The People of the State of New York v. Juan De La Torre, Defendant. (2026)

Defendant, charged with operating a motor vehicle under the influence of alcohol or drugs and related charges, has moved to dismiss this action, pursuant to CPL §§ 30.30 and 170.30 (1), for omissions in the People's automatic discovery production. In the alternative, defendant requests certain hearings. The People oppose.

For the reasons set forth below, defendant's motion is GRANTED, and the matter is DISMISSED.

PROCEDURAL HISTORY

On May 8, 2026, the People filed and defendant was arraigned on the misdemeanor complaint in this matter; defendant was charged with violating Vehicle and Traffic Law §§ 1192 (1) and (2). The matter was adjourned to June 18, 2026, for the People's discovery compliance. On June 18, 2026, the parties appeared in Part DWI, and the matter was adjourned to August 20, 2026, again for the People's discovery compliance.

On June 28, 2026, the People served and filed their certificate of compliance ("COC") and statement of readiness ("SOR"). At this point, 51 days of speedy trial time had elapsed.

On July 15, 2026, defendant's counsel emailed the People regarding allegedly outstanding discovery materials. The People did not respond to that email. Nor did they respond to defendant's counsel's follow-up email of July 27, 2026.

On August 3, 2026 defendant's counsel emailed the court a request for an extension of time to file their challenges to the COC. The stated basis for this request, which the People were copied on, was the People's failure to respond to the defense's requests to confer regarding discovery. The requested extension was granted on August 4, 2026.

On August 6, 2026, Defendant's counsel sent yet another email to the People requesting that they confer regarding discovery. Yet again, the People did not respond.

Defendant's counsel served and filed the instant motion to dismiss on August 10, 2026, the 94th day after the commencement of this action. On August 20, 2026, the parties appeared in Part DWI, a motion schedule was set, and the matter was adjourned for decision. On August 30, 2026, the People served and filed their opposition to the instant motion, and on September 8, 2026, the defendant's reply was served and filed.

DISCOVERY

I. Speedy Trial Time

The top count in this case is a misdemeanor punishable by a sentence of more than three months imprisonment. Accordingly, the People were to announce their readiness for trial within 90 days of the commencement of the action, not including any excludable periods of time (CPL § 30.30 [1] [b] and [4]).

II. Due Diligence and Good Faith

The filing of a valid COC is a prerequisite to the People being deemed ready for trial (CPL § 245.50; People v Bay, 41 NY3d 200, 209-210 [2023]; People v. Hamizane, 80 Misc 3d 7, 10 [App Term 2d Dept, 9th & 10th Jud Dists 2023]). A COC shall not be invalidated where the People have "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]).

In evaluating whether the People have met this standard, a court is to consider "the totality of the prosecution's efforts" rather than assessing their efforts "item by item." (CPL § 30.30 [5] [b]). Section 30.30 (5) (b) of the CPL also sets forth a non-exclusive list of factors to consider. These factors include the People's response when apprised of any allegedly missing discovery.

III. The Duty to Confer

A. Background: The 2019 Revisions to Discovery Procedure

Discovery in criminal matters was profoundly modified in 2019 with the repeal of Criminal Procedure Law article 240 and the corresponding enactment of CPL article 245. The new discovery procedures substantially expanded the People's disclosure obligations, requiring the automatic production of a broad range of materials. (People v Bay, 41 NY3d 200, 208 [2023].)

Perhaps just as significant, this discovery regime was linked to the People's "speedy trial" obligations under CPL § 30.30 (Id.). Under the new system, prosecutors must certify their discovery compliance, via a COC, before announcing readiness for trial via a SOR. If a COC is found to be invalid due to outstanding discovery, any SOR that relied on it is invalid as well. (CPL § 245.50 [3]; Bay, 41 NY3d at 209-210; see also Hamizane, 80 Misc 3d at 10.)

As a result of this linkage of the People's discovery obligations to their speedy trial obligations, discovery matters gained new consequence and urgency in criminal proceedings. Lapses in disclosure, even if relatively early and minor, could be grounds for dismissal on speedy trial grounds. This led to a marked increase in defense motions alleging speedy-trial violations, often concerning relatively minor discovery lapses that did not prejudice defendants, and which could have been resolved without the need for judicial intervention.

B. People v Bay

In 2023, the Court of Appeals in People v Bay (41 NY3d 200) held that the new CPL article 245 did not create "strict liability" for discovery lapses, and that the statute did not anticipate or require a "perfect prosecutor" (41 NY3d at 212). In other words, minor discovery lapses, even under the new discovery regime, could not serve as the sole basis for dismissal. Instead, the Court held that prosecutors merely had to show that they had exercised due diligence and good faith in their efforts to comply with their discovery obligations. The Bay court listed a number of factors to be considered in conducting a case-specific, holistic assessment of whether the prosecution had met that burden. These "Bay factors" became the measure used in deciding whether to invalidate a Certificate of Compliance for discovery lapses (See e.g People v McCutchen, 248 AD3d 827, 829 [2d Dept 2026]; People v Gregory M., 2026 NY Slip Op 51552(U) [Sup Ct, NY County 2026]; People v Jackson, 87 Misc 3d 1220[A] [Sup Ct, Queens County 2025]; People v Jefferson, 89 Misc 3d 371 [Cim Ct, Bronx County 2025] People v Carter, 86 Misc 3d 1248[A] [Crim Ct, Bronx County 2025]).

C. The 2025 Amendments to Discovery Procedure and the Duty to Confer

The Legislature later codified the Bay court's holdings. Specifically, in 2025, Criminal Procedure Law sections 30.30 (5) (b) and 245.50 (5) (a) were amended to list many if not all of the Bay factors as factors to be considered in determining whether the People had satisfied their discovery obligations such that a COC would be deemed valid.

This codification of the due diligence and good faith standard was not the only significant change made by the 2025 amendments to the Criminal Procedure Law. The newly enacted CPL § 245.50 (4) (c) supplemented the previously existing provision, CPL § 245.35, which had allowed a court, at its discretion, to direct the parties to confer regarding discovery. The newly enacted CPL § 245.50 (4) (c) made conferral mandatory, stating:

[A]ny challenges to a certificate of compliance or supplemental certificate of compliance shall be accompanied by an affirmation by the moving party that, after the filing of the opposing party's certificate of compliance, such moving party timely conferred in good faith or timely made good faith efforts to confer with the opposing party regarding the specific and particularized matters forming the basis for such challenge, that efforts to obtain the missing discovery from the opposing party or otherwise resolve the issues raised were unsuccessful, and that no accommodation could be reached.

Under this new provision, defendants must attempt to confer with prosecutors prior to filing a motion challenging a COC, even in the absence of any court order explicitly requiring such a conferral (People v Whitney, 88 Misc 3d 905 [Crim Ct, Bronx County 2025], People v Benali, 2026 NY Slip Op 50265[U] [Crim Ct, Kings County 2026], People v Vera, 2026 NY Slip Op 50111[U] [Sup Ct, Queens County 2026]). The clear purpose of this conferral requirement is to spur resolution of discovery disputes without motion practice, or at the very least to narrow disputes that do need to be resolved by motion (Whitney, 88 Misc 3d 905, Benali, 2026 NY Slip Op 50265[U], People v J.M., 88 Misc 3d 1245[A] [Crim Ct, Kings County 2026]; see also People v Dugal, 88 Misc 3d 1044 [Crim Ct, Bronx County 2025], People v Morales, 86 Misc 3d 523, 526 [Crim Ct, Kings County 2025]).

D. The People's Duty to Confer

The 2025 amendments to the CPL did not only address a defendant's obligation to confer. As noted above, CPL sections 30.30 (5) and 245.50 (5) were also amended to specify factors evidencing due diligence and good faith such that a discovery lapse by the People would not require dismissal. Most relevant here, CPL sections 30.30 (5) (b) and 245.50 (5) (a) now explicitly state that, when assessing the People's due diligence and good faith, a factor to be considered is their "response when apprised of any allegedly missing discovery."

In other words, as a part of their due diligence and good faith, prosecutors now also have a statutory duty to respond to notifications claiming discovery is missing, or to confer. Failure to cooperate with an attempt by the defense to confer is a factor that can lead to a COC being invalidated, pursuant to CPL §§ 30.30 (5) and 245.50 (5).

That such a duty also exists for the People is logical. Requiring parties to confer must have a point; that point is for conferrals to lead to resolution of discovery issues. Obviously, such outcomes are only possible if both parties engage in the conferral process. Therefore, it would be senseless if only the defense were required to make timely and good faith efforts to confer, but the People were permitted to ignore such efforts. And indeed, under the 2025 amendments to CPL §§ 30.30 (5) and 245.50 (5), this duty to confer in a timely and good faith manner was also placed upon the People, so that both sides would work towards resolving discovery issues without the need for motion practice.

IV. Analysis

In this case, the People ignored three separate emails sent by defendant's counsel in an attempt to resolve discovery issues prior to resorting to motion practice. They also ignored the issue when it was raised in defendant's application for an extension of time to file their motion. Thus, the People have not exercised due diligence or acted in good faith in making reasonable inquiries and efforts to obtain and provide the material required to be disclosed.

Criminal Procedure Law § 245.50 (5) does say that the "totality" of the People's efforts must be considered; CPL § 245.50 (5) (b) further states that "no one factor" listed in § 245.50 (5) (a) shall be determinative of due diligence and good faith. Nonetheless, the repeated failure to confer in this case, or to even respond to defendant's attempts to confer, shows a lack of due diligence and good faith such that the COC must be deemed invalid.

Just as a defendant's otherwise meritorious motion will fail if they do not attempt to confer, the same must go for prosecutors. If the People refuse to engage in discovery conferral, their COC must be deemed invalid, even if they were otherwise perfect in their discovery compliance  ¹ . To hold otherwise would defeat the entire purpose of the statutory conferral process. Prosecutors cannot be free to ignore defendants' conferral requests without consequence if the statute is to have any effect.

Accordingly, on its own, the People's failure to confer in this case establishes that they have not exercised due diligence or acted in good faith, such that their COC must be invalidated.

CONCLUSION

The accusatory instrument was filed on May 8, 2026, and the People filed their COC and SOR on June 28, 2026, with 51 days of speedy trial time elapsed. As the People's COC was invalid, their SOR was illusory, and speedy trial time continued to elapse until the filing of this motion on the 94th day. The People have therefore exceeded their 90-day speedy-trial time limitation, and defendant's motion is GRANTED and the matter is DISMISSED

This constitutes the decision and order of the Court.

Dated: October 14, 2026

Hon. Jacob Zelmanovitz

Judge, Criminal Court

FOOTNOTES

1.   As it happens, in this case the People were decidedly not perfect in their discovery compliance.

Jacob Zelmanovitz, J.