The People of the State of New York, Respondent, v. Luis Zhanay Zarate, Appellant. (2026)

ORDERED that the judgment of conviction is affirmed.

In an accusatory instrument filed on September 25, 2021, defendant was charged with forcible touching (Penal Law § 130.52 [1]) and endangering the welfare of a child (Penal Law § 260.10 [1]). Defendant was arraigned on September 26, 2021. At the next court appearance on October 26, 2021, defendant's counsel requested that the matter be adjourned to November 30, 2021, and the court granted his request. On November 30, 2021, the matter was adjourned to January 11, 2022, and the People were directed to file their Certificate of Compliance (COC) and Statement of Readiness (SOR) off-calendar. Thereafter, on December 21, 2021, the People filed a COC and SOR, which included a certification pursuant to CPL 30.30 (5-a). In the discovery form that was attached to the COC and SOR, the People named eight potential law enforcement witnesses, but only disclosed Internal Affairs Bureau (IAB) reports for three of the potential law enforcement witnesses. On January 11, 2022, the court conducted an inquiry into the validity of the COC, and determined that the COC was valid. On this date, defense counsel requested an adjournment to investigate whether the COC was valid, and the court adjourned the matter to February 2, 2022. On February 2, 2022, the court adjourned the matter to February 16, 2022, as defense counsel requested more time to investigate. On February 16, 2022, defense counsel informed the court that he would be filing a motion challenging the validity of the COC and seeking to dismiss the accusatory instrument pursuant to CPL 30.30, and the court set a motion schedule. Defense counsel filed the motion on March 30, 2022.

In his motion papers, defense counsel argued that the COC was invalid because the People only disclosed IAB records for three out of eight potential law enforcement witnesses, and the People had failed to disclose the names and work affiliations of all New York City law enforcement officers who had relevant information. Consequently, the filing of the COC did not stop the speedy trial clock, and the People had exceeded their 90-day statutory speedy trial time. In opposition, the People contended that, at trial, they only intended to call the three law enforcement witnesses for which they had disclosed IAB material, and that, in any event, they had not exceeded the 90-day statutory speedy trial period. In reply, defense counsel reiterated that the COC was invalid, and that the People had exceeded their statutory speedy trial time. Defense counsel also maintained that the People should be charged with an additional 16 days, because the District Court had granted them a 16-day extension to file opposition papers. In an order dated August 8, 2022, the District Court (Stephen L. Ukeiley, J.) denied defendant's motion, finding that the COC was not invalid due to the nondisclosure of certain IAB material, because the People had acted in good faith. The District Court precluded New York City law enforcement witnesses for which IAB material existed, but was not disclosed, from testifying. Thereafter, the People filed various supplemental COCs disclosing additional information.

At a jury trial, the People presented testimony from the complainant, defendant's cousin by marriage, who alleged that she went to defendant's residence on a Sunday in April 2021 with her father and siblings to attend a volleyball game. She stated that she encountered defendant outside his residence when she was leaving, and that defendant hugged her, slid his hands down her back, and rubbed her buttocks. The complainant advised that she did not feel any pressure when defendant rubbed her buttocks. Defense counsel attempted to cross-examine the complainant about Facebook communications between the complainant and defendant involving an individual named Manuel. When the People objected to this line of questioning, defense counsel informed the court that the complainant had told defendant through Facebook messages that she was in an abusive relationship with Manuel, and intimated that defendant may have threatened to tell her parents about the relationship if the complainant did not tell them. Defense counsel suggested that the possibility that defendant would tell her parents about Manuel may have motivated complainant to fabricate the allegations against defendant. It was undisputed that the complainant had deleted the Facebook messages between herself and defendant prior to reporting defendant's conduct, but defense counsel did not provide any explanation for defendant's inability to produce the Facebook messages. Defense counsel could not provide a timeline as to when these messages were sent. The court declined to permit defense counsel to pursue this line of questioning.

Following the trial, the jury convicted defendant of endangering the welfare of a child, but acquitted him of forcible touching. Before the jury was discharged, defense counsel objected to the verdict as repugnant. The court advised that it would reserve decision on defense counsel's motion, and the court discharged the jury without objection. After the jury was discharged, defense counsel was directed to submit his motion in writing, and the People submitted opposition papers. In an order dated May 18, 2023, the District Court (Karen Kerr, J.) denied defendant's CPL 330.30 motion to set aside the verdict as repugnant. On July 18, 2023, the District Court sentenced defendant to three years' probation, "with alcohol and narcotics conditions," and fees and surcharges were also imposed.

It is undisputed that the People were required to be ready for trial within 90 days of the commencement of the action because the most serious offense charged in the accusatory instrument was a Class A misdemeanor (see CPL 30.30 [1] [b]; People v Lomax, 50 NY2d 351, 356 [1980]; People v Galante, 78 Misc 3d 31, 33 [App Term, 2d Dept, 9th & 10th Jud Dists 2023]). Even assuming that the original COC filed on December 21, 2021 was invalid on the ground that the People had failed to demonstrate that they had exercised due diligence in obtaining relevant impeachment material for five potential law enforcement witnesses, the District Court did not err in denying defendant's CPL 30.30 motion because the People had not exhausted their 90-day statutory speedy trial time at the time the motion was filed (see People v Sheard, 236 AD3d 826, 827 [2025]). The People have conceded that the 31-day period following the commencement of the action, from September 25, 2021 to October 26, 2021, and the 21-day period from November 30, 2021 to December 21, 2021 are chargeable to them, representing a total of 52 days (see People v Stiles, 70 NY2d 765, 767 [1987]). Further, the addition of the 21-day period from the filing of the COC on December 21, 2021 to January 11, 2022 only results in a total of 73 days. However, the 35-day adjournment from October 26, 2021 to November 30, 2021 is excludable pursuant to CPL 30.30 (4) (b), because the adjournment was at defendant's request. The fact that defense counsel stated "no waivers" after the court granted the adjournment does not make this time chargeable to the People, as allowing a defendant to circumvent the exclusion in CPL 30.30 (4) (b) by stating "no waivers" would undermine the legislature's clear intent (see People v Bonilla-Benitez, 88 Misc 3d 132[A], 2025 NY Slip Op 52195[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2025]). The time period from January 11, 2022 to February 16, 2022 is excludable as it encompassed adjournments requested by defendant (see CPL 30.30 [4] [b]). The period from February 16, 2022, when defense counsel indicated that he would be making a speedy trial motion and the court set a motion schedule, to the filing of defendant's motion on March 30, 2022 is excludable as "a reasonable period of delay resulting from . . . pre-trial motions" (CPL 30.30 [4] [a]; see People v Torres, 214 AD2d 401, 402 [1995]). We need not consider defense counsel's contention that the People should be charged with the additional 16 days that the District Court granted them to file opposition papers to the CPL 30.30 motion, as the addition of these days would not result in the People exceeding the 90-day statutory speedy trial period.

Contrary to defendant's contention, the verdict was not repugnant, even though the same conduct was the basis for both charges. "[A] verdict as to a particular count shall be set aside as repugnant only when it is inherently inconsistent when viewed in light of the elements of each crime as charged to the jury without regard to the accuracy of those instructions" (People v Muhammad, 17 NY3d 532, 539 [2011] [internal quotation marks and citations omitted]; see People v Tucker, 55 NY2d 1, 4, 7 [1981]). "[A] verdict is repugnant only if it is legally impossible—under all conceivable circumstances—for the jury to have convicted the defendant on one count but not the other. If there is a possible theory under which a split verdict could be legally permissible, it cannot be repugnant, regardless of whether that theory has evidentiary support in a particular case" (Muhammad, 17 NY3d at 539-540; see People v DeLee, 24 NY3d 603, 608 [2014]). In this case, the acquittal of the forcible touching charge did not negate an essential element of the endangering the welfare of a child charge, because the two counts, as charged to the jury, contained different elements (see Muhammad, 17 NY3d at 540; Tucker, 55 NY2d at 5, 6-7; People v Meyer, 84 Misc 3d 137[A], 2024 NY Slip Op 51833[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]). Consequently, "there [was] a possible theory under which a split verdict [would] be legally permissible" (Muhammad, 17 NY3d at 540).

Further, upon the exercise of our factual review power (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348 [2007]), we find that the verdict convicting defendant of endangering the welfare of a child was not against the weight of the evidence.

Defendant's contention that his constitutional right to confront witnesses was violated when the District Court did not permit his counsel to cross-examine the complainant about Facebook communications between defendant and complainant involving an individual named Manuel is without merit. "While extrinsic proof tending to establish a motive to fabricate is never collateral and may not be excluded on that ground, when the evidence is too remote or speculative of a motive to fabricate, the trial court may, in its discretion, exclude such proof" (People v Grose, 172 AD3d 1092, 1093 [2019] [internal quotation marks omitted]; see People v Hudy, 73 NY2d 40, 56 [1988]). Further, "[c]ross-examination aimed at establishing a motive to fabricate must proceed on some good faith basis" (Grose, 172 AD3d at 1093 [internal quotation marks omitted]; see People v Hicks, 88 AD3d 817, 818-819 [2011]). Here, the District Court did not abuse its discretion, as the alleged "proof" in this case was "too remote or speculative of a motive to fabricate" (Grose, 172 AD3d at 1093).

We decline to reduce defendant's sentence in the interest of justice, as his sentence of three years' probation was not "unduly harsh or severe under the circumstances" (People v Brisman, 43 NY3d 322, 328 [2025] [internal quotation marks omitted]; see People v Delgado, 80 NY2d 780, 783 [1992]).

Accordingly, the judgment of conviction is affirmed.

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

ENTER:

Jennifer Chan

Chief Clerk

Decision Date: September 24, 2026