciplinary material could have been relevant for a non-impeaching purpose under subsection (k)—an obligation which they should now undertake.

Finally, the scene photographs provide the most troubling omission. Guevera argues that the body camera footage clearly shows photographs being taken of the scene, and the People do not dispute that point. The few photographs disclosed thus far are plainly relevant and discoverable, especially given the charge of criminal mischief, which required showing property damage; for instance, one photograph shows the damage to the front left side of one of the cars. See People's Resp., Ex. 3. The People do not persuasively explain why it took until October to obtain six scene photographs from the arresting officer, or why they did not ask the arresting officer for photographs prior to October.

But this omission, while troubling, is not sufficient by itself or in tandem with the deficiencies identified above to warrant invalidating the COC, or to tip the balance of the relevant C.P.L. §§ 30.30(5)(b) & 245.50(5)(a) factors in Guevera's favor. Guevera contends that the body camera footage is no substitute for the scene photographs, which are higher quality than the camera footage and show the effects of the collision in greater detail. See Defense's Mot. at 13. Be that as it may, that does not mean that Guevera was "unable" to mount any defense to the criminal mischief charge, id., or otherwise that the damage was either indiscernible on the body cameras or would not be provable (or disprovable) by some other means. So while the record is not sufficiently developed to permit a definitive finding on whether the scene photographs are "substantively duplicative" or "insignificant," or that their belated or nondisclosure prejudiced the defense, C.P.L. §§ 30.30(5)(b) & 245.50(5)(a), this particular defect does not outweigh the other relevant factors.

In sum, for the reasons set forth above, the People have narrowly met their burden to establish their diligence on this record. The People disclosed extensive discovery spanning multiple categories, and did so before the discovery window closed. That they did not undertake more extensive efforts before May created a risk that any shortcomings would serve to invalidate their COC and declaration of readiness, requiring dismissal of this case. But the shortcomings here do not, either individually or cumulatively, lead to a finding that the People did not exercise due diligence.

Accordingly, for the reasons set forth above, the COC is deemed VALID. Because there appears to be no argument that dismissal would be warranted if the COC were valid, the branch [*7]of the motion seeking dismissal is therefore DENIED. Pursuant to C.P.L. § 245.35(4), and within 60 days of this order, the People are ORDERED to obtain and disclose (1) the relevant FDNY/EMS materials, including medical records and contact information; (2) any disciplinary material for the non-testifying officers that may be relevant to a non-impeachment purpose, such as a potential defense or the negation of guilt; and (3) any remaining scene photographs.