Certificates of compliance; readiness for trial

§ 245.50 Certificates of compliance; readiness for trial.

* 1. By the prosecution. When the prosecution has provided 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 items or information that are 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 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. 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 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.

* NB Effective until August 7, 2025

* 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.

* NB Effective August 7, 2025

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 proper 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.

* NB Effective until August 7, 2025

* 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.

* NB Effective August 7, 2025

* 4. (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 as soon as practicable.

(c) Challenges related to the sufficiency of a certificate of
compliance or supplemental certificates of compliance shall be addressed
by motion as soon as practicable, provided that nothing in this section
shall be construed to waive a party's right to make further challenges,
including but not limited to a motion pursuant to section 30.30 of this
chapter.

* NB Effective until August 7, 2025

* 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.

* NB Effective August 7, 2025

* 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.

* NB Effective August 7, 2025

* 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.

* NB Effective August 7, 2025