The People of the State of New York, Respondent, v. Wenseslao Hernandez, Appellant. (2026)

ORDERED that the judgment of conviction is affirmed.

Insofar as is relevant to this appeal, on October 24, 2019, defendant was arraigned on a felony complaint charging him with strangulation in the second degree (Penal Law § 121.12), coercion in the first degree (Penal Law § 135.65 [1]), assault in the third degree (Penal Law § 120.00 [1]), coercion in the third degree (Penal Law § 135.60 [1]), criminal obstruction of breathing or blood circulation (Penal Law § 121.11 [b]), endangering the welfare of a child (Penal Law § 260.10 [1]), two counts of aggravated harassment in the second degree (Penal Law § 240.30 [1] [a] [one count], [b] [one count]), attempted assault in the third degree (Penal Law §§ 110.00, 120.00 [1]), menacing in the third degree (Penal Law § 120.15), and three counts of harassment in the second degree (Penal Law § 240.26 [1] [two counts], [3] [one count]), in connection with incidents that occurred on February 18, 2018 and May 1, 2019. On October 29, 2019, the charges of strangulation in the second degree and coercion in the first degree were dismissed, the People filed a superseding information pertaining to the remaining charges, and the People announced ready for trial.

On September 2, 2020, the People filed a statement of readiness (SOR), which included a certification pursuant to CPL 30.30 (5-a), and a certificate of compliance (COC). Defendant thereafter moved to invalidate the COC and to dismiss the accusatory instrument on statutory speedy trial grounds, arguing that the COC was improper pursuant to former CPL article 245  ¹ because the People had failed to turn over a 911 call allegedly made by the complainant on May 1, 2019, calls that defendant allegedly made while he was held at Rikers Island in connection with this matter, and metadata for the arresting officer's body-worn camera (BWC) video. The People opposed, asserting, among other things, that they had subpoenaed the Rikers calls from the New York City Department of Correction (DOC) but had never received them and that the calls were not subject to automatic disclosure because they were not in the People's actual or constructive possession or control. By order dated June 11, 2021, the Criminal Court (Quynda L. Santacroce, J.) denied defendant's motion. Defendant subsequently pleaded guilty to harassment in the second degree in satisfaction of the accusatory instrument and was sentenced as promised.

On appeal, defendant argues that his statutory speedy trial motion should have been granted, the denial of which is reviewable despite his guilty plea (see CPL 30.30 [6]; People v Gore, 224 AD3d 848, 848 [2d Dept 2024]). In response, the People argue for the first time that the amendments to CPL 30.30 and CPL article 245 that took effect on January 1, 2020 did not render them unready that day based on their having stated ready on October 29, 2019 and on the Court of Appeals' decision in People v King (42 NY3d 424 [2024]). The People further contend that their COC was valid.

For the reasons stated in People v Tevelev (85 Misc 3d 135[A], 2025 NY Slip Op 50488[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2025]), we decline to review the People's unpreserved contention that the amendments to CPL 30.30 and CPL article 245 that took effect on January 1, 2020 did not render them unready that day.

With respect to the validity of the People's COC, absent an individualized finding of special circumstances, the filing of a valid COC is a prerequisite to the People being ready for trial under CPL 30.30 (see CPL 245.20, 245.50 [3]). Under former CPL article 245, the People were required to provide defendant with "all items and information that relate[d] to the subject matter of the case and [were] in the possession, custody or control of the prosecution or persons under the prosecution's direction or control, including but not limited to . . . [a]ll tapes or other electronic recordings, including all electronic recordings of 911 telephone calls made or received in connection with the alleged criminal incident" (former CPL 245.20 [1] [g]).

Analyzing former CPL article 245, the Court of Appeals held that "the key question in determining if a proper COC ha[d] been filed [was] whether the prosecution ha[d] 'exercis[ed] due diligence and ma[de] reasonable inquiries to ascertain the existence of material and information subject to discovery' " (People v Bay, 41 NY3d 200, 211 [2023], quoting former CPL 245.50 [1]). "Although the [former] statute nowhere define[d] 'due diligence,' " the Court of Appeals concluded that "it [was] a familiar and flexible standard that require[d] the People 'to make reasonable efforts' to comply with statutory directives" (People v Bay, 41 NY3d at 211, quoting People v Bolden, 81 NY2d 146, 155 [1993]). The Court of Appeals advised that, "[a]lthough the relevant factors for assessing due diligence may vary from case to case, courts should generally consider, among other things, the efforts made by the prosecution and the prosecutor's office to comply with the statutory requirements, the volume of discovery provided and outstanding, the complexity of the case, how obvious any missing material would likely have been to a prosecutor exercising due diligence, the explanation for any discovery lapse, and the People's response when apprised of any missing discovery" (People v Bay, 41 NY3d at 212).

Here, the underlying case was not particularly complex, which cuts against a finding of due diligence (see People v McMahon, 237 AD3d 746, 751 [2d Dept 2025]). However, the People made substantial efforts to comply with their discovery obligations under CPL article 245 and turned over a considerable volume of material, including, among other items, Giglio letters for nine law enforcement officers, memo books for eight officers, BWC footage for the arresting officer, a Sprint report for a February 18, 2018 911 call, a complainant intake form, New York City Police Department DD5 reports for the subject incidents and a related case, photographs and text messages relating to a confirmatory identification, arrest reports, complaint reports, and domestic incident reports.

Moreover, we conclude that the People's explanations for the nondisclosure of the May 1, 2019 911 call and the BWC video metadata were reasonable. We note that most of the information available to the People indicated that the complainant had reported the May 1, 2019 incident by walking into a police station; only one page of one document suggested that the complainant may have reported this incident via a 911 call (see People v Watkins, 224 AD3d 1342, 1344 [4th Dept 2024]). Additionally, when apprised of the allegedly missing May 1, 2019 911 call, the People promptly obtained and disclosed a Sprint report confirming that no 911 call had been made from the complainant's phone number on that date (see People v Contompasis, 236 AD3d 138, 150 [3d Dept 2025]). Furthermore, the People's assertion that they did not believe that they were required to turn over the BWC video metadata was reasonable because "there is no appellate authority to clarify whether [such material is] subject to automatic discovery" and "trial courts are divided" on the question (People v Wilber S., 83 Misc 3d 1293[A], 2024 NY Slip Op 51279[U], *3 [Crim Ct, Queens County 2024]; compare People v J.M.W., 83 Misc 3d 1289[A], 2024 NY Slip Op 51249[U], *3-5 [Sup Ct, Kings County 2024], and People v Ballard, 82 Misc 3d 403, 411-416 [Crim Ct, Queens County 2023], with People v Rodriguez, 84 Misc 3d 685, 686-691 [Sup Ct, Kings County 2024], and People v Larkin, 72 Misc 3d 663, 666-670 [Sup Ct, Kings County 2021]; see also People v Jawad, 84 Misc 3d 31, 36 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024], lv granted 45 NY3d 937 [2026]).

Regarding the Rikers calls, we disagree with the People's contention that this material was not subject to automatic disclosure. Having subpoenaed the calls, the People should have followed up with the DOC when it failed to produce the material requested in the subpoena. While we don't condone this inexcusable failure by the People, we decline to invalidate the COC on this ground since "most of the other remaining [Bay] factors, when considered as part of a 'holistic assessment,' 'rather than a strict item-by-item test,' support the conclusion that the People exercised due diligence" prior to filing the COC (People v McMahon, 237 AD3d at 751, quoting People v Cooperman, 225 AD3d 1216, 1220 [4th Dept 2024]).

In view of the foregoing, the Criminal Court correctly denied the branch of defendant's motion seeking to invalidate the People's September 2, 2020 COC (see People v Henderson, 237 AD3d 853, 855 [2d Dept 2025]; People v Odusanya, 235 AD3d 1299, 1301 [4th Dept 2025]; People v Lawrence, 231 AD3d 1497, 1500-1501 [4th Dept 2024]; People v Jawad, 84 Misc 3d at 35).

"[W]here a felony complaint is replaced with a new accusatory instrument, the highest charge of which is a class A misdemeanor, the People must be ready for trial within 90 days from the filing of the new instrument or six months from the filing of the felony complaint, whichever is earlier" (People v Guirola, 51 Misc 3d 13, 16 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; see CPL 30.30 [7] [c]; People v Cooper, 98 NY2d 541, 544 n 1 [2002]). Here, the earlier time period was 90 days from the filing of the superseding information. In light of the validity of the People's September 2, 2020 COC, the accompanying SOR stopped the speedy trial clock with fewer than 90 days chargeable to the People. Consequently, the Criminal Court correctly denied the branch of defendant's motion seeking to dismiss the accusatory instrument on statutory speedy trial grounds.

Accordingly, the judgment of conviction is affirmed.

MUNDY, J.P., TOUSSAINT and QUIÑONES, JJ., concur.

ENTER:

Jennifer Chan

Chief Clerk

Decision Date: June 17, 2026

FOOTNOTES

1.   The New York State Legislature subsequently amended CPL article 245, effective August 7, 2025 (see L 2025, ch 56, part LL).