The People of the State of New York, Respondent, v. Abraham Kasner, Defendant-Appellant. (2026)

Per Curiam.

Judgment (Jonathan Svetkey, J., at speedy trial motion; Michael Gaffey, J., at trial; Kacie Lally, J., on remand of speedy trial motion), rendered September 26, 2022, affirmed.

In our prior decision (People v Kasner, 86 Misc 3d 131[A], 2025 NY Slip Op 50999[U] [App Term, 1st Dept 2025]), we held that it was error to use a "good-faith only standard" to determine whether the People complied with their discovery obligations, and remitted the matter to Criminal Court for a determination of whether the People exercised due diligence and made reasonable inquiries to ascertain the existence of material and information subject to discovery. On remittal, Criminal Court weighed the appropriate factors (see CPL 245.50 [5]), and properly determined that under the totality of the circumstances, the People had "acted with both good faith and due diligence in fulfilling their discovery obligations" (People v Kasner, 89 Misc 3d 1225[A] [NY City Crim Ct 2026]; see People v Bay, 41 NY3d 200 [2023]). Thus, defendant's speedy trial motion was properly denied.

As the court found, the People had timely disclosed significant amounts of discovery; re-served discovery on each new counsel that appeared on behalf of defendant; supplemented discovery as new materials were created; sought to obtain missing photographs promptly once they were alerted to their existence; and offered to enter into a stipulation at trial once they determined that the photographs had been lost.

While the court acknowledged that the People were on notice "of the existence of the photographs," the court emphasized that the defense did not raise the issue of the missing photographs until April 18, 2022, 16 months after the People filed their certificate of compliance [COC] and certificate of readiness [COR]. By that time, four prior defense attorneys had appeared on behalf of defendant, none of whom discussed missing photographs, and at least two of whom affirmatively represented that they had received discovery from the People and had no concerns regarding any missing discovery. In addition, only 30 seconds of approximately two hours of body worn camera [BWC] footage depicts an officer photographing the complainant's neck, and the People, once apprised of the missing discovery, immediately began efforts to obtain the photographs. Although discoverable material fell through the cracks, in the overall scope of discovery, "these delayed disclosures are merely the result of a prosecutor who, having exercised due diligence, missed a few discoverable items" (People v Lee, 249 AD3d 555, 556 [2026], quoting People v Contompasis, 236 AD3d 138, 150 [2025], lv denied 43 NY3d 1007 [2025]). The statute "does not require or anticipate a perfect prosecutor" (People v Bay, 41 NY3d at 212 [internal quotation marks omitted]).

The court further noted that the missing photographs appeared to have been substantively duplicative, as the BWC that the People timely disclosed depicted the complainant on the date of the alleged incident with her neck visible in the footage. Thus, the existence of the BWC showing the complainant's injury-free neck and the stipulation introduced at trial lessened the impact of the missing discovery and reduced any potential prejudice to the defense since the jurors were told that the officer's photographs had been lost, and that no injuries to the complainant's neck were visible on or after September 27, 2020.

With respect to the law enforcement disciplinary records, the court correctly noted that the plain text of CPL 245.20 (1) (k) (iv) requires disclosure only of "testifying" witnesses, rather than "possible" or "potential" witnesses. Since neither of the two officers testified, the court correctly determined that the People were not required to disclose impeachment materials for the nontestifying officers (see People v Contompasis, 236 AD3d at 150; People v Cooperman, 225 AD3d 1216, 1219 [2024]).

We have considered defendant's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur

Decision Date: October 1, 2026