Via a counseled omnibus motion in this drunk/drugged-driving case, defendant J. Gomez ^[FN1] moves, among other things, to invalidate the People's certificate of compliance (COC) and dismiss on statutory speedy trial grounds. He grounds that branch of his motion on the People's failure to timely provide intake photographs of his car, which would show damage allegedly sustained in a collision, as well as a similar failure to provide the results of chemical tests on his blood—results that were later used to add new charges against him via a superseding information.

As explained below, however, the relevant due-diligence factors weigh in the People's favor, and Gomez has not otherwise persuasively shown that the People did not act in good faith. In particular, he was aware that his blood was being tested, and the People could not provide that which did not exist at the time they declared ready. Accordingly, the branch of the motion seeking dismissal is DENIED.

Gomez was originally charged with driving while intoxicated and impaired, in violation of V.T.L. § 1192(3) and (1). According to the accusatory instrument, police responded to the [*2]scene of an early-morning accident on February 2, 2025 to find Gomez's car severely damaged from where it had collided with an expressway barrier. At least one of the officers observed signs of intoxication. See Accusatory Instrument at 1—2.

Gomez was treated at the scene by EMS for, among other things, a bleeding laceration above his left eyelid. He made several inculpatory statements to law enforcement that were memorialized in statement notice later served at arraignment. The accusatory instrument did not mention a blood test or a refusal to submit to chemical testing. See Accusatory Instrument at 1—2.

Gomez was transported to Jacobi Medical Center, where he was allegedly incoherent and unable to communicate, and thus incapable of completing a chemical breath test. Highway Patrol requested to draw Gomez's blood under implied consent, but the request was denied. Defense's Aff. ¶ 7.

Gomez was arraigned the next day, on February 3. The People served another statement notice about two weeks later, reflecting additional statements (many inculpatory) apparently made to law enforcement.

Then, on March 7, the People applied for a search warrant to seize all blood actually taken during the early morning period of Gomez's February 2 trip to the hospital.^[FN2] Another judge of this court authorized the search. See Defense's Aff. ¶ 10; People's Resp. Aff. ¶ 6.

On March 10, 35 days into the case, the People filed with the court and served on the defense their automatic disclosure form and discovery receipt.^[FN3] The automatic disclosure form itself answered "Not applicable" under the section on "physical or mental examinations or scientific tests." People's Resp. at 40 (pdf pag.). Under "search warrants," it said, "There have been no search warrants executed in this matter." Id. at 41 (pdf pag.)

According to the receipts, as of March 10, the People had disclosed, among other things, activity logs for ten officers, body camera footage for nine officers, a motor vehicle accident report, and a chemical-testing refusal report. See People's Resp. at 51—53 (pdf pag.). A later automatic disclosure receipt from April 25, 2025 reflected disclosure of various materials pertaining to the search warrant application, including the supporting affidavit, the return, and transcript of the application, as well as Giglio material for four officers and a folder of 911 materials. See id. at 55 (pdf pag.).

The People filed their COC and declared ready off-calendar on April 25. The COC incorporated as attachments the automatic discovery documents described above, which detailed [*3]the materials the People had provided as of April 25.^[FN4]

Across May and June, the parties conferred about discovery, and the People disclosed a few additional documents. On May 20, the defense reached out by email to "follow up on" car-intake photos referenced elsewhere in the discovery materials and any FDNY records related to the ambulance and Gomez's trip to the hospital. Defense's Mot., Ex. A. The then-assigned Assistant District Attorney responded three days later, indicating that (1) he believed he had turned over all of the photos already but would "look into this"; and (2) the FDNY records had already been subpoenaed, with the People having followed up twice in April. Id., Ex. B.

As will be relevant later, when the parties appeared in court for a June 11 discovery conference, the defense requested an administrative adjournment because defense counsel was about to begin a trial. The People consented, and the case was adjourned through July 18. Defense's Aff. ¶ 21.

The People disclosed the seven car-intake photographs on June 13. Defense's Aff. ¶ 13; Defense's Mot., Ex. C. They did not immediately file a supplemental COC documenting this new disclosure or their efforts to obtain the photographs.

Instead, the People would file their supplemental COC in late June—overshadowed by a far-bigger change in the case, premised on the People's June 6 acquisition of test results and other material from the New York City Office of Chief Medical Examine (OCME).^[FN5]

On June 30, the People filed a superseding information, adding charges of driving while intoxicated per se under V.T.L. § 1192(2), driving while ability impaired by drugs under § 1192(4), and driving while ability impaired by combined influence of substances under § 1192(4-a). These new charges were based on test results that showed a .17 BAC at the time of the blood draw and THC in Gomez's system.

The same day, the People disclosed the OCME packet itself and filed a supplemental COC. According to the supplemental COC, the OCME packet had not been in the People's actual or constructive possession at the time they declared ready. Instead, it had been received on June 6. The People attributed their 24-day delay in disclosure to the assigned being out of the office and, upon the assigned's return, the need to review the voluminous results. Defense's Mot., Ex. D at 3. One of the OCME documents described in the supplemental COC was called "RT25-00082 MU REPORT 02MAY25." Defense's Mot., Ex. D at 2 (emphasis added).

The supplemental COC also provided a (belated) justification for the late disclosure of the intake photographs. The People had requested photographs across February 2025, but then [*4]waited until after the defense's discovery objections in May to begin a renewed investigation into the possibility of additional photographs. The People reached out on June 2, June 10, and June 11, before finally asking the officer who actually took the photos. The delay in asking the officer in question (who was not among those otherwise involved in the case) was due to his being listed by tax id on the relevant cross-referenced discovery, not by name, which hampered efforts to track him down. See Defense's Mot., Ex. D at 3 & n.1.

This omnibus motion schedule was set after a discovery conference. The motion is fully briefed and ripe for disposition.

Regarding § 30.30 dismissal, Gomez argues that the People failed to exercise due diligence in discharging their discovery obligations under Articles 30 and 245, as shown by the belated disclosure of (1) the car-intake photographs and (2) OCME packet. The People also failed to act in good faith because they did not alert the defense of the outstanding OCME paperwork or list that outstanding material in their COC, despite knowing full well of its existence.

Beginning with diligence, Gomez contends that the scene photographs, which were plainly discoverable, were relevant to both the charges and potential defenses he would raise at trial. Their existence also should have been obvious to a reasonably diligent prosecutor because his car would have been impounded after the accident and photographed upon intake. Gomez points to the fact that the People were able to obtain the missing photographs in less than a day after they finally asked the correct officer for them. The People also delayed their filing of a supplemental COC after disclosing the photographs.

The OCME materials, which the People "received . . . on June 5, 2025," Defense's Mot. at 19 (pdf pag.), were similarly obvious and crucial. The People must have known of the OCME materials because of their search warrant application, yet the People never sought a good-cause extension, instead declaring ready prematurely despite "knowing that there was additional undisclosed discovery outstanding, and charges that they intended to add." Defense's Mot. at 22. And because this "is a blood draw case," the People "could not possibly certify ready until they provided these materials, as they are integral to the charges against Mr. Gomez." Defense's Mot. at 19 (pdf pag.) (emphasis added).

In a response, which was filed five days after the time to do expired, the People (through a new ADA)^[FN6] argue that neither of the shortcomings above justifies invalidating their COC, resting their broader argument on the volume of discovery otherwise provided and a lack of overall prejudice. Regarding the OCME material, the People contend that none was within the People's possession or control, putting it outside of automatic discovery ^[FN7] ; in any event, the defense could have obtained the same material via its own subpoena, and was on notice of the [*5]search warrant application after the April 2025 automatic disclosures. Regarding the intake photographs, the People appear to concede that they reached out only in February and in June.

In reply, and in addition to reiterating his original arguments, Gomez contends that the People's belated disclosure of the OCME materials—and obfuscation that they were outstanding—prejudiced him at, among other things, his DMV refusal hearing. He also emphasizes that the People did not disclosure those materials for 25 days despite receiving them in early June.

Gomez also appears to suggest, for the first time in his reply, that the People actually received the OCME materials in early May, despite his early representations about the People receiving them in early June. In support, he points to a May 5 email to the People from OCME containing the subject line "CERTIF[I]ED TOX REPORTS." Defense's Reply, Ex. A.

In a case like this one, where the top count is a misdemeanor punishable by a custodial sentence of more than three months, the People must be ready for trial within 90 days. C.P.L. § 30.30(1)(b); see V.T.L. § 1193(1)(b)(i) ("A violation of subdivision two, three, four or four-a of section eleven hundred ninety-two of this article shall be a misdemeanor . . . punishable by . . . imprisonment in a penitentiary or county jail for not more than one year."). If they are not ready within that 90-day window, the accusatory instrument must be dismissed on motion by the defense. C.P.L. §§ 30.30(1)(b), 170.30(e); People v. Labate, 42 NY3d 184, 190 (2024).

Under the current discovery laws, the People must comply with their discovery [*6]obligations before declaring readiness for trial. See C.P.L. § 30.30(5)(a). The People do so by, among other things, filing a COC. If the People's COC is later deemed invalid, any declaration of readiness is deemed illusory and the § 30.30 clock continues to run, requiring dismissal if over 90 days have elapsed. See People v. Bay, 41 NY3d 200, 213 (2023).

A COC is invalid if the People have not exercised due diligence and good faith in fulfilling their discovery obligations. C.P.L. §§ 30.30(5)(a)—(b), 245.50(6). Factors relevant to diligence include:

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.

C.P.L. § 245.50(5)(a). These factors must be assessed holistically, rather than line-by-line, with no one factor or shortcoming being determinative. Id. § 245.50(5)(b); People v. Cooperman, 225 AD3d 1216, 1220 (4th Dept. 2024). The People bear the burden of establishing their own diligence. Bay, 41 NY3d at 213.

Neither of the two alleged shortcomings identified by Gomez undermines the People's due diligence or good faith in this case. Accordingly, Gomez's request for a speedy trial dismissal fails.

Many of the relevant statutory factors favor a finding of due diligence. Among other things, the People disclosed extensive discovery well within the deadline to do so; in fact, they disclosed the bulk of their initial disclosures within the oft-ignored 35-day window of C.P.L. § 245.10(1)(a)(ii). While much of the People's outreach was limited to the early days of the case, that outreach appears to have yielded the desired results, as the People obtained almost all of what they needed to validly declare ready in reasonably swift fashion.

The missing intake photographs of the car were, by contrast, an unforced error; Gomez appears correct that the photographs were unambiguously discoverable.

But assuming without deciding that (1) the People should have realized that the photographs were missing and (2) the absence of the photographs prejudiced the defense in the way Gomez claims, this omission would still not be enough to invalidate the COC. While the People took longer than strictly necessary to obtain the missing photographs after the defense's initial email, the People were eventually able to obtain and disclose the photographs in only a few weeks. Conferral yielding acquisition of missing material satisfies a "number of the due diligence factors" under the revised § 245.50(5)(a). People v. Whitney, — Misc 3d —, 2025 NY Slip Op. 25248, at *5 (N.Y.C. Crim. Ct., Bronx Co. 2025) (David, J.).

That leaves only the OCME test results, which present their own threshold issue: after having represented in his initial motion that the People received the results from OCME in early June, Gomez suggests for the first time in his reply that the People may actually have been in [*7]receipt of at least partial test results in early May, explaining the May date on at least one of the test-result documents. Gomez's shift does not appear to have been prompted by anything in the People's response, which also reflected a June receipt date.^[FN9]

However, the usual rule is that arguments or issues raised for the first time in a reply need not be considered, because an adversary has no chance to respond to them absent a sur-reply. See People v. Walls, 87 Misc 3d 28, 30 (App. Term, 2d, 11th, & 13th Jud. Dists. 2025); 47 E. 34th St. (NY), L.P. v. Bridgestreet Corp. Hous., LLC, 180 AD3d 525, 526 (1st Dept. 2020) ("The motion court providently declined to consider the facts relating to the reduction of damages submitted by defendant for the first time on reply . . . ."). Compare with Malayan Banking Berhad v. Park Place Dev. Primary LLC, 226 AD3d 434, 436 (1st Dept. 2024) ("These documents were properly considered although offered on reply because they were responsive to arguments raised for the first time in opposition to plaintiff's motion . . . .").

That well-established rule applies here. Gomez could have brought up the alleged May date of receipt in his initial motion, but he did not. Accordingly, the discussion that follows assumes that the People received the test results in early June.^[FN10]

On the merits, Gomez argues that the People's COC and statement of readiness were not filed in good faith because the People did not disclose or mention the then-pending test results. But while it would have been the better practice to affirmatively list the test results in the COC—and the earlier March automatic disclosure form, which omitted the results entirely and said there had been no search warrant, could have been affirmatively misleading if it was the only such representation (although Gomez does not mention this at all)—the attachments to the COC reflected that the search warrant affirmation and transcript had been disclosed to the defense. In other words, the defense was on notice that the blood had been sought, and (by implication) that the results of any tests were still pending.

Regarding the People's due diligence—and setting aside issues arising from OCME's status as an independent agency, People v. Washington, 86 NY2d 189, 192 (1995),^[FN11] including [*8]whether a failure to obtain material outside of the People's constructive possession or control can invalidate a COC, see People v. Branton, 238 AD3d 1429, 1431 (3d Dept. 2025)—the timeline for testing Gomez's blood and obtaining results appears to be within the realm of reason; Gomez does not assert otherwise or argue that the People should have prodded OCME to conduct its testing faster. Cf. People v. Mendoza, 83 Misc 3d 948, 953 (N.Y.C. Crim. Ct., Bronx Co. 2024) (González-Taylor, J.) (counting protracted testing delay against the People). And while he contends that the People should have obtained an extension of time instead of prematurely declaring ready before the results were in hand, C.P.L. § 245.20(1)(j) permits the People to defer providing test results "until such examinations, tests, experiments, or comparisons have been completed." The results would not have been completed, and thus available for disclosure, if tests were still ongoing before the People declared ready. See People v. Rivera, 86 Misc 3d 1206(A), 2025 NY Slip Op. 50877(U), at *8 (N.Y.C. Crim. Ct., Bronx Co. 2025). Under these particular circumstances, then, the People could declare ready without waiting for the results to be complete.

Gomez has two main rejoinders to this, but neither is persuasive.

In one, he contends that the lack of test results rendered the People fundamentally unready for trial. He contends the People knew that the results would be relevant to "charges that they intended to add," Defense's Mot. at 22, in a case that "is" a "blood draw" prosecution, Defense's Mot. at 19.

But the circumstances suggest to the contrary: the People did not know that they had grounds for a per se charge under § 1192(2), let alone the drug charges under § 1194(4) and (4-a), until they received the analysis of Gomez's blood. That is, at the time they declared ready, the People may have hoped that the bloodwork would give them grounds to add additional charges, but they could not know that for certain, and neither could the defense. By extension, the case did not become a blood-draw prosecution until that point; nothing in the original accusatory instrument premised the prosecution on a blood draw.

Other trial courts have concluded that the People are not necessarily unready for trial in a subsection (1) and subsection (3) case when test results are pending so long as other evidence of impairment and intoxication is available. See, e.g., People v. Rushmore, 81 Misc 3d 1208(A), 2023 NY Slip Op. 51289(U), at *8 (N.Y.C. Crim. Ct., Richmond Co. 2023) (Rajeswari, J.) (because impairment and intoxication could be shown "by police observations and the accident," the "People had evidence to proceed to trial and subsequently attempted to see if they could strengthen it through the blood test, which is a strategic decision that does not undercut their ability to proceed or invalidate a statement of readiness for trial"); People v. Berkowitz, 68 Misc 3d 1222(A), 2020 NY Slip Op. 51044(U), at *6 (N.Y.C. Crim. Ct., Kings Co. 2020) (Warin, J.) [*9](same, while collecting analogous Appellate Division decisions). That reasoning applies with equal force here, where the People could have proceeded to trial using officer observations, evidence of the accident, and Gomez's own admissions.

In the other rejoinder, Gomez faults the People for delaying actual disclosure of the results once they were in the People's possession. But a delay from early June to late June does not affect the validity of the People's April COC, or inherently render the People unready at that time prior to the creation of the superseding information. And "although a failure by the People to comply with their continuing discovery obligations under CPL 245.60 may warrant the imposition of discovery sanctions under CPL 245.80 (2) . . . such a failure does not . . . implicate speedy trial considerations under CPL 30.30." People v. Radford, 237 AD3d 1511, 1513 (4th Dept.), leave denied, 43 NY3d 1048 (2025); see also People v. Contompasis, 236 AD3d 138, 145 (3d Dept.) (concluding also that shortcomings in continuing duty to disclose does not affect the validity of the initial COC), leave denied, 43 NY3d 1007 (2025). Rather, under both the pre-August-2025 and post-August-2025 versions of Article 245, material that leads to a supplemental COC does not undermine the original COC so long as the "additional discovery did not exist at the time of the filing of the original certificate of compliance." C.P.L. § 245.50(1-a).

In any event, and even if it were otherwise, the period from June 11 through July 18 was an adjournment at the request of the defense due to trial obligations. Defense's Aff. ¶ 21. So if the delay from June 6 through June 30 could, at some point, have rendered the People unready and started the § 30.30 clock running again, the People could plausibly argue, if necessary, that much of that period was excludable as a defense-requested adjournment under C.P.L. § 30.30(4)(b).

In sum, Gomez has not shown that the People's COC was filed in anything other than good faith. And the People have met their burden of showing that the relevant due diligence factors favor the People, not Gomez.

For the reasons explained above, the People's COC is deemed valid. And as Gomez does not argue that more than 85 days of chargeable time have elapsed if the People's COC were deemed valid, his request to dismiss on § 30.30 grounds is DENIED.

The branch of Gomez's motion that seeks to controvert the search warrant is DENIED without prejudice to renewal. Neither he nor the People have provided the underlying search-warrant or supporting materials, rendering it impossible to determine whether any of the defects about which he complains was apparent during the application, or otherwise merits a hearing.

Gomez's request for Mapp/Huntley/Dunaway hearings is GRANTED. Such hearings may also reach whether the blood was drawn or obtained in contravention of his rights; while Gomez's request to deem the person who drew his blood a state actor is generally unsupported, the People do not appear to oppose it, and the hearing court may of course exercise its discretion to entertain questioning along these lines if it appears fruitful. The hearing may also address whether Gomez "refused" a chemical test in a relevant way, as the People also do not appear to oppose that request.

Any Sandoval/Molineux/Ventimiglia/preclusion issues are referred to the trial court. Any request for relief not specifically mentioned is DENIED.