People v Blank

Supreme Court, Appellate Term, Second Department, 9th And 10th Judicial Districts

Decided on March 20, 2026

2023-651 N CR

Present: : Timothy S. Driscoll, J.P., Gretchen Walsh, Joseph R. Conway, JJ

Danielle Coysh, for appellant.

Nassau County District Attorney (Autumn S. Hughes and Monica M .C. Leiter of counsel), for respondent.

Appeal from a judgment of the District Court of Nassau County, First District (Douglas J. Lerose, J.), rendered May 11, 2023. The judgment convicted defendant, after a nonjury trial, of aggravated harassment in the second degree, and imposed sentence. The appeal brings up for review an order of that court dated February 23, 2023 denying defendant's motion to invalidate the People's initial and supplemental certificates of compliance and to dismiss the accusatory instrument under District Court docket No. CR-003950-22NA on statutory speedy trial grounds.

ORDERED that the judgment of conviction is affirmed.

Insofar as is relevant to this appeal, on March 18, 2022, under District Court docket No. CR-003950-22NA, defendant was arraigned on an accusatory instrument charging him with aggravated harassment in the second degree (Penal Law § 240.30 [1] [b]) and stalking in the fourth degree (Penal Law § 120.45 [2]).^FN1

On August 29, 2022, the People filed a statement of readiness [*2](SOR), which included a certification pursuant to CPL 30.30 (5-a), and a certificate of compliance (COC). On November 17, 2022, the People turned over police body-worn camera (BWC) videos capturing an incident that occurred on or about February 25, 2022, and filed a supplemental COC in connection therewith on November 21, 2022. In December 2022, defendant moved to invalidate the People's initial and supplemental COCs and to dismiss the accusatory instrument under docket No. CR-003950-22NA on statutory speedy trial grounds, arguing that the belated disclosure of the BWC videos rendered the People's initial COC improper pursuant to former CPL article 245.

^FN2 The People opposed. By order dated February 23, 2023, the District Court (Douglas J. Lerose, J.) denied defendant's motion.

At a nonjury trial, the complainant testified that, during a protracted and bitter dispute over occupancy of an apartment, defendant sent the complainant a text message on February 27, 2022, the night before the complainant was supposed to vacate the apartment and defendant would take possession, that read, in relevant part, "Fyi I will wear a mask. I do have COVID!!! But I will make sure I breathe on you you dirt bag." Following the trial, defendant was convicted of aggravated harassment in the second degree and acquitted of stalking in the fourth degree.

On appeal, defendant argues that his statutory speedy trial motion should have been granted; that the verdict was not supported by legally sufficient evidence and was against the weight of the evidence because the evidence did not establish that defendant was the person who sent the February 27, 2022 text message; and that the February 27, 2022 text message did not constitute a true threat.

Absent an individualized finding of special circumstances, the filing of a valid COC is a prerequisite to the People being ready for trial under CPL 30.30 (see CPL 245.20, 245.50 [3]). Under former CPL article 245, the People were required to provide defendant with "all items and information that relate[d] to the subject matter of the case and [were] in the possession, custody or control of the prosecution" (former CPL 245.20 [1]), including "[a]ll tapes or other electronic recordings" (CPL 245.20 [1] [g]). Pursuant to CPL 245.20 (2), "all items and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency shall be deemed to be in the possession of the prosecution."

Analyzing former CPL article 245, the Court of Appeals held that the statute did not create a "rule of strict liability" or require a "perfect prosecutor" (People v Bay, 41 NY3d 200, 212 [2023] [internal quotation marks omitted]). "[T]he key question in determining if a proper COC ha[d] been filed [under the former statute] [was] whether the prosecution ha[d] 'exercis[ed] due diligence and ma[de] reasonable inquiries to ascertain the existence of material and information subject to discovery' " (id. at 211, quoting former CPL 245.50 [1]). "Although the [former] statute nowhere [*3]define[d] 'due diligence,' " the Court of Appeals concluded that "it [was] a familiar and flexible standard that require[d] the People 'to make reasonable efforts' to comply with statutory directives" (People v Bay, 41 NY3d at 211, quoting People v Bolden, 81 NY2d 146, 155 [1993]). The Court of Appeals advised that, "[a]lthough the relevant factors for assessing due diligence may vary from case to case, courts should generally consider, among other things, the efforts made by the prosecution and the prosecutor's office to comply with the statutory requirements, the volume of discovery provided and outstanding, the complexity of the case, how obvious any missing material would likely have been to a prosecutor exercising due diligence, the explanation for any discovery lapse, and the People's response when apprised of any missing discovery" (People v Bay, 41 NY3d at 212). Under former CPL article 245, "a valid certificate of compliance and readiness declaration will not be rendered illusory by subsequent diligent disclosures made in good faith" (People ex rel. Nieves v Maginley-Liddie, 232 AD3d 568, 569 [2d Dept 2024] [internal quotation marks omitted]; see People v Macaluso, 230 AD3d 1158, 1159 [2d Dept 2024]).

Here, though the BWC videos turned over on November 17, 2022 were subject to automatic discovery (see CPL 245.20 [1] [g]; [2]), the belated disclosure of the videos did not invalidate the People's original COC because "the People met their burden of establishing that they had 'exercise[d] due diligence and made reasonable inquiries prior to filing the [initial COC] despite a belated or missing disclosure' " (People v Odusanya, 235 AD3d 1299, 1301 [4th Dept 2025], quoting People v Bay, 41 NY3d at 213). "Even though the underlying case was not particularly complex, which cuts against a finding of due diligence, most of the other remaining [Bay] factors, when considered as part of a 'holistic assessment,' 'rather than a strict item-by-item test,' support the conclusion that the People exercised due diligence" prior to filing the initial COC (People v McMahon, 237 AD3d 746, 751 [2d Dept 2025], quoting People v Cooperman, 225 AD3d 1216, 1220 [4th Dept 2024]). The People made substantial efforts to comply with their discovery obligations under former CPL article 245 and turned over a considerable volume of material, including Giglio disclosures for four law enforcement officers, memo books for two officers, communications between defendant and the complainant, defendant's cell phone records for the relevant dates, police paperwork, and BWC videos from dates other than February 25, 2022. Moreover, "[u]nlike the missing material in Bay, [which included an arrest report, a 911 call and the associated call detail report, and a domestic incident report,] the [BWC videos] at issue here w[ere] not discovery material that would have been obviously missing or critical to the underlying case" (People v Cooperman, 225 AD3d at 1220; see People v McMahon, 237 AD3d at 751; People v Macaluso, 230 AD3d at 1160). Additionally, when apprised of the existence of the videos, the People promptly obtained them and disclosed them to defendant (see People v Contompasis, 236 AD3d 138, 150 [3d Dept 2025]).

In view of the foregoing, the District Court correctly denied the branch of defendant's motion seeking to invalidate the People's initial COC (see People v Lawrence, 231 AD3d 1497, 1500-1501 [4th Dept 2024]).

Since the most serious offense charged in the accusatory instrument under docket No. CR-003950-22NA is a class A misdemeanor, the People were required to be ready for trial within 90 days of the commencement of the action (see CPL 30.30 [1] [b]; People v Lomax, 50 NY2d 351, [*4]356 [1980]). In light of the validity of the People's initial COC, the accompanying SOR stopped the speedy trial clock with fewer than 90 days chargeable to the People. Consequently, the Criminal Court correctly denied the branch of defendant's motion seeking to dismiss the accusatory instrument under docket No. CR-003950-22NA on statutory speedy trial grounds.

Viewing the evidence in the light most favorable to the People (see People v Dubarry, 25 NY3d 161, 178 [2015]; People v Contes, 60 NY2d 620, 621 [1983]) and indulging in all reasonable inferences in the People's favor (see People v Gordon, 23 NY3d 643, 649 [2014]; People v Delamota, 18 NY3d 107, 113 [2011]), we find that the evidence was legally sufficient to establish, beyond a reasonable doubt, that defendant sent the February 27, 2022 text message (see People v Carmichael, 170 AD3d 742, 742 [2d Dept 2019]). Defendant's contention that the February 27, 2022 text message did not constitute a true threat is unpreserved and, in any event, without merit (see Virginia v Black, 538 US 343, 359 [2003]; People v Goetze, 73 Misc 3d 143[A], 2021 NY Slip Op 51235[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2021]; People v Pierre, 70 Misc 3d 69, 72 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; People v Morales, 63 Misc 3d 135[A], 2019 NY Slip Op 50483[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; People v Mutell, 62 Misc 3d 127[A], 2018 NY Slip Op 51862[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]; People v Lewis, 52 Misc 3d 134[A], 2016 NY Slip Op 51025[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; cf. People v Canjura, 46 Misc 3d 66, 69 [App Term, 2d Dept, 9th & 10th Jud Dists 2014]).

In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348-349 [2007]), we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear their testimony, observe their demeanor, and assess their credibility (see People v Lane, 7 NY3d 888, 890 [2006]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon a review of the record, we find no basis to disturb the District Court's credibility determinations and, as a result, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Ramirez, 192 AD3d 825, 826 [2d Dept 2021]; People v Conti, 69 Misc 3d 146[A], 2020 NY Slip Op 51416[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2020]).

Accordingly, the judgment of conviction is affirmed.

DRISCOLL, J.P., WALSH and CONWAY, JJ., concur.

ENTER:

Jennifer Chan

Chief Clerk

Decision Date: March 20, 2026