People v Most

Criminal Court of the City of New York, New York County

Decided on April 6, 2026

CR-033957-25NY

Elizabeth Y. Shamahs, J.

On November 1, 2025, at approximately 3:00 AM, inside of 150 10th Avenue, New York, New York, defendant, David Most, struck S.F. on or about the collarbone and neck with an open fist, causing her swelling, lacerations, and substantial pain. In addition, defendant grabbed I.B. by her hair and threw her down a staircase, causing her redness, swelling, abrasions, and substantial pain.

For these acts, defendant was arrested and charged with four counts of Assault in the Third Degree (Penal Law [PL] 120.00[1], [2]), two counts of Aggravated Harassment in the Second Degree (PL 240.30[4]), two counts of Attempted Assault in the Third Degree (PL 110/120.00[1]), and two counts of Harassment in the Second Degree (PL 240.26[1]).

Thereafter, the People began obtaining discovery. The assigned prosecutor reached out to coordinate with several different departments and liaisons within the New York County District Attorney's Office that have been established to streamline communication and effectuate obtaining discovery from law enforcement agencies, such as a Body Worn Camera (BWC) Unit, a Law Enforcement Disclosure (LED) Unit, and a Litigation Support Unit (LSU). From agencies, the People obtained and disclosed approximately one-hundred-and-fifty (150) pieces of discovery with defense counsel, before filing and serving a Certificate of Compliance (COC) and Statement of Readiness (SOR) with defense counsel and the Court, on December 30, 2025 via certified mail and subsequently via the Electronic Document Delivery System (EDDS). The disclosures consisted of activity logs for all testifying witnesses, NYPD arrest paperwork, complaint reports, civilian witness contact information, 911 calls, video footage, radio runs, vouchers, BWC videos, law enforcement witness information including NYPD Internal Affairs Bureau (IAB) paperwork and Civilian Complaint Review Board (CCRB) paperwork, miscellaneous items, and more.

On January 13, 2026, defense counsel notified the prosecutor of purportedly missing [*2]discovery. Namely, (1) notes from the District Attorney's Survivor Services Bureau (SSB), formerly known as the Witness Aid Services Unit (WASU); (2) witness interview notes or recordings; (3) contact information for a male civilian witness to the incident; (4) contact information for the two complaining witnesses; (5) defendant's arraignment card; (6) prisoner arraignment database (ZOLPA); (7) interrupted patrol logs; (8) photographs of the complainants; (9) audit trails of the photographs; (10) updated and finalized activity logs for five police officers; (11) updated CCRB histories for two officers; (12) updated disclosure index sheets for two officers; (13) an updated disclosure advisory for a police officer; (14) and law enforcement witness disciplinary disclosures for seven officers.

On January 20, 2026, the prosecutor informed defense counsel that, (1) she mistakenly believed that the SSB/WASU notes had been disclosed but they were seemingly lost in the file transfer, and was sharing them; (2) there were no written or recorded interviews conducted with the complainants but she was disclosing screenshots of her conversations with the complainants and witness injury photographs; (3) she was providing the name of a male witness along with contact information; (4) she previously shared witness contact information with defendant's former counsel from the same agency and would reshare the information; (5) that the arraignment card was not in the People's exclusive control, that it is a court document placed in the court file, and that she was not in possession of it but would look into obtaining it; (6) the ZOLPA was not discoverable but she was in the process of obtaining it; (7) she was unaware as to what interrupted patrol logs were but would nevertheless request it from the arresting officer and that she was requesting clarification from counsel as to the nature and discoverability of the logs; (8) that she was requesting the photographs and would disclose upon receipt; (9) she did not know what audit trails for photographs were but would look into it and was further requesting clarification as to the nature and discoverability of them; (10) she was requesting updated finalized activity logs; (11) she had previously disclosed all current CCRB materials and would disclose additional records if they became available; (12) she had previously disclosed all current disclosure index materials and would disclose additional records if they became available; (13) she had previously disclosed all current disclosure advisory materials and would disclose additional records if they became available; and (14) the requested law enforcement officer disciplinary records were not discoverable as they were for non-testifying officers.

On January 23, 2026, defense counsel acknowledged receipt of additional discovery and informed the prosecutor that, (1) she was requesting dates and times for the provided photographs; (2) interrupted patrol logs were required forms officers have to fill out upon entry to a station house; (3) she no longer believed that the audit trails for photographs would exist; (4) and to disregard her previous requests for law enforcement disciplinary records as to additional officers.

On January 30, 2026, defense counsel filed an off calendar omnibus motion.

On February 2, 2026, the prosecutor responded to defense counsel that, (1) the disclosed photographs were disclosed to her from the complainant; (2) interrupted patrol logs are not discoverable, providing caselaw, and seeking further clarification as to whether counsel believed that the facts of the instant case rendered the patrol logs discoverable; (3) she was disclosing the finalized activity logs; and (4) she was still trying to obtain scene photographs.

On February 3, 2026, the parties appeared before this Court in Part C, where defense counsel requested the current motion schedule, which was granted by this Court. The People also filed a Supplemental Certificate of Compliance (SCOC) to reflect their subsequent disclosures.

In his papers, dated February 5, 2026, defendant, through counsel, moves this Court to invalidate the People's COC on the ground that SSB/WASU notes, activity logs, witness contact information, photographs, and ZOLPA were belatedly disclosed and that updated CCRB records, updated disclosure indexes, interrupted patrol logs, and certain photographs remain undisclosed. He further argues that, consequently, the People's SOR was illusory and that he has been denied a speedy trial, warranting dismissal of the accusatory instrument.

The People oppose in papers dated February 27, 2026, arguing that defendant's motion should be denied for failing to comport with Criminal Procedure Law (CPL) 245.50(4) for two reasons. Namely, that defendant's motion challenge was filed thirty-seven (37) days after the expiration of the thirty-five (35) day deadline. Secondly, defendant failed to establish that efforts to obtain missing discovery or otherwise resolve discovery issues during conferrals with the prosecutor were unsuccessful and that no accommodation could be reached. The People also assert that, to the contrary, they disclosed or otherwise resolved all of defense counsel's qualms to obtain missing discovery. Defendant filed a reply on March 6, 2026.

As recently amended, effective August 7, 2025, article 245 of the Criminal Procedure Law (CPL) requires the People to disclose to a defendant "material and information in the possession, custody or control of the prosecution or under the prosecution's direction and control," and provides a non-exhaustive list of materials subject to "automatic" disclosure. CPL § 245.20(1). Under CPL § 245.20(2), the People are required to "make a diligent, good faith effort to ascertain the existence of material or information discoverable under [CPL § 245.20(1)] and to cause such material or information to be made available for discovery where it exists but is not within the prosecutor's possession, custody or control." The People are not required, however, "to obtain material or information if it may be obtained with the use of a subpoena duces tecum where the defense is able to obtain the same material with the use of a subpoena duces tecum." CPL § 245.20(2).

The People must also certify their discovery compliance in writing by filing a COC. Importantly, the People may file their COC even if they have not yet disclosed all automatically discoverable items provided that they have "exercised due diligence and acted in good faith in making reasonable inquiries and efforts to obtain and provide the discovery required by [CPL § 245.20(1)]." CPL§ 245.50(1). The COC must "state that, after exercising due diligence and making reasonable inquiries and efforts to ascertain the existence of, obtain, and disclose material and information subject to discovery, the prosecution has disclosed and made available all known material and information it has obtained subject to discovery." CPL § 245.50(1) (emphasis added). The COC must also identify "the items provided" and "the items that the prosecution is required to disclose and of which the prosecution is aware but has been unable to obtain despite the exercise of due diligence as evaluated under this section." CPL § 245.50(1). If the People provide additional discovery in connection with their ongoing obligations outlined in CPL § 245.60, they must file "a supplemental certificate" that "identif[ies] the additional material and information provided." CPL §245.50(1). A SCOC will not impact the validity of the original COC if filed in good faith and after exercising due diligence or when the additional discovery did not exist when the initial COC was filed. CPL §245.50(1-a).

Once the People file a COC, a defendant must notify the People of any potential deficiencies in the COC by making "good faith efforts to confer with the [prosecution] regarding the specific and particularized matters" regarding the allegedly missing discovery. Then, if "no accommodation can be reached," the defense may file a motion to invalidate the People's COC [*3]provided that: (1) they do so within thirty-five days of the service of the People's COC; and (2) they file an accompanying affirmation of conferral stating that the defense "conferred in good faith or timely made good faith efforts to confer with the [prosecution] regarding the specific and particularized matters forming the basis for such challenge, that efforts to obtain the missing discovery from the [prosecution] or otherwise resolve the issues raised were unsuccessful, and that no accommodation could be reached." CPL § 245.50(4)(b)-(c). Significantly, the statute further specifies that "the court may grant a remedy or sanction for a discovery violation as provided in [CPL § 245.80]." CPL § 245.50(1). Any such remedy or sanction must be "appropriate and proportionate to the prejudice suffered by the party entitled to disclosure." CPL §245.80(1).

To determine the validity of the People's COC, a reviewing court must assess the People's due diligence. As the Court of Appeals held in People v Bay, 41 NY3d 200 (2023), due diligence is a "flexible standard that requires the People to make reasonable efforts to comply with statutory directives." Bay, 41 NY3d at 211 (internal quotation marks omitted). "Reasonableness, then, is the touchstone--a concept confirmed by the statutory directive to make 'reasonable inquiries.'" Id. at 211-12. Moreover, the Court recognized that, "[a]lthough the relevant factors for assessing due diligence may vary from case to case, courts should generally consider, among other things:" (1) "the efforts made by the prosecution and the prosecutor's office to comply with the statutory requirements;" (2) "the volume of discovery provided and outstanding;" (3) "the complexity of the case;" (4) "how obvious any missing material would likely have been to a prosecutor exercising due diligence;" (5) "the explanation for any discovery lapse;" and (6) "the People's response when apprised of any missing discovery." Id. at 212. These six factors are now part of the statutory due-diligence analysis under CPL § 245.50(5)(a). This section also requires courts to consider whether: (1) "the belated discovery was substantively duplicative, insignificant, or easily remedied;" (2) "the omission was corrected;" (3) "the prosecution self-reported the error and took prompt remedial action without court intervention;" and (4) "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." CPL § 245.50(5)(a). A reviewing court must "look at the totality of the party's efforts to comply with the provisions of [article 245], rather than assess the party's efforts item by item." CPL § 245.50(5). The statute further directs that "[t]he court's determination shall be based on consideration of all factors listed in [245.50(5)(a)] and no one factor shall be determinative." CPL § 245.50(5)(b).

Indeed, the Bay decision made clear that, in assessing the validity of a COC, the reviewing court should engage in a "holistic assessment of the People's efforts to comply with the automatic discovery provisions, rather than a strict item-by-item test that would require [a court] to conclude that a COC is improper if the People miss even one item of discovery." People v Cooperman, 225 AD3d 1216, 1220 (4th Dept 2024); see also People v Williams, 224 AD3d 998, 1006-07 (3d Dept 2024) (People's COC was valid even though three discoverable items had not been disclosed where People provided "extensive" discovery before filing COC, identified missing items when they filed the COC, and acknowledged their duty to provide missing items upon receipt). Notably, "[a]rticle 245 is not intended for use as a 'sword,' whereby [ADAs] are expected to run themselves ragged in at times futile or near-futile attempts to procure material in which defense counsel has no substantive interest beyond exhausting the People's statutory speedy trial time or hoping that the People, in frustration, opt to abandon the [*4]prosecution." People v Barrios, 82 Misc 3d 606, 613 (Crim Ct Bronx Co 2024); see also People v Thompson, 79 Misc 3d 1220(A), *2 (Crim Ct Kings Co 2023) (article 245 "does not require the impossible; it does not demand that every scrap of discoverable information be turned over before the People may file a [COC]") (internal quotation marks omitted).

Furthermore, certain delays or discovery issues should not invalidate a COC that was made in good faith, after the exercise of due diligence and efforts made by the prosecution to comply with statutory obligations. Bay at 210-213. If the delay is a result of oversights in the production of material, delayed discovery of the existence of certain items, a good faith position that the material in question was not discoverable, or voluminous files, the Bay decision clearly posits that a court should apply a "holistic assessment" of the efforts made by the People to comply with their discovery obligations when evaluating the validity of a COC. Id. Moreover, several courts have found that certain delays or discovery issues should not invalidate a COC that was made in good faith, after the exercise of due diligence, and where, for example, the delay was a result of oversights in the production of material, delayed discovery of the existence of certain items, voluminous discovery, non-existent items, or material unrelated to the case. People v Cano, 71 Misc 3d 728 (Sup Ct, Queens County 2020); People v Lustig, 68 Misc 3d 234 (Sup Ct, Queens County 2020) (Zayas, J)(court found the People's certificate of compliance to be valid, since it was clearly filed in good faith under CPL § 245.50(1) and, therefore, no adverse consequence to the prosecution should result from the fact that the certificate was filed prior to the disclosure of the database search results).

As an initial matter, this Court addresses whether defendant's motion was filed after the expiration of the 35-day time limit to challenge the People's COC, as the People assert. See CPL § 245.50 (4)(c). Defendant argues that his motion timely because he was served on January 2, 2026, rather than on December 30, 2025 — the date reflected on the People's COC. The People note that the January 2, 2026 date refers merely refers to when they sent courtesy copies on defense counsel via email. They note that they sent hardcopies sent via certified mail to the court and defense counsel on December 30, 2025. Defendant further notes in his reply papers that the COC was delivered on January 2, 2026, annexing a United States Postal Service (USPS) tracking code and history reflecting as such. Defendant also supplies the court with a photograph of the mailed envelope which has a postage stamp dated December 31, 2025. Defendant further argues that at the February 3, 2026 court date, this Court noted that the People's COC/SOR was effective as of January 2, 2026, and directed defendant to file his papers on February 5, 2026. The COC/SOR in the Court's file is dated December 30, 2025.

As initially noted, CPL § 245.50 (4)(c) provides that COC challenges "shall be addressed by motion within thirty-five days of the service of the certificate." The court may extend the 35-day limit "[u]pon request" and "for good cause shown," but the statute specifies that "[a] request for extension shall be made before the expiration of the thirty-five days" (CPL §245.50 [4][c][i]). Such extensions are excluded from a speedy trial calculation except in cases of unreasonable prosecutorial delay or bad faith (id.). The statute also allows filing outside the 35-day period "where the grounds for such challenge are based upon a material change in circumstances, including but not limited to the belated disclosure of discoverable material," or "where the party entitled to disclosure could not, with due diligence, have known of the specific and particularized matters forming the basis of the challenge prior to the expiration of such period" (CPL 245.50 § [4][c][ii]).

Here, this Court finds that defendant's motion is untimely, filed after the expiration of the [*5]35 day deadline, irrespective of whether the COC was mailed on December 30, 2025, the date noted on the COC, or December 31, 2025, the date of the postmark. Contrary to defendant's contentions, the January 2, 2026 date of mailed delivery/emailed courtesy copy cannot be said to be the service date. Defendant's claims regarding the February 3, 2026 court date are belied by the record. The court minutes reflect that this Court did not deem the People's COC/SOR effective as of January 2, 2026, nor did this Court allow for any extensions of time to file motions. Indeed, no good cause extension applications were made to this Court. "[T]he legislature clearly intended to impose strict timeliness requirements for COC challenges that courts will apply uniformly. The statute sets a specific timeline and makes clear that the penalty for failure to comply with its timeliness provision is waiver of the COC challenge." People v Minor, 2026 NY Slip Op 50255(U) (Crim Ct NY Co 2026) (Coleman, J). For these reasons, defendant's motion is denied as untimely.

Defendant's motion is furthermore denied because counsel's affirmation fails to establish that "no accommodation could be reached" after speaking with the prosecutor prior to seeking court intervention. CPL 245.50(4). As initially noted, in order to challenge the People's COC, defense counsel must file an accompanying affirmation of conferral stating that the defense "conferred in good faith or timely made good faith efforts to confer with the [prosecution] regarding the specific and particularized matters forming the basis for such challenge, that efforts to obtain the missing discovery from the [prosecution] or otherwise resolve the issues raised were unsuccessful, and that no accommodation could be reached." Id. To the contrary, here, counsel's affirmation establishes that defendant expeditiously received the requested accommodations — the belatedly disclosed items — after speaking to the prosecutor. Defendant's other discovery qualms were also otherwise resolved during conferral. Specifically, the prosecutor informed defense counsel that updated CCRB and disclosure indexes would be provided if they became available. Likewise, the prosecutor noted that she would disclose any photographs upon receipt. Thus, defendant received "accommodations" and conferral attempts were successful. That should have ended the matter as to these items. See People v Whitney, 245 NYS3d 900, 906 (Crim Ct NY Co 2025); People v Garcia, 2026 NY Slip Op 50367(U) (Crim Ct Bronx Co 2026).

Thus, the only item that defendant did not successfully receive an accommodation for is the undisclosed interrupted patrol logs. But the conferral records demonstrate that rather than ignore the item, the People asked clarification as to the nature and discoverability of the item, investigated it, and subsequently informed defendant that the interrupted patrol logs were not discoverable while citing caselaw (People v Arbaszewski, 85 Misc 3d 1218(A), *17 [Sup Ct Queens Co 2025]; People v Aca, 2025 NY Slip Op 51052(U) [Crim Ct NY Co 2025] [Shamahs, J]). The People sought further clarification from defense counsel as to defendant's specific theory on discoverability and how the logs related to the subject matter of the instant charges without response. As this Court has previously noted, when the defense demands materials that they allege are discoverable, the defense must demonstrate that such materials are discoverable. People v Clifford, 2025 NY Slip OP 25247 at *6 (Crim Ct NY Co 2025). Indeed, defense counsels cannot be said to have informed the People of the "specific and particularized matters forming the basis" of a COC challenge — as required — if , like here, the People only learn of defendant's position and legal theory for the disclosure of material for the first time by COC challenge. CPL § 245.50(4)(c). Thus, this claim is also procedurally barred and defendant has accordingly waived his right to challenge the People's COC.

In any event, defendant's motion is without merit. A "holistic assessment" of the People's disclosures, papers, court file, COC, and supplemental COCs filed demonstrates that their initial disclosures were substantial and extensive, especially in comparison to the few items defendant takes issue with, and the People's belated disclosures were reasonable under the circumstances. After defense counsel requested additional discovery, the People were responsive to those requests to resolve any potential discovery lapses as they made various attempts to provide defense counsel with requested materials and did so, continuing to confer with defense counsel and addressing every line-item demand. Defendant, also, remains entirely unprejudiced. In addition, the New York County District Attorney's Office has made considerable and laudable efforts to facilitate discovery compliance, such as a creating BWC, LED, and LSU units and assigning paralegals and support staff to obtain discovery. And contrary to defendant's contention, "[t]he creation of these additional units and allocation of resources to generally address their discovery obligations under CPL Article 245 support a finding of due diligence on the part of the [New York] County District Attorney's Office in fulfillment of their discovery obligation in this case." People v Antunez, 86 Misc 3d 1265(A), *5 (Sup Ct Queens Co 2025) (Yavinsky, J). Taken together, this all demonstrates that the People's initial COC, made in good faith and after exercising due diligence, was valid.

Accordingly, for the reasons discussed above, defendant's motion is denied. This Court further declines to address the parties' remaining contentions and in light of this determination, the Court need not reach defendant's speedy trial claim.

The foregoing constitutes the Opinion, Decision, and Order of the Court.

Dated: April 6, 2026

New York, New York

ELIZABETH Y. SHAMAHS, J.C.C.