N.Y. Criminal Procedure Law § 245.50: Certificates of compliance; readiness for trial

§ 245.50 Certificates of compliance; readiness for trial.

1. By the prosecution. When the prosecution has, pursuant to this

section, exercised due diligence and acted in good faith in making

reasonable inquiries and efforts to obtain and provide the discovery

required by subdivision one of section 245.20 of this article, except

for discovery that is lost or destroyed as provided by paragraph (b) of

subdivision one of section 245.80 of this article and except for any

material or information that is the subject of an order pursuant to

section 245.70 of this article, it shall serve upon the defendant and

file with the court a certificate of compliance. The certificate of

compliance shall state that, after exercising due diligence and making

reasonable inquiries and efforts to ascertain the existence of, obtain,

and disclose material and information subject to discovery, the

prosecution has disclosed and made available all known material and

information it has obtained subject to discovery. It shall also identify

the items provided. The prosecution shall also identify the items that

the prosecution is required to disclose and of which the prosecution is

aware, but has been unable to obtain despite the exercise of due

diligence as evaluated under this section. If the prosecution provides

additional discovery prior to trial pursuant to section 245.60 of this

article, a supplemental certificate shall be served upon the defendant

and filed with the court identifying the additional material and

information provided. No 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; but the court may

grant a remedy or sanction for a discovery violation as provided in

section 245.80 of this article. The filing of a supplemental certificate

of compliance shall not impact the validity of the original certificate

of compliance if filed in good faith and after exercising due diligence

as assessed under this section.

1-a. Any supplemental certificate of compliance shall detail the basis

for the delayed disclosure so that the court may determine whether the

delayed disclosure impacts the propriety of the certificate of

compliance. The filing of a supplemental certificate of compliance shall

not impact the validity of the original certificate of compliance if

filed in good faith and after exercising due diligence pursuant to

section 245.20 of this article, or if the additional discovery did not

exist at the time of the filing of the original certificate of

compliance.

2. By the defendant. When the defendant has provided all discovery

required by subdivision four of section 245.20 of this article, except

for any items or information that are the subject of an order pursuant

to section 245.70 of this article, counsel for the defendant shall serve

upon the prosecution and file with the court a certificate of

compliance. The certificate shall state that, after exercising due

diligence and making reasonable inquiries to ascertain the existence of

material and information subject to discovery, counsel for the defendant

has disclosed and made available all known material and information

subject to discovery. It shall also identify the items provided. If

additional discovery is subsequently provided prior to trial pursuant to

section 245.60 of this article, a supplemental certificate shall be

served upon the prosecution and filed with the court identifying the

additional material and information provided. No adverse consequence to

the defendant or counsel for the defendant shall result from the filing

of a certificate of compliance in good faith; but the court may grant a

remedy or sanction for a discovery violation as provided in section

245.80 of this article.

3. Trial readiness. Notwithstanding the provisions of any other law,

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 valid certificate pursuant to

subdivision one of this section. A court may deem the prosecution ready

for trial pursuant to section 30.30 of this chapter where information

that might be considered discoverable under this article cannot be

disclosed because it has been lost, destroyed, or otherwise unavailable

as provided by paragraph (b) of subdivision one of section 245.80 of

this article, despite diligent and good faith efforts, reasonable under

the circumstances. Provided, however, that the court may grant a remedy

or sanction for a discovery violation as provided by section 245.80 of

this article.

4. Challenges. (a) Challenges to, or questions related to a

certificate of compliance shall be addressed by motion.

(b) To the extent that the party is aware of a potential defect or

deficiency related to a certificate of compliance or supplemental

certificate of compliance, the party entitled to disclosure shall notify

or alert the opposing party in accordance with the procedure set forth

in this subdivision.

(c) Challenges to the validity of a certificate of compliance or

supplemental certificates of compliance served on the defense and filed

with the court pursuant to subdivision one of this section shall be

addressed by motion within thirty-five days of the service of the

certificate provided that the prosecution has filed an indictment or

information prior to filing the certificate of compliance. Nothing in

this section shall be construed to waive a party's right to file a

motion pursuant to section 30.30 of this chapter on grounds unrelated to

the validity of a certificate of compliance. Provided, however, that any

challenges to a certificate of compliance or supplemental certificate of

compliance shall be accompanied by an affirmation by the moving party

that, after the filing of the opposing party's certificate of

compliance, such moving party timely conferred in good faith or timely

made good faith efforts to confer with the opposing party regarding the

specific and particularized matters forming the basis for such

challenge, that efforts to obtain the missing discovery from the

opposing party or otherwise resolve the issues raised were unsuccessful,

and that no accommodation could be reached. For the purposes of this

subdivision, the parties may confer informally, including but not

limited to communication by email, telephone, or any other reasonable

means.

(i) Upon request, the court may extend the time period to challenge a

certificate of compliance or supplemental certificate of compliance

beyond the thirty-five days for good cause shown. A request for

extension shall be made before the expiration of the thirty-five days.

Unless the court finds that the prosecutor unreasonably delayed in

responding to the defense's good faith efforts to confer or that the

prosecutor did not file the certificate of compliance in good faith, any

such extension shall be excluded from a speedy trial calculation

pursuant to paragraph (b) of subdivision four of section 30.30 of this

chapter.

(ii) Notwithstanding the provisions of this subdivision, a party may

challenge the validity of the certificate of compliance after the

expiration of the thirty-five day period where the grounds for such

challenge are based upon a material change in circumstances, including

but not limited to the belated disclosure of discoverable material

pursuant to section 245.20 of this article, or, where the party entitled

to disclosure could not, with due diligence, have known of the specific

and particularized matters forming the basis of the challenge prior to

the expiration of such period.

(iii) Nothing in this subdivision shall limit the court's authority to

facilitate compliance pursuant to section 245.35 of this article. Any

extension of time granted pursuant to section 245.35 shall be excluded

from a speedy trial calculation pursuant to paragraph (b) of subdivision

four of section 30.30 of this chapter.

5. Assessing due diligence. In assessing a party's due diligence, the

court shall look at the totality of the party's efforts to comply with

the provisions of this article, rather than assess the party's efforts

item by item.

(a) Relevant factors for assessing the prosecutor's due diligence

include, but are not limited to: the efforts made by the prosecutor to

comply with the requirements of this article; the volume of discovery

provided and the volume of discovery outstanding; the complexity of the

case; whether the prosecutor knew that the belatedly disclosed or

allegedly missing material existed; the explanation for any alleged

discovery lapse; the prosecutor's response when apprised of any

allegedly missing discovery; whether the belated discovery was

substantively duplicative, insignificant, or easily remedied; whether

the omission was corrected; whether the prosecution self-reported the

error and took prompt remedial action without court intervention; and

whether the prosecution's delayed disclosure of discovery was

prejudicial to the defense or otherwise impeded the defense's ability to

effectively investigate the case or prepare for trial.

(b) The court's determination shall be based on consideration of all

factors listed in paragraph (a) of this subdivision and no one factor

shall be determinative. The court shall explain the basis for its

determination on the record or in writing.

(c) A finding of a valid certificate under this section shall

constitute a valid certificate pursuant to subdivision five of section

30.30 of this chapter. Upon a finding of a valid certificate, the court

shall, if warranted, fashion an appropriate and proportional remedy for

any discovery violation resulting from the belated disclosure pursuant

to subdivision two of section 245.80 of this article.

6. Determinations by the court. Notwithstanding any other section of

law to the contrary, a court shall not invalidate a certificate of

compliance where the party has exercised due diligence and acted in good

faith in making reasonable inquiries and efforts to obtain and provide

the material required to be disclosed pursuant to section 245.20 of this

article.