Justice Court of the Village of Piermont, Rockland County

Decided on April 1, 2026

Case No. 24-110050

Marc R. Ruby, J.

[*1]

BACKGROUND

The Defendant faces two class A misdemeanor charges: NY PENAL LAW ("PL") § 130.52, Forcible touching, and PL § 260.10, Endangering the welfare of a child. Throughout the case's pendency, the defense has made myriad applications for dismissal. Now, for at least the second time, the defense seeks dismissal on Speedy Trial grounds, as set forth under NY CRIM. PROC. LAW ("CPL") § 30.30.

The People filed an initial CPL Art. 245 Certificate of Compliance ("COC") and announced readiness for trial ("SOR"), in December 2024. Inasmuch as the Defendant was charged in November 2024, both the COC and SOR were filed well within statutorily prescribed time. As indicated, numerous motions were filed throughout the ensuing year. Corresponding written decisions appear in reporters (both published and unpublished), while others remain in the record.

In addition, late last year, the Court ordered the People to file a Bill of Particulars ('BOP"), sua sponte, after pending motions in limine raised questions surrounding the facts underpinning the charges. After review, the Court concluded that while the People have constricting temporal limitations upon their proofs, there is no legal basis for dismissing the case [*2]in this regard.

While the BOP was under consideration, the People filed a Supplemental COC/SOR in December 2025. This was nearly a year-to-the-day after the People's initial COC/SOR. The Supplement was necessitated by the People's post-readiness production of personnel records relating to two, of at least seven, testifying FN2 law enforcement officers involved in the underlying investigation.

The defense's instant motion was filed on February 21, 2026. The People opposed on March 16, 2026. And the defense replied on March 19, 2026. The Court has considered these filings, along with related antecedent docket letters. For reasons stated herein, the application is DENIED.

DISCUSSION

The Court of Appeals rejects an approach to discovery, requiring a perfect prosecution. People v. Bay, 41 NY3d 200, 212 (2023). Defendants are not entitled to entire disciplinary records of police officers involved in a case but only to those records relating to the case's subject matter. People v. Macaluso, 230 AD3d 1158 (2d Dept 2024). A case's subject matter encompasses the credibility of police witnesses. People v. Coley, 240 AD3d 122, 134 (2d Dept 2025). Because the scope of cross-examination of a police witness is the same as with any other fact witness. People v. Smith, 27 NY3d 652, 659 (2016).

Accordingly, the People must disclose records for substantiated and unsubstantiated misconduct allegations, in satisfaction of CPL § 245.20 (1)(k)(iv). People v. Lithgow, 86 Misc 3d 295, 307 (Crim Ct, New York County 2024). However, the People are not required to disclose unfounded or exonerated allegations, because these do not support a good faith basis for cross-examination. People v. Leonardo, 75 Misc 3d 1237(A) *4 (Crim Ct, Queens County 2022); People v Montgomery, 74 Misc 3d 551, 557-58 (Sup Ct, New York County 2022). Unsurprisingly, defendants do not benefit when a jury hears that a misconduct allegation was unfounded. People v. Arroyo, 162 AD2d 359, 360 (1st Dept 1990).

Trial courts may disallow cross-examination of police officers that is based upon unsubstantiated allegations. People v. Polanco-Chavarria, 74 Misc 3d 1210 (A) *4 (Rockland County Ct 2021); People v. Francis, 149 Misc 2d 693, 697 (Sup Ct, Monroe County 1991). To this end, some courts require a good faith showing, before permitting cross-examination on unsubstantiated allegations. People v. Sereno, 83 Misc 3d 135(A) *4 (App Term, 2d Dept, 9th & 10th Jud Dists 2024). Other courts might prohibit cross-examination on unsubstantiated allegations that do not result in criminal charges, discipline, or implicate the officer's veracity. People v. Bessette, 2026 NY Slip Op 01097, *2 (3d Dept Feb. 26, 2026).

Provided a court does not think the jury will be confused or misled, cross-examination on prior specific criminal, vicious, or immoral conduct might be allowed if the conduct logically and reasonably bears on the officer's credibility. People v. Smith, 27 NY3d 652, 660 (2016). But the People do not run afoul of CPL Art. 245, when they belatedly produce records that do not bear on the case, if the officer has never been deemed incredible. People v. Hespinobarros, 245 AD3d 826, 829 (2d Dept 2025).

Once the People provide automatic discovery, and file of a corresponding COC, CPL § 245.60 places them under a continuing duty to disclose. People v. McMahon, 237 AD3d 746, 749 (2d Dept 2025). When the defense claims otherwise, the People must show they acted reasonably and with due diligence, before filing a COC/SOR. People v. Pierre, 244 AD3d 1139 (2d 2025); People v. Jackson, 2026 NY Slip Op 00528 (2d Dept 2026).

Factors for assessing due diligence vary, but include: 1) the People's efforts to comply [*3]with CPL Art. 245; 2) the volume of discovery provided and outstanding; 3) the case's complexity; 4) whether missing material would likely have been obvious to a duly diligent prosecutor; 5) the explanation for any discovery lapse; and, 6) the People's response when apprised of missing discovery. Hespinobarros, supra, 245 AD3d at 828.

CPL § 245.50 goes to on state courts should consider the totality of the People's compliance efforts, including whether the: 1) People knew the belatedly disclosed or allegedly missing material existed; 2) belated material was substantively duplicative, insignificant, or easily remedied; 3) omission was corrected; 4) People self-reported the error and took prompt remedial action without court intervention; and, 5) People's delayed disclosure prejudiced or impeded the defense's investigation or trial preparation. See CPL § 245.50.

The defense should be given a reasonable time to prepare and respond to belatedly produced material, and a proportionate remedy or sanction should be imposed, where the defense can demonstrate prejudice. See CPL § 245.80 (1)(a). But in all events, an SOR will not be held illusory after belated disclosures, where the People acted with due diligence, and in good faith. Pierre, supra, 244 AD3d at 1140.

Before turning to the line of cases in-point on the issue before the Court, the defense's reliance upon People v. Parekh, 87 Misc 3d 1255(A) (Piermont Just Ct 2025), should be addressed. While Parekh was dismissed on Speedy Trial grounds, after the People belatedly produced discovery, the circumstances were inapposite. There, the People produced discovery bearing heavily on the case's subject matter. Mere days before a scheduled jury trial, the defense received materials, including: lab tests performed on someone complaining of a sexual offense; a photo array from which the defendant was identified; license plate reader information used in locating the Defendant; and, notes recording witness statements. Inasmuch as the content of those materials formed the basis of the decision, a distinction was noted between an instance where the People might belatedly produce a "disciplinary report about one of a dozen police officers involved in the investigation, having shown up at roll-call, with un-shined shoes, back in 2010." Parekh, at *6.

Here, the belatedly produced materials, are more analogous to Parekh's tongue-in-cheek example, than to the subject matter of the case. Although the defense has filed 162 pages FN3 of newly produced discovery, the defense broadly asserts the materials "[ . . . ] concern[] known investigative participants in a case built almost entirely upon the credibility of law enforcement and the complainant.FN4" To this end, the defense characterizes the case as "convoluted FN5 but not complex." The defense also concedes that the allegations documented in the belated production relate to "conduct [which] may be characterized as minor."

These assertions are inconsistent with jurisprudence governing the disposition of this application. The Court reviewed all 162 pages of the subject material. At the outset, the defense maintains records remain outstanding for a third officer, with a dual affiliation between agencies. The defense maintains the officer's "involvement is highly relevant insofar having orchestrated controlled telephone call(s) between central witnesses in this case." Yet, in many previous filings, it has repeatedly been asserted that no disclosures were made during any controlled call. Notwithstanding the foregoing, the People also filed email responses from both agencies, [*4]indicating neither possesses discoverable personnel records for the third officer.

Next, there was a months-long investigation, after it was alleged the first officer created a hostile work environment, through "verbal abuse, intimidation, threatening language, harassment, isolation, retaliation, humiliation, slander, and the creation of internal factions." It appears as though the complaint giving rise to this investigation was made before this case commenced. However, based upon the pagination and number of interviews, it seems the investigation was quite thorough, and did not conclude until after the People filed their initial COC/SOR.

One example of the officer's alleged misbehavior was excluding the complaining employee from participating in Flannel Friday; thereby causing the employee to be the only person in the office not wearing flannel. There is nothing suggesting the officer has ever manufactured evidence, tampered with evidence, or planted evidence. There is no suggestion the officer has ever coached a witness. In fact, the corresponding report concludes with: "[ . . . ] this investigation did not uncover any evidence that [the officer] violated any Division Rules, Regulations, Policies, or Procedures."

The second officer has been the subject of more than a few personnel complaints over the years. With one exception, none of these complaints resulted in any actions taken against the officer; all were either unfounded, unsubstantiated,FN6 or closed by investigation:

Allegation(s): Excessive force used during an arrest

Result: Unfounded

Action(s) taken: None

Allegation(s): Unprofessional conduct for laughing at motorist stopped for VTL violation

Result: Unsubstantiated

Action(s) taken: None

Allegation(s): Unlawful search

Result: Unsubstantiated

Action(s) taken: None

Allegation(s): Failure to safeguard property after magazine for service weapon was missing after a hot pursuit chase

Result: Unfounded

Action(s) taken: None

Allegation(s): Improper police action during domestic incident, relating to providing a copy of a domestic incident report

Result: Unfounded

Action(s) taken: None

Allegation(s): Unlawful search during vehicle & traffic stop

Result: Closed by investigation

Action(s) taken: None

Allegation(s): Unprofessional conduct for verbal hostility

Result: Unsubstantiated

Action(s) taken: None

Allegation(s): Excessive force during arrest

Result: Unsubstantiated

Action(s) taken: None

Allegation(s): Excessive force during arrest

Result: Unsubstantiated

Action(s) taken: None

Allegation(s): Excessive force during arrest

Result: Unsubstantiated

Action(s) taken: None

Allegation(s): Questioning suspect on unrelated charge, after defense counsel asserted 5th Amendment rights

Result: Unfounded

Action(s) taken: None

Allegation(s): Inappropriate request for UTT dismissal

Result: Closed by investigation

Action(s) taken: None

As seen above (and as recognized by the defense) although this officer has been the subject of complaints, there is nothing suggesting the officer ever coached a witness, or manufactured evidence.

However, one of the complaints against this officer was not resolved by investigation, or with an "unfounded" or "unsubstantiated disposition." The exception was for an instance which transpired during this investigation. The officer was apparently confronted, in Piermont, by an individual who was upset because the officer's vehicle was in a no-parking area, and the officer would not provide his badge number. In response, the officer called the individual an "asshole."

As a result of this incident, the officer was counseled, before the matter was closed. The defense correctly characterizes this complaint as notable. Because not only does the complaint arise from this investigation, but despite the genesis of the complaint occurring in October 2024, the complaint was not lodged until January 2025 right after the People filed their initial COC/SOR.

Attention now turns to analysis under on-point caselaw. In Bay, the Court of Appeals rejected the perfect prosecutor sought by the defense. Further, under Macaluso, the defense is not even entitled to the unsubstantiated complaints in the belated production which do not hear on this case. Minor misconduct is a far cry from Coley, where the subject records were from a case, where the officer gave testimony that was contrived, implausible, egregious, improbable, and unworthy of belief. If subject records from unrelated cases do not provide a basis for impeachment, the records are inadmissible, under Polanco-Chavarria Francis, Sereno, and Bessette. Moreover, under Leonardo and Montgomery, the defense is not entitled to the unfounded misconduct allegations, either.

Two recent Second Department opinions are illustrative. In People v. Henderson, 237 AD3d 853 (2d Dept 2025), the defense was not entitled to misconduct records of a detective who conducted an identification procedure, because the records did not relate to the subject matter of the case. Whereas in People v. Coley, 240 AD3d 122 (2d Dept 2025), records from an unrelated case, where an officer's testimony was held to be contrived, implausible, egregious, improbable, and unworthy of belief, did relate to the case, because the records provided a basis for the officer's impeachment. Here, unlike Coley, none of the belatedly records so much as suggest these officers have ever been deemed incredible. Moreover, under Henderson, if records of officers arranging eyewitness identifications do not bear on a case, it is difficult imagining a record of an officer using foul language during an investigation would, either.

To be sure, the Second Department has raised an insurmountable barrier for the defense, with Hespinobarros:

"Although the People did not provide the defendant with certain underlying disciplinary records, under the circumstances of this case, where the officers' disciplinary infractions did not have any bearing on the subject matter of the case at hand, and there was no indication that any prior testimony of the officers had ever been determined incredible, the Supreme Court correctly determined that the People exercised due diligence and made reasonable efforts to satisfy their obligations under CPL article 245 at the time they filed the COC." Hespinobarros, 245 AD3d 826 at 829.

Consideration of due diligence factors is required nevertheless.

The People's Compliance Efforts

Both the People and defense exchanged witness lists containing up to eight police officers. Since there are so many police officers involved, there was necessarily a lot of information for the People to gather. It is apparent from all of the many previous filings that a whole lot of law enforcement discovery was given to the defense. In fact, there are entire pages of icons depicting electronic attachments. Each icon could easily contain dozens (if not hundreds) of pages. Indeed, just the belatedly produced materials giving rise to the instant motion tally to 165 pages.

In addition, annexed exhibits gave the Court a behind-the-scenes view into the People's CPL Art. 245 compliance. There were multiple ADAs involved, running the gamut of rank. The People even had an email distribution list, entitled "245 1k". The team worked collaboratively, exchanging numerous emails, and keeping each other apprised of progress. Deadlines and court dates were carefully notated. There was a well-organized procedure, evincing sophisticated management. At the same time, officers from several agencies participated in this case, thereby necessitating additional communications. Although the defense seized upon a typo identifying the Defendant's name, the ADA who sent the email, quickly realized, and corrected the error. As such, the Court finds the People's efforts to comply with CPL Art. 245, were not only made in good faith, but were also duly diligent.

Volume of Discovery

As indicated, there is a great volume of discovery in this case. This case's record is voluminous, and much of the volume is derived from filed discovery. By way of comparison, in Parekh, supra, where the charges were similar, the entire case record fit into a single file folder. Here, the case record might not even fit into a single rolling briefcase. This is in accordance with McMahon, supra, where the People had disclosed a multitude of discovery.

The Case's Complexity

The defense contends the "case [is] built almost entirely upon the credibility of law enforcement and the complainant." To this end, the defense says the case is "convoluted." English usage aside, there is, or course, inherent complexity associated with a case where credibility is in issue for both the complainant and law enforcement. Pierre, supra, was a non-complex weapon possession case. The Second Department likely reasoned it was a matter of he-either-had-the-gun-on-him-or-he-didn't. There was no complainant, and there were no assertions that law enforcement was not credible. Instead, bodycam footage was belatedly produced. The corresponding video presumably captured the defendant's apprehension. This would necessarily be probative of whether a weapon was recovered from the defendant's person.

Here, none of the belatedly disclosed materials relate to the complainant, or the defendant let alone whether the defendant forcibly touched or endangered the complainant. And none of the material even suggests any of the officer's have ever been deemed incredible.

Whether Missing Material Would Likely Have Been Obvious to a Duly Diligent Prosecutor

Of the three officers whose records are at-issue, one does not even have misconduct records. The investigation involving another officer did not conclude until after the People filed their initial COC. From time-to-time the defense would ask the People about this officer. Since police personnel records are often FOIL-able (See Newsday, LLC v. Suffolk Cnty Police Dep't, 231 AD3d 728, 731 (2d Dept 2024)), the Court asked whether the defense knew there were undisclosed materials in the People's possession. The defense replied in the negative. While externally kept police records are deemed within the People's possession, under the totality of the circumstances, it does not appear the People had reason to suspect anything was missing. The People asked for records, and produced what they received. Plus, a great deal of what the People have turned over, was not even discoverable in the first place.

The Explanation for Any Discovery Lapse

The People contend the defense is attempting to distract the Court. With respect to the officer who was alleged to have created a hostile work environment, the People explains that the materials did not exist when the initial COC was filed. The Court does note that the People are [*5]under a continuing duty to disclose, after filing any COC. At the same time, some of the records associated with the investigation may have been made before the initial COC was filed. However, the People did request associated records for this officer, prior to filing. With respect to the officer who is the subject of the afore-listed complaints, the People contend they previously produced analogous information. And as previously indicated, a great deal of what the People have now turned over, was not even discoverable in the first place.

The People's Response When Apprised of Missing Discovery & Whether The People Knew Belatedly Disclosed or Allegedly Missing Material Existed

As stated, the People did not believe discovery was missing. It is also clear the People have far exceeded any good faith standard, because the People have never once argued that any of these materials were not discoverable.

Whether The Belated Discovery Was Substantively Duplicative, Insignificant, or Easily Remedied & Whether The Omission Was Corrected

The omission was corrected. In addition, the People seemingly produced the discovery on their own volition, without antecedent judicial intervention. While the defense contends "impeachment material concerning a testifying law enforcement witness is statutorily discoverable", the material produced to defense does not provide a basis for impeachment.

Whether Delayed Disclosure Prejudiced or Impeded the Defense's Investigation or Trial Preparation

If the defense cannot use the belatedly produced material at trial, trial preparation cannot be affected. In addition, inasmuch as the belatedly produced material does not bear on the case, it does yield any investigatory clues. Nevertheless, if the defense is unable to comply with the decretal language below, because of the belated production, the defense shall be given a reasonable time extension in accordance with CPL § 245.80 (1)(a).

Further, in light of the defense's contention that law enforcement's credibility is at-issue, in light of Parekh's recognition that "trial strategy is sacrosanct", and in light of the fact that one of the misconduct incidents arose during this investigation, the defense is free to cross-examine the officer on this incident.FN7 Finally, nothing herein should be read as a decision in limine. Any discission of admissibility was quarantined to the reasoning underpinning the disposition of the motion. Accordingly, if the trial strategy here really is running a convoluted defense, by placing the credibility of police officers at-issue, the Court will entertain a corresponding application to use the belatedly produced materials for attempted impeachment at the forthcoming pre-trial hearing(s) Ordered below.

ORDER

In light of all the circumstances, the Court is satisfied the People have established their efforts in furtherance of CPL Art. 245, prior to, and after filing their initial COC/SOR, were made with both good faith and due diligence. The defense's motion is DENIED.

The People and the defense shall appear at this Court's next criminal session, on Wednesday, April 15, 2026, at 6:00 P.M., with the Defendant's personal appearance not being required. At said time, pre-trial hearings will be scheduled for subsequent special session. In the interim, in accordance with the defense's stated demand, the Court will request that a pool of [*6]jurors FN8 be summoned for a date in May.

The Clerk shall enter this Order, without further Court action.

IT IS SO ORDERED.

1 April 2026

Piermont, N.Y.

Marc R. Ruby

Village Justice