The People of the State of New York, Plaintiff, v. Daniel Abbastante, Defendant. (2026)

The defense moves this court to find the People's certificate of compliance (COC) invalid pursuant to CPL § 170.30 (1) (e), and thereafter to release Mr. Abbastante from custody pursuant to CPL § 30.30 (2) (b). Specifically, the defense argues that the People did not satisfy their discovery obligations under CPL § 245.20 in that they failed to timely produce police disciplinary records, activity logs, body-worn camera (BWC) footage, ECMS files, photographs taken by an investigating officer, and an NYPD Lost or Stolen Property report. In opposition, the People argue that the motion is procedurally barred, that some of these materials do not exist, and that regardless of any discovery defects, they exercised due diligence prior to filing their COC.

For the reasons that follow, the court GRANTS the motion challenging the People's COC but DENIES the motion for release.

I. Procedural History

The defendant is charged with violating PL § 155.25 for allegedly stealing merchandise on May 18, 2026. After an initial investigation, the defendant was arrested on June 16, 2026.On June 17, 2026, he was arraigned on a misdemeanor complaint and held on bail. The court adjourned the case to June 22, 2026, for conversion.

On June 22, 2026, the People filed and served supporting depositions, converting the complaint to an information. The court then adjourned the case to July 17, 2026, for trial.

On July 9, 2026, the People produced discovery to the defense and filed and served a COC and a certificate of readiness (COR). The COC specified that the People had not produced certain activity logs and police disciplinary records because they were "unable to obtain [them] despite the exercise of due diligence."

On July 17, 2026, the defense objected to the People's COC and COR and moved orally to invalidate them and for Mr. Abbastante's release from custody. The court set a motion schedule and adjourned for decision.

That same day, defense counsel emailed the People a list of discovery objections. The People responded on July 20, 2026and produced some of the outstanding discovery, stated that some of the materials did not exist, and explained that they had not been able to obtain some NYPD documents.

On August 4, 2026, the defense filed the instant motion. On August 19, 2026, the People responded in opposition. Defense counsel informed the court that they will not be filing a reply.

II. Validity of the People's COC

On a motion challenging a COC, this court will 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, the court will examine the alleged discovery violations individually (People v Lodgson-McCray, 88 Misc 3d 1212[A] [Crim Ct, NY County 2026]). 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]).

1. Defense Compliance with CPL § 245.50 (4)

The People argue that defense counsel did not comply with CPL § 245.50 (4) (c)'s conferral requirement. Specifically, the People argue that defense counsel's conferral efforts were untimely and improper because the defense requested a motion schedule prior to conferral and did not explain why the requested materials were discoverable.

None of these objections are meritorious. The defense raised their objections just 8 days after the People produced discovery and served their COC. The People's argument implies that defense counsel must, in every case, conduct a thorough review of discovery within a week or less after receiving a COC, an expectation that is both unreasonable and unsupported by the statute.

Further, there is nothing improper about requesting a motion schedule before conferral. Defense counsel will often know that a conferral is unlikely to resolve their discovery objections, and the setting of a motion schedule in no way obligates the defense to file a motion if the issues are resolved. Nor do the People cite any statute or case suggesting that this practice is improper.

Finally, the fact that defense counsel did not explain in their conferral email why the outstanding materials are discoverable is immaterial. Both in their response to defense counsel's conferral email and in their opposition to the defense motion, the People concede that all the requested materials (other than those that do not exist) are discoverable. Discovery conferrals may be informal and need not take any particular form (see CPL 245.50 [4] [c]), and there is no specific language that defense counsel must include in a conferral email to satisfy the statute's requirements.

Overall, defense counsel's conferral affirmation satisfies the requirements of CPL § 245.50 (4) (c), and the People have not demonstrated that the conferral efforts were untimely, in bad faith, or otherwise deficient. The court will therefore consider the merits.

2. The People's Compliance with CPL § 245.20

The defense argues that the People failed to satisfy their discovery obligations in that they failed to produce police disciplinary records, activity logs, BWC footage, ECMS files, photographs taken by an investigating officer, and an NYPD Lost or Stolen Property report.

The People largely concede that the materials at issue are discoverable. The only real exceptions are the arresting officer's BWC footage and certain ECMS files, which the People credibly assert do not exist. For the remaining items — disciplinary records, activity logs, other ECMS files, NYPD photographs, and the Lost or Stolen Property report — the People do not argue that they fall outside of CPL § 245.20 (1) and therefore concede their discoverability.

3. The People's Diligence and Reasonableness

Even where the People have not satisfied all of their discovery obligations, their COC will not be invalidated where they have "exercised due diligence and acted in good faith in making reasonable inquiries and efforts to obtain and provide the material" (CPL 245.50 [6]; see also Bay, 41 NY3d at 211). In determining whether the People acted with due diligence, the court must consider:

[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]; see also Bay, 41 NY3d at 212).

This is not a particularly complex case, with a moderate amount of discovery involved. The People acted quickly to obtain surveillance video, and they contacted members of the NYPD within a week of arraignment to obtain police paperwork and investigative materials. Moreover, they made significant efforts to ensure that all BWC footage had been produced prior to filing their COC. For other discoverable materials, though, there is little indication in the record that the People made appropriate efforts to obtain the materials. Specifically, for Officer Destinee Rosa's disciplinary records, the People state they requested them from their internal "LED team" "several days" before filing their COC (People's opp., p. 5), but it is unclear whether the ADA followed up on that request, what efforts the LED team made to obtain the documents, or even what documents the LED team had in their possession when the COC was filed. Despite having received no response, the ADA filed their COC without making any further efforts beyond the initial request.

Next, the People seem to have made no effort to obtain the outstanding activity logs until July 9, 2026, the day they filed their COC. That day — 22 days after arraignment, at which point the People should have already completed their initial disclosures (CPL 245.10 [1] [a] [i]) — the ADA requested the documents for the first time from the arresting officer. Without waiting for a response, following up with the officer's supervisor, or requesting assistance from the Litigation Support Unit (which was later able to obtain the activity logs within a day), the ADA filed their COC the day of their initial request. This is unacceptable. As this court has explained before, "[t]he People cannot say that they have made 'reasonable inquiries and efforts to obtain' discoverable material when the material is in their constructive possession and they have not, at minimum, (1) allowed sufficient time for their normal discovery procedures to bring that material into their actual possession, and (2) determined why the normal procedures were not producing results" (Lodgson-McCray, 88 Misc 3d 1212[A], *4).

For the remaining outstanding discovery, the People were unaware when they filed their COC that the material existed or that the material had not been produced to the defense. The BWC footage in this case apparently depicts PO Rosa taking photographs and the Lost or Stolen Property report being completed, so the fact that the ADA was unaware of that these materials existed strongly suggests that he did not review the BWC footage. While due diligence does not necessarily require a thorough review of every last piece of discovery, "BWC footage often [points] toward additional discoverable material, and failing to review it before filing a COC is a significant negative factor in assessing the People's overall diligence" (Lodgson-McCray, 88 Misc 3d 1212[A], *3). The People's error in failing to produce certain ECMS files — which the current ADA received from a prior ADA and mistakenly believed had been placed in the discovery folder — would not, standing alone, significantly affect the court's assessment of their diligence. Here, however, the error supports the inference that the People rushed to file their COC before their time expired under CPL § 30.30 (2) (b).

The People's response to the defense's conferral email was overall satisfactory. The People responded promptly and produced several items of outstanding discovery within three days. However, at least as of the filing of their opposition, the People have not obtained the remaining materials, and the record does not demonstrate sufficient follow-up efforts to obtain those materials.

The People are largely silent as to the contents of the belatedly disclosed materials and do not contend that they are insignificant or duplicative. Because the People have the burden of establishing that they exercised due diligence (Bay, 41 NY3d at 213), the court concludes from their silence that the materials are neither insignificant nor duplicative. This conclusion cuts against a finding of due diligence, even if, as the People assert without explication, the materials are "largely immaterial to the central legal and factual issues in this case" (People's opp., p. 19). Nor is a lack of prejudice fatal to the defense's argument. Prejudice is only one factor in the court's analysis, and its absence is not determinative (CPL 245.50 [5] [b]).

On balance, and considering all the factors set forth in CPL § 245.50 (5) (a), the court finds that the People have not met their burden of demonstrating that they "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 [CPL § 245.20]" prior to filing their July 9, 2026, COC (CPL 245.50 [6]).

The defendant's motion to deem the People's COC invalid is therefore GRANTED.

III. Motion for Release Pursuant to CPL § 30.30 (2)

In this case, in which the defendant is charged with an A misdemeanor and no felonies, the defendant "must be released on bail or on his or her own recognizance . . . if the people are not ready for trial in that criminal action within . . . thirty days from the commencement of his [ ] commitment" (CPL 30.30 [2] [b]). The court makes the following findings:

The People are charged with 5 days from the defendant's June 17, 2026, arraignment, at which time he was held on bail, through the next court date of June 22, 2026.

The People are charged with 25 days from June 22, 2026, through the next court date of July 17, 2026, because the People did not validly answer ready on July 9, 2026.

All subsequent time is excludable because the defense requested an adjournment for motion practice (CPL 30.30 [4] [a], [b]). Further, the People filed an SCOC and second COR on July 20, 2026. The defense has not challenged the validity of those filings, and the court therefore presumes that the People validly answered ready for trial.

In total, the People are charged a total of 30 days for the purposes of CPL § 30.30 (2) (b). The People thus answered ready for trial within the statute's 30-day limit (see People v Boateng, 73 Misc 3d 1238[A] [Crim Ct, Bronx Cty 2022] [observing in the context of a motion to dismiss pursuant to CPL 30.30 (1) (b) that "[t]he operative word is 'within,' which permits the People to answer ready on the 90th day"]). The defendant's motion for release from custody is therefore DENIED.

This constitutes the decision and order of the court.

Dated: September 16, 2026

New York, NY

Ilona B. Coleman, J.C.C.

Ilona B. Coleman, J.