The People Of The State Of New York v. Yuri Torres, Defendant. (2026)

The Defendant, Yuri Torres, is charged with Penal Law [PL] § 145.00-1 Criminal Mischief in the Fourth Degree. By motion dated, April 24, 2026, the Defendant and moves inter alia, to invalidate the People's March 24, 2026 Certificate of Compliance (COC) and for dismissal pursuant to Criminal Procedure Law [CPL] § 30.30 and § 170.30[1][e]. The People oppose and argue that their initial COC was filed in accordance with their obligations under CPL Article 245 by opposition filed May 29, 2026. The defense filed a reply on June 5, 2026. After reviewing the Defendant's motion, the People's response, the Defendant's reply, the court file, and the relevant legal authority, this court finds that the People's initial COC was invalid, and therefore, the Defendant's motion is GRANTED.

CERTIFICATE OF COMPLIANCE

CPL § 245.20[1] prescribes "[t]he prosecution shall disclose to the defendant, and permit the defendant to discover, inspect, copy, photograph and test the following material and information in the possession, custody or control of the prosecution or persons under the prosecution's direction or control" and lists the intended items for initial discovery in CPL § 245.20[1][a]-[v]. Furthermore, possession of all items and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency shall be imputed to the possession of the prosecution (CPL § 245.20[2]; see also CPL § 245.55[1] [prosecution must "ensure that a flow of information is maintained between the police and other investigative personnel and his or her office"]). It is incumbent upon the prosecution to "make a diligent, good faith effort to ascertain the existence of material or information discoverable under [CPL § 245.20[1]] and to cause such material or information to be made available for discovery where it exists but is not within the prosecutor's possession, custody, or control" with the exception that the People are not required to obtain material or information through a subpoena duces tecum where the defense is able to obtain the same material in that manner (CPL § 245.20[2]).

The time periods for automatic disclosure are dictated by CPL § 245.10 and require the discovery obligations be performed "as soon as practicable but not later than the time periods specified" (CPL § 245.10[1][a]). When a defendant is in custody, the People "shall perform its initial discovery obligations within twenty calendar days after the defendant's arraignment" (CPL § 245.10[1][a][i]) and when the defendant is not in custody the People "shall perform its initial discovery obligations within thirty-five calendar days after the defendant's arraignment" (CPL § 245.10[1][a][ii]). The exception to these timing requirements, without the requirement that the People request an extension from the court, is limited to when "materials, including video footage from body-worn cameras, surveillance cameras, or dashboard cameras, are exceptionally voluminous or, despite diligent, good faith efforts, are otherwise not in the actual possession of the prosecution" (CPL § 245.10[1][a]) Under those circumstances, "the time period in this paragraph may be stayed by up to an additional thirty calendar days without need for a motion pursuant to subdivision two of section 245.70 of this article." (CPL § 245.10). The People also may request an extension of the time period of disclosure through a motion pursuant to CPL § 245.70[2] under these circumstances (CPL § 245.10[1][a][iv][B]).

When the People have "exercised due diligence and acted in good faith in making reasonable inquiries and efforts to obtain and provide the discovery required by subdivision one of section 245.20 of this article" the People must serve upon the Defendant and file with the court, a Certificate of Compliance (COC) (CPL § 245.50[1]). The COC "shall state 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. It shall also identify the items provided. The prosecution shall also identify the items that the prosecution is required to disclose and of which the prosecution is aware, but has been unable to obtain despite the exercise of due diligence as evaluated under this section." (CPL § 245.50[1]).

A. The Defense Motion Comports with CPL § 245.50[4].

Under CPL § 245.50[4], the defense must "notify or alert" the prosecution of any defects or deficiencies relating to a COC, and any challenges relating to the sufficiency of a COC shall be addressed by motion within thirty-five days of the COC's service (CPL § 245.50[4][a]-[c]). After the expiration of 35 days, the defense is permitted to file a COC challenge "where the grounds for such challenge are based upon a material change in circumstances, including but not limited to the belated disclosure of discoverable material pursuant to [CPL § 245.20], or, where the party entitled to disclosure could not, with due diligence, have known of the specific and particularized matters forming the basis of the challenge prior to the expiration of such period" (CPL § 245.50[4][c][ii]). Any motions to challenge a COC must also be accompanied by an affirmation that the movant timely made good faith efforts to confer about the missing items at issue, and that these efforts were unsuccessful (CPL § 245.50[4][c]). Defense may request and the court may extend the 35-day window for filing a COC challenge for good cause shown (CPL § 245.50[3][c][i]).

The defense filed the instant motion within the 35-day motion filing timeframe, as required by Article 245 and affirmed that the basis for the motion is that the People's delayed disclosures and lack of disclosures could not be resolved without court intervention after conferral. Therefore, the Defense has met the threshold requirements of CPL § 245.50[4].

B. The Validity of the People's March 24, 2026 COC

In determining the validity of the People's COC, by assessing if the standard of due diligence was met, "the court shall 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." CPL § 245.50[5]. Relevant factors to the Court's determination are explicated in CPL § 245.50[5][a]: (1) the efforts made to comply with CPL 245 requirements (including the timing requirements of CPL § 245.10, the disclosure requirements of CPL § 245.20, the supplementary certificate of compliance requirements of CPL § 245.50[1-a], and the protective order requirements of CPL § 245.70); (2) the volume of discovery provided and the volume of discovery outstanding; (3) the complexity of the case; (4) whether the prosecutor knew that the belatedly disclosed or missing material existed; (5) the explanation for any alleged discovery lapse; (6) the prosecutor's response when apprised of any allegedly missing discovery; (7) whether the belated discovery was substantively duplicative, insignificant, or easily remedied; (8) whether the omission was corrected; (9) whether the prosecution self-reported the error and took prompt remedial action without court intervention; (10) 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]). The Court is not limited to the factors in CPL § 245.50[5][a], however, "[t]he court's determination shall be based on consideration of all factors listed in paragraph (a) of this subdivision and no one factor shall be determinative." (CPL § 245.50[5][b]). The overall standard for a valid COC is that the Court find that "the 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]).

Here, the Defense argues inter alia, that the People's belated disclosure of the first 911 call made by the complainant, invalidates the COC. The People argue that any belated or potentially outstanding discovery does not render their initial COC invalid, and that their discovery efforts as a whole in this case were duly diligent. The People further argue that the materials that the defense alleges are outstanding either do not exist or are not automatically discoverable.

Defendant was arraigned on January 13, 2026. The People state that they first made a request for discovery on January 15, 2026, however, this was limited to requesting that a paralegal: "order the prisoner profile, arrest photos, RAP sheet of defendant and complaining witnesses, 911 calls, radio runs, and Sprint" (P's Opp. at p. 5). It was not until March 19, 2026, that the People submitted a follow up request to obtain 911 calls and related materials — 65 days after the commencement of the case. The People also state that their first request for materials from the arresting officer, Brian Portuhondo, did not take place until March 23, 2026 — 69 days after the commencement of this case. This was not a situation where the People were requesting material early and frequently and being met with obstacles beyond their control. The People waited 65 days to send a follow up request for 911 call material, after not receiving it from the first request, and first reached out to the arresting officer 69 days after the commencement of case. This is not diligence, as the statute requires that the People "shall perform its initial discovery obligations within thirty-five calendar days after the defendant's arraignment" and there was no attempt made to obtain a significant portion of the discovery material until 69 days from arraignment(CPL § 245.10[1][a][ii]). This discovery acquisition timeline and efforts weigh heavily against a finding of diligence under the circumstances of this case. (CPL 245.2050[5][a][1] ["the efforts made to comply with CPL 245 requirements (including the timing requirements of CPL § 245.10, the disclosure requirements of CPL § 245.20, the supplementary certificate of compliance requirements of CPL § 245.50[1-a]"]).

This case is also "not particularly complex, which cuts against a finding of due diligence" People v McMahon, 237 AD3d 746, 751 [2d Dept 2025], lv to appeal denied, 43 NY3d 1057 [2025]. This is a case involving a single count of criminal mischief. The entirety of the factual allegations are:

DEPONENT STATES THAT HE IS INFORMED BY THE COMPLAINANT, TITAN HAMANN, THAT AT THE ABOVE-MENTIONED DATE, TIME, AND PLACE OF OCCURRENCE, WHICH IS HIS FAMILY'S RESTAURANT, HE OBSERVED THE DEFENDANT, YURI TORRES, PICK UP A TRAFFIC CONE AND THROW IT AT THE WINDOW OF THE ABOVE-MENTIONED LOCATION AND PULL DOWN A BEAR STATUE CAUSING THE BEAR TO BREAK OFF OF THE STAND.

DEPONENT FURTHER STATES THAT HE IS INFORMED BY THE COMPLAINANT THAT HE IS A LEGAL CUSTODIAN OF THE ABOVE-MENTIONED BEAR STATUE AND THAT THE DEFENDANT DID NOT HAVE PERMISSION OR AUTHORITY TO DAMAGE SAID BEAR STATUE.

This is an extremely simple case not involving extensive investigation or evidence collection. Therefore, this factor weighs against a finding of diligence where, here the People failed to identify a missing 911 call until alerted by defense counsel.

Here, the People explain they were not aware the second belatedly disclosed 911 call existed, despite it being referenced in the 911 call that was disclosed. The Court credits this assertion by the People, which does support a finding that the People's behavior was not in bad faith, however, this same information also suggests that the People did not review the single 911 call that they had disclosed in this case (CPL § 245.50[5][a]). The overall low volume of discovery in comparison to many other cases supports a finding that the People's failure to disclose the initial 911 here is more unreasonable (CPL § 245.50[5][a]).

The People's explanation for this lapse that "the additional 911-call was not linked to the arrest of the defendant, so the People did not receive the additional 911-call when they initially requested 911-calls prior to filing the COC" (P's Opp. at p. 45) is not satisfactory. As the Court in People v Zurrow, 89 Misc 3d 127(A) [App Term 2026], expounded, where there is indication in the discovery that certain material exists, the People's explanation that they requested the material generally, but it was not retrieved because it was not "linked" administratively to the case, is not sufficient. (People v Zurrow, 89 Misc 3d 127(A) [App Term 2026][finding under former CPL 245.50[1] the People were not diligent, applying the multiple factor test set out in Bay, reasoning that "while the BWC footage may not have been tagged to defendant's arrest number prior to the filing of the original COC, the People admitted that the footage was located via geo-location search, retrieved, and provided to the defense the very same day that the defense requested it."]). This is especially true where, here, the People had disclosed a 911 call that specifically referred to the original call. While it may be true this this was an inadvertent error, the People did not provide an explanation for their oversight of not listening to the call, or if they did, hearing this part of the call (see CPL § 245.50[5][a]; People v Pierre, 2025 NY Slip Op 07318, at *2 [2d Dep't 2025]["Although the People's failure to produce, inter alia, body-worn camera videos from five different police officers was inadvertent, the People did not adequately explain this lapse."].

Further, defense counsel alerted the People of the missing 911 call, stating via email on March 31, 2026 that "[i]n file 405393 the CW tells the 911 operator that he called before regarding the same incident. We do not have those 911 calls." The People responded, on April 19, 2026, twenty days after the defense's email was sent "I do not see what you are referring to — can you please point me to the correct file?". Defense counsel responded on April 22, 2026, confirming that he was not mistaken with the original request and stating again: "As far as the 911 call the file is file 405393. On it the CW tells the 911 operator that he called before regarding the same incident. We do not have those 911 calls." On May 20, 2026, almost one month later, the People responded that they were able to locate the first 911 call of the complainant and directed a paralegal to expedite the 911 calls. On May 22, 2026, the second 911 call and related materials were disclosed. This belated response by the People, after an already initial discovery lapse, does not support a finding of due diligence. It is evident that the People had not listened to the 911 call they disclosed, despite this matter not involving voluminous discovery, and were unfamiliar with their own discovery to the extent that they did not understand defense counsel's clear inquiry, and took an unreasonable amount of time to respond (CPL § 245.50[5][a]).

The first 911 call was not duplicative or insignificant, as the People argue. This was the first 911 call by a complainant, describing an observation of the Defendant's alleged conduct, and further depicts the tone and tenor of the complainant's voice at the time the incident was first reported, in addition to the factual information provided. There is no substitute for hearing the complainant's voice at this crucial time in the case, and as a result this factor weighs against a finding that the COC is valid, despite it being easily remedied (CPL § 245.2050[5][a]).

The People's response to the issue of the missing 911 call being raised, though without court intervention, was not prompt as it was not corrected until 130 days from the commencement of the case and 52 days after the defense first raised the issue of the missing call. This unreasonable period of time to correct the error does not support finding the COC valid (CPL § 245.50[5][a]).

Lastly, this delayed disclosure was prejudicial to the Defense (CPL § 245.50[5][a]). Prior to this call being disclosed, the defense could not fully or properly investigate this case. When considering the factors set forth in CPL § 245.50[5][a]'s as well as the importance of this 911 call, which the complaining witness made immediately after the alleged incident, the prejudice to the defense to prepare for hearings and trial without this call outweighs any factors that may weigh in the People's favor. A 911 call placed by a complaining witness regarding the allegations is critical to the defense of an individual. 911 calls almost always become a source for litigation at suppression hearings, as frequently these calls form the basis of the police apprehension of a suspect. Furthermore, 911 calls made shortly after an alleged incident by complaining witnesses seeking help are frequently offered by the People as evidence at criminal trials. Therefore, absent a 911 call made by the complaining witness concerning alleged criminal conduct, the defense cannot adequately prepare for trial or suppression hearings. While this case had not yet been set for hearings or trial, the Defense did not receive this call until more than 130 days after this case began, and well past the 90 days allotted for this case under CPL § 30.30, and missing this information prevented proper investigation that could have also resulted in a speedier resolution of the case or setting of trial.

CPL article 245 does not create a "rule of strict liability" or require a "perfect prosecutor" (Bay, 41 NY3d at 212 [internal quotation marks omitted]). "[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' " (id. at 211, quoting now former CPL § 245.50 [1]; see CPL § 245.20[2]). Thus, while "belated disclosures" might not undermine the People's COC if they are "minimal" and "not related to testifying witnesses," People v. McCutchen, AD3d, 2026 NY Slip Op. 01990, at *2 (2d Dept. 2026), here, the belated disclosure involved the first rendition of the allegations by the complainant.

Here, the court is particularly concerned about the apparent lack of effort to obtain the "routinely produced" 911 call and radio run records "without any elaboration as to what efforts were made" to obtain them or verify whether they existed after the 911 received referred to a second call (People v Bay, 41 NY3d 200, 215 [2023] [No due diligence shown for missing 911 call or police report]). The People do not describe any specific efforts that they made to contact law enforcement in order to obtain the missing 911 call until 130 days after the case commencement and 52 days after Defendant raised the issue (compare People v Gerhard, 244 AD3d 1313, 1317 [3d Dept 2025][911 calls disclosed six days after defense counsel clarified his request dispelling confusion over audio files]). This is also not a situation where the People " 'had complied with their automatic discovery obligations under CPL article 245 to the extent possible' at the time they filed the initial COC and SOR" because of delays in receipt of material. Here, the People, due to a lack of diligence had not made sufficient requests for the 911 calls, based on the discovery material, until they were alerted by the Defense (cf. People v Speed, 2025 NY Slip Op 07129, *1 [4th Dept Dec. 23, 2025], quoting People v Geer, 224 AD3d 1353, 1353 [4th Dept. 2024], lv denied 42 NY3d 970 [2024] ["Because the 911 calls disclosed on February 7, 2024 were not provided to the People until January 31, 2024, we conclude that the People "had complied with their automatic discovery obligations under CPL article 245 to the extent possible" at the time they filed the initial COC and SOR Because the 911 calls disclosed on February 7, 2024 were not provided to the People until January 31, 2024, we conclude that the People "had complied with their automatic discovery obligations under CPL article 245 to the extent possible" at the time they filed the initial COC and SOR ]).

Upon review of the People's discovery activities against the non-exhaustive factors set forth in CPL § 245.50[5][a], the court finds that the People have not sustained their "burden of establishing that they did, in fact, exercise due diligence and made reasonable inquiries" prior to filing the COC (People v Bay, 41 NY3d 200, 213 [2023]).

SPEEDY TRIAL

When a defendant is charged with a misdemeanor punishable by a sentence of more than three months, such as the instant case, the prosecution must be ready to proceed to trial within 90 days from the commencement of that criminal action (CPL § 30.30[1][b]). To satisfy the initial burden under CPL § 30.30, the defendant need allege "only that the prosecution failed to declare readiness within the statutorily prescribed time period" (People v Luperon, 85 NY2d 71, 77-78 (1995); see also People v Goode, 87 NY2d 1045, 1047 [1996]). Once the defendant has alleged that more than the statutorily prescribed time period has elapsed since the commencement of the action, the prosecution bears the burden of establishing sufficient excludable delay (see People v Berkowitz, 50 NY2d 333, 349 [1980]). Absent a valid COC, the People cannot be deemed ready for trial (CPL 245.50[3]).

This criminal action commenced on January 13, 2026, when the case was filed and the defendant was arraigned (CPL §§ 1.20[17], 100.05; People v Cooper 98 NY2d 541, 543 [2002]). The defendant was released, and the case was adjourned to March 19, 2026, for the People to file a Certificate of Compliance (COC), and SOR. This time is chargeable, because during this time, the People did not file a COC and did not declare readiness. (65 days charged)

On March 19, 2026, the People were not ready, and the case was adjourned to May 5, 2026, for the People's COC and SOR. On March 24, 2026, off-calendar, the People served and filed a COC and SOR. As discussed above, this COC and SOR were invalid and ineffective in stopping the speedy trial clock. As such, the People would be charged from March 19, 2026, to May 5, 2026, however, here, the Defense filed the instant motion off calendar on April 23, 2026. Time while a case is in motion practice is not charged to the People (CPL § 30.30 [4][a]). Therefore, the period from March 19, 20226 to April 23, 2026 (35 days charged; 100 days total)

Here, as the defendant is charged with a misdemeanor punishable by a sentence of more than three months, the applicable speedy trial time is 90 days. As 100 days of chargeable time has accrued, defense counsel's motion to dismiss pursuant to CPL § 30.30 is GRANTED.

The foregoing constitutes the opinion, decision, and order of the Court.

Dated: July 14, 2026

Queens, New York

ENTER:

Vidya Pappachan, J.C.C.

Vidya Pappachan, J.