The People of the State of New York, v. W. Lopez, Defendant. (2026)

Pending before the Court are the defense's motion to dismiss and a separate omnibus motion, both fully briefed. As explained below, it is ORDERED that the motion to dismiss is DENIED. Wade/Dunaway hearings are ORDERED. All other relief is either DENIED or referred to the trial court.

As the parties are the primary audience, familiarity is assumed. In brief, this is a third-degree assault case involving two different complaining witnesses. The defendant was arrested (at least formally) when he was positively identified by the first complaining witness after a show-up procedure.

Four officers were involved in the events leading to the arrest. Officer Latimer and Officer Maher questioned both complaining witnesses and canvased with the first, asking her to point out the man who assaulted her. Two other officers, Officer Heredia and Officer Lugo, approached the defendant while he was sitting in his car, asked him to step out, conversed with him (leading to several potentially incriminating statements), frisked him, and detained him, all while Officers Latimer and Maher canvassed with the complaining witness. Officers Heredia and Lugo then placed the defendant under arrest after he was positively identified, which they learned about via radio transmission from Officers Latimer and Maher. See Defense's Supp. Resp. at 1-2; People's Supp. Resp. at 1-2. (The parties' unsworn representations about what is shown in the body-worn camera footage are credited for the purpose of this decision.)

Officer Latimer later executed the accusatory instrument. Officer Latimer also was designated the arresting officer in arraignment paperwork.

Prior to declaring ready, the People made two documented discovery outreach attempts, both of which would be referenced in their subsequent certificate of compliance (COC). See Defense's Mot., Ex. A at 3.

First, on January 13, a trial preparation assistant emailed the NYPD discovery liaison to request certain materials. People's Resp., Ex. B at 4. The email named only Officer Latimer and Officer Maher under the "officers" heading; in other words, it did not mention Officer Heredia or Officer Lugo at all. See id. The discovery liaison responded two days later, indicating that much of the requested discovery that would later be disclosed to the defense—radio runs, activity logs for Latimer and Maher, arrest paperwork, and so on—had been turned over to the People. See id. at 3.

Then, on March 19, the People emailed the same discovery liaison, CCing all four officers and indicating that they were missing activity logs for Officers Heredia and Lugo. The People requested that the liaison also "upload and tag those officers' BWC via Evidence.com." Id.

Apparently not receiving an immediate response, the People declared ready the next day, March 20, 2026, which was 88 days after commencement. At the time they declared ready, the People had disclosed, among other things, 911 materials; NYPD paperwork; and activity logs/Giglio/body-worn camera footage for Officer Latimer and Officer Maher, who were designated as potential testifying witnesses. Defense's Mot., Ex. A at 2-3.

The People also specifically designated certain items as unavailable. This included the body-worn camera footage and activity logs for Officers Heredia and Lugo; the People recounted (in short form) their two attempts to obtain the footage. Id.

The defense emailed discovery objections on April 6, inquiring about, among other things, dash-cam footage, vouchers/chain of custody reports, pre-hospital care reports for the complaining witness, and the DA's case summary. Defense counsel had reviewed Officer Maher's and Officer Latimer's body-worn camera footage, and had concluded that Officers Heredia and Lugo would be required to testify, as they were the ones who actually stopped the defendant; counsel inquired about the delay in obtaining their body-worn camera footage. Defense's Mot., Ex. C at 2-3 (pdf pag.). A short email correspondence followed, with the final message being sent by the People on April 14. See id. at 1.

Meanwhile, the People had reached out again to their discovery contact on April 10, CCing the officers and the discovery liaison. The People flagged all outstanding items, emphasizing: "The biggest thing is the additional BWC definitely need it ASAP." People's Resp., Ex. B at 2.

The footage was apparently either shared with the People or located by the body-worn camera unit on April 17, but an initial attempt to then share the footage with the defense may not have worked. The parties agree that the footage was definitely shared with the defense by April 23, or 34 days after the People had declared ready—just within the conferral window.

Whittled down by the briefing, the defense's discovery-based certificate-of-compliance-invalidation/dismissal arguments are limited to the belated disclosure of the materials associated with Officers Heredia and Lugo, the complaining witnesses' medical records, and the pre-hospital care report, as well as the non-disclosure of the ZOLPA and color photos of the complaining witnesses' injuries. See Defense's Reply at 2.

But the breadth of the challenge can be whittled down further. The FDNY records and medical records were outside of the People's constructive possession, and as three of the Appellate Division Departments have now clarified, materials that the People do not actually or constructively possess are not relevant to the People's initial discovery obligations or the validity of their COC. See People v. Haggan, 248 AD3d 660, 660 (1st Dept. 2026); People v. Branton, 238 AD3d 1429, 1431 (3d Dept. 2025); People v. Radford, 237 AD3d 1511, 1512 (4th Dept. 2025); People v. Walker, 232 AD3d 1214, 1217 (4th Dept. 2024).

The decisions cited by the defense to the contrary either are now abrogated by the decisions from the Appellate Division or, to the extent not abrogated, apply only in limited circumstances not clearly present here. For instance, the oft-cited People v. Rahman, 79 Misc 3d 129(A), 2023 NY Slip Op. 50692(U) (App. Term, 2d, 11th, & 13th Jud. Dists. 2023), addressed a situation where the police summoned emergency personnel to the precinct, leading to their records being automatically discoverable under C.P.L. § 245.20(1)(j). See id. at *1-2. To the extent that Rahman is reconcilable with the cases from the Appellate Division—its discussion of the People's efforts under § 245.20(2) would appear to be in some tension with them—there is no indication here that emergency personnel were summoned by the police to the precinct, or were otherwise acting at the direction of police.

With the FDNY records and medical records set aside, the discovery dispute asks whether the People's COC is invalid because the People belatedly disclosed the materials associated with Officers Lugo and Heredia, and did not disclose the ZOLPA and color versions of the photographs of the complainants' injuries.

The answer is a close call. Based on the parties' supplemental submissions, there appears to be no question that the body-worn camera footage associated with Officers Lugo and Heredia was material and (in general) not duplicative, as Officers Lugo and Heredia were the ones who spoke to the defendant (eliciting what were apparently un-noticed statements) and detained him prior to the show-up. The People argue that the non-disclosure was harmless because all of the depicted events occurred in the defendant's presence, see People's Supp. Resp. at 2, but the defendant is not a lawyer, and his recollection of the events would not fully assist his counsel in determining whether, among other things, his detention amounted to a constitutionally impermissible seizure, although the defense is not seeking a Mapp hearing.

Moreover, as is the case all too often, the People did not react with dispatch when they realized that the relevant materials were missing. Pre-readiness, they emailed once on the 87th day before conceding defeat and declaring ready anyway. They then did not reattempt outreach until after the defense's April 6 prompting, despite knowing that the material was missing. The People then waited several additional business days before sending the April 10 email, in which they acknowledged that the missing footage was the "biggest thing." People's Resp., Ex. B at 2. The People's pre-readiness outreach, meanwhile, consisted of only one documented effort before their second, 87th-day attempt.

The Court is constrained to conclude, however, that this is enough—just barely enough, but enough—to create a reviewable record associated with diligence, distinguishing what happened here from those cases where there was no record made at all. See, e.g., People v. Adams, 88 Misc 3d 131(A), 2026 NY Slip Op. 50233(U), at *2 (App. Term, 1st Dept. 2026); People v. Zeigler, 88 Misc 3d 131(A), 2026 NY Slip Op. 50232(U), at *2 (App. Term, 1st Dept. 2026). That outreach was also enough to produce nearly everything except for those items listed above. And the People did manage to fix the main omission before the conferral period expired—although this is of attenuated relevance, because they were not fixing an issue brought to their attention, but instead correcting a problem they knew about before even declaring ready.

Under these particular circumstances, the § 245.50(5)(a) factors, all of which have been considered, weigh just barely in favor of due diligence.¹ The clear materiality of some of the missing material  ² and the People's somewhat sub-par pre- and post-readiness attempts to obtain it are counterbalanced by the volume of discovery otherwise provided and the narrowness of the still-live issues. This case is not otherwise complex. The People's pre-readiness efforts were thus just on the right side of reasonable.

So while the People's error here was unforced, the COC will not be invalidated at this time. As there is no clear reason to think that the § 30.30 time would have run if the COC were valid, the motion to dismiss is DENIED.³

A Wade/Dunaway hearing is ordered. The Brady/Vilardi specific requests are STRUCK and will not be considered. All Sandoval/Molineux/Ventimiglia/preclusion/discovery sanction issues are referred to the trial court. Any other request for relief not specifically mentioned is denied.

Dated: June 18, 2026

Bronx, NY

David L. Goodwin

Judge of the Criminal Court

FOOTNOTES

1.   In reply, the defense brings up the People's failure to perform their initial discovery obligations within 35 days, as the statute requires. Defense's Reply at 14—15. But that argument should not have been reserved for reply. See Eastmore Owners Corp. v. Zelmanovich, 85 Misc 3d 143(A), 2025 NY Slip Op. 50787(U), at *1 (App. Term, 1st Dept. 2025). Regardless, that additional consideration would not tip the scales in favor of dismissal on these facts.

2.   The ZOLPA is of minimal importance, but the color photographs should be provided to the defense if they exist.

3.   To the extent that the defense argues that there was chargeable time to correct a spelling error, that argument is unavailing.

David L. Goodwin, J.