State of New York OPINION Court of Appeals This opinion is uncorrected and subject to revision before publication in the New York Reports.
No. 92 The People &c., Respondent, v. Michael Bay, Appellant.
Kayla Hardesty, for appellant. Patrick A. Perfetti, for respondent. Albany County Office of the Public Defender et al., New York State Association of Criminal Defense Lawyers, The Legal Aid Society, District Attorney Association of the State of New York, Inc., amici curiae.
HALLIGAN, J.:
In 2019, the New York State Legislature enacted sweeping reforms that expanded
and restructured disclosure obligations in criminal cases, effective at the start of 2020 (see
L 2019, ch 59, § 1, pt LLL). This appeal concerns a new requirement set forth in CPL -1- -2- No. 92
article 245 that the People file a certificate of compliance (COC) with their statutory
disclosure obligations (see CPL 245.50 [1], [3]). Here, weeks after filing their COC, the
People turned over several key discovery items that were within their possession and
control and therefore subject to automatic disclosure under the recently-enacted CPL
245.20. The defendant sought dismissal pursuant to CPL 30.30, arguing that the People
were not actually ready for trial within the applicable speedy trial period because they had
not exercised due diligence with respect to their disclosure obligations. The question
before us is whether the COC was improper in light of the People’s belated disclosure, and
whether the People’s statement of readiness was therefore illusory for purposes of CPL
30.30. Because the People failed to show they had exercised due diligence and made
reasonable efforts to identify mandatory discovery prior to filing the COC, the COC was
not proper when filed, and the prosecution’s declaration of trial readiness was therefore
illusory.
I.
On April 22, 2021, defendant Michael Bay was arrested after becoming physically
aggressive toward his mother and arraigned in City Court on an information charging him
with one count of harassment in the second degree (see Penal Law § 240.26 [1]). Bay
pleaded not guilty and was released on his own recognizance, and the case was adjourned
so that Bay could obtain counsel. At the next appearance on April 28th, City Court
adjourned the proceeding until May 26th because defense counsel noted that she had not
received discovery from the prosecution and the parties had yet to discuss a potential plea.
The court charged the delay to the People.
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On April 29th, the People provided the defense with various discovery materials:
the information, a supporting deposition of Bay’s mother, the mother’s request for an order
of protection and the ensuing order of protection, photographs of the mother’s home, and
a discovery compliance report. On May 4th, the People served and filed their certificate
of compliance (COC), statement of trial readiness pursuant to CPL 30.30, and a discovery
compliance report documenting those submissions.
At a subsequent appearance on May 26th, defense counsel told the court she had
received some discovery but could not yet fully assess the case because she had not been
given the 911 call or a police report. The prosecutor responded, “I just checked; the
discovery, as it exists with this case, has been turned over.” Defense counsel subsequently
advised that Bay was not currently interested in pleading guilty and again indicated that
the defense was “looking for the remaining discovery items at this time.” The prosecutor
asserted that “those discovery items don’t exist” and that a COC had already been filed.
Later in the appearance, defense counsel reiterated that she had not received an
arrest or police report. The prosecutor responded that “[the defendant] wouldn’t have been
arrested,” to which the defense replied that “[u]sually there is some report from the police
from the incident though.” When the court suggested there should be a domestic incident
report (DIR) given the nature of the offense charged (see CPL 140.10 [5]), the prosecutor
explained that “procedure would call for a DIR to be filed . . . [but that] doesn’t always
happen.” The court indicated that it did not know whether a 911 call had been made in this
case and, when asked, the prosecutor stated, “Judge, there was not. I think this was reported
by [the defendant’s mother] after the incident.”
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Turning to the People’s readiness declaration, the court asked the prosecutor
whether “disclosure [has] been reasonably met[.]” The prosecutor replied that “we have
provided all disclosure,” and that the People were “unaware . . . of any evidence that hasn’t
been provided to the defense.” The court concluded that “the People have met their burden
as far as readiness goes and [ ] they’re ready for trial at least based upon what’s been
presented today.” The matter was adjourned for a nonjury trial.
Approximately one week before the anticipated trial date, defense counsel called
the district attorney’s office to again inquire about discovery and spoke with a different
prosecutor. That prosecutor told defense counsel that the office had a police report, and
that he would check on whether a 911 call had been made. Later that day, the People served
the defense with a copy of the DIR and a police report, and the following day, served a
duplicate recording of the 911 call and a call detail report.
The next day, on July 1st, Bay filed a motion to dismiss pursuant to CPL 30.30
(1) (d). He argued that the prosecution’s failure to disclose material discoverable under
CPL 245.20 meant that the COC filed on May 4th was improper, that the statement of
readiness should therefore be deemed illusory and ineffective to stop the speedy trial clock,
and that the 30-day speedy trial period prescribed by CPL 30.30 had expired. One day
after Bay filed the motion, the People served a supplemental COC, again certifying that
they had provided all known material and information subject to discovery under
CPL article 245 after exercising due diligence and making reasonable inquiries.
At a July 6th appearance, the prosecutor did not dispute that the belated discovery
had not been provided before the initial COC was filed, nor explain why the People had
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overlooked it. He suggested that the defense’s focus on the validity of the COC was
misplaced, stated that Bay would face numerous other charges even if the court were to
strike the COC and dismiss the violation-level offense, and contended that the People could
“upgrade” a COC by making subsequent additional disclosure. The court recalled that at
the May appearance, the prosecutor indicated he had provided all discovery and was not
sure the other materials existed or had been filed, and stated that the court would take the
prosecutor “at his word” on that point. The defense countered that the purpose of a COC
is to ensure that “reasonable inquiries as to the existence of discovery have already been
[made]” when the COC is filed. Ultimately, the court denied the motion to dismiss but
precluded the prosecution from using the 911 recording at trial as a sanction for the
untimely disclosure. The case proceeded to trial, and Bay was convicted of harassment in
the second degree.
County Court affirmed, concluding that “there is nothing to suggest that the People’s
statement of readiness was made in bad faith or did not accurately reflect the People’s
position.” The court characterized Bay’s arguments as advocating for a rule of strict
liability: that “any time supplemental discovery is provided, any prior statement of
readiness by the [P]eople is illusory.” That view, the court found, was not supported by
CPL article 245, which contemplates additional discovery and provides that “[n]o adverse
consequence to the prosecution or the prosecutor shall result from the filing of a certificate
of compliance in good faith and reasonable under the circumstances,” other than a
discovery sanction pursuant to CPL 245.80. The court found that the defense “failed to
articulate any prejudice” resulting from the late disclosure, and that “[o]n this record it is
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clear that the [P]eople were unaware of the [ ] items of discovery and when made aware of
their existence, the items were obtained and disclosed to the defendant within less than one
day.” Furthermore, the court found, “the [P]eople acted in good faith with respect to their
discovery obligations under CPL 245 as well as their diligence in unearthing and disclosing
additional discoverable items the same day the defense requested them.”
A Judge of this Court granted leave to appeal.
II.
We begin with a brief overview of recent amendments to New York’s statutory
scheme governing discovery in criminal cases. Prior to the 2019 amendments, which went
into effect in 2020, former CPL article 240 allowed a defendant to request various types of
discovery materials from the People, who were in turn obligated to produce them “within
fifteen days of the service of the demand or as soon thereafter as practicable” (former
CPL 240.80 [3]). If the People failed to do so, the trial court could impose various
sanctions, including allowing discovery of material not previously disclosed, granting a
continuance, issuing a protective order, or prohibiting the introduction of certain evidence
or testimony (see former CPL 240.70). Separately, CPL 30.30 required that the People be
ready for trial within specific time periods that vary according to the level of offense
charged. Nothing in the speedy trial statute linked CPL article 240’s discovery obligations
to the People’s readiness for trial under CPL 30.30, as this Court recognized (see People v
McKenna, 76 NY2d 59, 63-64 [1990], citing People v Anderson, 66 NY2d 529, 537
[1985]).
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In 2014, the New York State Justice Task Force proposed reforms to the discovery
regime in light of concerns that available discovery is “highly circumscribed” and “often
comes too late to permit both sides to investigate facts fully and make informed decisions
before trial” (Report of the New York State Justice Task Force of its Recommendations
Regarding Criminal Discovery Reform at 5 [2014]). Requiring early and broader
disclosure, the Task Force concluded, would facilitate expeditious resolution of cases and
better enable defense counsel to investigate and prepare for trial (see id. at 3; see also New
York State Bar Association, Report of the Task Force on Criminal Discovery at 2 [2015]).
Over the next few years, the legislature considered various discovery reform bills, and in
the course of doing so, legislators noted that the existing scheme necessitated extensive
exchanges of discovery demands, motions, and responses, and raised concerns about the
limits on disclosure and the impact of discovery delays (see Assembly Mem in Support of
2019 NY Assembly Bill A1431; Assembly Mem in Support of 2017 NY Assembly Bill
A4360A; NY Assembly Debate on 2019 NY Assembly Bill A2009C, Mar. 31, 2019 at
336, 378, 443-444; NY Senate Debate on 2019 NY Senate Bill S1509C, Mar. 31, 2019 at
2688-2690, 2714, 2802).
In 2019, the legislature adopted significant reforms that repealed CPL article 240,
enacted CPL article 245 in its place, and amended CPL 30.30, the speedy trial provision.
As detailed below, CPL article 245 imposes new automatic disclosure requirements and
compliance mechanisms applicable to both the prosecution and defense (see generally CPL
245; L 2019, ch 59, § 1, pt LLL, §§ 1, 2). To incentivize the People’s compliance with
these procedures, the enactments tie their discovery obligations to trial readiness under
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CPL 30.30 (see CPL 30.30 [5]; NY Senate Debate on 2019 NY Senate Bill S1509C, Mar.
31, 2019 at 2615; People v Gaskin, 214 AD3d 1353, 1353-1354 [4th Dept 2023]).
CPL 245.20, titled “[a]utomatic discovery,” requires disclosure to a defendant of
“all items and information that relate to the subject matter of the case and are in the
possession, custody or control of the prosecution or persons under the prosecution’s
direction or control” (CPL 245.20 [1]). The statute enumerates 21 categories of material
subject to disclosure (see CPL 245.20 [1] [disclosure obligations include, but are not
limited to, these categories]), and provides that materials possessed by a New York state
or local police or law enforcement agency are deemed in the People’s possession for
purposes of the discovery requirements (see CPL 245.20 [2]; see also CPL 245.55 [1]
[prosecution must take steps to ensure “a flow of information is maintained” with “the
police and other investigative personnel”]). Article 245 also sets forth time periods for
disclosure: as amended in 2020, CPL 245.10 generally requires the People to turn over
automatic discovery within 20 days of arraignment if a defendant is in custody or within
35 days if not, and once the People certify compliance, a defendant has 30 days to fulfill
reciprocal discovery obligations (see CPL 245.10; L 2020, ch 56, § 1, pt HHH, § 1).1
CPL 245.50 (1) creates a new compliance mechanism. It directs the People to file
a certificate of compliance (COC) after they have “provided the discovery required by
subdivision one of section 245.20,” with several narrow exceptions. The COC “shall state
1 These time periods may be stayed up to an additional 30 days when discoverable materials are exceptionally voluminous or when, despite diligent and good faith efforts, the materials are not otherwise in the People’s actual possession (see CPL 245.10 [1] [a]). -8- -9- No. 92
that, after exercising due diligence and making reasonable inquiries to ascertain the
existence of material and information subject to discovery, the prosecutor has disclosed
and made available all known material and information subject to discovery” (CPL 245.50
[1]). CPL 245.60 imposes a continuing duty to disclose, and when the People provide
discovery after a COC has been filed, they must file a supplemental COC (see CPL 245.50
[1]). Although CPL 245.50 (1) directs that “[n]o adverse consequence to the prosecution
or the prosecutor shall result from the filing of a certificate of compliance in good faith and
reasonable under the circumstances,” it clarifies that a trial court may nonetheless grant
discovery sanctions and remedies where provided in CPL 245.80.
A defendant likewise must provide mandatory disclosure, as described in
CPL 245.20 (4); subsequently serve a COC certifying the exercise of due diligence and
reasonable inquiry; and, pursuant to the continuing duty to disclose, serve any belated
discovery and an accompanying supplemental COC (see CPL 245.50 [2]). As with the
People, if a defendant violates their discovery obligations, a CPL 245.80 remedy or
sanction may be imposed against them (see CPL 245.50 [2]).
The legislature tethered the People’s CPL article 245 discovery obligations to
CPL 30.30’s speedy trial requirements, through both the enactment of CPL 245.50 (3) and
amendments to CPL 30.30 itself. CPL 245.50 (3), titled “[t]rial readiness,” states that
“[n]otwithstanding the provisions of any other law” and “absent an individualized finding
of special circumstances in the instant case by the court before which the charge is pending,
the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this
chapter until it has filed a proper certificate pursuant to [CPL 245.50 (1)].” CPL 30.30 (5),
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which was added in the 2019 reforms, directs that the People must submit a COC attesting
to good faith compliance with CPL 245.20’s disclosure requirements before or at the time
they provide notice that they are trial-ready (see CPL 30.30 [5]; L 2019, ch 59, § 1,
pt KKK). At that point, “the court shall make inquiry on the record as to their actual
readiness,” and the defense shall be given “an opportunity to be heard on the record as to
whether the disclosure requirements have been met” (id.). CPL 30.30 (1)’s instruction that
the court must grant a defendant’s motion to dismiss on speedy trial grounds if the
prosecution is not ready within the applicable timeframe (here, 30 days) was in place prior
to the 2019 changes and remains so (see CPL 30.30 [1] [d]).
In 2022, the legislature enacted additional amendments to CPL article 245 (see
L 2022, ch 56, § 1, pt UU, subpt D). While not directly applicable to this case, we note
them to give a full description of the statutory scheme. CPL 245.80 (2) was modified to
direct that a court should only dismiss a charge as a sanction for a disclosure violation if it
has considered all other remedies and concluded that dismissal “is appropriate and
proportionate to the prejudice suffered by the party.” CPL 245.50 was amended to require
that parties must notify opposing parties of a COC deficiency or challenge the sufficiency
of a COC as soon as practicable (see CPL 245.50 [4] [b], [c]). Finally, CPL 245.50 was
amended to require that a supplemental COC detail the basis for a delayed disclosure so
the court can assess the validity of the original COC, which is not impacted so long as it
was filed in good faith and after exercising due diligence, or the delayed discovery did not
exist when it was filed (see CPL 245.50 [1-a]).
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It is against these provisions that we must assess a CPL 30.30 motion for speedy
trial dismissal based on incomplete compliance with CPL article 245 discovery obligations.
III.
The People contend that the propriety of a COC rests solely on good faith and
reasonableness, and that the COC filed in this case cleared that bar. They argue that their
failure to relay the belated discovery items before filing the COC was inadvertent, that the
provision of supplemental discovery does not invalidate a prior COC, and that dismissal
should be a “last resort” imposed only when no other measure can cure any prejudice
caused by belated disclosure. In the People’s view, there was no prejudice here, so the trial
court properly imposed a sanction of preclusion pursuant to CPL 245.80, rather than
dismissing the case on speedy trial grounds. We are unpersuaded by these contentions.
In resolving questions of statutory interpretation, our “primary consideration . . . is
to ‘ascertain and give effect to the intention of the Legislature’ ” (People v Galindo, 38
NY3d 199, 203 [2022] [internal quotation marks omitted], quoting Riley v County of
Broome, 95 NY2d 455, 463 [2000]). We start with the plain language of the statute (see
People v Schneider, 37 NY3d 187, 196 [2021], cert denied 142 S Ct 344 [2021]). “In the
absence of a statutory definition, ‘we construe words of ordinary import with their usual
and commonly understood meaning, and in that connection have regarded dictionary
definitions as useful guideposts in determining the meaning of a word or phrase’ ”
(Yaniveth R. v LTD Realty Co., 27 NY3d 186, 192 [2016], quoting Rosner v Metropolitan
Prop. & Liab. Ins. Co., 96 NY2d 475, 479-480 [2001]).
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Under the terms of the statute, the key question in determining if a proper COC has
been filed is whether the prosecution has “exercis[ed] due diligence and ma[de] reasonable
inquiries to ascertain the existence of material and information subject to discovery” (CPL
245.50 [1]; see also CPL 245.20 [2] [the “prosecutor shall make a diligent, good faith effort
to ascertain the existence of” discovery materials outside of their possession]; CPL 245.50
[3] [court may deem prosecution ready where mandatory discovery has been lost or
destroyed “despite diligent and good faith efforts, reasonable under the circumstances”]).
Although the statute nowhere defines “due diligence,” it is a familiar and flexible standard
that requires the People “to make reasonable efforts” to comply with statutory directives
(People v Bolden, 81 NY2d 146, 155 [1993]; see People v Luperon, 85 NY2d 71, 80-81
[1995]). Black’s Law Dictionary is in accord; it defines “due diligence” as “[t]he diligence
reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal
requirement or to discharge an obligation” (Black’s Law Dictionary 573 [11th ed 2019]).
Reasonableness, then, is the touchstone—a concept confirmed by the statutory directive to
make “reasonable inquiries” (CPL 245.50 [1]).
An analysis of whether the People made reasonable efforts sufficient to satisfy CPL
article 245 is fundamentally case-specific, as with any question of reasonableness, and will
turn on the circumstances presented (cf. People v Diaz, 97 NY2d 109, 116 [2001]; People
v Budd, 46 NY2d 930, 931-932 [1979]). There is no rule of “strict liability”; that is, the
statute does not require or anticipate a “perfect prosecutor.” On the other hand, the plain
terms of the statute make clear that while good faith is required, it is not sufficient standing
alone and cannot cure a lack of diligence (see CPL 245.20 [2]; CPL 245.50 [1], [3];
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Anderson, 66 NY2d at 536 [statutory requirement of due diligence established that more
than good faith was required]). Although 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.
Read together, CPL 245.50 and CPL 30.30 require that due diligence must be
conducted prior to filing a COC (see CPL 245.50 [1] [detailing representations that must
be included in a COC]; CPL 245.50 [3] [directing that “the prosecution shall not be deemed
ready for trial for purposes of (CPL 30.30) . . . until it has filed a proper certificate pursuant
to (CPL 245.50 [1])”]; CPL 30.30 [5] [directing that a COC must “accompan(y) or
precede( )” the People’s statement of trial readiness, that the court “shall” make inquiry on
the record as to actual readiness, and, if the court concludes the People are not ready, the
statement of readiness is not valid]). Although belated disclosure will not necessarily
establish a lack of due diligence or render an initial COC improper, post-filing disclosure
and a supplemental COC cannot compensate for a failure to exercise diligence before the
initial COC is filed.2
2 We note that CPL 245.50 (1-a)—which was added to CPL article 245 during the pendency of this appeal and does not directly apply here—requires that “[a]ny supplemental [COC]
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We underscore that the discovery provisions empower—and indeed, require—the
trial court to facilitate compliance on the record with these new discovery obligations (see
CPL 30.30 [5] [when the People state they are ready for trial, “the court shall make inquiry
on the record as to their actual readiness”]; CPL 245.35 [affording trial courts broad
discretion to impose “(c)ourt ordered procedures to facilitate compliance,” such as
“discovery compliance conference(s)”]; see also 245.50 [1-a]). To this end, a trial court
should analyze the People’s readiness after they file a COC and statement of readiness, and
it must ensure that inquiries from defense counsel regarding discovery obligations are
meaningfully addressed and that a record is made of the People’s efforts to secure and
disclose any responsive discovery. Those steps can be taken when an initial COC is filed
and the People announce they are trial-ready, and in the event the court later learns that
discovery was incomplete at the time of filing. Especially in light of the 2022 addition of
subdivisions (b) and (c) to CPL 245.50 (4), which require a party to notify the opposing
party of a COC deficiency or challenge a COC as soon as practicable, any questions about
whether due diligence was exercised in the discovery process should be evaluated as soon
as possible. We also note that nothing prevents the People from detailing their efforts to
exercise due diligence within the COC itself.
Should a defendant bring a CPL 30.30 motion to dismiss on the ground that the
People failed to exercise due diligence and therefore improperly filed a COC, the People
shall detail the basis for the delayed disclosure so that the court may determine whether the delayed disclosure impacts the propriety of the [original COC]” (CPL 245.50 [1-a]).
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bear the burden of establishing that they did, in fact, exercise due diligence and made
reasonable inquiries prior to filing the initial COC despite a belated or missing disclosure
(see People v Santos, 68 NY2d 859, 861 [1986], citing People v Berkowitz, 50 NY2d 333,
349 [1980]). If the prosecution fails to make such a showing, the COC should be deemed
improper, the readiness statement stricken as illusory, and—so long as the time chargeable
to the People exceeds the applicable CPL 30.30 period—the case dismissed.
Contrary to the People’s contentions, a defendant need not demonstrate prejudice to
obtain speedy trial dismissal based on a failure to timely comply with discovery
obligations. CPL 245.50 (3) and CPL 30.30 (5), taken together, plainly require that the
People file a proper COC reflecting that they have complied with their disclosure
obligations before they may be deemed ready for trial. CPL 245.50 (3) mandates that
“[n]otwithstanding the provisions of any other law, . . . the prosecution shall not be deemed
ready for trial for purposes of [CPL] 30.30 . . . until it has filed a proper certificate.”
Likewise, CPL 30.30 (5) directs that “[a]ny statement of trial readiness must be
accompanied or preceded by a certification of good faith compliance with the disclosure
requirements of [CPL 245.20].” These provisions thus condition trial readiness for
purposes of CPL 30.30 on the filing of a proper COC, which is consistent with the
legislative history of the disclosure reforms (see Senate Debate on 2019 NY Senate Bill
S1509C, Mar. 31, 2019 at 2615). The consequence of unreadiness after the CPL 30.30
period expires is dismissal (see CPL 30.30 [1]) and, as this Court has previously stated,
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speedy trial dismissal pursuant to CPL 30.30 is not contingent on a finding of prejudice
(see People v Hamilton, 46 NY2d 932, 933-934 [1979]; see also CPL 30.30 [1]).3
The People’s argument that the remedy here must satisfy CPL 245.80, and thus that
dismissal is appropriate only upon a showing of proportionate prejudice, misunderstands
the statutory scheme. As explained, CPL 30.30 now requires dismissal if the People did
not file a proper COC and the speedy trial period has run. That provision is not qualified
by CPL 245.80. On the other hand, if the court deems a COC proper (including in a case
where there was late disclosure but the court concludes the People exercised due diligence),
CPL 245.80 sets forth the available remedies for the belated disclosure. (Likewise if the
court determines the COC is not proper but the speedy trial clock has not yet expired.) The
statute instructs that where CPL 245.80 controls, the remedy must be “appropriate and
proportionate to the prejudice suffered by the party entitled to disclosure” (CPL 245.80 [1];
see also CPL 245.80 [2] [court may order dismissal only “after considering all other
remedies” and concluding “dismissal is appropriate and proportionate to the prejudice
suffered by the party entitled to disclosure, or make such other order as it deems just under
the circumstances”]).
3 CPL 245.50 (1)’s mandate that “[n]o adverse consequence to the prosecution or the prosecutor shall result from the filing of a [COC] in good faith and reasonable under the circumstances” does not change the analysis. CPL 245.50 (1) requires that the People “exercis[e] due diligence and ma[ke] reasonable inquiries” prior to filing a COC, and CPL 245.50 (3) states that the People shall not be deemed trial ready until they have filed a proper COC pursuant to CPL 245.50 (1). The reference to “adverse consequence” does not alter the statutory standard for a proper COC or limit dismissals under CPL 30.30 (5) to instances of bad faith. - 16 - - 17 - No. 92
We note that speedy trial dismissals based on disclosure violations are not
inevitable. In addition to exercising due diligence to ensure COCs are not later deemed
improper, the People can request additional time for discovery upon a showing of good
cause (see CPL 245.70 [2]), seek “an individualized finding of special circumstances” to
be deemed ready despite the failure to file a “proper certificate” (CPL 245.50 [3]), or try
to exclude from the speedy trial calculus “periods of delay occasioned by exceptional
circumstances” (CPL 30.30 [4] [g]).
IV.
Applying these principles, we reverse County Court’s order of affirmance. Due
diligence is a mixed question of fact and law, and thus we consider whether the fact finder’s
conclusions are supported by the record (see Luperon, 85 NY2d at 78). Viewed under the
proper legal standard, there is no record support for the conclusion of the courts below that
prior to filing the initial COC, the People exercised due diligence and made reasonable
inquiries to identify mandatory discovery items relating to this case.
The belated disclosure here consisted of routinely produced disclosure materials—
the creation of at least one of which was mandated by law (see CPL 140.10 [5]). The
absence of such significant items of disclosure was readily noticed by the defense, which
then brought it to the attention of the People and the court. The prosecution had two
opportunities to establish that they had exercised due diligence, but failed to do so. At the
appearance on May 26th, in which defense counsel first called attention to the missing
items, the prosecutor simply asserted that he had “checked” without any elaboration as to
what efforts were made to verify whether there was any outstanding discovery or whether
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the disclosure requested by the defense—which was in the possession of the People (see
CPL 245.20 [2])—actually existed. The prosecutor speculated that such disclosure items
did not exist and had not been created, and otherwise stated in a cursory fashion that all
discovery had been turned over. When the parties appeared on July 6th following Bay’s
CPL 30.30 motion, the People again made no mention of any efforts taken to ascertain the
existence of discovery materials before the COC was filed, nor did they explain why some
discovery was initially missing or how it came into their possession.
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. In the absence of a valid
readiness statement tolling the speedy trial clock, the People do not dispute that they had
exceeded the applicable 30-day period under CPL 30.30 (1) when Bay moved for dismissal.
Thus, the defendant’s motion should have been granted.
Accordingly, the County Court order should be reversed, defendant’s CPL 30.30
motion granted, and the accusatory instrument dismissed.
Order reversed, defendant's CPL 30.30 motion granted and accusatory instrument dismissed. Opinion by Judge Halligan. Chief Judge Wilson and Judges Rivera, Garcia, Singas, Cannataro and Troutman concur.
Decided December 14, 2023
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