Summary

Mamadou Diallo was arrested on June 21, 2025 and charged with operating a motor vehicle while under the influence of alcohol or drugs under Vehicle and Traffic Law § 1192(3) and related charges. The prosecution alleges that Mr. Diallo had a blood alcohol content of .265. He was arraigned in Bronx Criminal Court on June 23, 2025, released on his own recognizance, and the case was adjourned to July 29 and September 23, 2025 for the prosecution to file their Certificate of Compliance (COC).

The prosecution began ordering discovery as early as July 9, 2025. (Opposition at 6.) Prior to filing their COC, the prosecution shared discovery with defense on August 14 (62 days after arraignment), September 12 (81 days after arraignment), and September 16, 2025 (85 days after arraignment). On September 16, 2025 the prosecution filed their Superseding Information (SSI), Automatic Disclosure Form, COC and Statement of Readiness (SOR). Later that day they filed a Supplemental COC (SCOC) and an additional SOR. On September 23, 2025 Mr. Diallo was arraigned on the SSI and the case was adjourned to September 29, 2025 for discovery conference. Also on September 23, 2025 the prosecution filed an SCOC and SOR. On September 29, 2025 the instant motion schedule was set and the parties were ordered to continue to confer. The prosecution filed additional SCOCs and SORs on October 15, October 24, November 6 and November 12, 2025.

This case comes before this court on a defense motion to dismiss under CPL § 30.30. The defense argues that the prosecution's initial COC and SOR were not valid because the prosecution failed to disclose various discovery, including all communication relating to the [*2]repair of the Intoxilyzer used in this case; gas chromatography reports and certificates for solutions numbered 24150, 24330, and 24170 used in the calibration of the Intoxilyzer; and documents from the New York Police Department online prisoner Arraignment Database (commonly referred to as ZOLPA). The defense also argues that the prosecution belatedly disclosed several activity logs, materials related to the diagnostic failure of the Intoxilyzer machine used for Mr. Diallo's breath test a month after Mr. Diallo's arrest, and a vehicle seizure form. The prosecution argues that they filed valid certificates of compliance on September 16, September 23, October 15, October 24, November 6, and November 12, 2025 because they made reasonable and diligent efforts to comply with their discovery obligations prior to, and after, they filed their COC.

There were a total of seven COCs filed in this case: the original and six supplemental COCs. In the SCOC filed on September 16, 2025 the prosecution indicated that they were turning over photos of a vehicle that that they had received from the arresting officer that same day. The defense filed their objections to the prosecution's COC on September 22, 2025. The prosecution then realized that they had omitted relevant activity logs for some of the officers involved in the arrest in this case. They disclosed these activity logs and filed an SCOC on September 23, 2025. On or about July 16, 2025 the Intoxilyzer used in this case (Serial Number 90-002040), was taken out of service due to failure. (Defense Motion at 9.) On October 9, 2025 the defense requested materials related to the failed Intoxilyzer made between December 10, 2024 and July 17, 2025 as well as "all communications between NYPD officers relating to the maintenance and service of this machine in 2024 and 2025, including all communications with CMI, the manufacturer of the machine []." (Opposition at 26.) On October 15, 2025 the prosecution filed an SCOC after they shared a photograph of the Intoxilyzer and a printout indicating diagnostic failure from July 16, 2025 that they received on October 14, 2025. On October 24, 2025 the prosecution filed an SCOC after sharing a vehicle report they spent a month tracking down from the NYPD, and re-scanned (or "clean") copies of the complaint and arrest reports they had previously disclosed in this case. The prosecution requested each of these items multiple times from the NYPD after receiving the objections on September 22, 2025. On November 6, 2025 the prosecution filed an SCOC after they shared a lab certification of the Intoxilyzer that they obtained after being ordered to do so in another case. On November 12, 2025 the prosecution filed an SCOC after re-disclosing the Certificates of Analysis related to solutions used to calibrate the Intoxilyzer. They did this in response to the defense request for all communication related to the Intoxilyzer machine used in this case.

Since the top charge in this case is an A misdemeanor, CPL § 30.30(1)(b) requires that the People be ready within 90 days of arraignment or by September 21, 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 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 July 28, 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 [*3]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:

[1] the efforts made by the prosecutor to comply with the requirements of this article; [2] the volume of discovery provided and the volume of discovery outstanding; [3] the complexity of the case; [4] whether the prosecutor knew that the belatedly disclosed or allegedly missing material existed; [5] the explanation for any alleged discovery lapse; [6] the prosecutor's response when apprised of any allegedly missing discovery; [7] whether the belated discovery was substantively duplicative, insignificant, or easily remedied; [8] whether the omission was corrected; [9] whether the prosecution self-reported the error and took prompt remedial action without court intervention; and [10] 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.

• Prosecutorial Compliance Efforts. The prosecution did not comply with the statutory requirements to disclose discovery within 35 days after arraignment [CPL § 245.20(1)]. The prosecution first shared discovery after more than 60 days, including Giglio materials that are due "expeditiously upon its receipt." CPL § 245.20(1)(k).

• Volume of Discovery Provided/Outstanding. The prosecution appears to have disclosed the majority of the discovery in this case. This factor may seem to weigh in favor of the prosecution. However, in a VTL § 1192 case where the reliability of the machine used to test the breath of the accused may be at issue, it was of paramount importance for the prosecution to provide any records related to the malfunction, testing and repair of that machine. So while quantitatively, the prosecution appears to have turned over most of the discovery, at least some of the missing discovery is of heightened importance based on the facts of this case.

• Complexity of the Case. This is not a particularly complex case. The one complicating issue is the failure of the Intoxilyzer used to test Mr. Diallo's breath. However, CPL § 245.20(1)(s) provides clear guidance on what records are required to be disclosed to comply with the statute: "all records of calibration, certification, inspection, repair or maintenance of machines and instruments utilized to perform any scientific tests . . . of a person's breath, blood, urine or saliva, for the period of six months prior and six months after such test was conducted . . . " CPL § 245.20(1)(s) (emphasis added).

• Prosecutorial Knowledge of Missing Material. It is unclear if the prosecution was aware of the failure of the Intoxilyzer used in this case. In a VTL§ 1192 case, where the prosecution is alleging that the accused had a blood alcohol content of .265, the Intoxilyzer is critically important to the prosecution of the case. Thus, the prosecutorial lack of knowledge about the failed Intoxilyzer represents a significant lapse in diligence.

• Explanation of Discovery Lapse and Response to Discovery Lapse. The prosecution argues that "Surely, just because Defense can imagine that a hypothetical communication could potentially exist does not and should not cast doubt on the People's compliance under C.P.L. 245.20." (Opposition at 47.) The issue is not whether the defense raises a hypothetical issue, but whether the prosecution has exercised diligence. Since the prosecution still cannot say whether or not these records exist, and how they acted diligently to determine if the records exist, this court cannot find that diligence and good faith were exercised.

• Belated Discovery was Duplicative, Insignificant or Easily Remedied. The prosecution cannot argue that discovery related to the failure of the Intoxilyzer in this case is duplicative or insignificant, and they have not offered any information or efforts to remedy the shortcoming. The prosecution argues that the defense does not actually know whether materials related to the failure of the Intoxilyzer exist, but it would be difficult for the defense to prove this when all of the materials would be in the possession of the prosecution or entities under their control. The fact that the prosecution did not know whether these materials existed at the time they filed their opposition weighs against them and demonstrates a lack of diligence.

• Omission Corrected. The prosecution has shown little interest in learning whether materials related to the failure of the Intoxilyzer exist, much less correcting the omission.

• Error Self-Reported and Promptly Remedied. The prosecution did not self-report or remedy the failure to disclose documents related to the Intoxilyzer failure.

• Prejudice to Defense. Without the actual missing discovery to review, it is difficult to determine how the failure to disclose those materials prejudices the defense. However, when the missing discovery relates to the chemical test in a VTL § 1192 case, the potential for prejudice is great. That is likely why the legislature requires the prosecution to turn over calibration and other records for six months before and six months after the chemical tests at issue in any case. CPL § 245.20(1)(s).

After consideration of all of the CPL § 245.50(5)(a) factors, this court finds that the prosecution failed to demonstrate that they exercised due diligence to ascertain the existence of material and information subject to discovery and make that discovery available to the defense prior to filing their initial COC.

Because the prosecution has not demonstrated compliance with the statutory mandates of discovery, their initial COC and SOR were not valid. Without a valid COC and SOR, the prosecution could not be deemed ready for trial within 90 days under CPL § 30.30 and this court must dismiss this case.

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

The forgoing constitutes the order and decision of the court.