By motion dated November 26, 2025, defendant moved to dismiss the case pursuant to Criminal Procedure Law ("CPL") §§ 170.30 (1) (e) and 30.30, arguing that because the People's certificate of compliance ("CoC") is invalid and the accompanying statement of readiness ("SoR") is illusory, the prosecution has exceeded the statutorily prescribed speedy trial time of 90 days.

Further, defendant contemporaneously moves for omnibus relief, requesting an order suppressing identification evidence pursuant to CPL §§ 710.20 (6), (4) and 710.60 or, alternatively granting a Wade/Dunaway hearing; granting a pre-trial voluntariness hearing concerning statements sought to be used only on cross-examination of defendant pursuant to CPL §§ 60.45, 710.20 (3) and 710.40 (3); granting a pre-trial voluntariness hearing concerning statements made to civilians pursuant to CPL §§ 60.45 (2), 710.20 (3); People v Grillo, 176 AD2d 346 [2d Dept 1991] and 710.40 (3); precluding the admission of evidence pursuant to CPL § 710.30; directing the People to comply with their disclosure obligations pursuant to CPL §§ 245.55 (2) and (3) and to preserve and disclose complete records of the investigation and prosecution of the case, including 911 calls and police recordings; requiring the prosecution to comply with Brady/Vilardi requests; directing the prosecution to file an additional CoC pursuant to CPL § 245.35 (3) certifying that reasonable inquiries were made pursuant to CPL § 245.20 (1) (k); granting a Sandoval hearing pursuant to CPL §§ 245.10 (1) (b) and 245.20 (3); and allowing defendant to reserve the right to file additional motions as necessary.

Upon review and consideration of the submissions, court file and relevant legal authority, the Court finds that the People's CoC and SoR dated, October 22, 2025 and December 26, 2025, respectively, were VALID; and further that:

The prosecution pursuant to CPL §§ 170.30 (1) (e) and 30.30 was TIMELY; and

Defendant's motion to dismiss the accusatory instrument is DENIED; and

Defendant's motion for Wade/Dunaway pre-trial hearings is GRANTED; and

Defendant's request for an order precluding or suppressing evidence pursuant to CPL §§ 710.20 (6), (4) and 710.60 is DENIED; and

Defendant's application seeking the right to make further motions is GRANTED to the extent provided by CPL § 255.20 (3); and

Defendant's request for a Sandoval hearing is respectfully REFERRED to the trial court; and

The People are DIRECTED to comply with their continuing discovery obligations pursuant to CPL §§ 200.95 and 245, including Brady/Vilardi disclosures.

On July 6, 2025, defendant was issued a Desk Appearance Ticket for violating Penal Law ("PL") § 120.00 (1), assault in the third degree, a class A misdemeanor. Defendant was arraigned on the criminal complaint which also charged him with violating PL §240.26 (1), harassment in the second degree, a violation, on July 26, 2025. The People filed and served a supporting deposition on October 6, 2025. The information alleges that on June 20, 2025, at approximately 11:00 p.m. in front of 138 West Fordham Road in the Bronx, defendant struck the complaining witness ^[FN1] about the head and face multiple times with a closed fist. The information further alleges that because of defendant's actions, the complaining witness suffered substantial pain, redness, bruising, and swelling to his face.

The People filed and served their automatic disclosure form, CoC and SoR on October 22, 2025, and the instant motion was set on October 27, 2025. By emails dated November 4 and November 19 of 2025, defendant raised objections to the CoC and filed the instant motion on November 26, 2025.

Initially, defense counsel asserts that the prosecution belatedly disclosed paperwork concerning lawsuits against Police Officer ("Officer") Christopher O'Connor on November 14, 2025, after their CoC filing and without any accompanying supplemental CoC ("SCoC") to explain the delay (affirmation of defendant's counsel at 8). Next, defendant asserts that several categories of documents which are plainly discoverable and routinely disclosed remain outstanding, to wit: 911 calls and radio runs; ICAD Event Inquiry; DAS Entity Report or WINQ Report; activity log for Detective Ortiz; activity logs for unidentified officers; body-worn camera ("BWC") footage and audit logs; medical records for the complaining witness; clear photographs of the complaining witness's injuries; paperwork generated from the identification procedure; and Online Prisoner Arraignment Database Form ("ZOLPA" form) (affirmation of defendant's counsel at 8-12). Defense counsel avers that the People did not exercise due diligence before filing their CoC and further posits that the CPL §245.50 (5) (a) analysis of whether a discovery lapse was substantially duplicative, insignificant, or easily remedied "applies only to belated discovery and not to non-disclosed §245.20 (1) items" (affirmation of defendant's counsel at 17).

In his reply brief, defendant argues that the pre-2025 legislative amendments to Article 245 should not govern the Court's consideration of the adequacy of the prosecution's discovery discharge because the People's CoC was filed before the amendments took effect (reply affirmation of defendant's counsel at 2-3).

The People maintain that after their initial request for discoverable items on July 28, 2025, they followed up on September 10 and 11 and October 7, for outstanding materials, including records pertaining to a federal lawsuit involving Officer O'Connor, and they were advised that a search for 911 and radio call reports proved negative (People's affirmation at 1-2). However, in response to the prosecution's entreaties, outstanding documentation concerning Officer O'Connor's lawsuit was disclosed on October 23 and November 14 (People's affirmation at 3). Moreover, the assigned ADA states that following defense counsel's email of November 4 detailing questions and objections, he contacted his discovery liaison as well as Officer O'Connor and Detective ("Det.") Richard Ortiz and provided particularized responses for every concern articulated (People's affirmation at 3-4). Similarly, the assigned ADA responded to defense counsel's email dated November 19, with additional responses from Officer O'Connor and Det. Ortiz and on November 25, the People reiterated that the DD5 previously disclosed via OneDrive had attachments to clickable links for counsel's review (People's affirmation at 4). Lastly, the People state that after confirming with Det. Ortiz on December 5 regarding remaining discrepancies, they filed their SCoC on December 26 which outlined efforts to procure outstanding materials (People's affirmation at 5).

Additionally, the prosecution avers that the Legislature expressed a clear intent for the [*2]2025 Amendments to Article 245 to apply to all cases pending as of August 7, 2025, the day the amendments were enacted (People's memorandum at 9). The assigned ADA further asserts that the People's CoC was valid because he made reasonable and diligent efforts to marshal and disclose records subject to discovery, before and after certifying compliance, including sending a HIPAA release for the complaining witness to the FDNY, confirming that no 911 or radio call reports existed and that Det. Ortiz did not create an activity log, and advising defense counsel that defendant was identified by a line-up and, thus, no outstanding paperwork concerning defendant's identification exists (People's affirmation at 17-18).

The People also maintain that while defense counsel timely conferred concerning disputed items prior to filing the instant motion, counsel's efforts do not constitute good faith conferral where several of defendant's objections were duplicate in nature and strategically parsed over multiple emails to obtain § 30.30 dismissal (People's affirmation at 20-21). Specifically, the assigned ADA points to repeated efforts to explain to defense counsel that there was no BCW footage nor 911 call/radio run report because the complainant walked into the 52nd Precinct and, further, that no DAS Entity Report/WINQ existed despite counsel's assertion that he understood these items "were generated in every case" (People's affirmation at 22). Lastly, the prosecution denies that the defense was prejudiced by any missing or belated disclosure, and objects to defendant's motion for omnibus relief (People's affirmation at 1, 27-28).

In People v Bay, the Court of Appeals found that, in evaluating prosecutorial due diligence, the "key question in determining if a proper certificate of compliance has been filed is whether the prosecution has exercised due diligence and made reasonable inquiries to determine the existence of material and information subject to discovery," a case-specific inquiry of the record at bar (see Bay, 41 NY3d 200, 211-213 [2023] [emphasis added]; CPL §§ 245.20 [1], 245.50 [1]). The Bay Court further emphasized that to oppose a motion to dismiss because the prosecution's CoC is illusory, the People "bear the burden of establishing that they did, in fact, exercise due diligence and made reasonable inquiries prior to filing the initial COC despite a belated or missing disclosure" (see Bay at 213 [emphasis added]).

Many of the factors set forth in the Bay decision animate the Legislature's August 2025 amendments to New York's discovery law with one notable change providing that the People are no longer required to provide automatic discovery before filing their CoC if they demonstrate that they exercised due diligence and acted in good faith to fulfill their disclosure mandate (see CPL § 245.50 [1]). Additionally, pursuant to CPL § 245.50 (4) (c), the movant seeking to challenge a CoC must provide an affirmation that they timely conferred in good faith, or made efforts to do so, concerning the specific and particularized matters forming the basis for such challenge (see CPL § 245.50 [4] [c]).

Moreover, the 2025 Legislative reforms enumerate several factors a court must consider to gauge the opposing party's due diligence, including the volume of discovery provided, [*3]whether the prosecution's lapse was self-reported, if the omission was corrected and whether the assigned ADA knew that missing or belatedly disclosed information existed (see CPL § 245.50 [5] [a]). However, the statutory guidance specifically provides that the court's determination shall be based on the totality of the party's efforts to comply rather than any one factor referenced therein (see CPL § 245.50 [5] [a], [b] [emphasis added]).

In a motion to dismiss misdemeanor charges pursuant to CPL § 30.30 (1), the defendant has the initial burden to demonstrate that the prosecution failed to declare trial readiness within the statutorily prescribed time, 90 days (see CPL § 30.30 [1] [b]); People v Luperon, 85 NY2d 71, 77-78 [1995]). The burden then shifts to the People to identify excludable delays (see Luperon, 85 NY2d at 78).

Additionally, the prosecution must declare readiness for trial on the record (see People v England, 84 NY2d 1, 4 [1994] ["Trial readiness in CPL § 30.30 means both a communication of readiness by the People on the record and an indication of present readiness"] citing Kendzia at 337). Lastly, the People must satisfy their statutory obligation pursuant to CPL § 245.50 (3), which provides that "the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper certificate pursuant to subdivision one of this section" (see Id.).

While defense counsel contends that amendments to Article CPL § 245 should not apply to the instant matter, the Legislature provided, in pertinent part, that:

§ 8. This act shall take effect on the ninetieth day after it shall have become a law and shall apply to all criminal actions pending on such date and all actions commenced on or after such date.

(see CPL § 245.50 [1], Laws 2025, ch 56, § 8 [Part LL], eff August 7, 2025 [emphasis added])

This action was pending on August 7, 2025, and the record demonstrates that the People's CoC was filed on October 22, two months after the amendments were enacted. There is no controversy here.^[FN2]

Contrary to defense counsel's assertion that lawsuit materials for Officer O'Connor were not listed in the CoC, the Court has reviewed the October 22, 2025, filing which clearly details the People's efforts to procure said documentation, including requesting the materials from their Discovery Compliance Bureau on October 6. The Court credits the assigned ADA's representation that after realizing that the Giglio disclosures dated October 20 did not include Officer O'Connor's lawsuit information, he contacted the District Attorney's Trial Preparation Unit and was advised by a supervisor that efforts to marshal the documentation had been delayed because the materials concern a federal lawsuit. The omission was self-reported by the prosecution and the People attempted to resolve this issue without resort to judicial intervention thereby demonstrating due diligence (see People v Santiago, 87 Misc 3d 1221[A], 2025 NY Slip Op 51653[U], *5 [Crim Ct, New York County 2025] [The People demonstrated prompt remedial action without court intervention] [internal quotations omitted]).

Regarding the existence of a 911 call/radio run/ICAD Event Inquiry, the assigned ADA concedes that the disclosed NYPD paperwork states that the complaint was received by "RADIO." However, the prosecution had previously clarified the issue by advising defense counsel that efforts to determine whether a 911 call/radio run/ICAD Event Inquiry was generated yielded negative results insofar as the complaint was made following a "walk-in" to the 52nd Precinct. This Court has previously held that "(i)t must be axiomatic that the prosecution does not have a duty to disclose evidence which was never created" (see People v Lebron, 82 Misc 3d 1251[A], 2024 NY Slip Op 50593[U], *3 [Crim Ct, Bronx County 2024]). Thus, the Court declines to invalidate the CoC because of the nondisclosure of these items.

Concerning defendant's claim that the DAS Entity Report/WINQ is routinely generated in every case, the Court finds that defense counsel's bald assertion fails to satisfy the Legislative mandate to confer concerning the "specific and particularized matters" which comprise defendant's CoC challenge (see CPL § 245.50 [4] [c] [emphasis added]). There is no suggestion in the record that these materials were created by the NYPD and, thus, nothing to controvert the People's representation that they do not exist.

The People have detailed their efforts to confer with Det. Ortiz concerning outstanding discovery and the Court finds their representation that Det. Ortiz did not create an activity log to be credible. However, the prosecution fails to address the issue of whether unidentified officers created activity logs and, therefore, has failed to demonstrate due diligence concerning these items.

Further, the People assert that no BWC footage was generated because the complaint was processed as a "walk-in," however, defense counsel correctly notes that the NYPD complaint form references "officer BWC." Accordingly, the Court would have appreciated more detail from the People concerning how they concluded that no responsive material existed rather than the prosecution's blanket and unsupported assertion that none exist. The same deficiency necessarily concerns the prosecution's failure to confirm the existence of audit trails which this Court has held are discoverable as police reports (see People v Rollerson, 82 Misc 3d 1212[A], [*4]2024 NY Slip Op 50291, *5 [Crim Ct, Bronx County 2024] citing New York City Police Department Patrol Guide Procedure No. 212-123, ¶ 13; see also CPL § 245.20 [1][e]).

It is well-settled that where medical records are not within the People's control, nor any law enforcement entity under their direction, CPL § 245.20 (2) requires the prosecution to act diligently and in good faith to ascertain the existence of discoverable records and to cause them to be made available (see People v Hernandez, 80 Misc 3d 1035, 1040 [Crim Ct, Bronx County 2023] citing People v Erby, 68 Misc 3d 625, 633 [Sup Ct, Bronx County 2020]). Here, the assigned ADA states that after receiving the complaining witness's HIPAA release on October 22, 2025, the People served a subpoena on the FDNY for the medical records, and said subpoena is referenced in the CoC as a document disclosed to defendant. While the prosecution's brief does not address why the HIPAA was not obtained and processed when the complainant signed his supporting deposition on August 20, 2025, the Court nonetheless finds that the People exercised due diligence to cause the medical records to be available for discovery.

Although defense counsel's motion includes a screenshot of an AIDED report which includes a thumbnail photograph of a male with the description "Picture of Injury," the People's brief elides any explanation of why no photograph of the complaining witness's injuries was disclosed (affirmation of defense counsel at 11). Insofar as the AIDED report is an NYPD- generated document, the prosecution is presumed to be in constructive possession of this evidence (see CPL § 245.20 [1] [e]). Consequently, the Court concludes that the People have failed to demonstrate diligent efforts that were reasonable under the circumstances to provide this item.

Concerning identification procedure paperwork, the Court accepts the People's representation that although the CPL § 710.30 (1) (b) identification notice served on defendant inexplicably notes that the procedure location was "text," the type was actually a "line-up." Therefore, there is no outstanding paperwork for the People to disclose.

"The ZOLPA contains the name of the arresting officer and the top arrest charge, information about whether an arrestee was held at central booking or released with a desk appearance ticket, as well as the specific times that events between arrest and arraignment took place, including the time that arrest paperwork was generated" (see People v DeJesus, 86 Misc 3d 1265 [A], 2025 NY Slip Op 51345[U], *5 [Crim Ct, Bronx County 2025]). The ZOLPA report is discoverable pursuant to CPL § 245.20 (1) (e) and, thus, the People's suggestion that defense counsel was obligated to subpoena this documentation is wholly meritless. The Court cannot find that the People exercised due diligence where the prosecution did not deign to address this nondisclosure.

The diligence and "reasonableness under the circumstances" standards articulated in the Bay decision expressly reject the notion of a perfect prosecutor, particularly where the Bay decision cautions trial courts to adjudicate due diligence based upon "a case-specific inquiry of the record at bar" (see People v Valentin, 82 Misc 3d 1237[A], 2024 NY Slip Op 50487[U], *4 [*5][Crim Ct, Bronx County 2024] citing Bay at 212). Similarly, the CPL § 245.50 (5) (b) amendment to Article 245 provides that "the court's determination shall be based on consideration of all factors listed in paragraph (a)" (see CPL § 245.50 [5] [b]). The record at bar demonstrates that the assigned ADA's discharge of the People's discovery obligations was not exemplary insofar as the prosecution has still not confirmed the nonexistence of activity logs for unidentified officers; photographs of the complainant's injuries; and ZOLPA documentation.

However, the People's CoC enumerates the voluminous discovery provided: 911 and DD5 folders, NYPD arrest checklist and report, Omniform complaint, prisoner movement slip, I-Card, command log, Desk Appearance Ticket, both signed and unsigned, arraignment card, DA case summary, the complainant's rap sheets, FDNY subpoena for the complainant's medical records, prisoner holding pen roster, activity logs for Officer O'Connor, roll call log, supporting deposition, witness names and contact information, and Giglio materials for Officer O'Connor (CPI and CCRB) and Det. Ortiz (CPI, CCRB and civilian lawsuit information). Moreover, the People acted promptly and without court intervention to pursue outstanding discoverable items related to Officer O'Connor's federal lawsuit and to subpoena the complainant's medical records in furtherance of their CPL § 245.20 (2) mandate.

Additionally, the assigned ADA recounts efforts to confer with defense counsel concerning fifteen disputed items, and once apprised of the discovery lapse, to follow with the People's discovery liaison and the 52nd Precinct for outstanding items on July 28, 2025, September 10, October 6, October 20, November 14 and November 24. The record demonstrates that the People promptly and repeatedly proffered an explanation for the nondisclosure of 911 call and radio run reports; ICAD Event Inquiry; DAS Entity Report/WINQ report; activity log for Detective Ortiz; paperwork generated from the identification procedure; and BWC footage/audit trails by advising defense counsel that their search concluded that these materials do not exist, and the Court does not find that the delayed or missing disclosure was prejudicial to the defense's ability to investigate or prepare for trial. Accordingly, and based upon the totality of circumstances, instead of assessing "the party's efforts item by item," the Court finds that the prosecution has demonstrated due diligence to comply with Article 245, and hold that the People's CoC and SCoC, filed on October 22 and December 26, 2025, respectively, were both valid (see CPL § 245.50 [5]).

Generally, a criminal action is commenced by the filing of an accusatory instrument against a defendant, and it is settled law that the date on which the action is commenced is excluded from the CPL § 30.30 computation (see CPL § 1.20 [17]; see also People v Stiles, 7 NY2d 765, 767 [1987]). Accordingly, the People's speedy trial time began to accrue on July 27, 2025, the day following defendant's arraignment. The People declared readiness for trial by filing their CoC and SoR on October 22, 2025 (July 27, 2025 — October 22, 2025 = 87 days), within their statutorily allotted time (see CPL § 30.30 [1] [b]). At the appearance on October 27, 2025, the People advised the court that their CoC and SoR had been filed off calendar on October 22. Accordingly, this time is excludable pursuant to CPL § 30.30 (October 22, 2025 — October 27, 2025 = 0 days chargeable). Defendant's motion to dismiss the accusatory instrument [*6]is denied.

Defendant's request for an order precluding or suppressing evidence pursuant to CPL §§ 710.20 (6), (4) and 710.60 is denied. However, the Court grant's defendant's request for a Wade/Dunaway hearing and his application seeking the right to make further motions to the extent provided by CPL § 255.20 (3). The People are directed to comply with their continuing disclosure obligations, including Brady/Vilardi disclosures. Lastly, Sandoval/Ventimiglia issues are referred to the trial court.

Based upon the foregoing, the People's CoC and SCoC filings on October 22, 2025, and December 26, 2025, respectively, were VALID; and further:

The prosecution pursuant to CPL §§ 170.30 (1) (e) and 30.30 was TIMELY; and

Defendant's motion to dismiss the accusatory instrument is DENIED; and

Defendant's motion for Wade/Dunaway pre-trial hearings is GRANTED; and

Defendant's request for an order precluding or suppressing evidence pursuant to CPL §§ 710.20 (6), (4) and 710.60 is DENIED; and

Defendant's application seeking the right to make further motions is GRANTED to the extent provided by CPL § 255.20 (3); and

Defendant's request for a Sandoval hearing is respectfully REFERRED to the trial court; and

The People are DIRECTED to comply with their continuing discovery obligations pursuant to CPL §§ 200.95 and 245, including Brady/Vilardi disclosures.

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