Summary

David Rodriguez was arrested on July 8, 2025 and charged with criminal trespass in violation of Penal Law §§ 140.15(1), 140.10(a) and 140.05. He was arraigned in Bronx Criminal Court on July 9, 2025 and the case was adjourned for conversion and the prosecution to file their Certificate of Compliance (COC) to August 22, 2025.

On October 1, 2025 (84 days after arraignment) the prosecution shared discovery with defense, as well as a supporting deposition, COC and Statement of Readiness (SOR). On October 8, 2025 the complaint was deemed an information, Mr. Rodriguez was arraigned and the case was adjourned to October 30, 2025 for COC conference. On October 29, 2025 the defense sent discovery objections to the prosecution. Later that day the prosecution shared additional discovery with the defense and filed a Supplemental COC (SCOC). On October 30, 2025 the instant motion schedule was set. That same day the prosecution responded to the defense discovery objections.

This case comes before this court on a defense motion to dismiss pursuant to CPL § 30.30. The defense argues that the initial COC is not valid because the prosecution failed to act diligently and in good faith when they disclosed some discovery materials belatedly, and failed to disclose other materials altogether.

The prosecution argues that the COC was valid because they exercised due diligence by [*2]making reasonable efforts when apprised of discovery violations, the defense did not make timely, good faith efforts to resolve the discovery dispute, and the defense did not make a showing of prejudice to justify invalidating the COC.

On September 3, 2025 (56 days after arraignment) the prosecution first requested discovery materials from the New York Police Department (NYPD). The request was for "ANY AND ALL other evidence (including, but not limited to, photos and videos taken on scene, police paperwork, video surveillance, et cetera) that was generated or related to this arrest that was not included in the original arrest packet provided to the Bronx District Attorney's Office." (Opposition at 12.) On September 17, 2025 the NYPD provided the prosecution with, to their knowledge, "ANY AND ALL" available discovery regarding the instant case. (Opposition at 12-13.) On October 1, 2025 the prosecution provided the materials to defense counsel.

On October 29, 2025 the defense emailed the prosecution a list of missing discovery including all discovery from the co-defendant's case, an audit log for Captain Heeren, body worn camera (BWC) video for Officer Diaz, BWC checklist, pre-arraignment Notification Report (referred to as ZOLPA), unredacted Civilian Complaint Review Board (CCRB) report for Officer Ayala, and Internal Affairs Bureau (IAB) Log attachments for several officers. On October 30, 2025 the prosecution responded to the inquiry by stating that no activity log existed for Captain Hereen and BWC video for Officer Diaz had previously been shared (which they re-shared). With respect to the ZOLPA, the prosecution responded, "While I did request all paperwork relating to the arrest in the NYPD's possession, I reached out to the Precinct's discovery liaison and specifically requested that [the precinct] confirm these documents do not exist." (Opposition Exhibit C.) On November 24, 2025 the discovery liaison confirmed that the NYPD was not in possession of the ZOLPA. (Opposition at 14.) With respect to the documents related to the co-defendant's case, the prosecution stated that they believed that most of the discovery was duplicative, aside from discovery documenting the co-defendant's "pedigree information," and that defense counsel would not need, or want, that discovery. (Opposition at 19.) With respect to the request for an unredacted copy of the CCRB report, it is unclear if the prosecution ever addressed the issue with defense prior to filing their opposition to the defense motion to dismiss. In their opposition, the prosecution argues that the redacted section of the CCRB report contains information related to complaints made by uncooperative victims that are "typically" not investigated, and, therefore, such information is not discoverable. (Opposition at 14.)

The defense requested nine IAB Log attachments including PDFs, audio files and body worn camera video that had not been disclosed. (Defense Exhibit C.) The prosecution's October 30, 2025 response did not address the IAB log attachments. The prosecution argues in their opposition that one IAB Log attachment relates to a lost work cellphone, and another IAB Log attachment states that an officer was incorrectly included in a log in place of a different officer. The prosecution goes on to argue that the IAB log attachments are only discoverable if the defense provides some explanation as to why certain IAB log attachments would tend to impeach a testifying officer.

Since the top charge in this case is an A misdemeanor, CPL § 30.30(1)(b) requires the People to be ready within 90 days of arraignment (by October 7, 2025 in this case). See People v Brown, 28 NY3d 392, 403 (2016). Under CPL § 245.10(1)(a)(ii), "[w]hen the defendant is not in [*3]custody during the pendency of the criminal case, the prosecution shall perform its initial discovery obligations within thirty-five calendar days after the defendant's arraignment." Therefore, initial discovery obligations in this case were due by August 13, 2025.

A valid COC requires the prosecution to make a diligent, good faith effort to determine what discoverable material exists and to disclose those materials to the defense. CPL § 245.20(2).

Read together, CPL 245.50 and CPL 30.30 require that due diligence must be conducted prior to filing a COC (see CPL 245.50[1] [detailing representations that must be included in a COC]; CPL 245.50[3] [directing that "the prosecution shall not be deemed ready for trial for purposes of (CPL 30.30) ... until it has filed a proper certificate pursuant to (CPL 245.50[1]).

People v Bay, 41 NY3d 200, 212 (2023). Due diligence is "[t]he diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation." Id. at 211, quoting Black's Law Dictionary 573 (11th ed 2019). Recent amendments to CPL § 245 introduce a list of factors courts must consider when determining whether due diligence has been exercised. See CPL § 245.50(5)(a). Courts are instructed to evaluate the factors holistically. "The court's determination shall be based on consideration of all factors listed in paragraph (a) of this subdivision and no one factor shall be determinative." CPL § 245.50(5)(b).

From the analysis of these factors below, this court finds that the prosecution has not acted diligently in ascertaining and disclosing all discoverable materials.

• Prosecutorial Compliance Efforts. The prosecution did not request discovery until 56 days after Mr. Rodriguez was arraigned and they did not share discovery with defense until after more than twice the allowable time under the statute. Therefore, the prosecution did not comply with discovery obligations within the 35-day statutory deadline.

• Volume of Discovery Provided/Outstanding. Most of the discovery has been disclosed at this point. The prosecution has not disclosed an unredacted CCRB report or any of the IAB Log attachments.

• Complexity of the Case. This is not a complex case and the discovery should have been easily procured by the prosecution.

• Prosecutorial Knowledge of Missing Material. The prosecution was aware of the belatedly disclosed discovery related to the co-defendant's case. They acknowledge that once it was requested by the defense, they "turn[ed] over what was in their immediate possession" and filed an SCOC the same day they received objections. (Opposition at 18.) The prosecution was aware of the full CCRB History and chose to redact certain portions. The prosecution determined the IAB Log attachments were not disclosable. However, the discovery statute does not empower the prosecution to make these unilateral determinations about the value of discoverable materials. See People v Zachary, 86 Misc 3d 1209(A) (Crim Ct, NY County 2025). The ZOLPA was not specifically requested by the prosecution and was not noticed until the defense raised an objection. (Opposition at 14.)

• Explanation of Discovery Lapse and Response to Discovery Lapse. The prosecution's explanation for withholding discovery related to the co-defendant's case is that they believed defense counsel would not need, or want, the co-defendant's discovery.

The prosecution argues that they redacted the CCRB History because the redacted portions contained complaints where complainants were not cooperative. According to the prosecution, where complainants are not cooperative, "there is typically no investigation conducted." (Opposition at 14.) The prosecution argues that because "these complaints are not investigated, they would not tend to impeach testifying officers ." Id. It is unclear if the prosecution has exercised the diligence necessary to determine if there is any impeachment material related to the redacted portion of the CCRB History in this case. Even though investigations may not be conducted in similar instances, the record does not show whether that is the case here.

Further, the prosecution made redactions to the CCRB History without seeking a protective order from the court under CPL § 245.70. Only redactions to "social security numbers; tax numbers; the physical addresses or other forms of contact information of witnesses" are permitted "without the need to move for a protective order." See CPL § 245.20(6). The prosecution has not demonstrated that their redactions in this case are permissible under the statute.

Of the nine IAB Log attachments requested by the defense, including PDFs, audio files and body worn camera video, the prosecution states that one IAB Log attachment relates to a lost work cellphone, and another IAB Log attachment states that an officer was incorrectly included in a log in place of a different officer. The prosecution does not address the other seven attachments requested, but argues that the process to obtain IAB Log attachments is "arduous" and many of the attachments requested in the instant case are irrelevant. (Opposition at 16.) If the process to obtain IAB Log attachments proved to be difficult, the prosecution could have started the process sooner or made a good cause showing to the court and sought additional time under CPL § 245.70(2). The prosecution does not allege that all of the attachments are irrelevant and has not demonstrated that they acted diligently to obtain and review the IAB Log attachments to determine which may be relevant.

On November 24, 2025 (138 days after arraignment) the NYPD confirmed that no ZOLPA exists for this case. The ZOLPA exists in most cases and is discoverable. See People v JMW, 83 Misc 3d 1289(A) (Sup Ct, Kings County 2024).^[FN1]

• Belated Discovery was Duplicative, Insignificant or Easily Remedied. The prosecution argues that the discovery from the co-defendant's case was mostly duplicative, and was easily remedied because the prosecution had these materials in their possession. The significance of this belated discovery seems minimal, but does delay defense efforts to prepare for trial.

There is no argument that the CCRB and IAB Log attachments are duplicative of any other discovery in this case, and there is not enough information in the record to determine the significance of these materials. Neither of these documents has been provided to date.

• Omission Corrected. The only alleged omission that has been corrected is the missing discovery from the co-defendant's case. It has also been determined that no ZOLPA exists.

• Error Self-Reported and Promptly Remedied. The prosecution did not self-report or remedy most missing discovery.

• Prejudice to Defense. Late disclosure of discovery demonstrates a lack of diligence and delays the defense opportunities to investigate and prepare a defense. Without more information, it is not possible to determine whether the defense has suffered additional prejudice related to the redactions and the non-disclosure of the IAB Log attachments.

The prosecution has not demonstrated with their opposition to the defense motion that they exercised due diligence prior to filing their COC and SOR. The prosecution did not start requesting discovery for this case until they sent one, generalized request 56 days after arraignment, and did not disclose the materials they received until 84 days after arraignment, when discovery was due within 35 days. The prosecution only followed up on missing discovery after the defense made objections to the prosecution's discovery compliance. "Should a defendant bring a CPL 30.30 motion to dismiss on the ground that the People failed to exercise due diligence and therefore improperly filed a COC, 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." People v Bay, 41 NY3d at 213. The defense brought a motion under CPL § 30.30 arguing that the prosecution had not acted diligently prior to filing their COC, and the prosecution failed to establish their diligence.

Because the prosecution has not demonstrated diligence in requesting and making available all of the discovery in this case prior to filing their COC, this court declares their COC invalid and SOR illusory. Without a valid COC or SOR, the prosecution is beyond the 90 days allowed under CPL § 30.30, the defense motion is granted and this case is dismissed.

The motions for hearings and other issues presented in the omnibus motion are moot.

The foregoing constitutes the order and decision of the court.