People v J.M.

Criminal Court of the City of New York, Kings County

Decided on March 31, 2026

Docket No. CR-037798-25KN

Jacob Zelmanovitz, J.

AMENDED DECISION AND ORDER FN1

Defendant in this case is charged with criminal possession of stolen property. Defendant now moves to dismiss this action for, among other things, omissions in the People's automatic discovery production, pursuant to CPL §§ 30.30, 170.30 (1) and 245.50 (4).

Due to the People's willful failure to respond when apprised of missing discovery materials, the motion is GRANTED, and the matter is DISMISSED.

PROCEDURAL HISTORY

On August 8, 2025, the People filed and defendant was arraigned on the misdemeanor complaint in this matter; defendant was charged with violating Penal Law § 165.40. The matter was adjourned to October 10, 2025, for the People's discovery compliance.

The defendant did not appear on October 10, 2025, and the court stayed issuance of a bench warrant and adjourned the matter to October 17, 2025, for defendant to appear.

On October 17, 2025, the defendant appeared in Part AP2-W, and the matter was adjourned to November 21, 2025, for the People's discovery compliance. On November 13, 2025, the People served and filed a supporting deposition, certificate of compliance ("COC"), statement of readiness ("SOR"), and notice and disclosure form.

On November 21, 2025, the parties appeared in Part AP2, a motion schedule was set, and the matter was adjourned to February 19, 2026, for decision on the motion. According to the [*2]schedule set by the court, the defendant's motion was due on or before December 18, 2025.

On November 25, 2025, over three weeks prior to that due date, defendant's counsel emailed the People to confer regarding allegedly outstanding discovery materials.

On December 8, 2025, after two weeks had passed without a response to that email, defendant's counsel served and filed the instant motion to dismiss, ten days before it was due.

On December 30, 2025, the People served and filed a supplemental COC with discovery materials that they had previously failed to produce, together with their opposition to the instant motion. On January 7, 2026, defendant's counsel served and filed their reply.

DISCUSSION

I. Speedy Trial Time

The top count in this case is a misdemeanor punishable by a sentence of more than three months imprisonment. Accordingly, the People were to announce their readiness for trial within 90 days of the commencement of the action, not including any excludable periods of time (CPL § 30.30 [1] [b] and [4]).

This case was commenced on August 8, 2025, and the People announced their readiness 97 days later, on November 13, 2025. However, 7 of those days, specifically October 10-17, were excludable due to the case being adjourned for defendant to appear.

Therefore, if valid, the People's November 13, 2025, statement of readiness would have been timely.

II. The Duty to Confer

The pretrial discovery procedure in criminal matters includes a conferral process, where the parties are required to attempt to resolve any discovery issues before resorting to motion practice. This conferral process is vital in allowing courts to manage their workload and avoid being required to adjudicate motions that can be otherwise avoided, while at the same time ensuring that defendants receive discovery materials that they are entitled to in a timely manner and without being forced to compel their production by resorting to motion practice.

A. Background: The 2019 Revisions to Discovery Procedure

Discovery in criminal matters was profoundly modified in 2019 with the repeal of article 240 and enactment of article 245 of the Criminal Procedure Law. These new discovery procedures substantially expanded the People's disclosure obligations, requiring the automatic production of a broad range of materials. (People v Bay, 41 NY3d 200, 208 [2023].)

Perhaps just as significant, this discovery regime was linked to the People's "speedy trial" obligations under CPL § 30.30. Under the new system, prosecutors must certify their compliance with the discovery law, via a COC, before announcing readiness for trial. via a SOR (CPL § 245.50 [3]). If a COC is found to be invalid due to outstanding discovery, any SOR that relies on it would be invalidated as well (People v. Hamizane, 80 Misc 3d 7, 10 [App Term 2d Dept, 9th & 10th Jud Dists 2023], see also Bay, 41 NY3d at 209-210).

As a result of this linkage of discovery to speedy trial obligations, discovery matters now have greater consequence and urgency in criminal proceedings. Lapses in disclosure, even if relatively early and minor, can be grounds for dismissal on speedy trial grounds.

This has led to a marked increase in motions filed by defendants alleging speedy-trial violations. Often, these motions concern relatively minor discovery issues that do not prejudice defendants, and which should have been resolved without the need for judicial intervention and the attendant burden on the court's limited resources. However, with a possible dismissal now [*3]being at stake, defendants have been incentivized to file motions for even the most seemingly inconsequential errors in the People's discovery production.

B. The Defense's Duty to Confer

To prevent an excess of discovery motions, CPL § 245.35 empowered the court to order parties to confer prior to resorting to motion practice in order to solve discovery disputes. Then, by amendments to article 245 enacted in 2025, the requirement for a court order under § 245.35 was supplemented with the newly enacted newly enacted CPL § 245.50 (4) (c), which requires that:

[A]ny challenges to a certificate of compliance or supplemental certificate of compliance shall be accompanied by an affirmation by the moving party that, after the filing of the opposing party's certificate of compliance, such moving party timely conferred in good faith or timely made good faith efforts to confer with the opposing party regarding the specific and particularized matters forming the basis for such challenge, that efforts to obtain the missing discovery from the opposing party or otherwise resolve the issues raised were unsuccessful, and that no accommodation could be reached.

Under this new provision, defendants must at least attempt to confer prior to filing a motion challenging a COC, even in the absence of any court order (People v Whitney, — Misc 3d —, 2025 NY Slip Op 25248 [Crim Ct, Bronx County 2025], People v Benali, 2026 NY Slip Op 50265[U] [Crim Ct, Kings County 2026], People v Vera, 2026 NY Slip Op 50111[U] [Sup Ct, Queens County 2026]). This conferral requirement is clearly intended to resolve discovery disputes without taxing the court with motion practice, or at the very least to narrow any disputes that do need to be resolved by motion (Whitney, 2025 NY Slip Op 25248, Benali, 2026 NY Slip Op 50265[U]; see also People v Dugal, — Misc 3d —, 2025 NY Slip Op 25281, *3 [Crim Ct, Bronx County 2025], People v Morales, 86 Misc 3d 523, 526 [Crim Ct, Kings County 2025]). In order to actually reach such outcomes, defendants are required to engage in the conferral process in a timely and good faith manner (Whitney, 2025 NY Slip Op 25248, Benali, 2026 NY Slip Op 50265[U]).

C. The People's Duty to Confer

The 2025 amendments to the CPL did not only address a defendant's obligation to confer, and were not the sole change made to encourage resolution of discovery issues without the need for motions. Sections 30.30 (5) and 245.50 (5) of the CPL were also amended to specify what constituted due diligence and good faith by the People, such that any discovery lapse would not automatically mandate dismissal. Most relevant here, CPL §§ 30.30 (5) (b) and 245.50 (5) (a) explicitly state that one of the factors to be considered when assessing the People's due diligence and good faith is their "response when apprised of any allegedly missing discovery."

In other words, prosecutors now also have a duty to confer as a part of their due diligence and good faith. Failure to cooperate with an attempt by the defense to confer is a factor that can now lead to a COC being invalidated, pursuant to CPL §§ 30.30 (5) and 245.50 (5).

That such a duty also exists for the People is logical. To require the parties to confer for the sake of conferring would be pointless; the idea is to have the conferrals lead to the resolution of disputed matters. Obviously, conferral can only yield such results if both parties engage in it in good faith. Therefore, it would not make sense if only the defense were required to make timely and good faith efforts to confer. By the amendments to CPL §§ 30.30 (5) and 245.50 (5), a similar duty of conferring in a timely and good faith manner was placed upon the People.

III. The People's Failure to Timely Confer

As set forth above, on Tuesday, November 25, 2025, the defendant's counsel emailed the People to confer regarding outstanding discovery materials. Included in that email was a comprehensive list of missing items which included body worn camera footage, interrogation video, impeachment materials, surveillance footage, contact information for complaining witness and 911 materials. This email triggered the obligation for the People to cooperate in the conferral process by engaging in a conversation with the defense in a timely and good faith manner.

The People do not deny receipt of the email. The People do not plead error or negligence, excusable or otherwise, in failing to respond to the email. The People do not claim that the defendant had been informed that the email was received and that a reply would be forthcoming. Instead, the People state in their motion papers that they willfully chose to remain silent and not respond for two weeks. This constituted a lack of due diligence and good faith.

The People argue that defendant failed to meet their obligations with their November 25 email. They write that defendant's attempt to confer was not in good faith because the defendant's attorney sent their email "during the week of Thanksgiving," the defense "made no attempt to follow up," and then "prematurely" filed their motion on December 8, 2025. The People also state that rather than respond to the email prior to December 8, they "determined it was best to address all points comprehensively in a single, thorough response." This argument is without merit.

First, defendant's motion was not premature. The court imposed a deadline of December 18; it did not bar moving prior to that deadline. The defense's sole obligation prior to filing their motion was to attempt to confer in good faith (CPL § 245.50 [4] [c]). To be in good faith, that attempt was required to have been made with sufficient time for the People to respond before the motion's due date (Whitney, 2025 NY Slip Op 25248, Benali, 2026 NY Slip Op 50265[U]). The defense's email, sent over three weeks prior to their deadline, certainly met this requirement. Had the People responded, only then would the Defendant also have been obligated to wait and see if the conferral process would lead to an "accommodation" before filing their motion (CPL § 245.50 [4] [c]). However, a defendant cannot be expected to wait for two weeks to see if the People will actually confer before filing a motion.

Second, Thanksgiving was on Thursday, November 27, 2025 (General Construction Law § 24). There was nothing improper or invalid about an email sent two days before Thanksgiving. Just as the defense has an obligation to attempt to confer in a timely manner (Whitney, 2025 NY Slip Op 25248), the People are obligated to respond in a timely manner. Even if the email were sent on Thanksgiving, that would not mean that the People were free to ignore it for two weeks afterwards, and doing so was a violation of the People's duty to confer.FN2

Third, the People's claim that the defendant had a duty to follow up when their conferral request was ignored is without any basis. It is not the duty of defense counsel to badger the People until the People deign to respond. Rather, all that is required in the first instance is for counsel to make a good faith attempt to confer (CPL § 245.50 [4] [c]). Defendant's counsel having waited in vain for two weeks for the People to respond satisfied that requirement [*4](Whitney, 2025 NY Slip Op 25248, Cf. Benali, 2026 NY Slip Op 50265[U]).

Finally, the People were not free to ignore their statutory conferral obligation merely because they thought it "best" to send a "single, thorough response," rather than engaging in the conferral process. The People's supplemental COC and accompanying materials were sent on December 30, well after the original December 18 deadline for defendant's motion and three weeks after the defendant's December 8 email. Viewing the matter in a light most favorable to the People, this court will assume that the supplemental COC and accompanying materials could not have been sent any earlier, as "prompt remedial action" is one of factors considered in evaluating the People's due diligence and good faith (CPL §§ 30.30 [5] [b] and 245.50 [5] [a]).FN3 If this was indeed the case, then a timely response by the People to the December 8 email would have been crucial in forestalling the necessity of this motion.

At a minimum, having realized that there were missing materials, the People should have promptly informed the defendant that they would be turned over by some specified future date. Absent any notice from the People that this "single, thorough response" would be forthcoming at a later date, or for that matter any correspondence from the People at all, defendant's motion after two weeks of silence was well-warranted.

Crudely put, "what we've got here is failure to communicate" (Cool Hand Luke, Stuart Rosenberg, director, Warner Bros. 1967). The People failed to communicate promptly. They failed to communicate any acknowledgement of to the defense of their attempt to confer. They failed to communicate any willingness to engage in the conferral process. They failed to communicate that any of the missing discovery materials would eventually be produced. Such an extended silence undermines and defeats the purpose of the duty to confer. In this case, it invited the defendant to file the instant motion, and required this court to expend limited resources adjudicating the motion.

All of this may have been avoided had the People bothered to observe what should be common courtesies and promptly responded to the defense's email. Much of the materials sought by the defendant was in fact turned over with the supplemental COC. If the People would not have been able to turn over all the material by the motion's deadline, the court would have readily extended that deadline upon being notified that the parties were conferring and working towards an accommodation, pursuant to CPL § 245.50 (4) (c) (i) or (iii). Regrettably, instead of communicating with the defense, the People chose to remain silent. This was a violation of the People's duty to confer.

In light of the People's admitted willful failure to respond to defendant's attempt to confer about discovery, and to instead burden the defendant, and this court, with this motion, this court finds that the People failed to exercise due diligence and good faith. The COC was therefore illusory, and the SOR invalid.

Criminal Procedure Law § 245.50 (5) does say that the "totality" of the People's efforts must be considered; § 245.50 (5) (b) further states that "no one factor" listed in § 245.50 (5) (a) [*5]shall be determinative of their due diligence and good faith. However, it is the opinion of this court that the People's bad faith in this case, both in failing to respond to the conferral attempt, and then arguing that they were free to do so, are sufficient basis alone for such a determination. In any event, as evidenced by the People's supplemental COC, their lack of response to the defense email was not their sole lapse in discovery compliance.

Defendant's remaining arguments need not be addressed.

CONCLUSION

The accusatory instrument was filed on August 8, 2025, and the People filed their COC and SOR on November 13, 2025, with 90 days of chargeable having elapsed. However, as the People's COC was illusory, their statement of readiness was invalid. The People have therefore exceeded their 90-day speedy-trial time limitation, and defendant's motion is GRANTED and the matter is DISMISSED.

This constitutes the decision and order of the Court.

Dated: March 31, 2026

Hon. Jacob Zelmanovitz

Judge, Criminal Court