[User]
Create a takeaway summary for the following court decision, focusing on the topic of Belated disclosure and sanctions and the subtopic of Belated disclosure and sanctions. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Heverly 2024 NY Slip Op 00524 [224 AD3d 1243] February 2, 2024 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 3, 2024 [*1] The People of the State of New York, Respondent, v Joseph P. Heverly, Appellant. Banasiak Law Office, PLLC, Syracuse (Piotr Banasiak of counsel), for defendant-appellant. Brooks T. Baker, District Attorney, Bath (John C. Tunney of counsel), for respondent. Appeal from a judgment of the Steuben County Court (Patrick F. McAllister, A.J.), rendered June 14, 2021. The judgment convicted defendant upon a jury verdict of bail jumping in the second degree. It is hereby ordered that the judgment so appealed from is unanimously reversed on the law, a new trial is granted and the matter is remitted to Steuben County Court for further proceedings in accordance with the following memorandum: On appeal from a judgment convicting him upon a jury verdict of bail jumping in the second degree (Penal Law § 215.56), defendant contends that he is entitled to a new trial because County Court abused its discretion in denying his challenges for cause to two prospective jurors who expressed biases during voir dire. Defendant further contends that the People failed to comply with their discovery obligations under CPL article 245. We agree with defendant that he is entitled to a new trial. "Prospective jurors who make statements that cast serious doubt on their ability to render an impartial verdict, and who have given less-than-unequivocal assurances of impartiality, must be excused" ( People v Arnold , 96 NY2d 358, 363 [2001]; see People v Harris , 19 NY3d 679 , 685 [2012]; People v Chambers , 97 NY2d 417, 419 [2002]). Although CPL 270.20 (1) (b) "does not require any particular expurgatory oath or 'talismanic' words . . . , [prospective] jurors must clearly express that any prior experiences or opinions that reveal the potential for bias will not prevent them from reaching an impartial verdict" ( Arnold , 96 NY2d at 362; see People v Mitchum , 130 AD3d 1466 , 1467 [4th Dept 2015]). Here, one of the prospective jurors at issue stated at the outset of voir dire that she was the mother of five children and that she would have a difficult time concentrating on the trial due to myriad family obligations. After some discussion with the prosecutor about whether child care arrangements could be made during the trial, the prospective juror raised another concern about her ability to serve as a juror, explaining that she was indecisive. When asked by the prosecutor whether she could follow the court's instructions and "apply the law to the evidence," the prospective juror stated, "[h]onestly, no." Later during voir dire, the prosecutor asked the prospective juror: "Do you think you can do what you need to do to be a juror?" The prospective juror answered "[y]es." When defendant later challenged the prospective juror for cause, the court denied defendant's challenge, explaining that the prospective juror said "I can" when asked by the prosecutor whether she could serve on the jury. We conclude that the court abused its discretion in denying defendant's challenge for cause to the prospective juror ( see generally People v Betances , 147 AD3d 1352 , 1354 [4th Dept 2017]). As the People concede, the prospective juror's initial comments reflected "a state of mind [*2] that [was] likely to preclude [her] from rendering an impartial verdict based upon the evidence adduced at the trial" (CPL 270.20 [1] [b]). The question thus becomes whether she ultimately gave an "unequivocal assurance" that she could put aside the specific concerns she expressed and render an impartial verdict based on the evidence ( People v Johnson , 94 NY2d 600, 614 [2000]). We conclude that she did not. Indeed, the prospective juror never stated, unequivocally or otherwise, that she would follow the court's instructions and apply the law to the facts. Nor did she state that her child care concerns had been alleviated such that she could devote her undivided attention to the trial. Just as a "general statement of impartiality that does not explicitly address the specific cause of the preexisting bias is not sufficient" ( People v Cahill , 2 NY3d 14 , 76 [2003, Smith, J., concurring]), a general statement from a prospective juror that they can do what it takes to be a juror is not sufficient to rehabilitate the prospective juror where, as here, the prospective juror had previously offered specific reasons for being unable to serve impartially. We therefore conclude that the court abused its discretion in denying defendant's challenge for cause and, inasmuch as defendant exercised a peremptory challenge with respect to the prospective juror at issue and then exhausted all of his peremptory challenges, the denial of his challenge for cause constitutes reversible error ( see People v Padilla , 191 AD3d 1347 , 1348 [4th Dept 2021]; People v Hargis , 151 AD3d 1946 , 1948 [4th Dept 2017]). Because we are granting a new trial, we must address defendant's remaining contention related to CPL article 245. We agree with defendant that the People failed to comply with their discovery obligations under CPL 245.20, which became effective while the instant charges were pending ( see L 2019, ch 59, § 1, part LLL, § 2). Six days before trial and almost one year after the People filed their original certificate of compliance ( see CPL 245.50 [1]), the People filed a supplemental certificate of compliance ( see id . subd [1-a]), enclosing a court transcript from a prior proceeding. On the first day of trial, the People provided defense counsel with additional documents, including a police incident report, a notice of arraignment and two additional court transcripts from prior proceedings. Defense counsel objected to the untimely disclosure, specifically citing CPL article 245, but the court stated that the trial was "going forward." During the testimony of the People's second witness, who was the prosecutor on the underlying drug charges with respect to which defendant had failed to appear, the People sought to introduce a one-page photocopy of notes the prosecutor had made on his case file. Those notes had never been disclosed to the defense. In response to defense counsel's objections related to, inter alia, CPL article 245, the prosecutor argued that his failure to disclose the notes was a mere Rosario violation that could be cured. The court agreed and provided defense counsel with additional time to review the document and prepare cross-examination questions. Having lost his bid to exclude the document, defense counsel requested certain redactions, to which the People stipulated. We agree with defendant that, by proposing redactions, he did not waive his initial objections to the case notes. On appeal, the People maintain their position that the Rosario violation was cured and, as a result, reversal is not warranted ( see People v Socciarelli , 203 AD3d 1642 , 1643 [4th Dept 2022], lv denied 38 NY3d 1035 [2022]). Where "there is an issue of delayed disclosure of Rosario material, reversal is required [under Rosario ] only 'if the defense is substantially prejudiced by the delay' " ( id. , quoting People v Martinez , 71 NY2d 937, 940 [1988]). Here, however, the failure to disclose the case notes also constitutes a violation of CPL 245.20 (1) inasmuch as those notes "relate to the subject matter of the case and [were] in the possession, custody or control of the prosecution" ( id .). We agree with defendant that CPL article 245 broadened the scope of automatic discovery to include Rosario material ( see People v Faison , 73 Misc 3d 900 , 909 [Crim Court, Kings County 2021]). "[A] plain reading of the statute indicates a broader interpretation of CPL 245.20 . Rosario material relates 'to the subject matter of the witness' testimony ' (emphasis added), in contrast to the more encompassing requirement of CPL 245.20 to disclose all material related to the subject matter of the case " ( id .). Moreover, "[t]he purpose of and justification for article 245 was specifically to eliminate 'trial by ambush' and to remedy . . . inequities by mandating earlier and broader discovery obligations by the prosecution, increasing efficiency in prosecutions and fairness to both sides" ( People v Godfred , 77 Misc 3d 1119 , 1124 [Crim Ct, Bronx County 2022]). Such open disclosure was enacted, in part, to enhance "defendants' ability [*3] to reach reasonable pretrial dispositions of their cases precisely because [under the old discovery rules] they lacked sufficient early access to the evidence against them" ( id .). We further agree with defendant that the prosecutor's failure to timely disclose the three transcripts constituted a violation of CPL article 245 even if those documents were equally available to both the prosecution and the defense. The People do not dispute that, at some point, the transcripts came into the prosecutor's possession and that those transcripts related to the subject matter of the case. Although the prosecutor submitted a supplemental certificate of compliance and disclosed one of the three transcripts six days before trial, he did not turn over to the defense the other two transcripts. CPL 245.20 (2) requires the prosecutor to "make a diligent, good faith effort to ascertain the existence of material or information discoverable under subdivision one of this section 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 prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain" (emphasis added). There is no evidence that the transcripts were obtained by subpoena duces tecum. Although transcripts that are not in the People's possession and control are not subject to Brady and Rosario disclosure requirements ( see People v McGuire , 196 AD3d 1155 , 1156 [4th Dept 2021], lv denied 37 NY3d 1163 [2022], denied reconsideration 39 NY3d 964 [2022]), that fact is of no moment for purposes of CPL 245.20. Even where documents are "beyond the prosecutor's control under Rosario and constructive possession under CPL 245.20 (2), the presumption of openness (CPL 245.20 [7]), the duty to maintain the flow of information (CPL 245.55), the continuing duty to disclose (CPL 245.60), and, perhaps most importantly, the goals of article 245 require that when the prosecutor becomes aware [after making the requisite reasonable inquiries] that an agency outside their control holds information that relates to the subject matter of the case, best practice dictates that the People take steps . . . to obtain those records notwithstanding the fact [that] the information may be available to the defendant by equivalent process " ( People v Weiss , 79 Misc 3d 931 , 936 [Crim Ct, Queens County 2023] [emphasis added]; see People v Soto , 72 Misc 3d 1153 , 1160-1161 [Crim Ct, NY County 2021]; see also People v Mercado , 80 Misc 3d 430 , 441-443 [Sup Ct, Queens County 2023]). CPL 245.20 (2) does not relieve the People of their disclosure requirement where, as here, the "discovery material at issue is within the People's custody and control, [and does not require them to] resort to a subpoena" ( Soto , 72 Misc 3d at 1161; cf. People v Lustig , 68 Misc 3d 234 , 243-244 [Sup Ct, Queens County 2020]). Inasmuch as the People violated CPL 245.20, it was incumbent upon the court to impose a remedy or sanctions proportionate to the prejudice suffered by defendant ( see CPL 245.80 [1]). While the court may have provided a remedy for the Rosario violation arising from the People's failure to turn over the case notes, it did not provide any remedy or sanction for the discovery violations. We thus conclude that, upon remittal for a new trial, the court should impose any remedies or sanctions it deems appropriate under CPL 245.80. Present—Smith, J.P., Lindley, Montour, Greenwood and DelConte, JJ.

[Assistant]
Trial court gave defense counsel time to review prosecution witness's
belatedly disclosed, case notes before he began cross-examination, but did
not consider what sanction or remedy would be appropriate under CPL
245.80 for other failures to turn over prior statements, etc.. At new trial
ordered for a different reason, court should make that CPLS 245.80
assessment.


[User]
Create a takeaway summary for the following court decision, focusing on the topic of Belated disclosure and sanctions and the subtopic of Adverse inference instruction. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Johnson 2024 NY Slip Op 05313 [231 AD3d 652] October 29, 2024 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 13, 2023 [*1] The People of the State of New York, Respondent, v Austin Johnson, Appellant. Jenay Nurse Guilford, Center for Appellate Litigation, New York (Benjamin Rutkin-Becker of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Max Bernstein of counsel), for respondent. Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered May 4, 2022, as amended on May 10, 2022, convicting defendant, after a jury trial, of criminal sexual act in the first degree and assault in the second degree, and sentencing him to an aggregate term of 15 years, followed by 20 years of postrelease supervision, unanimously affirmed. The court correctly denied defendant's request for an intoxication charge because he failed to present "sufficient evidence of intoxication in the record for a reasonable person to entertain a doubt as to the element of intent on that basis" ( People v Sirico , 17 NY3d 744 , 745 [2011]). While the victim testified that defendant was very drunk, defendant presented no details regarding the "number of drinks he had" "whether he consumed alcohol on an empty stomach, whether his drinks were high in alcoholic content, [or] the specific impact of the alcohol upon his behavior or mental state" ( People v Gaines , 83 NY2d 925, 927 [1994]; compare People v Velcher , 116 AD3d 799 [2d Dept 2014], lv withdrawn 24 NY3d 1047 [2014]). Additionally, the evidence of "the period of time during which [the drinks] were consumed" and "the lapse of time between consumption" and the attack was vague ( Gaines , 83 NY2d at 927). In any event, any error was harmless because there was overwhelming evidence of defendant's intent, and there was no significant probability that the jury would have acquitted defendant had it been given an intoxication charge ( see People v Crimmins , 36 NY2d 230, 241-242 [1975]; see e.g. People v Martinez , 18 AD3d 343 , 344 [1st Dept 2005], lv denied 5 NY3d 808 [2005]). The court should have granted defendant's request for an adverse inference charge based on the People's failure to disclose the property voucher from defendant's cell phone ( see CPL 245.20 [1] [m]; 245.80 [1]; People v Handy , 20 NY3d 663 , 665 [2013]). Because the police destroyed the evidence by selling defendant's phone at auction, the adverse inference charge was "mandatory upon request" ( People v Viruet , 29 NY3d 527 , 532 [2017]). However, we find that this error was harmless ( see id. at 533). Defendant failed to preserve his claim that the People committed a Brady violation ( see People v Anderson , 205 AD2d 399, 400 [1st Dept 1994], lv denied 84 NY2d 932 [1994]), and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. We perceive no basis for reducing the sentence. Concur—Singh, J.P., Pitt-Burke, Higgitt, Rosado, O'Neill Levy, JJ.

[Assistant]
Court should have granted defendant's request for an adverse inference
charge based on the People's failure to disclose the property voucher from
defendant's cell phone. Because the police destroyed the evidence by
selling defendant's phone at auction, the adverse inference charge was
mandatory upon request. But harmless error.


[User]
Create a takeaway summary for the following court decision, focusing on the topic of Belated disclosure and sanctions and the subtopic of Adverse inference instruction. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Williams 2024 NY Slip Op 00654 [224 AD3d 998] February 8, 2024 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 3, 2024 [*1] The People of the State of New York, Respondent, v Colyn C. Williams, Appellant. Paul Skip Laisure, Garden City, for appellant. Kirk O. Martin, Special Prosecutor, Owego (Torrance L. Schmitz of counsel), for respondent. Lynch, J.P. Appeal from a judgment of the County Court of Broome County (Joseph F. Cawley, J.), rendered July 29, 2021, upon a verdict convicting defendant of the crime of assault in the second degree (two counts). On March 28, 2019, defendant was charged by felony complaint with attempted murder in the second degree and assault in the first degree upon allegations that he attacked his then-girlfriend and infant son with a knife. A grand jury indictment was handed up on May 13, 2019, charging defendant with only assault in the first degree and the People declared their readiness for trial that day. This indictment was dismissed on October 21, 2019, with leave to re-present. On December 3, 2019, another indictment was handed up charging defendant with two counts of assault in the first degree based upon the same incident, and the People again declared their readiness. Effective January 1, 2020, the Legislature "enacted sweeping reforms that expanded and restructured disclosure obligations in criminal cases," the parameters of which the Court of Appeals recently reviewed in People v Bay (41 NY3d 200, 204 [Dec. 14, 2023]; see L 2019, ch 59, § 1, part LLL). CPL 245.20, titled "[a]utomatic discovery," requires the prosecution to disclose to the defense "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" within certain expedited time frames (CPL 245.20 [1]). [FN1] "To incentivize the People's compliance," the Legislature correspondingly amended CPL 30.30 (5) to require a statement of trial readiness to " 'be accompanied or preceded by a certification of good faith compliance [hereinafter COC] with the disclosure requirements of CPL 245.20' " ( People v Bay , 41 NY3d at 208, 214 [brackets omitted], quoting CPL 30.30 [5]). By the addition of subdivision (5), the Legislature "tethered the People's CPL article 245 discovery obligations to CPL 30.30's speedy trial requirements" and "condition[ed] trial readiness . . . on the filing of a proper COC" ( People v Bay , 41 NY3d at 209, 214). In Bay , the Court explained that the disclosure mandate of CPL article 245 does not create a "rule of strict liability" or require a "perfect prosecutor" ( People v Bay , 41 NY3d at 207, 212 [internal quotation marks omitted]). "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" (41 NY3d at 212 [citations omitted]). Rather, "the key question in determining if a proper COC has been filed is whether the prosecution has exercised due diligence and made reasonable inquiries to ascertain the existence of material and information subject to discovery" (41 NY3d at 211 [internal quotation marks, brackets and citation omitted]). The People bear the burden in this regard and the standard is one of "reasonableness," i.e., [*2] whether, under the circumstances presented, the People made reasonable efforts to comply with the statute before filing the initial COC (41 NY3d at 211-212). "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" (— NY3d at —, 2023 NY Slip Op 06407, *2). These amendments "became applicable to pending actions as soon as [they] became effective" ( People v King , 216 AD3d 1400 , 1403 [4th Dept 2023] [internal quotation marks, brackets and citation omitted]; see People v Robbins , 206 AD3d 1069 , 1072 [3d Dept 2022], lv denied 39 NY3d 942 [2022]), but did "not invalidate the People's previous statements of readiness—i.e., those previous statements, so long as not illusory, remain[ed] effective to stop the speedy trial calculation during the pre-amendment period" ( People v King , 216 AD3d at 1406 [internal quotation marks and citation omitted]; see People v Robbins , 206 AD3d at 1072). Stated differently, the speedy trial analysis includes both the pre-amendment and post-amendment phase, with the People reverting back to a state of unreadiness as of January 1, 2020, if they did not previously file a valid COC. While the disclosure obligations of CPL article 245 are now automatic and obviate the need to file a demand ( see People ex rel. Ferro v Brann , 197 AD3d 787 , 787 [2d Dept 2021], lv denied 38 NY3d 909 [2022]), defendant nevertheless did so on January 6, 2020, requesting, among other things: (1) the "names and adequate contact information for all persons other than law enforcement personnel whom the prosecutor knows to have evidence or information relevant to any offense charged or to any potential defense thereto" (CPL 245.20 [1] [c]); (2) "[e]xpert opinion evidence, including the name, business address, current curriculum vitae [hereinafter CV], a list of publications, and a list of proficiency tests and results administered or taken within the past [10] years of each expert witness whom the prosecutor intends to call as a witness" (CPL 245.20 [1] [f]); and (3) records of convictions of any prosecution witness ( see CPL 245.20 [1] [p]). The record demonstrates that the People provided extensive discovery to the defense following the initial March 2019 indictment. At a court appearance on January 21, 2020, defendant acknowledged receiving "discovery on the first grand jury that came through" but advised that discovery remained outstanding relative to the January 6, 2020 demand and defendant was unable to consider a pending plea offer. The prosecutor in attendance, who was filling in for the Senior Assistant District Attorney assigned to [*3] the matter, explained that he did not "have any notes indicating one way or the other . . . what happened with [the CPL article] 245 material." Upon defendant's consent, the matter was adjourned. At the February 11, 2020 appearance, defense counsel advised County Court that she had "received quite a bit of discovery from the People," but certain materials remained outstanding, including the December 2019 grand jury minutes. Nevertheless, defense counsel relayed that defendant was rejecting the plea offer and consented to a motion schedule. On February 28, 2020, the People filed a COC certifying compliance with their statutory disclosure obligations and declaring their readiness for trial. A disclosure statement submitted therewith explained, as relevant here, that the statement made by defendant, as well as the names and contact information of all non-law enforcement personnel with information relevant to the case, had previously been disclosed in the police reports and other materials. The disclosure statement also listed the name of an expert medical witness the People intended to call at trial—certifying that they had provided defense counsel with a copy of the expert's grand jury testimony as well as the medical records pertaining to the victims—stated that tapes of a 911 call and all photographs had previously been provided and maintained that there was "no current record of convictions for any of the non-expert witnesses indicated above." At the next court appearance on March 6, 2020, defense counsel argued that the COC was illusory because the People had not complied with their full discovery obligations. Declining counsel's offer to go through the "specifics" of what was missing, County Court adjourned the matter for 10 days to see if the parties could resolve the issue. On March 12, 2020, the People filed an amended/supplemental COC again certifying that they had complied with their discovery obligations and declaring their readiness. As relevant here, the accompanying disclosure statement stated that the December 3, 2019 grand jury minutes were provided to the defense on March 3, 2020, that all statements, "including all police reports, notes of police and other investigators, and law enforcement agency reports" had previously been provided "by hard copy on or about April 19, 2019," that all photographs had also been provided in April 2019 and again on February 28, 2020, as had a copy of the search warrant and search warrant return, that the People were awaiting the CV of the expert they had previously disclosed, which would be provided upon receipt, and revealed that they were not in possession of the criminal histories of any of the witnesses "but [would] provide them to defendant at a later date, should such records exist." The next day, defense counsel sent an email to the prosecutor reminding him that the contact information for the adult victim was still outstanding, as were additional expert disclosures and the criminal history [*4] reports for the adult victim and two other witnesses. The prosecutor promptly responded: "[l]et's talk more about [the adult victim's] contact information. I will explain more when we talk. As for the RAP sheets, I will definitely get all of that to you very soon but do not have it yet. I . . . will run a RAP sheet on all of them." The email also stated that the prosecutor was "waiting on" the expert's CV. On March 16, 2020, defendant filed an omnibus motion objecting to the February 2020 COC [FN2] and seeking various relief, including suppression of certain evidence and a review of the grand jury minutes. At a court appearance that day, the prosecutor represented that all discovery had been disclosed "with the exception of a few items," including the expert's CV and the criminal history reports of any non-expert witnesses. When defense counsel reminded the prosecutor that the adult victim's contact information was also outstanding, the prosecutor explained the circumstances surrounding the delay, noting that he and defense counsel had initially discussed a proposal under which the contact information would be disclosed to counsel upon an agreement not to share it with defendant. However, after that conversation, the prosecutor "actually had contact with the victim," who "expressed a great deal of fear and concern." Upon hearing this explanation, County Court informed the prosecutor that he would need to file a motion for a protective order to withhold such information ( see CPL 245.70) and should do so in his papers responding to defendant's omnibus motion. The People acknowledge that no such application was forthcoming. Both parties take the position that a March 20, 2020 Executive Order issued by then-Governor Andrew M. Cuomo in response to the COVID-19 pandemic effectively suspended the speedy trial time limitations set forth in CPL 30.30 ( see Executive Order [A. Cuomo] No. 202.8 [9 NYCRR 8.202.8]). For purposes of this prosecution, the toll was lifted on October 4, 2020 ( see Executive Order [A. Cuomo] No. 202.67 [9 NYCRR 8.202.67]). While the toll was still in effect, defense counsel continued to contact the prosecutor to obtain outstanding discovery, sending an email on June 4, 2020, listing the materials that had not been disclosed—including the adult victim's contact information, the expert's CV, and the criminal history reports of the prosecution's witnesses—and emphasizing that the matter had been pending for over 15 months. On June 17, 2020, defense counsel moved to strike the COCs, arguing that they were illusory. In an attorney affirmation submitted with the motion, defense counsel again listed the discovery that remained outstanding and cited the provisions of CPL article 245 requiring their disclosure. In opposition, the People argued that they had made good faith/reasonable efforts to comply with their discovery obligations without elaboration. They further averred that they had "turned over to defense counsel all discoverable items [*5] within [their] possession at the time of the filing of the initial [COC]" and continued to do so as additional discovery became available. Nevertheless, they conceded that the "criminal histories of certain potential civilian witnesses ha[d] not been turned over to . . . defendant," maintaining that this was an oversight, they had "ordered the production" of such information for two of their witnesses, and promising that such information would be "turned over today." As for a third witness, the prosecutor explained that he did not yet have the criminal history record of this witness but would provide it as soon as he did. In November 2020, while a decision on defendant's motion to strike was pending, a new prosecutor was assigned to the case and produced a trove of discovery, including the adult victim's phone number. [FN3] On February 15, 2021, defense counsel sent an email to the new prosecutor noting that, notwithstanding the November 2020 disclosure, certain materials remained outstanding, including, among other things, the expert's CV, criminal history reports of the adult victim and another witness, and any lab reports for "either the blood, DNA, or the knife" found at the crime scene. The new prosecutor responded three days later, explaining, as relevant here, that "we've reached out to [United Healthcare System] Wilson to try to contact [the expert to obtain his CV]. I will send it over as soon as I receive it, but it's my understanding that [CPL article 245] allows this information to be provided up until 60 days before trial." As for the criminal history record pertaining to the adult victim, the prosecutor stated that he was "not sure if this was or wasn't provided previously" but he had "prepared a .pdf document which provides this info. She had no history when I checked it." This email did not set forth any information regarding the criminal history records of the additional witness defense counsel had inquired about. As for the lab reports, the prosecutor explained: "with [CPL article] 245's onset the manner through which we check for lab reports has changed to an automated system . . . . I have checked this system and it returned 'no results.' I think I am checking properly but I will call to follow up to confirm this 'no results' [finding]." Thereafter, on February 22, 2021, the People filed another COC, with a statement of readiness, certifying that they had complied with their discovery obligations. On February 26, 2021, County Court denied defendant's June 2020 motion to strike the February 2020 COC, [FN4] explaining that CPL article 245 "does not require the disclosure of ALL materials before a proper [COC] and statement of trial readiness can be filed, nor does it require the striking of a [COC] if ALL discoverable material has not been disclosed." The court ultimately concluded that the People made "reasonable and appropriate efforts to comply with their [d]iscovery obligations" and had filed the February 2020 COC in good faith. On [*6] March 25, 2021, defendant moved to dismiss the indictment pursuant to CPL 30.30, arguing that the 2020 COCs were illusory because discovery was outstanding at the time they were filed and the People did not exercise diligent and good faith efforts to comply with their disclosure obligations ( see CPL 245.20 [1], [2]). As such, defendant claimed, the People did not validly state their readiness for trial within the applicable speedy trial time frame ( see CPL 30.30 [5]). In opposition, the People detailed when certain items of discovery had been turned over and what efforts they had taken to obtain certain materials. They also argued that dismissal would be "far too extreme" a remedy for the belated disclosures, emphasizing that "the defense has not shown any proof to support a claim of prejudice" in this regard. [FN5] County Court denied defendant's motion, finding that, at most, 147 days of chargeable time accrued between the commencement of the action and the filing of the first COC on February 28, 2020, bringing the People within the six-month speedy trial window applicable in this case. Although the court recognized that the February 2020 COC was filed with certain discovery outstanding, it noted that the exchange of discovery is an ongoing process and found that the People filed the certificate in good faith upon reasonable efforts to comply with their discovery obligations. The court further concluded that invalidating the February 2020 COC would be too drastic a sanction for any violation of CPL article 245. The case ultimately proceeded to a jury trial, after which defendant was convicted of two counts of the lesser included offense of assault in the second degree. He was sentenced to concurrent prison terms of seven years, with three years of postrelease supervision. Defendant appeals. Defendant argues that County Court erred in denying his motion to dismiss the indictment on statutory speedy trial grounds. Defendant having been charged with a felony, the People had six months from March 28, 2019—the date the felony complaint was filed—to declare their readiness for trial, amounting to 184 days ( see CPL 30.30 [1] [a]; CPL 1.20 [16], [17]; People v O'Day , 220 AD3d 986 , 987 [3d Dept 2023]). "Whether the People have satisfied this obligation is generally determined by computing the time elapsed between the filing of the first accusatory instrument and the People's declaration of readiness, subtracting any periods of delay that are excludable under the terms of the statute and then adding to the result any postreadiness periods of delay that are actually attributable to the People and are ineligible for an exclusion" ( People v Cortes , 80 NY2d 201, 208 [1992]; see People v McCarty , 221 AD3d 1360 , 1361 [3d Dept 2023]). As for the period before January 1, 2020, the People concede, and we agree, that 89 days of chargeable time accrued between the filing of the felony complaint on March 28, 2019, and the filing of the second indictment, with the accompanying [*7] statement of readiness, on December 3, 2019 ( see People v King , 216 AD3d at 1406; People v Robbins , 206 AD3d at 1072). With the enactment of CPL article 245 and CPL 30.30 (5), however, the People reverted back to a state of unreadiness and could not be deemed ready to proceed to trial unless they filed a proper COC ( see People v Jordan 220 AD3d 1187 , 1188 [4th Dept 2023]; People v King , 216 AD3d at 1406-1407; People v Robbins , 206 AD3d at 1072). This dispute necessarily turns on whether the COCs filed in February and March 2020 were valid so as to render the statements of readiness contained therein operative. If so, then the speedy trial clock stopped before 184 days of chargeable time accrued. [FN6] If neither was valid, then no effective statement of readiness was made until at least February 22, 2021, with the filing of the third COC ( see CPL 30.30 [5]). By that point, however, the speedy trial clock had long expired. While recognizing that the People belatedly provided certain discovery, County Court concluded that the People satisfied the good faith/due diligence statutory standard in filing the February 28, 2020 COC. We agree with that assessment. "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" ( People v Bay , 41 NY3d at 212; see CPL 245.50 [1-a]). Considering the illustrative due diligence factors specified in Bay , this record confirms that the People provided extensive, pertinent documentation to the defense as early as April 2019. Significantly, in challenging the February 28, 2020 COC, defendant focused on only three items: the adult victim's contact information, the identified expert's CV and a criminal history for the prosecution witness—all of which was eventually provided, albeit after an unwarranted delay. [FN7] Unlike the prosecutor in Bay who erroneously advised the court that significant records in the People's actual possession did not exist, the People here expressly acknowledged in the February and March 2020 COCs their obligation to provide the expert CV and criminal background information once they obtained the documentation. [FN8] Moreover, the record also reveals a genuine safety concern at that time in disclosing the adult victim's contact information. That the People subsequently failed to follow through in requesting a protective order under CPL 245.70 as the court advised does not vitiate the reasonableness of that concern at the time they filed the initial COC. From our perspective, the ensuing delay in providing the belated discovery items falls within the scope of CPL 245.80 for which an appropriate sanction could have been imposed. Having concluded that the People acted in good faith and exercised due diligence prior to filing the February and March 2020 COCs, we agree with County Court's determination denying defendant's [*8] CPL 30.30 motion. Finally, we reject defendant's contention that the sentence imposed is unduly harsh and severe ( see CPL 470.15 [6] [b]). Accordingly, his request for a discretionary reduction of the sentence is denied. Pritzker, Reynolds Fitzgerald, McShan and Powers, JJ., concur. Ordered that the judgment is affirmed. Footnotes Footnote 1: Where a defendant is in custody during the pendency of the criminal case, "the prosecution shall perform its initial discovery obligations within [20] calendar days after the defendant's arraignment on an indictment, superior court information, prosecutor's information, information, simplified information, misdemeanor complaint or felony complaint" (CPL 245.10 [1] [a] [i]). Footnote 2: Defendant maintains that he had not been served with the March 2020 COC as of this date. Footnote 3: Defense counsel made this representation as to the victim's phone number in her affirmation accompanying her CPL 30.30 motion and the People do not dispute it. The disclosure in November 2020 consisted of approximately 500 items of discovery, though it is unclear whether any new materials were included in this document production or, if so, whether the new materials were even in existence and in the People's possession prior to filing the COCs. Accordingly, we cannot agree with defendant's assertion that "the hundreds of . . . items" turned over in November 2020 is "proof positive of the People's failure to file the[ ] February 28, 2020 [COC] in good faith." Footnote 4: County Court inadvertently overlooked defendant's motion to strike, resulting in the approximate eight-month delay in rendering a decision. Footnote 5: Contrary to the People's contention, Bay makes clear that "a defendant need not demonstrate prejudice to obtain [a] speedy trial dismissal based on a failure to timely comply with discovery obligations" ( People v Bay , 41 NY3d at 213). Footnote 6: The People argue that County Court should not have charged them with the entire 58-day period between January 1, 2020, and February 28, 2020. We need not resolve that dispute, for even excluding that entire period would not change the analysis. Footnote 7: Defendant maintains that the People also failed to disclose copies of records pertaining to a Child Protective Services investigation. However, defendant failed to raise that point in challenging the initial COC notwithstanding that these records were referenced in the police reports provided in 2019. In any event, the People obtained these records on February 19, 2021, and promptly disclosed them to defense counsel upon receipt. Although the People should have tried to obtain these records more expeditiously after defense counsel's request in June 2020 ( see People v McCarty , 221 AD3d at 1362 n 2), under the circumstances of this case and taking into account the extensive disclosures prior to February 2020, we cannot conclude that the failure to do so demonstrates a general lack of good faith or due diligence prior to filing the initial COC. Footnote 8: After being informed by the prosecutor at the March 16, 2020 appearance that the expert's CV and the criminal history records of the People's witnesses remained outstanding, County Court should have inquired further to "ensure that . . . a record w[as] made of the People's efforts to secure" these materials ( People v Bay , 41 NY3d at 213). Nevertheless, we conclude that the failure to make a more specific record at that time does not vitiate the validity of the prior COCs under the circumstances presented.

[Assistant]
App. Div. found that the People's failure to provide timely
contact information for a victim before filing COC was rooted in "a
genuine safety concern.
" Although the People did not follow through on
requesting a CPL 245.70 protective order, as the trial court advised,
"does not vitiate the reasonableness of that concern at the time they filed the
initial COC.
"


[User]
Create a takeaway summary for the following court decision, focusing on the topic of Belated disclosure and sanctions and the subtopic of Adverse inference instruction. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Bell 2024 NY Slip Op 03935 [229 AD3d 1178] July 26, 2024 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 4, 2024 [*1] The People of the State of New York, Respondent, v Aron Bell, Appellant. Reeve Brown PLLC, Rochester (Guy A. Talia of counsel), for defendant-appellant. Aron Bell, defendant-appellant pro se. Christine K. Callanan, District Attorney, Lyons (R. Michael Tantillo of counsel), for respondent. Appeal from a judgment of the Wayne County Court (John B. Nesbitt, J.), rendered July 9, 2015. The judgment convicted defendant upon a jury verdict of attempted murder in the second degree (two counts), assault in the second degree (two counts), burglary in the first degree (two counts), criminal possession of a weapon in the second degree, criminal mischief in the fourth degree, criminal trespass in the second degree, criminal contempt in the second degree and endangering the welfare of a child (four counts). It is hereby ordered that said appeal from the judgment insofar as it imposed sentence is unanimously dismissed and the judgment is affirmed. Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, two counts each of attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]), assault in the second degree (§ 120.05 [2]), and burglary in the first degree (§ 140.30 [1], [2]), one count of criminal possession of a weapon in the second degree (§ 265.03 [3]), and four counts of endangering the welfare of a child (§ 260.10 [1]). Defendant contends in his main brief that count 1 of the indictment, charging attempted murder in the second degree, and count 3, charging assault in the second degree, were rendered duplicitous by the trial testimony that purportedly established two distinct shootings at the relevant victim. We reject that contention. With respect to each count, we conclude that defendant " 'in an uninterrupted course of conduct directed at a single victim, violate[d] a single provision of the Penal Law' " and therefore " 'commit[ted] but a single crime' " ( People v Flanders , 25 NY3d 997 , 1000 [2015]). Contrary to defendant's contentions in his main and pro se supplemental briefs, his conviction of both counts of attempted murder in the second degree is supported by legally sufficient evidence ( see People v Pearson , 192 AD3d 1555 , 1555 [4th Dept 2021], lv denied 37 NY3d 994 [2021]). Additionally, viewing the evidence in light of the elements of the crimes as charged to the jury ( see People v Danielson , 9 NY3d 342 , 349 [2007]), we reject defendant's contention in the main brief that the verdict with respect to the challenged counts is against the weight of the evidence ( see generally People v Bleakley , 69 NY2d 490, 495 [1987]). Defendant contends in the main brief that his conviction of criminal possession of a weapon is unconstitutional under New York State Rifle & Pistol Assn., Inc. v Bruen (597 US 1 [2022]). Defendant failed to raise a constitutional challenge before County Court, however, and therefore any such contention is unpreserved for our review ( see People v Jacque-Crews , 213 AD3d 1335 , 1335-1336 [4th Dept 2023], lv denied 39 NY3d 1111 [2023]; see generally People v Davidson , 98 NY2d 738, 739-740 [2002]; People v Reinard , 134 AD3d 1407 , 1409 [4th Dept [*2] 2015], lv denied 27 NY3d 1074 [2016], cert denied 580 US 969 [2016]). As defendant correctly concedes, his "challenge to the constitutionality of [the] statute must be preserved" ( People v Baumann & Sons Buses, Inc ., 6 NY3d 404 , 408 [2006], rearg denied 7 NY3d 742 [2006]; see People v Cabrera , 41 NY3d 35 , 42-51 [2023]). We decline to exercise our power to review defendant's constitutional challenge as a matter of discretion in the interest of justice ( see CPL 470.15 [6] [a]). Contrary to defendant's contention in the main brief, the court did not err in denying defendant's request for an adjournment following the People's disclosure of additional physical evidence. "The decision whether to grant an adjournment lies in the sound discretion of the trial court . . . and the court's exercise of that discretion in denying a request for an adjournment will not be overturned absent a showing of prejudice" ( People v Tripp , 177 AD3d 1409 , 1411 [4th Dept 2019], lv denied 34 NY3d 1133 [2020] [internal quotation marks omitted]). Defendant has made no showing of prejudice, especially given that defendant acknowledges that the People did not use the relevant physical evidence at trial. In light of defendant's resentencing, we do not consider his challenge to the severity of the original sentence, and we dismiss the appeal from the judgment to that extent ( see People v Richardson , 128 AD3d 1377 , 1379 [4th Dept 2015], lv denied 25 NY3d 1206 [2015]). To the extent that defendant challenges the resentence, that challenge is not properly before us because defendant did not take an appeal from the resentence ( see People v Kuras , 49 AD3d 1196 , 1197 [4th Dept 2008], lv denied 10 NY3d 866 [2008]). We have reviewed defendant's remaining contentions in his main and pro se supplemental briefs and conclude that none warrants modification or reversal of the judgment. Present—Smith, J.P., Curran, Bannister, Greenwood and Keane, JJ.

[Assistant]
Court did
not err in denying defendant's request for an adjournment following the
People's belated disclosure of additional physical evidence.
"The decision
whether to grant an adjournment lies in the sound discretion of the trial
court . . . and the court's exercise of that discretion in denying a request for
an adjournment will not be overturned absent a showing of prejudice.
"
Defendant made no showing of prejudice; in fact, the People did not seek
to use at trial the physical evidence at issue.


[User]
Create a takeaway summary for the following court decision, focusing on the topic of Identification and the subtopic of Showups. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Ortega 2024 NY Slip Op 06498 [233 AD3d 1526] December 20, 2024 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 12, 2025 [*1] The People of the State of New York, Respondent, v Wilberto Melendez Ortega, Appellant. Julie Cianca, Public Defender, Rochester (James A. Hobbs of counsel), for defendant-appellant. Sandra Doorley, District Attorney, Rochester (Aeron Schwallie of counsel), for respondent. Appeal from a judgment of the Supreme Court, Monroe County (Judith A. Sinclair, J.), rendered September 22, 2020. The judgment convicted defendant upon a jury verdict of robbery in the first degree and robbery in the second degree. It is hereby ordered that the judgment so appealed from is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of robbery in the first degree (Penal Law § 160.15 [3]) and robbery in the second degree (§ 160.10 [1]). Defendant's conviction arises from a robbery of a convenience store by defendant and a codefendant who forcibly stole money from the convenience store clerk while using or threatening the immediate use of knives. Defendant contends that Supreme Court erred in denying that part of his omnibus motion seeking to suppress identification testimony from the convenience store clerk. Defendant contends that the showup was unnecessary because the police had enough confirmation that defendant was one of the two perpetrators and thus there was no urgency or exigent circumstances to justify the showup identification. Defendant further contends that the requirements of temporal and spatial proximity were not met inasmuch as the showup took place an hour after the crime at a location approximately two miles from the scene of the crime. "Showup identifications are disfavored, since they are suggestive by their very nature" ( People v Ortiz , 90 NY2d 533, 537 [1997]; see People v Johnson , 81 NY2d 828, 831 [1993]). Although such procedures "are not presumptively infirm" ( People v Duuvon , 77 NY2d 541, 543 [1991]), the court must determine whether the showup was " 'reasonable under the circumstances—i.e., justified by exigency or temporal and spatial proximity [to the crime]—and, if so, whether the showup as conducted was unduly suggestive' " ( People v Cedeno , 27 NY3d 110 , 123 [2016], cert denied 580 US 873 [2016]; see People v Gilford , 16 NY3d 864 , 868 [2011]; People v Knox , 170 AD3d 1648 , 1649 [4th Dept 2019]). Defendant's contention that the showup procedure was not done in temporal and spatial proximity to the crime is preserved for our review inasmuch as the court expressly decided that question in its decision ( see People v Johnson , 192 AD3d 1612 , 1613 [4th Dept 2021]). Defendant's contention, however, that the showup identification was unnecessary and not supported by exigent circumstances is not preserved for our review ( see People v Cruz , 236 AD2d 269, 270 [1st Dept 1997], lv denied 89 NY2d 1091 [1997]; see generally Johnson , 192 AD3d at 1613; People v Walker , 155 AD3d 1685 , 1686 [4th Dept 2017], lv denied 30 NY3d 1109 [2018]). In any event, contrary to defendant's contention, "a showup is not improper merely because the police already have probable cause to detain a suspect" ( People v Howard , 22 NY3d 388 , 403 [2013]). In addition, the court properly determined that the showup procedure was reasonable under the circumstances inasmuch as it was conducted in geographic and [*2] temporal proximity to the crime ( see People v Smith , 185 AD3d 1203 , 1207 [3d Dept 2020]; People v Harris , 57 AD3d 1427 , 1428 [4th Dept 2008], lv denied 12 NY3d 817 [2009]; People v Ramos , 34 AD3d 1363 , 1363 [4th Dept 2006], lv denied 8 NY3d 884 [2007]), and thus it was permissible even in the absence of exigent circumstances ( see People v Ball , 57 AD3d 1444 , 1445 [4th Dept 2008], lv denied 12 NY3d 755 [2009]; People v Hampton , 50 AD3d 1605 , 1606 [4th Dept 2008], lv denied 10 NY3d 959 [2008]). Moreover, even assuming, arguendo, that the showup identification should have been suppressed, we conclude that any error in admitting the clerk's in-court identification of defendant is harmless beyond a reasonable doubt ( see People v Waggoner , 218 AD3d 1221 , 1223-1224 [4th Dept 2023], lv denied 40 NY3d 1082 [2023], denied reconsideration 41 NY3d 967 [2024]; People v Bynum , 125 AD3d 1278 , 1278 [4th Dept 2015], lv denied 26 NY3d 927 [2015]). We reject defendant's further contention that he was denied effective assistance of counsel. Defense counsel's failure to make a closing argument at the suppression hearing does not constitute ineffective assistance inasmuch as any such argument would have had little or no chance of success ( see People v Perkins , 160 AD3d 1455 , 1457 [4th Dept 2018], lv denied 31 NY3d 1151 [2018]; People v Rodriguez , 134 AD3d 512 , 513 [1st Dept 2015], lv denied 27 NY3d 968 [2016]). Similarly, defense counsel's failure to request a probable cause hearing does not constitute ineffective assistance. Although defendant would have likely received such a hearing if it was requested because the codefendant had received a probable cause hearing, suppression of the evidence based on an alleged lack of probable cause also would have had little or no chance of success ( see People v Burgess , 159 AD3d 1384 , 1385 [4th Dept 2018], lv denied 31 NY3d 1115 [2018]; see also People v Crouch , 70 AD3d 1369 , 1370 [4th Dept 2010], lv denied 15 NY3d 773 [2010]). Defendant has failed to demonstrate the absence of strategic or other legitimate explanations for defense counsel's brief questioning of prospective jurors during voir dire and his failure to challenge one prospective juror for cause ( see People v Weeks , 221 AD3d 1469 , 1470-1471 [4th Dept 2023], lv denied 41 NY3d 944 [2024]; see generally People v Thompson , 21 NY3d 555 , 559-560 [2013]; People v Benevento , 91 NY2d 708, 712 [1998]). In addition, "the record does not reflect that counsel's decision to allow a previously rejected prospective juror to serve as an alternate fell below the standard for effective assistance" ( People v Molano , 70 AD3d 1172 , 1176 [3d Dept 2010], lv denied 15 NY3d 776 [2010]). Defendant also failed to demonstrate the absence of a legitimate or strategic reason for defense counsel's failure to request a charge on the defense of intoxication, especially in light of defendant's testimony that he did not commit the crimes charged ( see People v Lancaster , 143 AD3d 1046 , 1051-1052 [3d Dept 2016], lv denied 28 NY3d 1147 [2017], denied reconsideration 29 NY3d 999 [2017]; see generally People v Bailey , 195 AD3d 1486 , 1488 [4th Dept 2021], lv denied 37 NY3d 990 [2021]). We have examined defendant's remaining allegations of ineffective assistance of counsel and conclude that they lack merit. Viewing the evidence, the law, and the circumstances of this case, in totality and as of the time of representation, we conclude that defense counsel provided meaningful representation ( see generally People v Baldi , 54 NY2d 137, 147 [1981]). Defendant failed to preserve for our review his contention that, in sentencing him, the court penalized him for exercising his right to a trial ( see People v Hurley , 75 NY2d 887, 888 [1990]; People v Britton , 213 AD3d 1326 , 1328 [4th Dept 2023], lv denied 39 NY3d 1140 [2023]). In any event, his contention is without merit ( see People v Garner , 136 AD3d 1374 , 1374-1375 [4th Dept 2016], lv denied 27 NY3d 997 [2016]). The sentence is not unduly harsh or severe. Present—Whalen, P.J., Curran, Greenwood, Nowak and Keane, JJ.

[Assistant]
"[A]
showup is not improper merely because the police already have probable
cause to detain a suspect"
. In addition, the court properly determined that
the showup procedure was reasonable under the circumstances inasmuch
as it was conducted in geographic and temporal proximity to the crime,
and thus it was permissible even in the absence of exigent circumstances.