The People of the State of New York, Plaintiff, v. Gregory McEwan, Defendant. (2026)

On March 8, 2026, at approximately 8:00 PM, inside of 2255 3rd Avenue, New York, New York, defendant, Gregory McEwan, applied pressure to A.R.'s neck by squeezing it, causing redness and pain to A.R.'s neck. With one hand remaining on her neck, defendant pushed A.R. two times onto the tile floor, causing swelling to her forehead, bruising to her wrist, and a laceration to the inside of her lip. A.R.'s sixteen year old child was present.

For these acts, defendant was subsequently arrested and arraigned in New York County Criminal Court with two counts each of Assault in the Third Degree (Penal Law [PL] 120.00[1], [2]), one count of Endangering the Welfare of a Child (PL 260.10[1]), one count of Criminal Obstruction of Breathing or Blood Circulation (PL 121.11[a]), two counts of Aggravated Harassment in the Second Degree (PL 240.30[4]), two counts of Attempted Assault in the Third Degree (PL 110/120.00[1]), and two counts of Harassment in the Second Degree (PL 240.26).

Thereafter, the People began obtaining discovery. The assigned prosecutor reached out to coordinate with several different departments and liaisons within the New York County District Attorney's Office that have been established to streamline communication and effectuate obtaining discovery from law enforcement agencies, such as a Body Worn Camera (BWC) Unit, a Law Enforcement Disclosure (LED) Unit, an NYPD Tapes and Records Unit, and a Litigation Support Unit (LSU). From agencies, the People obtained and disclosed numerous pieces of discovery with defense counsel, before filing and serving a Certificate of Compliance (COC) and Statement of Readiness (SOR) with defense counsel and the court, on June 8, 2026. The disclosures consisted of activity logs for all testifying witnesses, NYPD arrest paperwork, complaint reports, civilian witness contact information, witness notes, witness communications, witness services disclosures, domestic incident reports (DIRs), Administration of Children's Services (ACS)'s files, expert witness disclosures, vouchers, photographs, BWC videos, ADA notes, law enforcement witness information including NYPD Internal Affairs Bureau (IAB) paperwork, Civilian Complaint Review Board (CCRB) paperwork, civil lawsuits, miscellaneous items, and more, amounting in approximately one-thousand-five-hundred (1,500) pages of disclosures. The People also noted in their June 8, 2026 COC that a 911 call, sprint report, and radio run had been ordered, medical records and Emergency Medical Services (EMS) records had been subpoenaed, and that those items would be disclosed upon receipt.

On June 14, 2026, the People disclosed the 911 call, sprint report, and radio run, and filed a Supplemental Certificate of Compliance (SCOC) and SOR to reflect those disclosures.

In papers dated July 27, 2026, defendant, through counsel, now moves this Court for an Order deeming the People's COC invalid and their SOR illusory on the ground certain discoverable information was belatedly disclosed or undisclosed, and dismissing the information pursuant to speedy trial. Defendant specifically takes issue with the belatedly disclosed 911 call, radio run, and sprint report, and contends that the EMS and medical records remain outstanding. Defendant additionally asserts that the People failed to provide him with contact information for two EMS witnesses, and the name and contact information for an expert witness. In those same papers, defendant additionally moves preclusion of defendant's prior convictions and/or bad acts at trial, or for a Sandoval hearing alternatively.

The People oppose defendant's papers in response papers dated September 28, 2026. Defendant filed reply papers on October 2, 2026.

After a thorough review of the parties' moving papers, along with the annexed exhibits therein, the court file, and the court minutes, the Court's Opinion is as follows:

CERTIFICATE OF COMPLIANCE/SPEEDY TRIAL

As recently amended, effective August 7, 2025, article 245 of the Criminal Procedure Law (CPL) requires the People to disclose to a defendant "material and information in the possession, custody or control of the prosecution or under the prosecution's direction and control," and provides a non-exhaustive list of materials subject to "automatic" disclosure. CPL § 245.20(1). Under CPL § 245.20(2), the People are required 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." The People are not required, however, "to obtain material or information if it may be obtained with the use of a subpoena duces tecum where the defense is able to obtain the same material with the use of a subpoena duces tecum." CPL § 245.20(2).

The People must also certify their discovery compliance in writing by filing a COC. Importantly, the People may file their COC even if they have not yet disclosed all automatically discoverable items provided that they have "exercised due diligence and acted in good faith in making reasonable inquiries and efforts to obtain and provide the discovery required by [CPL § 245.20(1)]." CPL§ 245.50(1). The COC must "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." CPL § 245.50(1) (emphasis added). The COC must also identify "the items provided" and "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). If the People provide additional discovery in connection with their ongoing obligations outlined in CPL § 245.60, they must file "a supplemental certificate" that "identif[ies] the additional material and information provided." CPL § 245.50(1). A SCOC will not impact the validity of the original COC if filed in good faith and after exercising due diligence or when the additional discovery did not exist when the initial COC was filed. CPL § 245.50(1-a).

Once the People file a COC, a defendant must notify the People of any potential deficiencies in the COC by making "good faith efforts to confer with the [prosecution] regarding the specific and particularized matters" regarding the allegedly missing discovery. Then, if "no accommodation can be reached," the defense may file a motion to invalidate the People's COC provided that: (1) they do so within thirty-five days of the service of the People's COC; and (2) they file an accompanying affirmation of conferral stating that the defense "conferred in good faith or timely made good faith efforts to confer with the [prosecution] regarding the specific and particularized matters forming the basis for such challenge, that efforts to obtain the missing discovery from the [prosecution] or otherwise resolve the issues raised were unsuccessful, and that no accommodation could be reached." CPL § 245.50(4)(b)-(c). Significantly, the statute further specifies that "the court may grant a remedy or sanction for a discovery violation as provided in [CPL § 245.80]." CPL § 245.50(1). Any such remedy or sanction must be "appropriate and proportionate to the prejudice suffered by the party entitled to disclosure." CPL § 245.80(1).

To determine the validity of the People's COC, a reviewing court must assess the People's due diligence. As the Court of Appeals held in People v Bay, 41 NY3d 200 (2023), due diligence is a "flexible standard that requires the People to make reasonable efforts to comply with statutory directives." Bay, 41 NY3d at 211 (internal quotation marks omitted). "Reasonableness, then, is the touchstone--a concept confirmed by the statutory directive to make 'reasonable inquiries.' " Id. at 211-12. Moreover, the Court recognized that, "[a]lthough the relevant factors for assessing due diligence may vary from case to case, courts should generally consider, among other things:" (1) "the efforts made by the prosecution and the prosecutor's office to comply with the statutory requirements;" (2) "the volume of discovery provided and outstanding;" (3) "the complexity of the case;" (4) "how obvious any missing material would likely have been to a prosecutor exercising due diligence;" (5) "the explanation for any discovery lapse;" and (6) "the People's response when apprised of any missing discovery." Id. at 212. These six factors are now part of the statutory due-diligence analysis under CPL § 245.50(5)(a). This section also requires courts to consider whether: (1) "the belated discovery was substantively duplicative, insignificant, or easily remedied;" (2) "the omission was corrected;" (3) "the prosecution self-reported the error and took prompt remedial action without court intervention;" and (4) "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). A reviewing court must "look at the totality of the party's efforts to comply with the provisions of [article 245], rather than assess the party's efforts item by item." CPL § 245.50(5). The statute further directs that "[t]he court's determination shall be based on consideration of all factors listed in [245.50(5)(a)] and no one factor shall be determinative." CPL § 245.50(5)(b).

Indeed, the Bay decision made clear that, in assessing the validity of a COC, the reviewing court should engage in a "holistic assessment of the People's efforts to comply with the automatic discovery provisions, rather than a strict item-by-item test that would require [a court] to conclude that a COC is improper if the People miss even one item of discovery." People v Cooperman, 225 AD3d 1216, 1220 (4th Dept 2024); see also People v Williams, 224 AD3d 998, 1006-07 (3d Dept 2024) (People's COC was valid even though three discoverable items had not been disclosed where People provided "extensive" discovery before filing COC, identified missing items when they filed the COC, and acknowledged their duty to provide missing items upon receipt). Notably, "[a]rticle 245 is not intended for use as a 'sword,' whereby [ADAs] are expected to run themselves ragged in at times futile or near-futile attempts to procure material in which defense counsel has no substantive interest beyond exhausting the People's statutory speedy trial time or hoping that the People, in frustration, opt to abandon the prosecution." People v Barrios, 82 Misc 3d 606, 613 (Crim Ct Bronx Co 2024); see also People v Thompson, 79 Misc 3d 1220(A), *2 (Crim Ct Kings Co 2023) (article 245 "does not require the impossible; it does not demand that every scrap of discoverable information be turned over before the People may file a [COC]") (internal quotation marks omitted).

Furthermore, certain delays or discovery issues should not invalidate a COC that was made in good faith, after the exercise of due diligence and efforts made by the prosecution to comply with statutory obligations. Bay at 210-213. If the delay is a result of oversights in the production of material, delayed discovery of the existence of certain items, a good faith position that the material in question was not discoverable, or voluminous files, the Bay decision clearly posits that a court should apply a "holistic assessment" of the efforts made by the People to comply with their discovery obligations when evaluating the validity of a COC. Id. Moreover, several courts have found that certain delays or discovery issues should not invalidate a COC that was made in good faith, after the exercise of due diligence, and where, for example, the delay was a result of oversights in the production of material, delayed discovery of the existence of certain items, voluminous discovery, non-existent items, or material unrelated to the case. People v Cano, 71 Misc 3d 728 (Sup Ct, Queens County 2020); People v Lustig, 68 Misc 3d 234 (Sup Ct, Queens County 2020) (Zayas, J)(court found the People's certificate of compliance to be valid, since it was clearly filed in good faith under CPL § 245.50(1) and, therefore, no adverse consequence to the prosecution should result from the fact that the certificate was filed prior to the disclosure of the database search results).

As a threshold issue, defendant's motion is procedurally barred because counsel cannot accurately affirm, as she must under CPL § 245.50(4)(c), that her "efforts to obtain the missing discovery or otherwise resolve the issues ... were unsuccessful" and that "no accommodation could be reached." While defense counsel parrots the terms of the statute, she only affirms that she conferred with the ADA regarding missing discovery via email and a phone call between July 1, 2026 and July 6, 2026, and that the People allege that the requested discovery was not in their possession. This Court does not have any other record as to the parties' conferrals. But, here, the People informed defense counsel at the outset in their June 8, 2026 COC that they had requested the 911 call, sprint report, and radio run and that those items would be disclosed upon receipt — and had disclosed those items at the time of this conferral — and noted that the subpoenaed EMS and medical records would likewise be disclosed upon receipt. So, this Court is unsure as to what "accommodations" regarding outstanding discovery "could not be reached," or even the source of the dispute. Defendant fails to identify a reasonable request for a discovery accommodation. Assuming defense counsel asked to receive the requested discovery expeditiously, the People's answer would naturally remain the same as it was from the filing of the COC — that the subpoenaed materials would be disclosed when received — and seemingly did so, as counsel indicates that the People noted that the materials were not in their possession. Nor can defendant demonstrate that the People were unresponsive or uncooperative in dealing with the requests when the People asserted that the items would be disclosed once they obtained them. Defendant, therefore, cannot establish 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" (CPL 245.50[4][c]). That should have ended the matter as to these items. See People v Whitney, 245 NYS3d 900, 906 (Crim Ct NY Co 2025); People v Garcia, 2026 NY Slip Op 50367(U) (Crim Ct Bronx Co 2026). Accordingly, defendant's motion is procedurally barred on this ground.

In any event, defendant's motion is without merit. After a thorough review of the moving papers, court file, COC, SCOC, discovery list, the Court applied a "holistic assessment" of the People's efforts to comply with their discovery obligations, being mindful that perfection is not required. See Bay, 41 NY3d at 212. The People's discovery list demonstrates that they obtained and disclosed approximately one-thousand-five-hundred (1,500) pages of disclosures with the filing of the COC. The disclosures consisted of activity logs for all testifying witnesses, NYPD arrest paperwork, complaint reports, civilian witness contact information, witness notes, witness communications, witness services disclosures, DIRs, ACS files, expert witness disclosures, vouchers, photographs, BWC videos, ADA notes, law enforcement witness information including civil lawsuits, miscellaneous items, and more, demonstrating good faith and due diligence. The discovery in this case was certainly voluminous, extensive, and substantial, especially in comparison to the few items defendant takes issue with. That defendant complains of only a few missing items further supports a finding of the People's due diligence. See People v Hardie, 85 Misc 3d 1269(A) (Sup Ct Queens Co 2025).

In addition, the New York County District Attorney's Office has made considerable and laudable efforts to facilitate discovery compliance, such as a creating BWC, LED, and LSU units and assigning paralegals and support staff to obtain discovery. And contrary to defendant's contention, "[t]he creation of these additional units and allocation of resources to generally address their discovery obligations under CPL Article 245 support a finding of due diligence on the part of the [New York] County District Attorney's Office in fulfillment of their discovery obligation in this case." People v Antunez, 86 Misc 3d 1265(A), *5 (Sup Ct Queens Co 2025) (Yavinsky, J). Defendant also hasn't received "any evidence or information that he had not received or that he had received too late to use effectively." People v Elmore, 211 AD3d 1536 (4th Dept 2022) and is entirely unprejudiced as a result. Taken together, this all demonstrates that the People's initial COC, made in good faith and after exercising due diligence, was valid. Taken together, this all demonstrates that the People's initial COC, made in good faith and after exercising due diligence, was valid.

Defendant's remaining arguments as to the belatedly disclosed 911 call, sprint report, and radio run along with the undisclosed EMS and medical records fail and are without merit. The People's actions as to the 911 call, sprint report, and radio run were reasonable under the circumstances and the COC cannot be invalidated on this ground. The People requested these materials soon after commencement of the case and disclosed the materials immediately upon receiving them. See People v Speed, 244 AD3d 1734 (4th Dept 2025) (COC deemed valid where People received 911 calls after filing COC and disclosed them one week after receipt). Moreover, CPL 245.55(3) prescribes that "[i]f the prosecution fails to disclose such an electronic recording to the defendant pursuant to paragraphs (e), (g), or (k), or subdivision one of section 245.20 due to a failure to comply with this obligation by police officers or other law enforcement or prosecution personnel, the court upon motion of the defendant shall impose an appropriate remedy or sanction pursuant to section 245.80 of this article." This is true even in cases where the People have failed to exercise any diligence, let alone due diligence, with respect to disclosing a 911 call. See People v Diaz, ____Misc 3d___ at *3-5 (Sup Ct Queens Co, 2022) (Johnson, J) (People failed to exercise "even minimal effort in securing and/or preserving the 911 Call" but court applied CPL 245.55(3)(b) and granted defendant adverse inference under CPL 245.80 as to deleted 911 call). Here, unlike in Diaz, the People exercised due diligence, as noted above. Notwithstanding that fact, defendant has not been prejudiced, and has already received the 911 materials, so he is not entitled to a remedy or sanction under CPL 245.80.

Furthermore, the People were not required to obtain and disclose medical records or EMS records as part of their initial discovery obligation as they were not "in the possession, custody or control of the prosecution or persons under the prosecution's direction or control." People v Haggan, 248 AD3d 660 (1st Dept 2026). Because medical records and EMS records can be obtained only through subpoena duces tecum and are equally available to the defense, the People are not required to obtain them (CPL 245.20 [2]). Therefore, the fact that the People had not obtained those records before filing their COC has no negative bearing on the People's diligence. So too, this Court finds that the People were reasonable in not disclosing witnesses revealed through those records — such as the EMT names or any treating physicians - as this Court accepts the proffered explanation that the witnesses are unknown absent the subpoenaed records. Thus, defendant's claims are accordingly denied.

For the aforementioned reasons, the Court finds that the People have in fact complied with their discovery obligations pursuant to CPL § 245, and therefore, the COC and SOR were valid. Accordingly, the defendant's motion to invalidate the People's COC and deem the People's SOR illusory is denied. Defendant's related speedy trial motion is denied in light of this determination and the remainder of defendant's speedy trial is denied as meritless.

PRIOR BAD ACTS OR PRIOR CONVICTIONS

Defendant seeks the preclusion of using defendant's prior bad acts and/or prior convictions at trial pursuant to People v Molineux, 168 NY 264 (1901), People v Ventimiglia, 52 NY2d 350 (1981), and People v Sandoval, 34 NY2d 371 (1974) on the People's direct case or upon cross-examination.

Evidence of uncharged crimes is inadmissible where it is offered solely to raise an inference that a defendant has a criminal propensity. People v Molineux, 168 NY 264 (1901); People v Wright, 288 AD2d 409 (2d Dept 2001). Such evidence may be admitted, however, if it helps to establish a defendant's motive, intent, identity, knowledge, common scheme or plan, lack of mistake or accident, to complete the narrative of the crime, or provide the jury with background information. See People v Molineux, 168 NY 264 (1901); People v Ventimiglia, 52 NY2d 350 (1981); People v Lewis, 69 NY2d 321 (1987); People v Allweiss, 48 NY2d 40 (1979); People v. Davis, 169 AD2d 774 (2d Dept 1991). In order to use this evidence, the People are required to notify the court and defendant, prior to jury selection, of their intent to introduce the evidence as part of the case-in-chief and identify the basis upon which they consider it admissible. People v Ventimiglia, 52 NY2d 350 (1981). Once a showing is made that the evidence is relevant, a trial court may admit the evidence as long as its probative value outweighs its potential prejudice. People v Hudy, 73 NY2d 40, 54-55 (1988); People v Alvino, 71 NY2d 233, 241-42 (1987). The permissible scope of such evidence rests largely, if not completely, with the trial court. See People v Hudy, 73 NY2d 40, 54-55 (1988). Accordingly, defendant's motion as to prior bad act evidence is deferred to the trial court.

Should he testify, defendant, like any other witness, places his credibility in issue. Although a witness may not be questioned about an arrest per se, it is a provident exercise of the Court's discretion to permit cross-examination concerning any immoral, vicious, dishonest and or criminal act, even if defendant was not formally charged with it. People v Sandoval, 34 NY2d 371, 373 (1974); People v Rockwell, 18 AD3d 969 (3d Dept 2005); People v Di Bella, 277 AD2d 699 (3d Dept 2000); People v Connolly, 259 AD2d 1039 (4d Dept 1999); People v Maiolo, 122 AD2d 586 (4d Dept 1986); Prince, Richardson on Evidence, 11th Ed., 6-406. A witness may also be impeached by instances of conduct demonstrating a "willingness ... to place his self-interest ahead of principle or the interests of society." People v Walker, 83 NY2d 455, 461—462 (1994).

The People's disclosure obligation is governed by People v Sandoval, 34 NY2d 371 (1974), which directs the People to notify the defendant, prior to the commencement of jury selection, of the acts which they will seek to use for impeachment purposes. However, it is defendant who must demonstrate that the prejudicial effect of such evidence so far outweighs its probative worth that it must be excluded, as it is the defendant who bears the burden of persuasion. See People v Sandoval, 34 NY2d 371, 378 (1974). The permissible scope of such impeachment evidence rests largely, if not completely, with the trial court. People v Gray, 84 NY2d 709, 712 (1995); People v Walker, 83 NY2d 455, 459 (1994). Accordingly, defendant's motion as to prior convictions is therefore deferred to the trial court. People v Sandoval, 34 NY2d 371 (1974).

RESERVATION OF RIGHTS

Defendant's application for an extension of time to file additional motions is denied subject to rights under CPL § 255.20(3) to move for further leave upon good cause shown.

OTHER MOTIONS

Defendant's remaining requests are denied as duplicative, premature, moot, unsupported by the record, or without merit.

The foregoing constitutes the Opinion, Decision, and Order of the Court.

Dated: October 22, 2026

New York, New York

ELIZABETH Y. SHAMAHS, J.C.C.

Elizabeth Y. Shamahs, J.