The People of the State of New York, Respondent, v. Joseph Scardino, Appellant. (2026)

ORDERED that the judgment of conviction is reversed, on the law, the order denying defendant's motion to dismiss the accusatory instrument on statutory speedy trial grounds is vacated, defendant's motion is granted, and the accusatory instrument is dismissed.

By an accusatory instrument dated June 18, 2022, defendant was charged with menacing in the second degree (Penal Law § 120.14 [1]). On August 26, 2022, the People filed a certificate of compliance (COC) and a statement of readiness (SOR), which included a facial sufficiency certification pursuant to CPL 30.30 (5-a). The matter proceeded to trial.

On August 1, 2023, the day of jury selection, the People turned over to defense counsel, among other items, two pages of handwritten notes by the detective assigned to the matter, documenting her investigation of the subject incident. That same day, before jury selection had begun, defense counsel orally moved to invalidate the August 26, 2022 COC pursuant to former CPL article 245  ¹ and to dismiss the accusatory instrument on statutory speedy trial grounds, arguing that the People were not discovery compliant when they filed the COC and that they were therefore chargeable with over 90 days of delay. The People opposed, describing the efforts they had made to obtain and disclose discoverable material in this case and asserting that the notes were duplicative of discovery already provided to defense counsel. The court denied defendant's motion.

Following the trial, defendant was convicted as charged and sentence was imposed. On appeal, defendant argues, among other things, that his statutory speedy trial motion should have been granted.

Contrary to the People's contention, defendant's statutory speedy trial motion was timely, as it was made prior to the commencement of trial (see CPL 1.20 [11]; 170.30 [1] [e]; [2]; People v Roper, ___ NY3d ___, 2026 NY Slip Op 02365, *2 [2026]; People v Headley, 100 AD3d 775, 775 [2012]; People v Ford, 17 AD3d 143, 143-144 [2005]). Moreover, although a motion to dismiss must be made in writing and upon reasonable notice to the People (see CPL 170.45, 210.45 [1]), these requirements were waived since the People made no objection on these grounds in the District Court when defense counsel orally moved to invalidate the COC and dismiss the accusatory instrument (see People v Jennings, 69 NY2d 103, 113 [1986]; People v Singleton, 42 NY2d 466, 470-471 [1977]; People v Lehman, 84 Misc 3d 137[A], 2025 NY Slip Op 50044[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2025]).

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 . . . all police reports, notes of police and other investigators, and law enforcement agency reports" (former CPL 245.20 [1] [e]). Pursuant to CPL 245.20 (2), "all items and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency shall be deemed to be in the possession of the prosecution."

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 detective's notes, which documented her investigation of the subject incident, were "relate[d] to the subject matter of the case" within the meaning of former CPL 245.20 (1). Additionally, since the notes were in the possession of the Suffolk County Police Department, they were deemed to be in the People's possession pursuant to CPL 245.20 (2). Thus, the notes were subject to automatic discovery under former CPL 245.20 (1) (e).

Moreover, most of the Bay factors support the conclusion that the People failed to exercise due diligence and make reasonable inquiries to ascertain the existence of the notes before filing the COC. The underlying case was not particularly complex, which cuts against a finding of due diligence (see People v Pierre, 244 AD3d 1139, 1140 [2025]). Though the People immediately turned over the notes once apprised of their existence, "post-filing disclosure and a supplemental COC cannot compensate for a failure to exercise diligence before the initial COC is filed" (People v Bay, 41 NY3d at 212; see People v Mitchell, 228 AD3d 1250, 1257 [2024]). With respect to their efforts before the initial COC was filed, the People stated that the prosecutor had a conversation with the detective about one discoverable item that the People knew was in her possession: a map on which the complainant had identified the incident location. During this conversation, the detective mentioned that she had an entire file of material related to the case in her possession. The detective later "indicate[d] that she tried to fax over the entire file that would have included these notes," but was apparently unsuccessful, as the People only received the map. Though the People asserted that "there was back and forth communication with regards to documentation with this case," they did not explain why they did not realize that they had not received the detective's entire case file (see People v Guzman, 75 Misc 3d 132[A], 2022 NY Slip Op 50445[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2022]; cf. People v McMahon, 237 AD3d 746, 751 [2025]). Nor did the People explain what follow-up, if any, they did to ensure that the material they received from the detective was complete (see CPL 245.55 [1] [requiring the prosecutor to "endeavor to ensure that a flow of information is maintained between the police and other investigative personnel and his or her office sufficient to place within his or her possession or control all material and information pertinent to the defendant and the offense or offenses charged"]; People v Ernst, 240 AD3d 1252, 1254 [2025]). The People's contention that the notes were duplicative of discovery already provided goes to whether defendant was prejudiced by the late receipt of the notes. However, under the former discovery statute, "a defendant need not demonstrate prejudice [pursuant to CPL 245.80] to obtain speedy trial dismissal based on a failure to timely comply with discovery obligations" (People v Bay, 41 NY3d at 213). "Because the People did not establish that they exercised due diligence prior to filing the initial COC, the trial court should have determined that the COC was improper and accordingly stricken the statement of readiness as illusory" (id. at 216; see People v Pierre, 244 AD3d at 1140; People v Baker, 229 AD3d 1324, 1328 [2024]; People v Lehman, 2025 NY Slip Op 50044[U]).

Since defendant was charged with a class A misdemeanor, the People were required to state ready for trial within 90 days of the commencement of the action (see CPL 30.30 [1] [b]; People v Lomax, 50 NY2d 351, 356 [1980]). In view of the foregoing, the People's August 26, 2022 SOR was illusory and did not stop the speedy trial clock. As the People did not argue that any prereadiness exclusions applied, they are chargeable with more than 90 days of delay (see People v Brown, 28 NY3d 392, 403 [2016]; People v Luperon, 85 NY2d 71, 81 [1995]).

Accordingly, the judgment of conviction is reversed, the order denying defendant's motion to dismiss the accusatory instrument on statutory speedy trial grounds is vacated, defendant's motion is granted, and the accusatory instrument is dismissed.

DRISCOLL, P.J., WALSH and VAZQUEZ-DOLES, JJ., concur.

ENTER:

Jennifer Chan

Chief Clerk

Decision Date: September 24, 2026

FOOTNOTES

1.   The New York State Legislature subsequently amended CPL article 245, effective August 7, 2025 (see L 2025, ch 56, part LL, §§ 1-5, 7).