On June 14, 2025, Aisha Pinkston (hereinafter referred to as "Defendant"), was arrested and charged with violating Penal Law ("P.L.") § 120.00[1], a class A misdemeanor, and related charges. The Defendant was arraigned in Bronx County Criminal Court the following day and released on her own recognizance.

Defendant moves for dismissal of the accusatory instrument pursuant to Criminal Procedure Law ("C.P.L.") §§ 245.50[4][c] and 30.30.[1][b]. 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 did not exercise due diligence to discharge their discovery obligations under C.P.L. Article 245. As such, the certificate of compliance is invalid, and its accompanying statement of readiness is illusory. Defendant's motion to dismiss pursuant to C.P.L. §§ 245.50[4][c] and 30.30[1][b] is GRANTED.

On June 15, 2025, the Defendant was arraigned on a top charge of P.L. § 120.00[1], assault in the third degree, and related charges. The Defendant's arrest stemmed from an incident which was alleged to have occurred on June 12, 2025. The case was adjourned to July 22, 2025, for supporting deposition and discovery compliance.

On July 22, 2025, the case was not converted, and the People were not discovery compliant. The case was adjourned to September 17, 2025, again for conversion and discovery compliance.

On September 5, 2025, the prosecution filed a motion for a protective order pursuant to C.P.L. § 245.70[1]. Defense counsel consented to the protective order on September 8, 2025.

On September 15, 2025, the People filed and served, off calendar, a supporting deposition, certificate of compliance ("COC"), and statement of readiness ("SOR").

On September 17, 2025, the parties appeared. Defense counsel requested an adjournment to review discovery and confer with the People regarding outstanding discovery. The parties were instructed to diligently confer, and defense counsel was directed to send any written discovery objections to the court by October 20, 2025.

The parties appeared before this Court for discovery conference on October 21, 2025. Defense counsel made a record that multiple items had not been disclosed, including the 911 recordings, radio runs, SPRINT report, Aided report and EMS records. Defense counsel stated that she had reached out to the assigned prosecutor regarding the missing discovery on October 9, 2025, and again on October 14, 2025. On October 14, 2025, the assigned prosecutor responded, stating that he would look into the missing 911 recordings, but defense counsel received no additional updates.

By motion dated October 27, 2025, Defendant objected to the validity of the COC and demanded dismissal of the accusatory instrument pursuant to C.P.L. §§ 245.50[4][c] and 30.30[1][b]. The People filed their opposition on November 24, 2025; the defense reply followed on November 30, 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 P.L. § 120.00[1]) Periods of reasonable delay resulting from pre-trial motions, including motions for a protective order, are not charged to the prosecution's statutorily allotted ninety-day period (C.P.L. §§ 30.30[4][a] and 245.70[8]).

The speedy trial clock is statutorily tethered to the prosecution's discovery obligations under C.P.L. Article 245 (C.P.L. §§ 245.50[3] and 30.30[5]). Before the People may be deemed ready for trial, thus tolling the speedy trial clock, they must serve on the defense a vast array of case-related material in their possession from over twenty enumerated categories (C.P.L. § 245.20[1]). The People must also file with the court and serve on the defense a valid certificate of compliance, certifying that they have exercised due diligence and made reasonable inquiries and efforts to obtain and disclose all material subject to discovery (C.P.L. § 245.50[1]).

Discoverable material possessed by law enforcement agencies is deemed to be in the prosecution's constructive possession (C.P.L. § 245.20[2]). Additionally, the People must "make a diligent, good faith effort to ascertain the existence of material or information discoverable under [C.P.L. § 245.20(1)] and to cause such material or information to be made available for discovery where it exists but is not within the prosecutor's possession, custody or control" [*2](C.P.L. § 245.20[2]). The People are not required to obtain by subpoena duces tecum material which the Defendant may obtain by subpoena (id.).

A COC's validity hinges on whether the prosecution exercised due diligence to discharge their discovery obligations, and it is the People's burden to demonstrate that they acted with such diligence (People v Bay, 41 NY3d 200 [2023]). Courts assessing due diligence must holistically examine a range of factors, discussed infra, with no one factor being determinative (C.P.L. § 245.50[5]).

The Defendant contends that multiple items of discovery were not disclosed prior to the COC's filing, and that the People have yet to produce any of the missing items flagged by defense counsel. The missing items include recordings of 911 calls and radio runs, which are automatically discoverable under C.P.L. § 245.20[1][g]), as well as the Special Police Radio Inquiry Network ("SPRINT") report, which must be disclosed pursuant to C.P.L. § 245.20[1][e]. Defense counsel believes that outstanding 911 materials exist because 911 calls are referenced in disclosed police paperwork and body worn camera footage (Defense Motion at 9). The defense further argues that, as body worn camera footage depicts NYPD officers instructing the complainant to "go get checked out" by on-site EMS personnel, the medical records generated by EMS are automatically discoverable under both C.P.L. § 245.20[1][e] and C.P.L. § 245.20[1][j] (id. at 10-11).

The NYPD uses a computer-aided dispatch system to respond to emergency calls. In order to obtain discoverable materials from the dispatch system, including 911 recordings and radio runs, the assigned prosecutor must make a "request through the 911 request system" (People v Fraser, 2025 NY Slip Op 51353(U) [Crim Ct, Bronx County]). The Communications Division of the NYPD then searches radio runs and 911 calls to determine if any recordings and accompanying reports pertain to a particular case (id.). Here, the People assert that their request for 911 materials returned "no hit" (People's Opposition at 12). Upon notification by defense counsel that certain discoverable items suggested the existence of undisclosed 911 materials, the assigned prosecutor made a second request.

The assigned prosecutor acknowledges that he "erroneously did not request the aided report" prior to November 24, 2025. Finally, the People contend that the EMS records are not discoverable, as they are not within the People's actual or constructive possession, and defense counsel may obtain the material via subpoena duces tecum (People's Opposition at 13).

a. Existence of the 911 Materials

The Intergraph Computer Aided Dispatch ("ICAD") report, which the People disclosed [*3]to the defense as part of discovery, indicates that a female caller made at least two 911 calls from the address listed on the accusatory instrument, at the date and time of the incident for which the Defendant is charged (Defense Motion Exhibit A). At 9:27 a.m. on June 12, 2025, the female caller stated that she had been assaulted; at 9:38 a.m. that day, the female caller phoned again to report that the person who had assaulted her had returned. The ICAD notes that during this second call, the female caller was "yelling at someone in [the] background," and relayed that the assailant had also thrown soda at her, a detail which is included in the accusatory instrument. The ICAD also indicates that NYPD units were dispatched to the scene, suggesting the existence of an outstanding SPRINT report and radio runs.

b. Discoverability of the EMS Records

EMS records are maintained by the FDNY, an independent, non-law enforcement agency; consequently, these records are not in the People's constructive possession pursuant to C.P.L. § 245.20[2]. The People's discovery obligations, however, do not end with that material which is in their actual or constructive possession. The People must also make a diligent, good faith effort to ascertain the existence of materials which are otherwise automatically discoverable but outside the People's custody and control, and to make these materials available to the defense (C.P.L. § 245.20[2]). The People are not required, however, to subpoena materials which the defense may itself subpoena (id.)

Here, the EMS records, while not in the People's custody and control, are otherwise discoverable under C.P.L. § 245.20[1][j], which requires the People to disclose "[a]ll reports, documents, records, data calculations or writings. . . concerning physical or mental examinations, or scientific tests or experiments or comparisons, relating to the criminal action or proceeding which were made by or at the request or direction of a public servant engaged in law enforcement activity." Defense counsel asserts, without objection from the People, that body worn camera footage shows an officer instructing the complainant to obtain treatment from EMS personnel at the scene. As such, the Court accepts that the EMS records document a physical examination "made by or at the request or direction of a public servant engaged in law enforcement activity" (C.P.L. § 245.20[1][j]).

Although the People object that the defense could obtain the EMS records through use of a subpoena, the People were in a markedly better position to do so here, as the assigned prosecutor could have sought a signed HIPAA authorization from the complainant (see People v Haggan, 85 Misc 3d 1224(A) [Sup Ct, New York County 2025] [People required to make a diligent good faith effort to obtain medical records documenting the complainant's injuries]; People v. Hernandez, 80 Misc 3d 1035, 1040 [Crim Ct, Bronx County 2023] [Defendant accused of assault unlikely to obtain by subpoena duces tecum complainant's medical records without a HIPAA authorization]; compare People v Ortega, 236 NYS3d 921 [Crim Ct, Bronx County 2025] [People not required to make efforts to obtain medical records, as the records pertained to Defendant and not an adversarial party]). Consequently, the People's discovery obligations required them to make a diligent, good faith effort to obtain the EMS records.

A certificate of compliance is valid when the prosecution exercises due diligence to [*4]comply with their discovery obligations prior to the COC's filing (People v Bay, 41 NY3d 200 [2023]). Courts assessing due diligence must consider a range of factors, including "the efforts made by the prosecutor to comply with the requirements of Article 245; 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]).

The People do not recount their pre-COC efforts to comply with the requirements of Article 245. The People's only articulated efforts to obtain and disclose discovery include an undated request for 911 materials which returned negative results; an undated second request for 911 materials, with no reported outcome; and a request for the Aided report made on November 24, 2025, the same date the People's Opposition was filed.

The People offer no compelling explanation for their failure to disclose 911 materials. Although the prosecution's request for these materials returned an inaccurate "negative" result, the existence of 911 recordings and accompanying materials was apparent from other items in the People's possession. The prosecution's failure to detect and remedy the omission of the 911 materials suggests that the prosecution did not review their discovery. Furthermore, the People should be on notice that results from their requests for 911 materials must be checked against other items of discovery. Inaccurate negative results from the NYPD's 911 system is a problem this Court has previously encountered, and one which seems to require "some corrective measure or safeguard" to ensure that these materials are properly disclosed (People v Fraser, 2025 NY Slip Op 51353(U) [Crim Ct, Bronx County] [As the People acknowledge that the NYPD's 911 request system can be faulty, safeguards should be implemented to ensure material from this system is properly disclosed]; see also People v Ortega, 2025 NY Misc LEXIS 6530, [Crim Ct, Bronx County] [Upon requesting 911 materials and receiving a response that none existed, the assigned prosecutor correctly believed the negative result to be an error based on other items of discovery]). Consequently, the People's explanation for this discovery lapse does not help to establish their due diligence.

Although the assigned prosecutor indicates that the Aided report was omitted due to inadvertent error, no explanation is given for the People's delay in attempting to remedy the error. The People failed to request the Aided report from the NYPD until six weeks after defense counsel flagged the report's omission and more than two months after the COC was filed.

None of the items flagged as missing by defense counsel have since been disclosed. The remedial actions described by the assigned prosecutor — an undated, second request from the 911 system, and the November 24, 2025, request for the Aided report — were neither prompt nor robust.

As a prosecution for misdemeanor assault involving one alleged incident, this case is not particularly complex. Nor does the discovery provided appear to have been voluminous. As the missing materials have not been disclosed, their substantive importance cannot be fully analyzed. The Court notes, however, that the 911 recordings seem to include the complainant's real-time descriptions of the incident for which Defendant is charged (Defense Motion Exhibit A).

Under the C.P.L. § 245.50[5] factors, the People did not exercise due diligence to comply with their discovery obligations. As such, the COC, dated September 15, 2025, is invalid.

On Friday, September 5, 2025, the prosecution filed and served a motion for a protective order pursuant to C.P.L. § 245.70[1]; on Monday, September 8, 2025, defense counsel consented to this motion.

A motion for a protective order, filed in good faith, is "deemed a pre-trial motion" for the purposes of calculating speedy trial time (C.P.L. §§ 245.70[8] and 30.30[4][a]). "[A] reasonable period of delay resulting from. . .pre-trial motions. . . and the period during which such matters are under consideration by the court" is not chargeable to the People (C.P.L. § 30.30[4][a]).

The defense contends that the People's motion for a protective order did not stop the speedy trial clock, as "the motion time exception applies only to time actually attributed to making, responding to, and deciding motions" (citing People v Daviu, Ind No 72715-2023, Clancy, J [Sup Ct, Bronx County 2025]). Defense counsel asserts that she "immediately consented" to the People's protective order and thus the People should be charged the three days between the filing of the motion and her consent. The People's Opposition does not address defense counsel's argument as to the chargeability of this three-day period, and the People have not supplied requested details regarding the parties' negotiation of the protective order terms.

The Court assumes, arguendo, that the speedy trial clock was tolled from September 5, 2025, when the People's C.P.L. § 245.70[1] motion was made, to September 8, 2025, when defense counsel consented to the protective order. Nonetheless, a minimum of 91 days is chargeable to the People.

The first day counted for speedy-trial purposes is June 16, 2025, the day following the commencement of the criminal action (People v Stiles, 70 NY2d 765, 767 [1987]). The case was adjourned to July 22, 2025, for supporting deposition and discovery compliance (June 16, 2025—July 22, 2025 = 37 days charged).

On July 22, 2025, the case was adjourned for conversion and discovery compliance. On September 5, 2025, the prosecution filed and served a motion for a protective order pursuant to C.P.L. 245.70[1] (July 23, 2025—September 5, 2025 = 45 days charged).

On September 8, 2025, defense counsel consented to the People's motion for a protective order. Although the People filed and served a certificate of compliance and statement of readiness on September 15, 2025, the COC was invalid and failed to toll the speedy trial clock. As a result, the speedy trial clock was not tolled until September 17, 2025, when the defense requested an adjournment to review discovery (September 9, 2025—September 17, 2025 = 9 days charged).

Accordingly, a minimum of 91 days is charged to the People, and their statutorily allotted speedy trial period has expired.

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

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