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

On September 27, 2020, the People filed a complaint charging Defendant Abraham Kasner with one count of Criminal Obstruction of Breathing or Blood Circulation (PL § 121.11 [a]), one count of Attempted Assault in the Third Degree (PL §§ 110/120.00 [1]), and one count of Harassment in the Second Degree (PL § 240.26 [1]). On December 3, 2020, the People filed a Certificate of Compliance ("COC") affirming that they had complied with all discovery obligations, as well as a Certificate of Readiness ("COR"). Over two years later, on April 20, 2022, the defense moved to deem the People's COC invalid, on the grounds that the People had failed to disclose certain materials prior to filing the COC and COR. On April 21, 2022, the presiding judge (the "Motion Judge") issued an oral order denying the Defendant's motion (the "April 21 Order"). The case proceeded to trial, and on September 26, 2022, a jury convicted the Defendant of Criminal Mischief in the Fourth Degree, Attempted Assault in the Third Degree, and Harassment in the Second Degree. The jury returned a verdict of not guilty on the charge of Criminal Obstruction of Breathing or Blood Circulation.

The Defendant appealed from the judgment of conviction on the ground that the April 21 Order had improperly denied his pre-trial motion to invalidate the People's COC. By Order dated June 23, 2025, the Supreme Court, Appellate Term, First Department held the appeal in abeyance and remitted to criminal court for a determination as to "whether the People exercised due diligence within the meaning of CPL 245.50" in complying with their discovery obligations (86 Misc 3d 131[A], 2025 NY Slip Op 50999[U] [App Term, 1st Dept]). At the time of the remittitur, the Motion Judge was no longer presiding over criminal court matters, having been appointed as a Justice of the Supreme Court. Accordingly, the undersigned was assigned to determine whether the People have met their statutory discovery obligations. For the reasons set forth below, the Court holds that the People exercised both good faith and due diligence in complying with CPL Article 245.

I. Factual History

The accusatory instrument alleges that on September 27, 2020, the Defendant forcefully squeezed the neck of the complainant, his former girlfriend, pulled her hair, and pushed her to the ground.

At trial, the complainant testified that she and the Defendant had moved into an apartment together in 2019. On September 17, 2020, the complainant and the Defendant ended their relationship; the Defendant locked the complainant out of their shared apartment. The complainant made multiple attempts to arrange a time to retrieve her belongings, but the Defendant did not respond to her requests. On September 27, 2020, the complainant went to the apartment to collect her belongings. The Defendant was not initially present, but returned to the apartment and found the complainant inside. The complainant testified that the Defendant placed one hand around her neck and squeezed, causing her to have difficulty breathing. The Defendant also grabbed the complainant by her upper arm. The Defendant then slashed the complainant's purse with a pocketknife. He dragged her across the room by her hair and pushed her outside the apartment, closing the door behind him. The complainant asked a neighbor to call the police.

NYPD officers arrived at the scene and arrested the Defendant. Interactions between the officers and the complainant were documented via the officers' bodyworn camera footage ("BWC"). As depicted on the BWC, Officer Lisa Rodriguez took photographs of the complainant's neck. There were no visible injuries to the complainant's neck; the complainant testified that bruising developed on her upper arm the following day.

II. Procedural History

The People filed a criminal complaint on September 27, 2020.¹ The Defendant was arraigned the same day and was represented by assigned counsel from The Legal Aid Society ("Counsel #1"). The case was adjourned to January 27, 2021, for the People to obtain a supporting deposition.

On November 16, 2020, the People disclosed to the defense the arrest coversheet; arrest, complaint, aided and handwritten domestic incident reports ("DIRs"); arrest, complaint, and domestic incident worksheets, the Defendant's pedigree paperwork, arrest photo, and identification card; records of the Defendant's post-arrest movement and medical treatment; the criminal court complaint; the BWC checklist; the arrest checklist; the arraignment data sheet; interview notes with the complainant; activity logs for three police officers who responded to the scene; the DAT investigation sheet; the 911 sprint report; five BWC videos and the metadata for each recording; and Garrett disclosure materials for four police officers.

Two days later, on November 18, 2020, the People disclosed to the defense typed DIRs and activity logs for the remaining two officers who responded to the scene. The following day, November 19, 2020, the People disclosed to the defense the NYPD stationhouse command log and photographs of the complainant's injuries. A few days later, on November 25, 2020, the People produced to defense counsel a 911 recording; an additional 911 sprint report; and a recording of the NYPD radio run.

On December 3, 2020, the People disclosed additional photographs of the complainant's injuries; email communications with the complainant; additional Garrett material; and a disclosure advisory form ("DAF") for one of the responding officers. That same day, the People filed and served off-calendar a supporting deposition, discovery list, automatic discovery form ("ADF"), ADF addendum, a COC, and a COR. The ADF indicated that the People did not have possession of the purse that the Defendant had allegedly damaged, but would make it available to the defense for inspection. Five days later, on December 8, 2020, the People disclosed to the defense photographs of the purse. On January 8, 2021, the People produced to defense counsel notes taken during a conversation with the complainant.

The parties appeared in court on January 27, 2021.² At the Defendant's request, Counsel #1 was relieved, because the Defendant had retained private counsel ("Counsel #2"). Counsel #2 confirmed on the record that he had spoken with the assigned assistant district attorney ("ADA"). Counsel #2 also informed the Court that the assigned ADA had already provided him with all discovery that the People had originally served upon Counsel #1. Counsel #2 requested a motion schedule, and the case was adjourned to March 16, 2021, for the People's response and the Court's decision. Despite requesting a schedule to file pre-trial motions, the defense did not file any motions.

At the March 16, 2021 court appearance, Counsel #2 stated that he had not filed motions because the People had not filed notice of any statements or identification procedure, and thus there was no need to file a suppression motion. He noted that he would request Sandoval and Ventimiglia hearings before the trial court. Counsel #2 did not raise any issues regarding the discovery provided by the People, nor did he object to the People's COC or COR, filed approximately three months earlier, on December 3, 2020. The case was adjourned to April 21, 2021, for trial.

On April 20, 2021, the People disclosed to the defense three emails from the complainant, which contained numerous attachments of screenshots from her cell phone. The following day, April 21, 2021, the People disclosed an additional email with attachments from the complainant. That same day, the People filed and served a supplemental COC ("SCOC"), an updated discovery list, and an updated ADF.

At the court appearance on April 21, 2021, the People stated that they were ready for trial. Counsel #2 did not raise any issues regarding the People's readiness for trial, or the disclosures provided by the People between November 16, 2020, and April 21, 2021. The court was not able to conduct a trial,³ and the case was adjourned to May 24, 2021, for trial.

On May 24, 2021, the People stated that they were ready for trial. On that date, however, Counsel #2 informed the Court that he and the Defendant had "had a substantial breakdown in communication" (tr at 3). Counsel #2 thus requested that new counsel be assigned on the next court date. The case was adjourned to June 9, 2021, for the parties to appear in person and for the assignment of new counsel.

On June 9, 2021, in court, the People again stated that they were ready for trial. The Court relieved Counsel #2, and assigned the Defendant a new attorney ("Counsel #3"). The case was adjourned to June 30, 2021, for trial.

On June 30, 2021,⁴ the People stated that they were ready for trial, as they had on the three previous court dates. The People confirmed to the Court that they had again disclosed all discovery, this time to Counsel #3; Counsel #3 did not dispute the People's representation. The case was adjourned to July 29, 2021, for trial.

At the July 29, 2021 court appearance, the People stated that they were ready for trial for the fourth consecutive date. The defense requested an adjournment to subpoena records from the Defendant's employer. The case was adjourned to September 28, 2021, for trial.

On September 3, 2021, the People filed and served off-calendar the SSI, an updated ADF with an addendum, a SCOC, and a COR.

On September 28, 2021,⁵ the People stated that they were not ready for trial, but requested September 30, 2021, for trial. The court arraigned the Defendant on the SSI. Counsel #3 acknowledged receipt of the People's SCOC and COR filed off-calendar. Counsel #3 did not raise any objection to either the discovery provided by the People, or to the People's statement of readiness. Rather, Counsel #3 requested that the Court relieve him as counsel. Counsel #3 stated that he had had "difficulty communicating" with the Defendant "concerning the theory of the defense," and therefore could no longer "represent him effectively" (tr at 4-5). The case was adjourned to October 6, 2021, for assignment of new counsel.

On October 6, 2021, in court, the Court relieved Counsel #3, and assigned new counsel ("Counsel #4"). The Court directed Counsel #4 to contact the assigned prosecutor with any discovery issues, and if necessary, to request assistance from the Court in resolving any discovery disputes. The case was adjourned to December 2, 2021, for trial.

On December 2, 2021, the People stated that they were ready for trial. The People affirmed on the record that their witnesses were available, and that they had exercised good faith to obtain all discovery. An associate from Counsel #4's law firm appeared on behalf of Counsel #4; the associate stated that the defense had not yet received any discovery from the People. The People, in turn, affirmed that they had attempted to provide discovery via electronic means to Counsel #4 during the prior two weeks; there had been, however, a technical issue with the online application, so the People had re-served all materials to counsel via mail on November 30, 2021. The Court again ordered the parties to confer regarding any outstanding discovery issues, and to notify the Court if any disputes remained, so that the trial would not be further delayed. The case was adjourned to January 13, 2022, for trial.

On January 13, 2022, the People stated that they were ready for trial. The associate from Counsel #4's firm again appeared. The associate stated that that the defense was not ready for trial, because Counsel #4 had received certain discovery late in the day on January 12, 2022; in addition, the defense represented that outstanding discovery issues existed, though did not identify specific materials at issue. The Court reminded the parties of its continuing directive to request assistance to resolve any issues in advance of the next court date. The case was adjourned to February 24, 2022, for trial.

At the request of Counsel #4, the case was advanced to January 25, 2022. In court on that date, Counsel #4 asked to be relieved as counsel, on the ground that the Defendant's income was too high to entitle him to free legal counsel. The Court questioned the Defendant about his income; the Defendant refused to respond (tr at 3). The Court then directed the Defendant to hire private counsel (tr at 4). The case was adjourned to February 24, 2022, for the Defendant to hire counsel.

On February 24, 2022, the Defendant asserted that he had not hired private counsel. An associate of Counsel #4 again asked that the firm be relieved as counsel, citing not only the defendant's income, but also "hostility" between the Defendant and counsel (tr at 15). The Court expressed concern that the Defendant had been assigned counsel for such a lengthy period during the proceedings that it would be unfair to direct him to hire counsel at this late date. The case was adjourned to February 25, 2022, for the Court to contact the assigned counsel plan for further clarification.

At the February 25, 2022 court date, the Court relieved Counsel #4, and appointed new counsel ("Counsel #5"). The case was adjourned on consent by the defense to March 25, 2022, for trial.

On March 2, 2022, the assigned ADA sent an email to Counsel #5 to introduce himself. The following day, March 3, 2022, Counsel #5 responded and requested that all discovery be sent to him. The People complied with the request that same day, providing all previously disclosed discovery to Counsel #5. Two days later, on March 4, 2022, the People disclosed to Counsel #5 Molineux and Sandoval materials, as well as the Defendant's employment records from Mt. Sinai Hospital.

At the March 25, 2022, court date, the People stated that they were ready for trial. Counsel #5 requested an adjournment, explaining that he was still reviewing the discovery. The Court ordered the parties to confer, and if any discovery issues were not resolved, to contact the judge's court attorney in advance of the next court date. The case was adjourned to April 21, 2022, for trial.

On April 18, 2022, Counsel #5 emailed a letter to the People regarding certain discovery items. As is relevant here, the defense inquired regarding: (1) photographs taken at the scene of the alleged incident, and (2) Central Personal Indices ("CPI") for two officers. With regard to the photographs, Counsel #5 noted that BWC footage, previously disclosed by the People on November 16, 2020, depicted Police Officer Lisa Rodriguez taking photographs of the complainant's neck with a cell phone on September 27, 2020.

Approximately four hours later, on April 18, 2022, the People responded to Counsel #5, stating that, although they had requested all discovery from the NYPD, the police had never provided the cell phone photographs. The assigned ADA represented to Counsel #5 that, after receiving Counsel #5's email, he had tried to contact Officer Rodriguez by phone, text, and email to obtain a copy of the photographs, but that she was on a detail and had not responded.

With regard to the CPI, the People stated that they did not know which, if any, officers they would be calling to testify; however, in the interest of transparency, they were willing to voluntarily disclose DAFs and redacted Civilian Complaint Review Board ("CCRB") materials for all officers involved in the alleged incident. A few hours later, the People provided information and additional DAFs and redacted CCRB materials for non-testifying officers.

On April 19, 2022, after providing those additional materials, the People filed and served a SCOC, ADF, discovery list, and updated Sandoval and Molineux disclosures.

On April 20, 2022, the defense filed and served a motion to deem the People's COCs invalid and to compel disclosure of the photographs of the complainant's alleged injuries, as well as police disciplinary records.

At the April 21, 2022 court date, the Motion Judge reviewed the motion, and directed that Counsel #5 and the assigned ADA appear in court that afternoon, to address the discovery disputes raised in the Defendant's motion.

At the afternoon appearance, the Motion Judge heard oral argument from both parties, and then orally issued the April 21 Order denying the Defendant's challenge to the People's COCs and statements of readiness.⁶ The Motion Judge held that the defense had violated the Court's March 25, 2022, directive to the parties by filing a motion to invalidate the COC, without first contacting the Motion Judge's court attorney to discuss any outstanding discovery disputes. In any event, the Motion Judge found, the COC and SCOCs were valid, as the People had exercised good faith in fulfilling their discovery obligations.

With regard to the discovery materials themselves, the Motion Judge held that the defense: (a) was not entitled to the additional law enforcement disciplinary records, and (b) was entitled to the photographs of the complainant taken on September 27, 2020. The Court directed the People to issue a subpoena to Officer Rodriguez to obtain the missing photographs. The case was adjourned to April 29, 2022, for trial.

The following day, on April 22, 2022, the People issued a subpoena to Officer Rodriguez for the photographs at issue. Officer Rodriguez informed the People via text message that she did not possess any photographs taken on her NYPD-issued phone of the complainant's injuries from September 27, 2020.

On April 26, 2022, the People disclosed to the defense their text communications with Officer Rodriguez. Counsel #5 sought clarification, noting that the BWC depicted Officer Rodriguez photographing the complainant's neck. Counsel #5 also raised the possibility of a stipulation at trial regarding the photographs, if they could not be located.

In response, the People contacted Officer Rodriguez again that same day. Officer Rodriguez replied that she did not recall taking any photos of the complainant on September 27, 2020, but if the BWC footage showed her doing so, then she would have been using the NYPD-issued phone of her partner, Officer Jessica Jaquez. The People immediately disclosed this text exchange to the defense. Additionally, the assigned ADA informed Counsel #5 that Officer Jacquez had retired from the NYPD, but that the People would endeavor to contact her.

At the April 29, 2022, court date, the People explained on the record their unsuccessful efforts to obtain the photographs. The People affirmed their willingness to enter into a stipulation at trial that there were no injuries or marks of any kind on the complainant's neck on September 27, 2020. Counsel #5 confirmed that, based upon the People's proposed stipulation, the defense had "no further issues" with the missing photographs (tr at 2-3). The People stated that they were ready for trial, and the defense raised no further objections to the People's statement of readiness. The case was adjourned to June 14, 2022, for trial.

On June 2, 2022, Counsel #5 filed and served with the trial court ("the Trial Judge") a motion to dismiss the accusatory instrument, pursuant to CPL 30.30, asserting that the People had failed to file a valid COC and COR within 90 days of the commencement of the criminal action.

On June 3, 2022, the assigned ADA sent an email to Counsel #5 and the court attorney for the Trial Judge. The People asserted that the defense motion was almost identical to the one denied on April 21, 2022 by the Motion Judge. In their email, the People outlined the efforts they had made to obtain the missing photographs, as well as the difficulties they had encountered in issuing a subpoena to an active police officer, and contacting a retired police officer (People's exhibit 7).

On June 14, 2022, the Trial Judge heard oral argument. The Trial Judge ruled that the photographs had been either lost or destroyed and, therefore, that the Court would impose a trial sanction pursuant to CPL 245.80. The Trial Judge denied the defense request to invalidate the People's statements of readiness and to dismiss the accusatory instrument pursuant to CPL 30.30.⁷ Instead, the Trial Judge held that an appropriate sanction was a stipulation at trial that photographs had been taken; that the photographs could not be produced; and that on the date of the incident, no visible injuries appeared on the complainant's neck. Following the Court's decision, both parties stated they were ready for trial. The case was adjourned to June 21, 2022, for trial.

On June 21, 2022, a jury trial commenced. On June 24, 2022, the Defendant was found guilty of Criminal Mischief in the Fourth Degree; Attempted Assault in the Third Degree; and Harassment in the Second Degree. He was found not guilty of Criminal Obstruction of Breathing or Blood Circulation. The case was adjourned to August 15, 2022, for sentence.

On August 15, 2022, the Defendant filed a motion to set aside the verdict, pursuant to CPL 330.30. The Trial Judge set a motion schedule, and adjourned the case to September 26, 2022, for its decision.

On September 23, 2022, the Defendant filed another motion to invalidate the People's COC and COR of December 3, 2020, and to dismiss the case pursuant to CPL 30.30.

On September 26, 2022, the Trial Judge denied the Defendant's motions to set aside the verdict and to dismiss for lack of a speedy trial. The Trial Judge sentenced the Defendant to participate in a 26-week Abusive Partner Intervention Program, and one year of probation with psychotherapy. The case was adjourned for the Defendant to provide proof that he had complied with the terms of his sentence.⁸

On October 27, 2022, the Supreme Court, Appellate Term, First Department granted the Defendant leave to appeal and assigned him counsel. In December 2024, the Defendant appealed the Motion Judge's April 21 Order denying his motion to deem the COCs invalid. The matter was fully submitted before the Appellate Term in April 2025.

On June 23, 2025, the Supreme Court, Appellate Term, First Department issued a decision holding the Defendant's appeal of the April 21 Order in abeyance, and remitting the case to criminal court for further proceedings regarding the April 21 Order. Specifically, the Appellate Term found that the Motion Judge had used a "good faith-only standard" in finding that the People's COC was proper, and had thus failed to address whether the People had exercised due diligence in meeting their statutory obligations.

On August 6, 2025, the case was restored to the criminal court calendar. A motion schedule was set, and the case was adjourned for decision. On September 9, 2025, the Motion Judge issued a written decision holding that the People had not only acted in good faith, but had also exercised the requisite due diligence in complying with their discovery obligations (the "September 9, 2025 Order").

On September 23, 2025, the Defendant's appellate counsel filed a letter objecting to the Motion Judge's jurisdiction to issue the September 9, 2025 Order, on the ground that that Motion Judge had already been appointed by the Governor to Supreme Court, and was thus no longer presiding in criminal court. The September 9, 2025 Order was withdrawn, and subsequently, the case was reassigned to the undersigned. The parties were permitted to file one round of simultaneous supplemental briefs.

III. CPL Article 245

CPL Article 245 went into effect on January 1, 2020, and has since been amended three times: on May 3, 2020, May 9, 2022, and August 7, 2025. The People argue that the current version of the statute, as amended on August 7, 2025, applies to the instant decision. The Defendant asserts that a prior version of the statute should apply.⁹ As set forth below, the Court determines that the August 7, 2025 version of the statute applies.¹⁰

Pursuant to CPL Article 245, the People must produce certain initial discovery as a matter of course, without any demand from the defense (CPL 245.10, 245.20). When a defendant is not in custody and no individualized circumstances apply, this discovery must be served on the defense within thirty-five days of the defendant's arraignment (CPL 245.10 [1] [a] [ii]).

CPL 245.20 (1) sets forth a non-exhaustive list of materials subject to automatic disclosure. The prosecution must make a diligent, good faith effort to ascertain the existence of these materials, and to make any such materials available for discovery, even where the items are "not within the prosecutor's possession, custody or control" (CPL 245.20 [2]). "[A]ll items and information related to the prosecution of a charge" that are "in the possession of any New York state or local police or law enforcement agency" are deemed to be "in the possession" of the prosecution (id.). The People are not, however, required to obtain by subpoena duces tecum materials which the defense may also obtain via subpoena.

Once the People have fulfilled their disclosure obligations pursuant to CPL 245.20, they must file a COC (CPL 245.50 [1]). In doing so, the People must affirm 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" all known, discoverable material that they have obtained (id.). In addition, the People must identify the specific items provided to the defense, and must disclose any materials "of which the prosecution is aware, but has been unable to obtain despite the exercise of due diligence" (id.).

Absent an individualized finding of special circumstances, only after a proper COC has been filed can the People be deemed ready for trial (CPL 245.50 [3]). Indeed, CPL 30.30 provides that "[a]ny statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of section 245.20" (CPL 30.30 [5]).

Once the People have filed a COC, the defendant must provide discovery to the prosecution within thirty days (CPL 245.10 [2]). Both the prosecution and the defense are bound by a continuing duty to disclose discoverable materials. If either party "subsequently learns of additional material or information which it would have been under a duty to disclose," then that party must "expeditiously notify the other party and disclose the additional material and information" (CPL 245.60).

Should the prosecution disclose additional discovery after filing a COC, the People must file and serve a supplemental COC. The supplemental COC must identify the additional materials provided, and must "detail the basis for the delayed disclosure" (id.; CPL 245.50 [1-a]). So long as the original COC was "filed in good faith and after exercising due diligence," the filing of a supplemental COC will not impact the validity of the original certificate  ¹¹ (CPL 245.50 [1-a]; see also People v Bay, 41 NY3d 200 [2023]; People v Coley, 240 AD3d 122 [2d Dept 2025]; People v McMahon, 237 AD3d 746 [2d Dept 2025]). The court will, however, "impose a remedy or sanction that is appropriate and proportionate to the prejudice" for any discoverable materials that are "disclosed belatedly" (CPL 245.80).

(A) The Law Prior to August 7, 2025

Prior to the August 7, 2025 amendments, CPL Article 245 did not provide instruction regarding how courts were to assess the People's exercise of "due diligence." Accordingly, courts looked to case law in making such determinations. In People v. Bay, for example, the Court of Appeals described due diligence as a flexible standard, requiring that the People make "reasonable inquiries" and "reasonable efforts" to comply with the statute (id. at 211). The Court further instructed courts to consider such factors as:

[E]fforts 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. at 212).

Courts were also guided by appellate decisions directing that the Bay factors should be applied "as part of a 'holistic assessment,' 'rather than a strict item-by-item test' " (People v McMahon, 237 AD3d at 746 [citing People v Cooperman, 225 AD3d 1216, 1220 [4th Dept 2024]).

In its June 23, 2025 Order remitting this case, the Appellate Term cited Bay, and emphasized that "[t]he key question in determining if a proper COC has been filed is whether the prosecution has 'exercis[ed] due diligence and ma[de] reasonable inquiries to ascertain the existence of material and information subject to discovery' " [Kasner, 86 Misc 3d 131[A], *1, quoting People v Bay, 41 NY3d 200, 211 [2023]). The Appellate Term further noted that "while good faith is required, it is not sufficient standing alone and cannot cure a lack of diligence" (id; see also People v Cheng, 87 Misc 3d 50 *1 [App Term, 1st Dept 2025]).

(B) The August 7, 2025 Amendments

The August 7, 2025 amendments to CPL Article 245 provide statutory guidance for assessing whether the People have acted with due diligence in meeting their discovery obligations.¹² Under CPL 245.50 (5), in "assessing a party's due diligence, the court shall look at the totality of the party's efforts to comply" with Article 245, "rather than assess the party's efforts item by item." In addition, the statute provides relevant factors for the court to consider in determining whether the People have acted with due diligence:

[T]he efforts made by the prosecutor to comply with [their discovery obligations]; the volume of discovery provided and the volume of discovery outstanding; the complexity of the case; whether the prosecutor knew that the belatedly disclosed or allegedly missing material existed; the explanation for any alleged discovery lapse; the prosecutor's response when apprised of any allegedly missing discovery; 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]).

Moreover, a court may not invalidate a COC if the prosecution "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" (CPL 245.50 [6]).

(C) The August 7, 2025 Version of the Statute Applies

The August 7, 2025 amendments to CPL Article 245 apply to "all criminal actions pending" on that date (L 2025, ch 56, part LL, § 8). The Defendant argues that the instant matter was not a criminal action pending on August 7, 2025, and therefore, that the August 7, 2025 amendments do not apply. Specifically, the defense asserts that the "criminal action" ended on September 26, 2022, the date that sentence was imposed. The instant matter, he contends, is a "criminal proceeding," and thus does not fall within the parameters of the August 7, 2025 amendments.

Pursuant to CPL 1.20 (16),

A criminal action (a) commences with the filing of an accusatory instrument against a defendant in a criminal court . . . ; (b) includes the filing of all further accusatory instruments directly derived from the initial one, and all proceedings, orders and motions conducted or made by a criminal court in the course of disposing of any such accusatory instrument, or which, regardless of the court in which they occurred or were made, could properly be considered as a part of the record of the case by an appellate court upon an appeal from a judgment of conviction; and (c) terminates with the imposition of sentence or some other final disposition in a criminal court of the last accusatory instrument filed in the case.

CPL 1.20 (18), on the other hand, provides:

'Criminal proceeding' means any proceeding which (a) constitutes a part of a criminal action or (b) occurs in a criminal court and is related to a prospective, pending or completed criminal action, either in this state or of any other jurisdiction, or involves a criminal investigation.

The Defendant asserts that the Appellate Term did not vacate his convictions or sentence, but instead held his sentence in abeyance pending a determination of the instant matter; therefore, he argues, the "criminal action" was "terminate[d] with the imposition of sentence" (CPL 1.20 [16] [c]), and the instant matter is necessarily a "criminal proceeding" (CPL 1.20 [18]).

The Court disagrees. The motion at issue was made "in the course of" the Defendant's case: after the "filing of an accusatory instrument" and prior to "the imposition of sentence" (CPL 1.20 [16] [a-c]). Moreover, the "order" and "motion" would certainly "be considered as part of the record of the case by an appellate court" (CPL 1.20 [16] [c]). The motion has already been considered by the Appellate Term as part of the record of the Defendant's appeal; indeed, the Appellate Term's June 23, 2025 Order is the basis for the instant decision. And should the Defendant continue to pursue his appeal from his judgment of conviction, the instant decision would certainly form part of that record.¹³

Accordingly, the instant decision is an order in a "criminal action," and that action was pending on August 7, 2025. The version of CPL Article 245 currently in effect therefore applies.¹⁴ (See L 2025, ch 56, part LL, § 8).

IV. CPL 245 Analysis

The Defendant argues that the People failed to disclose photographs of the

complainant's neck taken by an NYPD officer at the scene of the incident, and additionally, that the People failed to disclose and improperly redacted certain impeachment material for NYPD witnesses. Accordingly, the Defendant argues, the People cannot demonstrate that they acted with due diligence, and each of the COCs filed by the prosecution is therefore invalid. For the reasons set forth below, the Court determines that the People exercised good faith and due diligence in complying with their discovery obligations.

A) Photographs of the Complainant's Neck

The photographs of the complainant's neck that Officer Rodriguez took at the scene of the incident on September 27, 2020, are plainly discoverable. The photographs are clearly relevant, and as the People concede, exculpatory, in that they do not depict any injury to the complainant's neck immediately following the incident. In addition, BWC footage in the People's possession depicted Officer Rodriguez taking the photographs, and a "datasheet" in the People's possession indicated the existence of photographs; the People were thus on notice of the photographs.

As an initial matter, the Court finds that the People have acted in good faith in seeking to meet their discovery obligations. The Motion Judge held that the People had acted in good faith, and the defense does not argue otherwise. It remains, therefore, to determine whether the People have acted with due diligence (Kasner, 86 Misc 3d 131[A], *1).

In assessing whether the prosecution exercised due diligence, the Court considers the totality of the People's efforts to comply with their discovery obligations, as well as the factors set forth in CPL 245.50 (5). (CPL 245.50 [5]). Here, the People have meticulously detailed their efforts to comply with their discovery obligations from the inception of the case through the Defendant's trial. The case spanned a 16-month period; during this time, the People repeatedly stated that they were ready for trial. The case was adjourned numerous times due to multiple substitutions of defense counsel. Although the case was not particularly complex, the People's discovery obligations were complicated by the fact that five different defense attorneys successively appeared in the case. During the 16 months that the case was pending, the People not only re-disclosed numerous discovery materials to each successive attorney, but they also continued to disclose materials that were updated to prevent staleness, newly created, or had recently come into their possession.

Although the People were on notice of the existence of the photographs, the People assert that they had no actual knowledge of the photographs at the time they filed their COC and COR. They note that the photographs were not provided by the NYPD, despite the prosecution's request for all materials related to the case; nor did the DIR or arrest checklist indicate that photographs had been taken at the scene. This does not excuse the People's failure to produce the photographs, as all materials in the possession of the NYPD are deemed to be in the possession of the prosecution (CPL 245.20 [2]). However, "whether the prosecutor knew" that the "allegedly missing material existed" is a factor that courts consider in determining whether the People acted with due diligence (CPL 245.50 [5] [a]).

This factor can cut both ways: if, for example, an item that is routinely disclosed is missing from discovery, the People's assertion that they did not know of the existence of this item may indicate a lack of due diligence in "making reasonable inquiries and efforts" to obtain discoverable material (CPL 245.50 [1]). On the other hand, where the items at are not routinely disclosed, and the prosecutor did not, in fact, know that those items existed, then the prosecutor's lack of knowledge may not necessarily indicate a lack of diligence.

Here, the defense did not raise the issue of the missing photographs until April 18, 2022, 16 months after the People filed their COC and COR. By that time, four prior defense attorneys had appeared on behalf of the defendant; none of those attorneys had discussed missing photographs, and at least two attorneys had affirmatively represented that they had received discovery from the People and had no concerns regarding any missing discovery. This is not to say that it is the Defendant's burden to uncover discovery lapses. However, the fact that 16 months had elapsed, and that four prior attorneys had reviewed the discovery materials, before the issue was finally raised by the fifth defense attorney, is relevant in assessing the obviousness of the discovery lapse.

Similarly, while the People concede that BWC depicts Officer Rodriguez photographing the complainant's neck, the People affirm that they had reviewed and disclosed five separate BWC videos, containing over two hours of footage. The portion of the BWC that depicts Officer Rodriguez photographing the complainant, however, comprised only 30 seconds of that footage (People's affirmation at 31-32). The Court thus concludes that, while the People were on notice of the existence of the photographs, under the circumstances, their lack of actual knowledge of the photographs does not necessarily indicate a lack of due diligence.

The People's response once apprised of the missing discovery further weighs in favor of due diligence. The People, within hours of being alerted by Counsel #5, began efforts to contact Officer Rodriguez through multiple channels. A few days later, pursuant to the Motion Judge's directive, the People issued a subpoena to Officer Rodriguez to obtain the missing photographs. As detailed above, between April 22 and 29, 2022, the People: received and disclosed to defense counsel texts from Officer Rodriguez stating that she had no photographs of the complainant on her NYPD-issued phone; requested additional information from Officer Rodriguez and disclosed subsequent texts; unsuccessfully sought to contact retired Officer Jacquez, whose NYPD-issued phone was most likely used to take the photographs; and offered to enter into a stipulation at trial that photographs had been taken but lost, and that on the date of the incident, no visible injuries appeared on the complainant's neck.

The missing photographs also appear to have been substantively duplicative. The BWC that the People timely disclosed depicts the complainant on the date of the alleged incident. Her neck is visible in this footage. Indeed, in support of his June 2, 2022 motion to dismiss, the Defendant attached screenshots depicting Officer Rodriguez taking photographs of the complainant. In several of the screenshots, it is apparent that there are no marks or bruises on the complainant's neck. While it may be true that the complainant's neck is not as clearly visible in the video as it would be in the missing photographs, the existence of the BWC showing the complainant's injury-free neck lessened the impact of the missing discovery.

Moreover, the stipulation introduced at trial further reduces any prejudice to the defense. Pursuant to the stipulation, the jurors were told that Officer Rodriguez took a photograph or photographs of the complainant's neck, but that those photographs had been lost. Significantly, the jurors were also told that no injuries to the complainant's neck were visible on or after September 27, 2020. Indeed, at trial, the Defendant was ultimately found not guilty of Criminal Obstruction of Breathing or Blood Circulation.

The Court thus concludes that, viewing the totality of the People's efforts to comply with their discovery obligations relating to the photographs, they exercised due diligence and acted in good faith.

B) Law Enforcement Materials

The Defendant asserts that the People also failed to properly disclose police impeachment evidence,¹⁵ specifically, that the People improperly redacted CCRB and IAB materials for law enforcement officers, and that the People failed to disclose the CPI and underlying CCRB materials for Officers Camarena and Cai.¹⁶ The Court disagrees.

As an initial matter, the Motion Judge found that the People had satisfied their discovery obligations regarding the law enforcement impeachment materials, given the varying views of courts on this issue and lack of unequivocal appellate authority at that time. And in any event, the plain text of CPL 245.20 (1) (k) (iv) requires disclosure only of "testifying" witnesses, rather than "possible" or "potential" witnesses (compare CPL 245.20 (1) (k) (iv) with CPL 245.20 [1] [c], [d] [information for individuals who "may be called as witnesses"]; CPL 245.20 [1] [f] [expert witnesses "whom the prosecutor intends to call as a witness"]; CPL 245.20 [1] [h] [photographs and drawings "made by a person whom the prosecutor intends to call as a witness"]; CPL 245.20 [1] [j] [reports, documents, records, data, calculations or writings "made by a person whom the prosecutor intends to call as a witness"]; CPL 245.20 [1] [p] [convictions for "all persons designated as potential prosecution witnesses"]; CPL 245.20 [1] [q] [any pending criminal action against "all persons designated as potential prosecution witnesses"]).

Following the Motion Judge's decision on this issue, the case went to trial; neither Officer Camarena nor Officer Cai testified. The People were thus not required to disclose impeachment materials for Officers Camarena and Cai, because those officers were not "testifying" prosecution witnesses. Whether or not the People at some point intended to call Officers Camarena and Cai to testify, the fact remains that neither officer actually testified at trial (see People v Contompasis, 236 AD3d 138, 150 [3d Dept 2025]; People v Cooperman, 225 AD3d 1216, 1219 [4th Dept 2024]; People v Jawad, 84 Misc 3d 31, 34 [App Term 2d Dept 2024]).

Accordingly, the Court determines that the People exercised due diligence and acted in good faith in fulfilling their discovery obligations. Each of the People's COCs and statements of readiness are therefore valid.

C) Analysis Under Version of CPL Article 245 In Effect Prior to August 7, 2025

Prior to August 7, 2025, CPL Article 245 did not define how courts were to determine whether the People acted with due diligence in seeking to meet their discovery obligations (see Section III, supra). Here, however, even under the statute prior to August 7, 2025, the Court would hold that the People acted with both due diligence and good faith. As set forth above, the People timely disclosed significant amounts of discovery; re-served discovery on each new counsel that appeared on behalf of the defense; supplemented discovery as new materials were created; sought to obtain the missing photographs promptly once they were alerted to their existence; and offered to enter into a stipulation at trial once they had determined that the photographs had been lost. Similarly, prior to the August 7, 2025 amendments to CPL Article 245, the People were required to produce potential impeachment materials only for "testifying" prosecution witnesses.

For these reasons, even under CPL Article 245 as in effect prior to August 7, 2025, the Court determines that the People acted with both good faith and due diligence in fulfilling their discovery obligations.

V. 30.30 Motion

The Defendant is accused of a misdemeanor offense punishable by a sentence of imprisonment of more than three months. Accordingly, the People were required to be ready for trial within 90 days of the commencement of the criminal action, absent excludable time (CPL 30.30 [1] [b])¹⁷ . Once a defendant has alleged an unexcused delay greater than the statutory allowance, the burden shifts to the People to demonstrate that specific periods of delay should be excluded (see People v Santos, 68 NY2d 859, 861 [1986]; People v Berkowitz, 50 NY2d 333, 349 [1980]).

The parties agree that at least 62 days of speedy trial time are chargeable to the People as of September 30, 2021.¹⁸ After that date, there were no adjournments granted at the People's request or due to their unreadiness for trial. The Defendant argues that since every COC and COR filed by the People is invalid, the speedy trial clock was never tolled and the case must be dismissed.

In light of the Court's determination that the People's COCs and CORs are valid, the speedy trial clock was tolled as of September 30, 2021, and 62 days are chargeable to the People. Accordingly, the Defendant's motion to dismiss pursuant to CPL 30.30 is denied.

This opinion constitutes the decision and order of the Court.

Dated: January 29, 2026

New York, New York

Kacie A. Lally, J.C.C.

FOOTNOTES

1.   On September 3, 2021, the People filed a superseding information ("SSI") containing the same charges as the first accusatory instrument, namely, Criminal Obstruction of Breathing or Blood Circulation (PL § 121.11 [a]), Attempted Assault in the Third Degree (PL §§ 110/120.00 [1]), and Harassment in the Second Degree (PL § 240.26 [1]). The SSI also charged with Defendant with an additional count of Criminal Mischief in the Fourth Degree (PL § 145.00 [1]). The Defendant was arraigned on the SSI on September 28, 2021.

2.   Each of the appearances from January 27, 2021 through May 24, 2021, were virtual court appearances due to the COVID pandemic.

3.   Due to the COVID pandemic, limited trial parts were available in criminal court at this time.

4.   The Defendant appeared virtually on this date.

5.   The Defendant and defense counsel appeared virtually on this date.

6.   The denial of this motion forms the basis for the Appellate Term remittitur (86 Misc 3d 131[A], 2025 NY Slip Op 50999[U]), and the instant decision.

7.   The Defendant did not appeal the denial of this motion.

8.   On June 6, 2023, the Court determined that the Defendant had satisfied all conditions necessary to complete his program requirements.

9.   The Defendant does not specify which version of the statute should apply: whether he would have the Court apply the May 3, 2020 version, which was in effect when the April 21 Order was issued; the May 9, 2022 version, which was in effect when the Appellate Term remitted the case to criminal court; or some other version.

10.   Even were the Court to apply a prior version of the statute, it would reach the same conclusion regarding the People's exercise of good faith and due diligence (see People v Fuentes, -- NY3d --, *3, 2025 NY Slip Op 05872 [2025] ["We need not resolve these questions because under either version of the statute . . . , the People disclosed that [required] information before filing their timely COCs."]; see Section IV [C], infra).

11.   Similarly, a COC will not be deemed invalid if the People subsequently produce additional discovery that "did not exist at the time of the filing of the original certificate of compliance" (id.).

12.   The August 7, 2025 amendments included additional changes that are not relevant to the instant motion. These revisions include, inter alia, requirements that if the defense is aware of a potential defect or deficiency relating to a COC, it must file a motion challenging the COC within 35 days of service of the certificate, rather than "as soon as practicable"; and that any COC challenge must include an affirmation that the parties timely conferred in good faith or made good faith efforts to confer regarding the matters forming the basis for the challenge.

13.   The fact that the Appellate Term, First Department did not vacate the Defendant's convictions and sentence, but rather, held the case in abeyance when remitting for the instant decision, is not dispositive (cf. CPL 470.40 [2] [a] [where the Court of Appeals "reinstate[s] and affirm[s] the original criminal court judgment, sentence, or order," it shall remit the case to criminal court for any proceedings "necessary to complete the action or proceedings" [emphasis added]).

14.   Were the Court to apply a prior version of the statute, the holding would remain the same. (See Section IV [C], infra; People v Fuentes, -- NY3d --, *3).

15.   The Appellate Term's June 23, 2025 Order does not specifically remand on this issue: the Order characterizes the Defendant's April 2022 motion as seeking "to invalidate the People's COC on the ground that the People failed to produce required discovery, primarily a police body camera photograph of the complaining witness." The Appellate Term remanded for the criminal court to consider whether the People "exercised due diligence" in making "reasonable efforts to comply with" CPL Article 245, and whether the People "made reasonable inquiries to ascertain the existence of material and information subject to discovery." Nonetheless, the Court addresses the issue.

16.   The parties' motion papers do not include the first names of these officers.

17.   CPL 1.20 (17) provides that "[a] criminal action is commenced by the filing of an accusatory instrument against a defendant in a criminal court." Here, the accusatory instrument was filed on September 27, 2020. The speedy trial clock started running the next day (People v Stiles, 70 NY2d 765, 767 [1987]).

18.   The parties agree that the 60-day period following the filing of the accusatory instrument on September 27, 2020, until the filing of the initial COC on December 3, 2020, is chargeable to the People. This calculation is based on Executive Order 202.8, issued on March 20, 2020, by the Governor of the State of New York, which, among other things, suspended the speedy trial time limitations under CPL 30.30 due to the COVID-19 emergency. These Executive Orders continued to suspend the time limitations of CPL 30.30 until October 5, 2020. The parties also agree that the 2-day period from September 28 to 30, 2021, is chargeable to the People.

Kacie A. Lally, J.