The People of the State of New York, v. Gregory M., Defendant (2026)

Defendant, charged in the present indictment with one count of Attempted Murder in the Second Degree (PL §§ 110/125.25[1]), one count of Robbery in the First Degree (PL § 160.15[2]), one count of Robbery in the First Degree (PL § 160.15[4]), one count of Attempted Assault in the First Degree (PL §§ 110/120.10[1]), two counts of Criminal Possession of a Weapon in the Second Degree (PL § 265.03[1][b]), two counts of Criminal Possession of a Weapon in the Second Degree (PL § 265.03[3]), two counts of Robbery in the Second Degree (PL § 160.10[1]), and one count of Assault in the Second Degree (PL § 120.05[2]), moves to vitiate the People's original Certificate of Compliance ("COC")¹ as illusory; For the reasons discussed below, Defendant's motion to vitiate the People's COC is GRANTED and the document the People filed and served as a COC on August 15, 2025, is hereby found illusory pursuant to C.P.L. § 245.50[1]. Thus, the People's August 15 COC is vitiated and given no legal effect.

I. RELEVANT LEGAL PROCEEDINGS

On February 27, 2025, the defendant was arraigned on the instant indictment. The People filed and served their COC on August 15, 2025.² On September 8, 2025, the defendant requested a good cause extension of the statutory deadline of thirty-five days to challenge a COC from the Court via email (see CPL § 245.50[4][c][i]). The Court granted that request and gave the defendant until October 8, 2025, to file his challenge. The defendant then filed this motion during an October 8, 2025, court appearance. Following this Court granting two requests for short extensions of their deadline to file their response, the People filed a response on November 10, 2025, and the defendant filed his reply on December 2, 2025, off-calendar. During the subsequent court appearance on December 18, 2025, the Court directed the People to provide discoverable materials that had been turned over to the defendant after the filing of the COC for the Court's review in camera. The People provided those materials to the Court on February 2, 2026. In response to further inquiry to the People regarding an accounting of the diligent efforts with which they sought discoverable materials in this case, the People provided a brief written accounting via email to both the Court and the defendant on February 20, 2026. The motion has been sub judice since then.

II. ANALYSIS

The crux of Defendant's motion is that the People filed an illusory COC on August 15, 2025, because there existed on that date discoverable materials that were either never disclosed to the defendant or were only disclosed after the People filed the COC, thereby certifying that they were in compliance with their discovery obligations under Criminal Procedure Law Article 245 (see D Mot at 5). Specifically, the defendant contends that the People's failure to disclose these materials before filing their COC was "a result of the prosecution's failure to exercise due diligence and act in good faith in making reasonable inquiries and efforts to obtain and provide the discovery prior to filing the original COC" (id. [internal quotation marks omitted]). In his papers, the defendant provides two lists of materials that were not disclosed to the defendant at the time of this instant motion: one of materials that the COC classified as "Unable to Obtain Despite the Exercise of Due Diligence," and a second list of undisclosed materials that were not acknowledged at all in the COC (see id. at 6-8). The first list includes recordings or memorializations of 911 calls and related radio runs regarding the charged robberies and law enforcement disclosures pertaining to the law enforcement officers in Washington, D.C., who apprehended the defendant pursuant to the arrest warrant that issued in this case as a result of the Grand Jury's indictment (id. at 6). The second list is lengthier, and includes, among other items, a list of the names of the law enforcement officers who were involved in the Washington, D.C. arrest of the defendant, discovery that was subject to a July 22, 2025 consent protective order that agreed to disclosure for attorney's eyes only, and all discoverable materials related to the defendant's two adult co-defendants, Bartholomew Copeland and Lester Fuentes-Cruz (see id. at 6-8). In their response papers, the People's argument in support of the validity of their COC is largely a legal one: that the lists provided by the defendant in his motion regarding missing discoverable materials are largely irrelevant because the current state of the pertinent statute, as recently amended by the legislature as of August 7, 2025, requires courts to "look to the People's overall efforts to comply with the automatic discovery provisions, rather than demand that the prosecution justify every last piece of missing discovery" (P Resp at 6-7; see also CPL § 245.50[5]). The People correctly assert that the August 2025 amendment of Article 245 essentially codified the Court of Appeals' leading precedent governing discovery disputes, People v. Bay, 41 NY3d 200 [2023] (see P Resp at 7).

In Bay, the Court of Appeals instructed that "the key question in determining if a proper COC has been filed is whether the prosecution has exercised due diligence and made reasonable inquiries to ascertain the existence of material and information subject to discovery" (41 NY3d at 211 [quoting CPL § 245.50[1]] [internal quotation marks omitted]). "An analysis of whether the People made reasonable efforts sufficient to satisfy CPL article 245 is fundamentally case-specific, as with any question of reasonableness, and will turn on the circumstances presented" (id. at 212). The Court of Appeals recognized that, as the requisite analysis is case-specific, "the relevant factors for assessing due diligence may vary from case to case," but, in Bay, the Court provided guidance in directing courts to consider certain factors in conducting their analysis of the People's due diligence and reasonable efforts (id.). Specifically, the Bay Court instructed judges to:

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

(id.). As of the August 2025 amendment of Article 245, these "Bay factors" now appear in the statute governing a court's assessment of the validity of a COC. Criminal Procedure Law § 245.50 now instructs courts to "look at the totality of the party's efforts to comply with the provisions of this article, rather than assess the party's efforts item by item" when reviewing a challenge to the validity of a COC (CPL § 245.50[5]). The current statute further instructs courts that their ultimate determination regarding a COC's validity "shall be based on consideration of all the factors listed in paragraph (a) of this subdivision and no one factor shall be determinative" (CPL § 245.50[5][b]). Five of those statutory factors are the "Bay factors" (compare CPL § 245.50[5][a] with Bay, 41 NY3d at 212). The remaining four statutory factors are:

Whether the belated discovery was substantively duplicative, insignificant, or easily remedied; whether the omission was corrected; whether the prosecution self-reported the error and took prompt remedial action without court intervention; and 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]). It is through the framework of these eight statutory factors that this Court evaluates whether the People in this case have established the requisite showing "that they did, in fact, exercise due diligence and made reasonable inquiries prior to filing the initial COC despite" belated and missing disclosures of material deemed discoverable by Article 245 (Bay, 41 NY3d at 213).

While the People's recitation of the law in their papers is thorough and complete, it is their burden to establish a case-specific factual showing that their original COC was filed following the exercise of due diligence. Most of the People's argument appears to be a largely boilerplate assertion that the discoverable materials in this case were voluminous and that the assigned prosecutor, as well as other members of the District Attorney's Office, began seeking and compiling discoverable materials "[a]s early as March 14, 2025" (P Resp at 9). While the volume of discoverable materials is a statutory factor to consider in assessing the People's diligent efforts before filing their COC, it is only one such factor. Moreover, the People's obligation to provide the defendant with the discovery to which they are entitled is enshrined in statute. While it is appropriate that the assigned prosecutor and prosecutorial support staff started compiling the plethora of discoverable materials within the first two weeks of the case, that cannot be the most crucial factor as the compilation and disclosure of such materials is literally required by statute. It is difficult to praise the People for performing a task that they are required by law to perform. The People's contention that "the amount of discovery turned over by the People far outweighs any alleged missing discovery" is an indicative example of how the People have failed to make the requisite showing of due diligence in this case (P Resp at 10). The People's statutory obligation in filing a COC is to certify "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]). In other words, the statute does not award the People with "partial credit" for providing more discoverable materials than not. The obligation is to certify that "all known material" has been disclosed to the defendant (id.). Yes, Bay and the amended statute provide safe harbor if the People can demonstrate, on a case-specific basis, that despite the existence of discoverable material that was not disclosed at the time the COC was filed, they pursued and executed their discovery obligations with due diligence and diligent efforts. However, that does not change the nature of the statutory obligation to certify that all discoverable material has been disclosed at the time of the COC filing.

The bulk of the People's factual showing of their efforts in complying with their discovery obligations appears in the final two paragraphs of their response papers. Some of the People's factual arguments are satisfactory and indicative that some of the materials the defendant alleges constitute "missing discovery" are, in fact, not owing to any shortcoming on the People's behalf. For example, in response to the defendant's contention that the People failed to disclose the arrest paperwork regarding co-defendant Bartholomew Copeland, the People reasonably assert that the alleged missing paperwork "does not exist because he has not yet been arrested" (P Resp at 10). Unfortunately, most of the People's already limited factual arguments fall far short of sufficiently establishing diligent efforts to comply with their discovery obligations. In response to the defendant's specific inquiry regarding the missing arrest paperwork for co-defendant Lester Fuentes-Cruz, the People contend that their failure to disclose this material should be of "minimal" concern because the "paperwork relating to the alleged incidents is largely duplicative of defendant[ ]'s own NYPD paperwork" (id. at 10). That may be true, but it does not explain the initial oversight of disclosing such basic and obviously discoverable material as the arrest paperwork for a co-defendant sharing the same indictment as this defendant. Similarly unconvincing is the People's assertion that their failure to disclose the police paperwork stemming from the defendant's arrest in [Washington, D.C.] is also of no great concern as "all of the bodyworn camera and photos taken at the time of the arrest were turned over" (id.). It is somewhat confounding that basic and obviously discoverable material such as police arrest paperwork was not disclosed to the defendant prior to the filing of the COC. Moreover, while the People apparently contend that the disclosure of bodyworn camera footage and arrest photographs render the failure to disclose such paperwork duplicative, their argument also supports the position that the omission of such discoverable material should have been apparent to the People as they had the defendant's arrest documented in video footage and photographs. This Court is also unpersuaded by the People's response to the defendant's inquiry regarding the absence of paperwork relating to the testing of a firearm recovered from the defendant at the time of his arrest. The People contend that "the firearm is currently in the possession of [Washington, D.C.] authorities. Therefore, testing on the firearm has not been performed and the paperwork does not exist" (id.). That may be true, but the People have failed to provide this Court with any details of the efforts they undertook before reaching this conclusion. If the People's failure to demonstrate their efforts to comply with their discovery obligations only applied to the paperwork regarding the testing of a single firearm, perhaps this Court, following the instructions of both Bay and the Criminal Procedure Law, could find that "the totality of the [People's] efforts to comply with" their discovery obligations warranted the upholding of the validity of the COC (CPL § 245.50[5]). Unfortunately, the People's failure to make the sufficient showing of diligent efforts required by both Bay and Article 245 is widespread and appears to pertain to the majority of the delayed and missing discovery that existed on August 15, 2025. On that date, the People elected to file a document with this Court certifying 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 People have disclosed and made available to the defendant all known material and information that is subject to initial discovery"³ (Aug 15, 2025 COC; see also CPL § 245.50[1] [instructing specific language to be asserted in a valid COC]).

This Court's conclusion regarding the widespread extent of the People's failure to establish the diligence of their efforts to comply with their discovery obligation is demonstrated by the interactions by this Court and the parties after the parties filed their initial papers regarding this issue (see CPL § 245.50[5][a] [providing that many of the relevant factors for assessing prosecutorial due diligence in deciding COC challenges involve analysis of prosecutorial behavior after being alerted to the defendant's contention regarding missing discovery]). Following the filing of the People's response to the defendant's initial motion challenging the COC, the defendant filed a reply to the People's response. In his reply motion, the defendant urges this Court to find the People's COC illusory because it "is uncontested that the People disclosed over 900 pages of § 245.20(1) material since the filing of their COC, including items that are routinely created, such as 911 calls, radio runs, ICADs, ballistic testing, and co-defendant NYPD arrest paperwork" (D Reply at 11 [emphasis in original]). In response to the defendant's assertion, this Court directed the People to provide the Court with all of the material that had not yet been disclosed to the defendant at the time the COC was filed, but that had been subsequently disclosed as of December 18, 2025, as well as "any further record that the People could provide in terms of the diligent efforts made in obtaining these delayed materials" (Dec 18, 2025 Tr at 4). On February 2, 2026, the People complied with the Court's instruction by providing the Court with an external hard drive containing 135 gigabytes of data organized into 2,347 files. While the Court did not print out every file contained therein, this Court's review of the materials appeared to corroborate the defendant's representation regarding the breadth of the missing and delayed discovery. Included within this hard drive were, inter alia, recorded 911 calls and radio run documentation, ballistic testing reports, arrest paperwork pertaining to the defendant and his co-defendants from police departments both in New York City and Washington, D.C., body-worn camera footage, and records regarding the execution of search warrants in both cities. On February 5, 2026, after the People provided the hard drive, they were reminded, in an email addressed to both parties, that the Court had still not received any record regarding the efforts that they made in obtaining the delayed discovery. On February 20, 2026, the People provided the following email, in pertinent part, in response:

As to the diligent efforts prior to filing the COC, the People made multiple requests for the 911 calls. Initially, only one call was sent. Another request was made to receive 911 calls for all three incidents.

After the August COC was filed, the People were alerted in October by defense about outstanding discovery. After looking through discovery that was turned over, the People promptly sent over the materials. This is within the bounds of CPL 2455.50(4)(b)&(c), which allows for discussions of defects in discovery after the COC is filed. The People's prompt response in correcting these defects demonstrates their good faith & diligent efforts in filing the COC.

The People correctly cite the relevant statutes, but this Court, on this record, cannot agree with their interpretation. The People ask this Court to follow "CPL § 245.50(6), which expressly instructs courts not to invalidate a COC where the prosecution has exercised due diligence and acted in good faith" (P Resp at 8). While the statute does provide that instruction, the People have shorn it of necessary context: the statute directs courts not to invalidate COCs where the filing party has "exercised due diligence and acted in good faith in making reasonable inquiries and efforts to obtain and provide the material required to be disclosed pursuant to section 245.20 of this article" (CPL § 245.50[6] [emphasis added]). In its ruling today, this Court makes no accusation regarding the People's good faith, but the People have utterly failed to demonstrate reasonable inquiries and efforts to obtain and provide the discoverable material required by statute, despite being given numerous opportunities to do so. This Court cannot assume the People's diligent efforts; that is the People's burden to meet (See, e.g., People v. Horton, 83 Misc 3d 1283[A], 2024 NY Slip Op 51210[U], *11-12 [Sup Ct, Kings County 2024] [finding COC invalid, after applying Bay factors, where "the prosecution has failed to detail what steps, if any were taken to ascertain relevant discovery prior to filing the COC and further failed to provide cogent reasons for their discovery lapses"]; People v. Rahman, 79 Misc 3d 129[A], 2023, 2023 NY Slip Op 50692[U], *2 [App Term 2d Dept, 2d, 11th, 13th Jud Dists 2023] [upholding motion court's invalidation of COC upon finding the People failed to exercise due diligence and make reasonable inquiries to ascertain the existence of discoverable materials] leave den 40 NY3d 1040). And they have fallen short of meeting that burden here.

Guided by all of the statutory factors present in C.P.L. § 245.50[5][a], this Court's case-specific finding is that the People have failed to establish that they acted with due diligence and made reasonable inquiries in complying with their discovery obligations prior to the filing of their Certificate of Compliance on August 15, 2025. Having so concluded, this Court is compelled by both Criminal Procedure Law § 245.50 and the Court of Appeals' decision in Bay to find said COC, and its accompanying Certificate of Readiness, illusory and deem them both invalid (see §CPL 30.30[5] ["The court may deem the people not ready for trial based on the people's failure to comply with the provisions of article two hundred forty-five of this chapter only if it finds that the people's certificate of compliance that accompanied or proceeded the people's statement of readiness at issue was invalid under section 245.50 of this chapter."]).

This constitutes the Decision and Order of the court.

Dated: March 18, 2026

New York, New York

HON. Rachel S. Pauley, J.S.C.

FOOTNOTES

1.   On October 8, 2025, the day defendant filed the pending motion, the People filed a Supplemental COC ("SCOC") pursuant to C.P.L. § 245.50[1]. Because the defendant's motion seeks only to vitiate the original COC, this decision does not address the validity of the People's SCOC.

2.   There appears to be a discrepancy in the Court's records regarding when this COC was actually filed with the Court. The Court's note from the August 15, 2025 court date indicates that the "People anticipate filing COC this afternoon." The Court's note from the next court appearance in this case, October 8, 2025, indicates that the "People filed and served COC and COR on 8/15." However, the stamped copy of the People's COC in the Court file, while dated August 15, 2025, is stamped as received on August 18, 2025. Because both parties in this matter refer to this COC as both filed and served on August 15, 2025, the Court will refer to the subject COC as filed and served on that date in this decision, but, in doing so, this Court does not rule that the subject COC was properly filed on August 15, 2025, as that issue is not currently before this Court.

3.   The August 15 COC did contain a notice that the People had disclosed to the defendant "all known material and information that is subject to initial discovery, except for" material subject to a protective order, 911 call recordings pertaining to the charged robberies in this case, and law enforcement disclosures for police officers employed in Washington, D.C. Because this Court finds that the People failed to establish the requisite showing of diligent efforts regarding discoverable materials that were not included in this notice, this Court does not reach the issue of whether it was appropriate for the People to file a COC with these noticed materials still outstanding.

Rachel S. Pauley, J.