Supreme Court, Appellate Term, Second Department, 2d, 11th And 13th Judicial Districts

Decided on March 20, 2026

2021-768 K CR

Present: : Chereé A. Buggs, J.P., Wavny Toussaint, Marina Cora Mundy, JJ

Appellate Advocates (Joshua M. Levine of counsel), for appellant.

Kings County District Attorney (Leonard Joblove, Ann Bordley and Michael Bierce of counsel), for respondent.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Elizabeth N. Warin, J.), rendered October 26, 2021. The judgment convicted defendant, upon a plea of guilty, of disorderly conduct, and imposed sentence. The appeal brings up for review so much of an order of that court (Leigh K. Cheng, J.) dated June 30, 2021 as denied the branch of defendant's motion seeking to invalidate the People's certificate of compliance and dismiss the accusatory instrument on statutory speedy trial grounds.

[*1]

ORDERED that the judgment of conviction is affirmed.

On June 28, 2020, defendant was charged in an accusatory instrument with assault in the third degree (Penal Law § 120.00 [1]), attempted assault in the third degree (Penal Law §§ 110.00, 120.00 [1]), menacing in the third degree (Penal Law § 120.15), and harassment in the second degree (Penal Law § 240.26 [1]). On December 30, 2020, the People filed a certificate of compliance (COC), a statement of readiness (SOR), and a certification that the charges contained in the accusatory instrument were facially sufficient (see CPL 30.30 [5], [5-a]). Before filing the COC, the People provided defense counsel with disclosure letters summarizing the disciplinary histories for [*2]the two police officers that the People would call at trial. Defendant subsequently moved to dismiss the accusatory instrument on statutory speedy trial grounds, among others, arguing that the People's COC was invalid because the disclosure letters were insufficient. Defendant asked the court to order the People to search for and disclose (1) any misconduct allegation regardless of outcome, (2) any police administrative determination that did not conclude with dismissal or acquittal, and any impeachment material held by various internal New York Police Department (NYPD) units, (3) any information relating to civil suits served on or commenced against the NYPD and contained in police files, and (4) "[a]ny information" held by the District Attorney's office. Defendant's attorney cited no evidence that such information existed, but stated that "[i]t is likely or at least possible that additional records exist as to this matter." Defendant also asked the court to inquire about the People's due diligence regarding these outstanding pieces of discovery. On June 30, 2021, the Criminal Court (Leigh K. Cheng, J.) denied defendant's motion in its entirety, finding that the People had exercised due diligence, that the COC and SOR were valid and that the People were chargeable with 85 days.

A judgment was entered on October 26, 2021 (Elizabeth N. Warin, J.) convicting defendant of disorderly conduct (Penal Law § 240.20), upon his plea of guilty, in satisfaction of the accusatory instrument, and imposing sentence.

At the outset, we note that various sections in CPL article 245 were amended effective August 7, 2025, including CPL 245.20 (1), with "the primary differences between" the two versions of CPL 245.20 (1) being "that the phrase 'relate to the subject matter of the case' was removed from CPL 245.20 (1) and inserted into CPL 245.20 (1) (k), and that the phrase 'the following material and information' was added to CPL 245.20 (1)" (People v Fuentes, — NY3d —, 2025 NY Slip Op 05872, *2, n 2 [2025]). We need not resolve "which version of CPL 245.20 (1) applies to this appeal and the relevance and meaning of the statutory phrase 'that relate to the subject matter of the case.' . . . because under either version of the statute, and even assuming that CPL 245.20 (1) requires disclosure of misconduct allegations not arising from the facts underlying the instant prosecution," the People adequately disclosed, prior to their filing of the December 30, 2020 COC, that there were no misconduct allegations that tended to impeach the credibility of the officers listed as testifying witnesses (Fuentes, — NY3d —, —, 2025 NY Slip Op 05872, *3; compare People v McCarty, 221 AD3d 1360, 1362 [3d Dept 2023] and People v Johnson, 218 AD3d 1347 [4th Dept 2023], with People v Coley, 240 AD3d 122 [2d Dept 2025]).

If a defendant brings a CPL 30.30 motion claiming 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 200, 213 [2023]). "If the prosecution fails to make such a showing, the COC should be deemed improper, the readiness statement stricken as illusory, and—so long as the time chargeable to the People exceeds the applicable CPL 30.30 period—the case dismissed" (id.).

Here, the People satisfied their obligation of due diligence when they filed their December [*3]30, 2020 COC. The People provided 21 categories of evidence with the first COC, including disclosure letters (also referred to as Law Enforcement Officer Witness [LEOW] letters) summarizing the disciplinary records of the two officers to the effect that there were only instances of departmental discipline (see People v Jawad, 84 Misc 3d 31, 34 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024], lv denied 42 NY3d 1080 [2025]). Defendant challenged the letters only to the extent that he claimed that the People could not satisfy their burden with summary letters, rather than challenging any specific disclosure contained therein. Defendant merely speculated that other impeachment material might exist. Neither the disclosure letters nor anything else in this record suggests that the People failed to turn over discoverable material that "tends to . . . impeach" the two officers' credibility (CPL 245.20 (1) (k) (iv); see Fuentes,— NY3d —, 2025 NY Slip Op 05872; cf. Coley, 240 AD3d 122 [where the court found that the LEOW letters disclosed matters that tended to impeach the credibility of a testifying witness, the People were required to disclose the underlying records]). We thus conclude that the disclosure letters here were sufficient to satisfy the requirements of CPL 245.20 (1) (k) (iv). Consequently, defendant's challenge to the December 30, 2020 COC is without merit.

The People charged defendant with, among other offenses, assault in the third degree (Penal Law § 120.00 [1]), a class A misdemeanor, requiring the People to be ready within 90 days of the commencement of the action (see CPL 30.30 [1] [b]; see also People v Labate, 42 NY3d 184, 190 [2024]). While the action commenced in June 2020, when the People filed the accusatory instrument, no speedy trial time accrued between the case's commencement and October 4, 2020 because Governor Cuomo's executive orders tolled the speedy trial time (see Executive Order [A. Cuomo] No. 202.8 [9 NYCRR 8.202.8]; Executive Order [A. Cuomo] No. 202.67 [9 NYCRR 8.202.67]; see also People v Carter, 80 Misc 3d 127[A], 2023 NY Slip Op 50889[U], *1-2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2023]). Consequently, the People had to state ready within 90 days of October 4, 2020. The People validly stated ready on December 30, 2020, which was less than 90 days after the speedy trial clock began to run. Therefore, the Criminal Court correctly denied defendant's speedy trial motion.

Accordingly, the judgment of conviction is affirmed.

BUGGS, J.P., TOUSSAINT and MUNDY, JJ., concur.

ENTER:

Jennifer Chan

Chief Clerk

Decision Date: March 20, 2026