The People of the State of New York, v. S. Pereyra, Defendant. (2025)

Pending before the Court is defendant S. Pereyra's ¹ counseled omnibus motion, which is fully briefed. At the direction of the Court, the parties submitted supplemental filings addressing, among other things, whether the missing activity logs from six officers prejudiced the defense, and how those logs fit into an overall assessment of diligence.

Upon consideration of the parties' submissions, the court file, and all prior proceedings, it is hereby:

ORDERED that the branch of the motion seeking to invalidate the certificate of compliance and dismiss the case on speedy trial grounds is DENIED. In their motion response, the People raised Pereyra's failure to file the affirmation of conferral required by the amended C.P.L. § 245.50(4)(c). See People's Resp. at 15-18. In reply, Pereyra argued that conferral was not possible when, as here, the certificate of compliance was filed on the 89th day, as conferral past the 90th day (or, potentially, past the 35th day, which is supposed to mark the People's fulfilment of their initial discovery obligations, see C.P.L. § 245.10(1)(a)(ii)) is unethical. Pereyra was given another opportunity to file the affirmation, see Briefing Order at 2, but declined to do so, instead affirming that conferral after 90 days is not required by the statute. See Defense's Supplemental Reply Aff. ¶¶ 6-13.

Section 245.50(4)(c) requires that any challenge to a certificate of compliance "be accompanied by" an affirmation setting forth, among other things, that the moving party conferred (or attempted to confer) in good faith with the opposing party. The People assert,² and Pereyra does not meaningfully contest, that failure to file the required affirmation results in a procedural bar that, absent exceptions not relevant here, prevents granting relief on the merits. See People v. Miguel, 87 Misc 3d 1247(A), 2025 NY Slip Op. 51930(U), at *3 (N.Y.C. Crim. Ct., NY Co. 2025) (Coleman, J.). Instead, Pereyra asserts that conferral past certain deadlines would be unethical, or is otherwise not required by the statute. But while Pereyra is correct that the statute does not affirmatively set out what form conferral must take—the affirmation requirement is, in fact, the only hint that conferral is procedurally required—the affirmation requirement nevertheless mandates some kind of representation that adequate conferral has occurred. And since the revised Article 245 both (1) mandates the filing of the affirmation as a prerequisite to a COC challenge and (2) explicitly permits consideration of prejudice, Pereyra does not persuasive show why conferral past the 90th (or 35th) day would be unethical.

At the direction of the Court, the People also articulated the lack of prejudice that was caused by the nondisclosure of the activity logs. While the record would thus be sufficient to render an alternative disposition on the merits, the Court declines to do so at this time to not create any potential law-of-the-case effect for any future ruling on potential discovery sanctions by the trial court.³

It is further ORDERED that the People must continue their efforts to obtain and disclose the six missing activity logs. If, within 30 days, the logs have not been obtained and disclosed, the People must file a status report with the Court identifying the efforts they have undertaken to obtain the logs.

It is further ORDERED that the implied defense request for additional Giglio material is DENIED without prejudice. The defense may renew its application for disclosure of those Giglio materials via future oral or written motion focused on that distinct issue.

It is further ORDERED that the defense request for a Wade/Huntley/Dunaway hearing is GRANTED. Whether a Rodriguez hearing may be necessary is reserved for the hearing court.

It is further ORDERED that any preclusion/Sandoval/Molineux/Ventimiglia issues are REFERRED to the trial court.

It is further ORDERED that any request for relief not specifically mentioned above is DENIED.

Dated: December 12, 2025

Bronx, NY

David L. Goodwin

Judge of the Criminal Court

FOOTNOTES

1.   The version of this decision submitted for publication has been lightly redacted to remove certain identifying information.

2.   The People refer to the doctrine of mootness, see People's Resp. at 18, but mootness refers to whether "an adjudication of the merits will result in immediate and practical consequences to the parties." Coleman ex rel. Coleman v. Daines, 19 NY3d 1087, 1090 (2012). The issue here is not mootness—whether relief is available, as it clearly is—but whether the merits should be reached at all.

3.   This consideration outweighs the potential repercussions for any future appeal. See People v. Butler, 41 NY3d 186, 198-99 (2023) (discussing LaFontaine rule).

David L. Goodwin, J.