People v Zayas

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

Decided on May 20, 2026

Docket No. CR-037997-25NY

Terence W. McCormick, J.

Defendant Omal Zayas is charged with three separate violations of the Vehicle and Traffic Law: (1) VTL § 1192(2) (Operating a Motor Vehicle While Intoxicated — 1st Offense — Not DNA Eligible), (2) VTL § 1192(3) (Operating a Motor Vehicle While Intoxicated), and (3) VTL § 1192(1) (Operating a Motor Vehicle While Impaired by Alcohol). Defendant moves to dismiss the charges on speedy trial grounds, arguing that the People failed timely to convert the misdemeanor complaint prior to filing their Certificate of Readiness. The People respond that despite prior rulings by two other judges (at arraignment and in Part E) that a supporting deposition was required to convert the charging instrument, the accompanying IDTU report sufficed to cure hearsay in the document. Defendant alternatively argues that the Certificate of Compliance is invalid because the People did not exercise due diligence in the course of discovery and that the charges should be dismissed on those grounds as well. The People oppose.

For the reasons that follow, the Court determines that the Certificate of Readiness was not illusory because the misdemeanor complaint was, in fact, converted at arraignment, notwithstanding the determination by two prior judges that the matter needed to be adjourned for a supporting deposition and conversion. The Court further rejects Defendant's argument that the law of the case doctrine bars this Court from revisiting the prior judges' determination of that question. However, the People have not exercised due diligence before filing their Certificate of Compliance ("COC"). Therefore, the Defendant's motion to dismiss is GRANTED. Defendant's request for an Allard hearing is DENIED as moot.

BACKGROUND

Defendant was arraigned on a misdemeanor complaint on December 14, 2025. The misdemeanor complaint charges Defendant with violating VTL §§ 1192(2), 1192(3), and 1192(1). In the first two paragraphs of the factual portion of the complaint, the arresting officer attested to matters of his own personal knowledge, stating that he had observed Defendant driving a black Lexus and making contact with another vehicle. The arresting officer further set forth his personal observations regarding Defendant's alleged state of intoxication at the time, e.g., Defendant's bloodshot and watery eyes, an odor of alcohol on Defendant's breath, and unsteady feet.

However, the third paragraph of the misdemeanor complaint also contained the following [*2]averment of fact, which is based on hearsay:

I am informed by Police Officer Guzmancabrera, shield #26135, of Highway Unit No. 1, that Police Officer Guzmancabrera administered a test to determine the defendant's blood alcohol content and that the test indicated that the defendant had a blood alcohol content of 0.127 per centum by weight of alcohol in his blood.

At arraignment, the People also filed, inter alia, a Police Department form titled "Highway District Intoxicated Driver Testing Unit," or "IDTU," which details the results of a New York State evidential breath analysis test. The IDTU report, subscribed and verified by Officer Guzmancabrera, mirrored the allegations of the third paragraph of the Complaint. Specifically, in the IDTU Officer Guzmancabrera recited that he had conducted a test of the alcohol content of Defendant's breath ("the above test was performed by me") and reported a blood alcohol content of 0.127 as of 06:10:07. The People did not file a separate supporting deposition from Officer Guzmancabrera.

At arraignment, the judge did not deem the misdemeanor complaint an information but instead adjourned the matter to February 3, 2026, in Part E for a supporting deposition and conversion. The parties appeared on that date, but the People did not file a separate supporting deposition from Officer Guzmancabrera (the stated purpose of the adjournment), although they did (once again) present the court with a copy of his IDTU report. The Part E judge noted that there remained uncured hearsay in the third paragraph of the complaint and further observed that the IDTU report had already been served at Defendant's arraignment. A sidebar took place, after which time the People recited that "they do need one more supporting deposition for this matter." The record does not, however, clearly indicate whether the judge in Part E (or the judge at Defendant's arraignment) focused or specifically ruled on the question of whether the IDTU report itself functioned as a supporting deposition. What is clear is that both judges (and the parties) agreed that a supporting deposition was required to take the hearsay out of the third paragraph of the complaint. The People did not announce readiness for trial at this appearance. Accordingly, the Part E judge thereupon adjourned the matter to March 17, 2026, in Part E for a supporting deposition and marked the matter "final," meaning, of course, that if the misdemeanor complaint had not been converted by that time, the matter would have to be dismissed, the 90-day period from commencement of the action having passed by that time. CPL § 30.30(1)(b). On February 9, 2026, the People filed readiness documents off-calendar, including a Certificate of Readiness.

On March 12, 2026, defense counsel sent the People a conferral about any potentially delayed, missing, or outstanding items of discovery. Specifically, defense counsel inquired into the following: gas chromatography records for lot 25330, an accident report and photos, activity logs for other responding officers, and a radio run. On March 13, 2026, the People responded to the inquiry and filed a Supplemental COC off calendar.

On the adjourned date, the parties appeared once more in Part E, this time before the undersigned judge. At this juncture, the People declared ready, but Defendant's counsel objected on the grounds that the misdemeanor complaint had not been converted within 90 days pursuant to CPL § 30.30(1)(b) and, therefore, the previously-filed Certificate of Readiness was illusory.

Defendant's counsel further took the position that the People were precluded from arguing that the misdemeanor complaint should be deemed converted on the basis of the IDTU report because two judges had previously determined that a supporting deposition was necessary. Defendant's counsel correctly observed that the procedural history of the prior judges' oral [*3]rulings raised the question of whether the law of the case doctrine barred the People from arguing that the misdemeanor complaint could be deemed to have been converted at arraignment or in the AP Part. The undersigned invited the parties to brief the matter. On April 2, 2026, Defendant filed the instant motion to dismiss. On May 8, 2026, the People filed their response. This decision follows.

DISCUSSION

I. Conversion

The Court first addresses Defendant's argument that the People could not have been ready for trial when they filed their Certificate of Readiness because the accusatory instrument had not yet been converted to an information. (Defendant Motion ¶¶ 48-57.) For the reasons that follow, the Court determines that the misdemeanor complaint was, in fact, converted to an information when the People filed their IDTU paperwork at arraignment and that conversion was, therefore, not an impediment to the People's declaration of readiness. The Court further determines that its decision in this regard is not barred by the law of the case.

A. The IDTU Report Cured the Hearsay in the Misdemeanor Complaint.

"[I]t is obvious that the People cannot be ready for trial within 90 days or 60 days of commencement of [misdemeanor] actions if they have not converted the complaints to jurisdictionally sufficient informations within those periods" (People v Colon, 110 Misc 2d 917, 920 [Crim Ct, NY County 1981], rev'd, 112 Misc 2d 790 [App. Term 1st Dept 1982], rev'd, 59 NY2d 921 [1983], and order reinstated, 59 NY2d 921 [1983]). Thus, a sine qua non of a valid Certificate of Readiness is that "the prosecuting attorney certifies that all counts charged in the accusatory instrument meet the requirements of sections 100.15 and 100.40 of this chapter and those counts not meeting the requirements of sections 100.15 and 100.40 of this chapter have been dismissed." CPL § 30.30(5-a).

Concerning the legal sufficiency of an accusatory instrument, the Court of Appeals stated in People v Casey, 95 NY2d 354, 360 [2000] as follows:

The procedural requirements for the factual portion of a local criminal court information are, simply: that it state "facts of an evidentiary character supporting or tending to support the charges" (CPL 100.15[3]; see, CPL 100.40[1][a]); that the "allegations of the factual part ... together with those of any supporting depositions ... provide reasonable cause to believe that the defendant committed the offense charged" (CPL 100.40[1][b]); and that the "[n]on-hearsay allegations [of the information and supporting depositions] establish, if true, every element of the offense charged and the defendant's commission thereof" (CPL 100.40[1][c]; see, CPL 100.15[3]).

Thus, an information "must set forth the required nonhearsay evidentiary allegations within 'the four corners of the instrument itself' or in annexed supporting depositions" (People v Thomas, 4 NY3d 143, 146 [2005]).

Here, the misdemeanor complaint undeniably contained hearsay within its four corners, i.e., the arresting officer's averment that "I am informed by Police Officer Guzmancabrera . . . that . . . Guzmancabrera administered a test to determine the defendant's blood alcohol content and the test indicated that the defendant had a blood alcohol content of 0.127 per centum by weight of alcohol in his blood" (emphasis added). It was therefore incumbent upon the People to file a supporting deposition. Typically, such a supporting deposition takes the familiar form of a document expressly denominated as such, commencing with the caption of the action and [*4]containing thereunder the subscribed and verified statement of the deponent attesting as a matter of personal knowledge to the facts appearing in the complaint, thereby curing the hearsay. It is undisputed that the People did not file a document of that sort before filing their Certificate of Readiness, despite two invitations to do so by different judges of this Court.

The question remains, however, whether the IDTU report attached and filed with the misdemeanor complaint at Defendant's arraignment (and presented to two different judges at subsequent appearances) functions as a "supporting deposition" within the meaning of the CPL and whether, because it was always before the Court, the charging instrument was therefore facially sufficient and properly to be deemed an information at arraignment (and, therefore, as of the date the People filed their Certificate of Readiness). The Court finds that it was.

CPL § 100.20 defines a supporting deposition as follows:

A supporting deposition is a written instrument accompanying or filed in connection with an information, a simplified information, a misdemeanor complaint or a felony complaint, subscribed and verified by a person other than the complainant of such accusatory instrument, and containing factual allegations of an evidentiary character, based either upon personal knowledge or upon information and belief, which supplement those of the accusatory instrument and support or tend to support the charge or charges contained therein.

A careful examination of the IDTU form in this case reveals that it contains all the statutorily prescribed elements of a "supporting deposition" set forth in CPL § 100.20. To begin with, Officer Guzmancabrera is "a person other than the complainant." Furthermore, his report contains "factual allegations of an evidentiary character," specifically a sworn statement made as of his own personal knowledge that (1) he conducted a test of the alcohol content of Defendant's breath and (2) Defendant has a blood alcohol content of 0.127 (corresponding to allegations in the third paragraph of the misdemeanor complaint).

Finally, the IDTU report contains a form notice subscribed by the technician (Officer Guzmancabrera), with his shield number (26135) associated on the line with the signature. This is the person referred to in the third paragraph of the misdemeanor complaint and from whom a supporting deposition would be required. The form notice concludes with the acknowledgement that "[f]alse statements made herein are punishable as a class 'A' misdemeanor pursuant to section 210.45 of the New York State Penal Law." This statement, in turn, tracks the language of CPL § 100.30(1)(d), which is part of the statute that prescribes the authorized methods of verifying charging instruments and supporting depositions.^FN1 Accordingly, the IDTU is "subscribed and verified" within the meaning of CPL § 100.20.

It follows that there was no need to file a redundant supporting deposition from Officer Guzmancabrera. While the People and the judges at arraignment and again in Part E (correctly) noted the presence of hearsay in the misdemeanor complaint and determined that a supporting deposition was required, this Court nonetheless concludes that the IDTU report served that [*5]function all along.^FN2 In sum, the IDTU report supplied the requisite non-hearsay allegations needed to establish the element of intoxication, see CPL § 100.40(1)(c), and the misdemeanor complaint could therefore properly be considered a facially sufficient information as of the date the Certificate of Readiness was filed.

B. The Law of the Case Doctrine Does Not Bar the Court's Review of Whether the Misdemeanor Complaint Was Converted by the IDTU Report.

Although this Court has determined that the misdemeanor complaint was converted as of Defendant's arraignment, the Court must address whether it is nevertheless bound by the law of the case doctrine to treat the charging instrument as an unconverted instrument because the matter had been adjourned for conversion on two prior occasions by judges of coordinate jurisdiction. On both occasions (i.e., the arraignment on December 14, 2025, and the subsequent hearing in Part E on February 3, 2026), the two previously assigned judges had the IDTU report before them but determined that a supporting deposition was required. Concededly, it is a close question, but the Court concludes that it is not bound by the law of the case doctrine to reject the IDTU report as a basis for conversion.

The law of the case doctrine applies in criminal as well as civil cases and has been described as "a kind of intra-action res judicata" (People v Evans, 94 NY2d 499, 502 [2000] (quoting Siegel, New York Practice § 448, at 723 [3d ed.]). Furthermore, "preclusion under the law of the case contemplates that the parties had a 'full and fair' opportunity to litigate the initial determination." Id. Here, the record shows that the issue of conversion was not fully litigated.

Oral rulings from the bench that a matter should be adjourned for conversion, such as through the submission of lab reports or supporting depositions, are not the equivalent of fully litigated motions based upon developed arguments, and are therefore not binding as law of the case on judges sitting in a calendar or trial part on subsequently adjourned dates (see, e.g., People v Portorreal, 28 Misc 3d 388, 392 & n.3 [Crim Ct, Queens County 2010]). Here, there was no such formal litigation of the issue before the instant motion. Moreover, the oral rulings of the previously assigned judges shed very little light on their reasoning. The transcript of the colloquy between the AP Part judge and the parties on February 3, 2026, is sparse. Although the transcript refers to a bench conference, it does not go on to describe the substance of what was discussed other than to recite that the People conceded "they do need one more supporting deposition for this matter." All that is left are notations on the court file, which do not reveal whether the AP Part (or the judge at arraignment) specifically decided whether the IDTU report itself satisfied the CPL's requirements for a supporting deposition or otherwise cured the hearsay in the misdemeanor complaint. It was not until the instant motion to dismiss on speedy trial grounds that the parties fully litigated the issue.

People v Valera, 58 Misc 3d 369 [Crim Ct, Bronx County 2017], presents a closely analogous situation. As in the instant case, the defendant in Valera was prosecuted for driving while intoxicated and while his ability to operate a motor vehicle was impaired. In Valera, the judge at arraignment was confronted with a defective refusal form (thereby preventing the court from suspending the defendant's license at arraignment) and adjourned the matter for conversion. [*6]At a subsequent adjournment in a calendar part, the People argued that the refusal report was not needed for conversion. But, after a bench conference, the calendar part judge adjourned the case once again for conversion, noting that the arraignment judge had previously indicated that the accusatory instrument was not converted. At the next appearance, the People declared ready, but, once again, they did not file an amended refusal report, arguing that it was not needed to cure any hearsay (Valera, 58 Misc 3d at 371-72).

After the court adjourned the matter once again, and the People continued to assert that the refusal form was not required to convert the complaint, the court entertained a motion to dismiss on speedy trial grounds (see id. at 372-73). Although the matter had been adjourned on multiple occasions and two prior judges had determined that the complaint needed to be converted, the court in Valera held that the issue had not been fully litigated until the speedy trial motion was briefed to the court and the law of the case doctrine did not prevent the court from determining that the accusatory had been converted at arraignment after all (see Valera, 58 Misc 3d at 379-80).

Significantly, "law of the case is a judicially crafted policy that 'expresses the practice of courts generally to refuse to reopen what has been decided, [and is] not a limit to their power'" (People v Evans, 94 NY2d at 503 (quoting Messenger v Anderson, 225 U.S. 436, 444 [1912]). Under the circumstances of this case, the Court is satisfied that the law of the case doctrine does not prevent the Court from examining whether the misdemeanor complaint was actually converted at arraignment. Accordingly, the Court concludes that law of the case does not require a finding that the People's Certificate of Readiness was illusory and that part of Defendant's motion that seeks to invalidate the Certificate of Readiness pursuant to CPL §§ 170.30(1)(c), 100.40, and 30.30 is DENIED.

II. COC Challenge

Defendant seeks invalidation of the People's COC and Supplemental COC and subsequent dismissal of the accusatory instrument based upon the People's alleged delayed disclosure of simulator solution verification results for lot 25330. Additionally, Defendant seeks invalidation of the People's COC and SCOCs and subsequent dismissal of the accusatory instrument based upon the People's alleged failure to share (1) a Port Authority Radio Run, (2) an accident report, and (3) activity logs for Officers Rehpani, Melenciano, Cumberbatch, Cruz, Lainez, Arroyo, and Reyes. The People argue that the items that were discoverable were disclosed as soon as they were given notice of them and items that were not disclosed were not discoverable. The People further argue that, in any event, they filed their COC in good faith upon the exercise of due diligence.

Because the instant matter is a misdemeanor case, CPL § 30.30 requires the People to be ready for trial within 90 days of the commencement of the action, absent excludable time. See CPL § 30.30(1)(b). The People cannot declare their trial readiness, however, unless they have also complied with their disclosure obligations under New York's discovery law, which requires them to disclose "material and information" in their possession from a non-exhaustive list of categories. See CPL §§ 245.20(1); 30.30(5). Items in the possession of "any New York state or local police or law enforcement agency" are deemed to be in the People's possession. See CPL § 245.20(2). If materials exist but are not in the People's possession or control, the People are required "to make a diligent, good faith effort to ascertain the existence of [this material]" and produce it to the Defendant. See id. The People are not required to obtain by subpoena duces tecum that which the Defendant may obtain by the same. Id.

The People are ready for trial when they communicate their actual readiness in open court or file a certificate of actual readiness with the court and serve a copy on the defendant's attorney. (See People v Kendzia, 64 NY2d 331 [1985]). The COC "shall state that, after exercising due diligence and making reasonable inquiries to ascertain the existence of materials and information subject to discovery (under CPL § 245.20), the prosecutor has disclosed and made available all known material and information subject to discovery." (People v Bay, 41 NY3d 200, 209 [2023] quoting CPL § 245.50[1]). The COC's validity turns on whether the People exercised due diligence in complying with their discovery obligations under Article 245 prior to the filing of that COC, and it is the People's burden to demonstrate that they acted with such diligence. See Bay, 41 NY3d at 209.

Thus, the Court must decide whether the belated disclosure of the above-referenced materials and nondisclosure of some materials invalidates the People's COC and renders their SOR illusory. Belated disclosures do not "necessarily render an initial COC improper," and the analysis of the People's due diligence is "fundamentally case specific." (See Bay, 41 NY3d at 212). As of the date of this decision, the revisions to Article 245 are in effect to all "pending cases." (See 2025 NY Sess. Laws Ch. 56 [S. 3006-C], Part LL § 8 [revisions were adopted May 9, with their effective date explicitly delayed 90 days, and apply to all cases 'pending' at that time]). Article 245 now directs courts to consider "the totality of the party's efforts to comply with the provisions of this article, rather than [to] assess the party's efforts item by item." CPL § 245.50(5). The amendments also codified several factors, many of which were previously articulated in Bay, that courts must consider when evaluating the People's exercise of due diligence in complying with their discovery obligations:

(1) The efforts made by the People to comply; (2) the volume of discovery provided and the volume still outstanding; (3) the complexity of the case; (4) whether the People knew that the belatedly disclosed or allegedly missing material existed; (5) the explanation for the discovery lapse; (6) the prosecutor's response when apprised of the missing discovery; (7) whether the belated discovery was substantially duplicative; (8) whether the omission was corrected; (9) whether the People self-reported the error and took prompt remedial action without court intervention; and (10) whether the Defendant was prejudiced by the delay.

See CPL § 245.50(5)(b).

Defendant argues that the People's failure to timely produce simulator solution verification results for lot 25330 warrants invalidation of the People's COC. (Defendant Motion at ¶ 13.) The People claim that they did not turn it over initially because it did not exist when they filed their initial COC. (People's Response at ¶ 8; People's Exhibit 4.) Defendant responds that the People did not properly review their files because the document that they received is dated October 2025, two months before the incident took place. (Defendant Motion at ¶ 13.) Ultimately, the People turned this item over with one day of being notified of its absence. Given the quick correction, the delay in supplying this item does not, by itself, demonstrate a lack of diligence.^FN3

Defendant argues that the People's failure to timely produce a radio run from the incident warrants invalidation of the People's COC. (Defendant Motion at ¶¶ 13, 28.) The People contend that their request for this record came back with negative results, seemingly suggesting that this item does not exist. (People's Exhibit 4.) However, Defendant directs the Court's attention to the fact that this mistake occurred because the People could not even take a moment to listen to the 911 call themselves. (Defendant Motion at ¶¶ 13, 28.) The Court does not accept that the People exercised due diligence if they could not even review their own discovery before sharing it.

Defendant argues that the People's failure to produce an accident report and activity logs for seven officers' warrants invalidation of the People's COC. (Defendant Motion at ¶ 13, 28.) The People offer no explanation as to the whereabouts of either of these items in their response. At best, the Court observes that the People acknowledge the possibility that there are activity logs and an accident report. (People's Exhibit 3.) Instead, Defendant points out that at the time of their filings, three weeks had passed and the People remained radio silent as to the whereabouts of these documents. (Defendant Motion at ¶ 28.) Another four weeks passed after service of Defendant's papers and the People still provided no answer as to these documents. The Court can only conclude that the People have not acted with due diligence.

After consideration of the Bay factors, the Court finds that the People have not exercised due diligence upon filing their initial COC on February 9, 2026, or upon filing their Supplemental COCs on February 10, 2026, and March 13, 2026. Considering "the totality of the [People's] efforts to comply with [their discovery obligations]," see CPL § 245.50(5), the Court finds that the People's nondisclosure of the previously listed materials, namely the radio run, accident report, and activity logs demonstrates a lack of due diligence warranting invalidation of the People's COC. The People made bare attempts, if any at all, at obtaining items that would have been generated by the police at the commencement of this matter. The People also seemingly failed to take any reasonable steps in determining if those items even existed. This is not a particularly complex case with any sort of voluminous discovery and yet it appears that the People did not even review their own discovery before sharing it. The Court cannot take note of the balance of the People's efforts to produce other discovery in this matter because the People did not even address their efforts in their filings. Indeed, the People's motion papers were conspicuously sparse (as to both the challenge to the COC and the issue of conversion). In whole, the Court finds the People's explanation regarding the unaccounted for items so unpersuasive that a holistic view of the People's discovery efforts points to a failure of due diligence. Therefore, this Court agrees with Defendant and finds the People's COCs to be invalid and their Statement of Readiness to be illusory.

* * *

III. CPL § 30.30 Calculation

Because the Defendant is accused of a misdemeanor offense punishable by a sentence of imprisonment of more than three months, the People must be ready for trial within 90 days of the commencement of the criminal action, less any excludable time. See CPL § 30.30 (1)(b) and (4). The People's CPL § 30.30 time commenced on December 15, 2025, the day after the accusatory instrument was filed. (See People v Stiles, 70 NY2d 765, 767 [1987] [finding that, for speedy trial purposes, the calculation begins on the day after arraignment]). The Court has found the [*7]People's February 9, 2026, COC and their subsequent Supplemental COCs invalid. The People's speedy trial clock only stopped once a motion schedule was ordered on March 17, 2026. Thus, the People are charged 92 days. Because the People have exceeded the ninety days within which they must be ready for trial, the Defendant's motion to dismiss pursuant to CPL § 30.30 is GRANTED.

This constitutes the Decision and Order of the court.

Dated: May 20, 2026

New York, New York

E N T E R:

Terence W. McCormick, J.C.C.