The People of the State of New York, Plaintiff, v. Shisen Yu, Defendant. (2026)

The defendant is accused of forcible touching (PL § 130.52 [1]), among other related offenses. The defense moves this court to find the People's certificate of compliance (COC) and certificate of readiness (COR) invalid, and to either suppress evidence or order pretrial hearings. The defense also seeks various orders from the court instructing the People to provide a bill of particulars, and other evidence related requests. The People oppose, arguing that their COC and COR are valid because they have exercised due diligence, regardless of any lapses in discovery compliance, and oppose pretrial hearings as either premature or unnecessary. The People also oppose any response to a bill of particulars or further discovery orders. For the following reasons, the defense's motion is GRANTED in part, invalidating the People's COC, and the People are further ordered to provide additional discovery. Moreover, a Wade/Dunaway hearing is ORDERED.

I. Factual background

The defendant was arrested on January 29, 2026, and accused of forcible touching (PL § 130.52 [1]). He was arraigned the next day on January 30, 2026. The People filed their COC and COR on March 23, 2026. The defense conferred with the People and requested 25 items of undisclosed discovery on April 3, 2026. The People responded and produced additional discovery on April 3, 6 and 8, 2026, followed by a supplemental COC (SCOC) and another COR on April 13, 2026. The People produced additional discovery related to a potential expert witness and filed a second SCOC on April 24, 2026.

II. COC and COR Challenge

On a motion challenging a COC, this court will typically first determine whether the movant has complied with the procedural requirements of CPL § 245.50 (4) (see People v Minor, 2026 NY Slip Op 50255[U] [Crim Ct, NY County 2026]). Next, if the motion satisfies those requirements, the court will examine the alleged discovery violations individually (People v Lodgson-McCray, 88 Misc 3d 1212[A] [Crim Ct, NY County 2026]). Finally, if the court finds that any discovery violations occurred, the court will then examine the violations in the context of "the totality of the [People's] efforts to comply with the provisions of [Article 245]" and determine whether the People nevertheless "exercised due diligence and acted in good faith" in discharging their duties (CPL § 245.50 [5], [6]; see also People v Bay, 41 NY3d 200, 211 [2023]).

The defense has satisfied the procedural requirements in CPL § 245.50 (4) by filing a timely motion with an affirmation of diligent conferral. On the merits of the COC challenge, the defense argues that the People failed to provide police paperwork, court paperwork, impeachment material, and expert witness information.

A. Evidence at issue

a. Police paperwork (CPL § 245.20 [1] [e])

The defense argues that as of the filing of the March 23, 2026, COC the People had failed to produce a DA datasheet, property vouchers, a finalized aided report, a ZOLPA, an entity report, a medical treatment of prisoner form, a pre-arraignment notification report, an arraignment card and an interrupted patrol log. These items were part of the materials requested during the April 3, 2026, conferral process. The People concede that all of this material (except the NYPD arraignment card, pre-arraignment notification report and interrupted patrol guide) existed and should have been disclosed with their COC (People's Response, P7). The People argue that although the ZOLPA should have been disclosed with their COC, they maintain it is not discoverable.

The court agrees with both parties that most of these missing materials are automatically discoverable pursuant to CPL § 245.20 (1) (e) and should have been disclosed with the People's COC. While the court agrees with defense that the ZOLPA itself is discoverable, this document contains minimal relevant information and arguably nothing that is not already contained in other NYPD documents. In short, the ZOLPA should have been disclosed with the People's COC as material covered under CPL § 245.20 (1) (e), but because the information it contains is duplicative in other police paperwork, its individual delayed disclosure bears little on the court's assessment of the People's due diligence as discussed below.

The defense argues that the interrupted patrol log has yet to be disclosed. The interrupted patrol log is an administrative document not meant to track substantive case-related information but instead to track the amount of time spent in a stationhouse by on-duty officers (see People v Robinson, 87 Misc 3d 1211[A], *3 [Crim Ct, NY County 2025]). Nevertheless, the People are ORDERED to obtain the document and produce it to the defense within two weeks of the date of this decision (see CPL 245.20 [7] [mandating "a presumption in favor of disclosure"]).

The defense also moves this court for orders to preserve 911 and police recordings and to make a prompt request for police files pursuant to CPL § 245.55 (2). The People are under a statutory obligation to preserve this material under CPL §§ 245.20 (1) (e), (g) and CPL §§ 245.55 (2), (3) and are reminded of their obligations.

b. Court paperwork (CPL § 245.20 [1] [e])

The defense argues that the People's COC was invalid as the People did not produce the pre-arraignment report and the NYPD court verification/arraignment card. The People do not dispute that these documents are discoverable. Rather, they argue that the documents were created by the New York City Office of Technology and Innovation and are therefore not within their custody or control. They also argue that the documents are equally available to both parties in the court file.

For information that is not within the People's custody and control, the People must "make a diligent, good faith effort to ascertain the existence of material or information [that is] discoverable . . . and to cause such material or information to be made available for discovery" (CPL § 245.20 [2]). For information available to both parties, the People's obligation is to alert the defense to the material's existence and provide information on where to obtain it (see People v Simmons, 78 Misc 3d 544, 185 NYS3d 891 [Sup Ct, Bronx County 2023]; People v Bracy, 88 Misc 3d 129 [A], 248 NYS3d 811 [NY App Term, 2d Dept, 2nd, 11th, 13th & Jud Dists 2026], leave to appeal denied, 2026 WL 2099152 NY [June 26, 2026]). In accordance with the requirements of CPL § 245.20 (2), the People's COC should have listed the pre-arraignment card and NYPD court verification/arraignment card as discoverable material and their location, but because this material is equally available to both parties, the People were not responsible for producing the documents to the defense.

c. Impeachment material (CPL § 245.20 [1] [k] [iv])

The defense argues that the People's COC was invalid because it did not disclose impeachment material for Officer Campos, who was not initially identified as a testifying witness. The People respond that they did not disclose Officer Campos's impeachment material because they did not originally intend to call him as a witness. Once they decided to call Officer Campos to testify, they disclosed his impeachment material to the defense.

Any impeachment material for testifying witnesses is automatically discoverable under CPL § 245.20 (1) (k) (iv). The discovery statute does not require the People to provide a finalized witness list before filing a COC and announcing trial readiness. Although the defense argues that Officer Campos was the only police officer who witnessed the identification procedure and was therefore a necessary witness, the People respond that they had sufficient evidence to prove their case even without Officer Campos's testimony. The People's belated decision to call Officer Campos as a witness, whether strategic or inadvertent, did not violate their obligations under CPL § 245.20 (1) (k) (iv). The statute imposes no deadline for identifying additional witnesses, provided the People timely disclose any required impeachment material once those witnesses are identified.

The defense also requests an order requiring the People to file additional COCs as they obtain outstanding impeachment material and to comply with their Brady/Vilardi disclosure obligations. These requests are denied. The People are reminded of their statutory obligations under CPL §§ 245.50 (1) and 245.20 (1) (k).

d. Expert witness information (CPL § 245.20 [1] [f])

Lastly, the defense argues that the People "refused to provide any 'reports prepared by the expert that pertain to the case, or if no report is prepared, a written statement of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion' C.P.L. § 245(1)(f)" (Defense Motion, P16). The People respond that no reports exist, and that the description they provided to defense regarding their experts' expected testimony satisfies their discovery obligations.

The People stated, in relevant part, that one expert is expected to testify "to the normal practices of massage therapy for both providers and clients. Specifically, the New York state requirements . . . called the New York State Massage Therapy Law, Rules, and Regulations" and that other experts are expected to testify about "how victims react/respond to a sexual assault" (Defense Motion, Exhibit D). While this information, along with the experts' curricula vitae, summarizes the subjects of their expected testimony and the general bases for their opinions, it does not identify the opinions themselves or explain how those opinions relate to the facts of this case.

Therefore, the People are ORDERED to provide the opinions of their experts regarding the requirements governing massage therapy in New York State and the behavioral reactions of sexual assault victims, as those opinions relate to the facts of this case within two weeks of the date of this decision (see CPL § 245.20 [7] [mandating "a presumption in favor of disclosure"]).

B. Validity of the People's COC and COR

The court must assess each of the contested items of discovery within the context of "the totality of the [People's] efforts to comply with the provisions of [Article 245]" and determine whether the People nevertheless "exercised due diligence and acted in good faith" in discharging their duties (CPL § 245.50 [5], [6]; see also People v Bay, 41 NY3d 200, 211 [2023]). The court will examine the People's efforts within the factors listed in Bay and CPL § 245.50 (5) (a).

In this case, the People's efforts to comply with their discovery obligations included interviewing the arresting officer on the night of the defendant's arrest, utilizing District Attorney's Office staff to gather video evidence, recordings, and police paperwork, and gathering discoverable material between February 17, 2026, and March 23, 2026. Those efforts culminated in the disclosure of 68 items with the People's original COC (People's Response, P4). This case, as the People concede, is not complex and the discovery is not voluminous (People's Response, P16). Of the 68 items disclosed with the People's original COC, seven discoverable items, discussed above, were not disclosed.¹ Two additional discoverable items were not in the People's possession and were publicly available, but they were not identified as outstanding on the People's COC.² The expert disclosure likewise omitted the experts' opinions. It is unclear whether the People were aware of these omissions, but none was identified as outstanding on the People's COC.

The People do not offer an explanation for the discovery lapse in their response. However, in their SCOC filed on April 13, 2026, they disclosed the missing materials and explained that they had "inadvertently omitted" the DA datasheet and did not believe that the property vouchers, finalized aided report, ZOLPA, entity report, or medical treatment of prisoner form were relevant to the subject matter of the case or to the credibility of their witnesses. This explanation demonstrates a lack of due diligence in a case that was neither complex nor voluminous. The People are required to presume disclosure of discoverable material (see CPL § 245.20 [7]) and assume the risk of invalidating their COC when they withhold material they believe is not discoverable, particularly documents generated by law enforcement in connection with the defendant's case.

The People argue that, because they diligently remedied the discovery lapse through the conferral process, their belated disclosure of these materials should not invalidate the COC. That approach to assessing due diligence is not supported by the statute. CPL § 245.50 (5) instructs the court to consider the "[People's] response when apprised of any allegedly missing discovery", whether the missing discovery was "easily remedied" or whether "the omission was corrected." Those considerations, however, do not create a de facto safe harbor for discovery lapses whenever the People later cure the omission. Rather, they are among the many factors the court must weigh in evaluating the totality of the People's efforts to comply with Article 245 (see People v Bay, 41 NY3d 200, 211 [2023]).

The belatedly disclosed discovery materials, while individually insignificant, collectively demonstrate a lack of due diligence in preparing this case for discovery compliance. Here, the People disclosed 68 items after conducting a single interview and relying on routine institutional systems to gather evidence in a case of limited complexity and volume. Seven discoverable items were omitted due either to inadvertent error or to the People's belief that the materials were not discoverable. Although the individual omissions were minor, collectively they constituted a meaningful lapse in discovery compliance. The People promptly remedied most of the omissions, and the court has now ordered disclosure of the remaining items. The defense does not contend that the delayed disclosures caused any prejudice.

When balancing all of these factors, the court finds that the People failed to exercise due diligence when filing their COC on March 23, 2026. In a straightforward case, the People withheld routine police records despite otherwise disclosing 68 items. The People also failed to disclose the opinions to which their experts are expected to testify. Although the court has granted the People additional time to comply with their expert disclosure obligations pursuant to CPL § 245.20 (1) (f), those deficiencies do not alter the court's conclusion that the original COC was invalid. The remaining outstanding discovery, the interrupted patrol log, individually bears little on the People's diligence when assessed as a whole and the People are now ordered to disclose the log to the defense. Therefore, the defense's motion to invalidate the People's COC and their COR filed on that same date is GRANTED(CPL § 245.50 [3]).

C. Speedy trial calculation

The defendant is charged with an A misdemeanor and no felonies, and the People are required to announce their readiness for trial within ninety days of the commencement of the criminal action (CPL § 30.30 [1] [b]). The People concede that they must be charged with the period from the defendant's arraignment on January 30, 2026, until the People filed their COC and answered ready for trial on March 23, 2026, a period of 52 days.

The People's COC and COR are invalid and remained invalid until they produced the outstanding discovery to the defense on April 13, 2026, an additional period of 16 days. On April 13, 2026, the People cured the discovery deficiencies identified above, rendering their COC valid. Their subsequent statement of readiness was therefore effective. In total, the People are charged with 68 days.

III. Pretrial Hearings, Bill of Particulars and Defense COC

The defense moves for suppression of statements, physical evidence and identification testimony, or in the alternative for suppression hearings. The People respond that they do not plan on introducing any of the defendant's statements or physical evidence obtained from the defendant at trial. The People respond that officers acted lawfully while conducting an identification procedure in this case.

A Wade/Dunaway hearing is ORDERED. Pretrial voluntariness and Sandoval hearings are reserved for decision by the trial court.

The request for a bill of particulars is denied. The People filed and served a bill of particulars on March 23, 2026, as part of their automatic disclosure form. That document and the criminal complaint contain all the information the defendant has demanded that is authorized to be included in a bill of particulars (CPL § 200.95 [5]).

The defense's request for a 30-day extension to file their COC is granted, 30 days from the date the People comply with the above discovery orders.

This constitutes the decision and order of this court.

Dated: August 5, 2026

New York, NY

Ilona B. Coleman, J.C.C.

FOOTNOTES

1.   A DA Datasheet, property vouchers, finalized aided report, ZOLPA, entity report, medical treatment of prisoner form, and an interrupted patrol log.

2.   Pre-arraignment report and NYPD court verification/arraignment card.

Ilona B. Coleman, J.