People v. Gerhard: Constructive Firearm Possession, Discovery Due Diligence, and Speedy Trial Calculations under New York’s CPL 245 and 30.30

People v. Gerhard: Constructive Firearm Possession, Discovery Due Diligence, and Speedy Trial Calculations under New York’s CPL 245 and 30.30

I. Introduction

In People v. Gerhard, 2025 NY Slip Op 06761 (3d Dept Dec. 4, 2025), the Appellate Division, Third Department, affirmed a conviction for third-degree criminal possession of a weapon and the revocation of probation, arising from a domestic-relationship setting where a loaded revolver was found on a kitchen table after the defendant was discovered inside his ex-girlfriend’s home.

While the factual dispute focused on whether the defendant “possessed” the gun, the decision is most significant for three interrelated areas of New York criminal procedure:

  • Application of the constructive possession doctrine to firearms found in another person’s home.
  • Clarification and reinforcement of the “due diligence” standard for prosecution discovery under CPL article 245 and the validity of certificates of compliance (COCs), especially when some discovery is initially missing (e.g., 911 recordings).
  • How post-readiness delay is treated under CPL 30.30 when the People fail to file a supplemental COC after turning over additional discovery, and how defense motion practice affects the speedy trial clock.

The case also addresses limits on defense summations and harmless error analysis, as well as appellate review of sentencing decisions. As such, Gerhard is a valuable reference point for trial counsel and judges navigating the still-evolving discovery and speedy-trial regime after the 2019 reforms to CPL article 245 and the Court of Appeals’ decision in People v. Bay.

II. Summary of the Opinion

The Third Department (McShan, J., writing; Clark, J.P., Aarons, Pritzker and Reynolds Fitzgerald, JJ., concurring) affirmed two Broome County judgments:

  1. The weapon conviction (CR-23-1050): A jury acquitted Jason E. Gerhard of second-degree weapon possession (Penal Law § 265.03) but convicted him of third-degree weapon possession (Penal Law § 265.02[1]). County Court sentenced him, as a second felony offender, to 3–6 years’ imprisonment.
  2. The probation violation (CR-23-1051): Based on the new conviction, Gerhard admitted a violation of probation stemming from a 2021 conviction for attempted second-degree weapon possession. County Court revoked probation and imposed a consecutive four-year prison term, with three years of postrelease supervision.

On appeal, Gerhard argued:

  • The evidence was legally insufficient and the verdict against the weight of the evidence because the People did not prove he possessed the revolver found in his ex-girlfriend’s home.
  • The People’s certificates of compliance (COCs) under CPL 245.50 were invalid due to late or missing discovery (especially 911 recordings), meriting dismissal.
  • His statutory speedy trial rights under CPL 30.30 were violated because the People never filed a supplemental COC or statement of readiness after producing the 911 calls.
  • The court improperly restricted his summation by preventing his lawyer from arguing that he did not know a weapon was present in the residence.
  • The sentencing court relied on improper factors, punished him for going to trial, and imposed a harsh and excessive sentence.

The Third Department:

  • Held that the circumstantial evidence, viewed most favorably to the People, sufficiently established constructive possession of the revolver and that the verdict was not against the weight of the evidence.
  • Concluded that the People exercised “due diligence” in discovery under CPL article 245, that follow-up disclosures (including 911 calls) did not render their COCs illusory, and that no discovery violation warranted dismissal.
  • Agreed the People should have filed a supplemental COC after disclosing the 911 calls, but held that – even counting the resulting post-readiness delay against them, subject to statutory exclusions for motion practice – they had complied with CPL 30.30.
  • Found that County Court erred in limiting defense summation but deemed the error harmless given the strong proof and the latitude counsel still had to challenge knowledge.
  • Held that the sentencing complaints (improper factors, trial penalty) were unpreserved and rejected the claim that the sentence was harsh and excessive in the interest of justice.

III. Detailed Analysis

A. Factual and Procedural Background

In February 2022, law enforcement responded to a reported burglary at a home in the Town of Chenango, Broome County. The home belonged to Gerhard’s ex-girlfriend. The record shows:

  • Gerhard and the ex-girlfriend had recently broken up, and he was supposed to come by that day to collect his belongings.
  • She was not home but knew he still had keys. When he later called saying he could not get into the house, she became suspicious because he should have been able to use his keys.
  • She sent a friend to assist him; that friend did not observe Gerhard at the home.
  • After an ominous conversation in which Gerhard suggested she would have problems accessing the house later, the ex-girlfriend contacted law enforcement.
  • Police arrived, found the house accessible, and encountered Gerhard inside. After speaking through an unlocked window, they persuaded him to come out.
  • Upon coming out, Gerhard made a statement implying an intent to harm himself. Officers detained him under Mental Hygiene Law § 9.41 (emergency apprehension for mental health evaluation).
  • A search of the residence revealed a loaded revolver on the kitchen table, hammer cocked, safety off. The ex-girlfriend denied owning any guns. Another person with access to the home – a firearms owner – testified he had two handguns, neither a revolver, and confirmed this revolver was not his.
  • Police later test-fired the gun and found it operable.

A Broome County grand jury indicted Gerhard for:

  • Criminal possession of a weapon in the second degree (Penal Law § 265.03), and
  • Criminal possession of a weapon in the third degree (Penal Law § 265.02[1]).

A special information established Gerhard’s prior conviction, an element of § 265.02(1), which he conceded (see footnote 1). He was also charged with a violation of probation arising from the 2021 attempted weapon-possession conviction.

A jury acquitted him of the more serious second-degree count, but convicted him of third-degree weapon possession. Based on that verdict, he pleaded guilty to violating probation, and County Court imposed:

  • 3–6 years for the new § 265.02(1) conviction (second felony offender), and
  • A consecutive 4-year term plus 3 years of postrelease supervision for the 2021 case (on revocation of probation).

Gerhard appealed both the new-conviction judgment and the probation-revocation judgment.

B. Sufficiency and Weight of the Evidence: Constructive Possession of a Firearm

1. Statutory framework

Gerhard was convicted of criminal possession of a weapon in the third degree under Penal Law § 265.02(1). As the court summarizes:

  • Penal Law § 265.01(1) defines a basic weapons-possession offense: it is a crime to “knowingly possess” a firearm (among other weapons).
  • Penal Law § 265.02(1) elevates that offense to third degree where the defendant “has been previously convicted of any crime,” essentially creating a status-enhanced weapon-possession felony.

The elements relevant here were:

  1. That Gerhard had a prior conviction (satisfied by special information and concession), and
  2. That he “knowingly possessed” the revolver (Penal Law § 10.00[8] defines “possess” to include physical or constructive possession).

The case turned almost entirely on the second element: whether the People proved Gerhard’s possession, under a constructive-possession theory, of a gun located in someone else’s home.

2. Constructive possession doctrine and precedents

The court leans on a well-developed line of New York cases that explain when a defendant can be deemed to “possess” contraband found in premises not exclusively under his control. As summarized (quoting People v. Durfey, 170 AD3d 1331, 1332 [3d Dept 2019]):

“[T]he defendant's proximity to the [firearm], whether the defendant had keys to the location where the [firearm] was found, whether the [firearm] was in plain view and whether there is witness testimony that the [firearm] belonged to the defendant” are factors in assessing whether a defendant had “dominion and control” over the firearm.

The cited authorities include:

  • People v. Durfey, 170 AD3d 1331 (3d Dept 2019), lv denied 34 NY3d 980 (2019): Upheld constructive-possession findings where defendants had sufficient connection to premises and ability to exercise control over contraband, even without direct evidence of actual handling.
  • People v. Kendricks, 226 AD3d 1150 (3d Dept 2024), lv denied 41 NY3d 1003 (2024): Reaffirmed Durfey factors and that constructive possession may rest on circumstantial evidence.
  • People v. Watts, 215 AD3d 1170 (3d Dept 2023): Emphasized that constructive possession can be established by circumstantial evidence and does not require exclusive access; cited here for the proposition that “Constructive possession may be established through circumstantial evidence, and does not require proof that a defendant has exclusive access to the area where a weapon is found.”
  • People v. Everett, 231 AD3d 1296 (3d Dept 2024), lv denied 42 NY3d 1052 (2024), and People v. Malloy, 228 AD3d 1068 (3d Dept 2024), lv denied 42 NY3d 971 (2024): More recent Third Department applications of the same doctrine.
  • Earlier constructive-possession firearm cases like People v. Perry, 116 AD3d 1253 (3d Dept 2014), and People v. Pinkney, 90 AD3d 1313 (3d Dept 2011), which upheld convictions where weapons were found in premises connected to defendants even without direct sight of defendants handling them.

The governing principles, as synthesized by the court, are:

  • Constructive possession focuses on the defendant’s ability and intention to exercise dominion and control over the item, not literal physical custody.
  • Factors include:
    • Access/keys to the location,
    • Proximity to the contraband,
    • Visibility (plain view),
    • Contradictory ownership testimony (e.g., resident denies owning the item), and
    • Statements or conduct linking the defendant to the item.
  • Exclusive control of premises is not required. A defendant can share access with others and still constructively possess items if circumstances show a meaningful connection.
  • Circumstantial evidence is sufficient if it allows a rational jury to conclude, beyond a reasonable doubt, that the defendant knowingly possessed the weapon.

3. Application to Gerhard

The Third Department applies these principles to the record as follows:

  • Access/keys: Gerhard was one of only three people with access to the ex-girlfriend’s home. The ex-girlfriend believed he still had keys. His claim to her that he could not get in was suspicious precisely because he should have had access; this supports an inference of manipulative or deceptive conduct linked to what was occurring in the house.
  • Presence in the home: Police found Gerhard inside when they arrived, after a purported “burglary” call. They spoke to him through an open/unlocked window. He was physically in the location where the gun was shortly thereafter discovered.
  • Location and condition of the gun: A loaded revolver was on the kitchen table, plainly visible. Officers testified that it was loaded, fully cocked, and with the safety off. This is not a weapon forgotten in a drawer; it was in a ready-to-fire, dangerous state in a central room.
  • Ownership evidence: The ex-girlfriend testified she did not own any firearms. Another person with access to the home – who did own guns – testified he owned only two handguns and no revolvers. He specifically disclaimed ownership of the revolver found on the table.
  • Operability: Police testing confirmed the gun was operable (footnote 2), closing any potential gap in the “firearm” element.
  • Mental state evidence: Gerhard’s “ominous” conversation with the ex-girlfriend (suggesting she would have problems accessing the home later) and his later self-harm-related comment to police weave into a narrative that he was alone in the house, had a weapon available, and was emotionally distressed.

The appellate court concludes that, viewed in the light most favorable to the People (legal sufficiency standard), the jury had a valid line of reasoning to find that Gerhard knowingly possessed the revolver. The evidence also survived “weight of the evidence” review. The court acknowledges that “a different verdict would not have been unreasonable” — recognizing the circumstantial nature of the proof — but, giving due deference to the jury’s credibility determinations, finds the guilty verdict supported by the weight of the evidence.

4. Commentary and implications

Gerhard does not break new ground on constructive possession, but it reinforces several practical points critical for firearm litigation:

  • Domestic/relationship settings and shared access: The case confirms that where a defendant is one of a small number of people with access to a home and is physically present when a weapon is found in plain view, a constructive-possession conviction can be sustained even if:
    • It is not the defendant’s residence, and
    • No one testifies to having seen the defendant hold the weapon.
  • Ownership disclaims by residents: Testimony by residents denying ownership of the weapon, combined with third-party disclaimers, strongly supports an inference that the remaining person with access is the possessor. Defense counsel must be prepared to challenge such testimony aggressively or offer alternative explanations.
  • Circumstantial mental-state evidence: Statements about self-harm or ominous comments about future problems accessing the house, though not direct proof of possession, contribute to the contextual inference that the defendant was using or prepared to use a weapon.
  • Appellate deference on “weight of the evidence” review: The court’s acknowledgement that another verdict could have been reasonable, yet refusing to disturb the conviction, underscores how reluctant appellate courts are to second-guess juries in close circumstantial cases absent clear imbalance in the evidence.

C. Discovery, Certificates of Compliance, and Due Diligence under CPL Article 245

1. Statutory framework: automatic discovery and COCs

CPL article 245, enacted as part of New York’s sweeping 2019 discovery reforms, requires “automatic discovery” by the prosecution without a demand from the defense. Under CPL 245.20(1), the People must disclose a wide array of materials (e.g., grand jury minutes, body-worn camera footage, 911 recordings, police reports) within a specified period.

CPL 245.50(1) requires the prosecution, once it has met its automatic discovery obligations, to file a Certificate of Compliance (COC) stating 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.”

This COC is closely tied to the People’s ability to announce readiness for trial under CPL 30.30. An invalid or “illusory” COC can render a statement of readiness ineffective, exposing the case to dismissal on speedy trial grounds.

2. Precedents shaping the due-diligence standard

The Third Department explicitly anchors its analysis in:

  • People v. Bay, 41 NY3d 200 (2023) (Court of Appeals): the leading case defining “due diligence” under CPL 245. Bay holds:
    • “Due diligence” is a flexible, case-specific standard; prosecutors must make “reasonable efforts” to comply, not achieve perfection.
    • Courts should consider:
      • The efforts made by the prosecutor and office,
      • The volume and complexity of discovery,
      • How obvious any missing material would be to a diligent prosecutor,
      • The explanation for any lapse, and
      • The prosecutor’s response when apprised of missing discovery.
    • Article 245 does not create a strict-liability regime for discovery lapses.
  • People v. Contompasis, 236 AD3d 138 (3d Dept 2025), lv denied 43 NY3d 1007 (2025): Applied Bay, reiterating that “due diligence” requires reasonable efforts and that a valid COC is not nullified by later, good-faith supplemental disclosures.
  • People v. Grandoit, ___ AD3d ___, 2025 NY Slip Op 05720 (3d Dept 2025): Held:
    • Even after declaring readiness, the People must “expeditiously” disclose newly discovered CPL 245.20 materials.
    • A valid COC/readiness declaration is not rendered illusory by later, diligent, good-faith disclosures.
  • People v. Graham, 233 AD3d 1361 (3d Dept 2024), lv denied 43 NY3d 944 (2025): Reiterated that article 245 “does not create a rule of strict liability or require a perfect prosecutor” and upheld COCs where the People demonstrated diligent, corrective efforts.
  • Additional supportive cases: People v. Reynolds, 239 AD3d 1098 (3d Dept 2025); People v. McMahon, 237 AD3d 746 (2d Dept 2025), lv denied 43 NY3d 1057 (2025); People v. Williams, 224 AD3d 998 (3d Dept 2024), lv denied 41 NY3d 1021 (2024).

3. How Gerhard applies and extends these principles

Gerhard argued that the People’s May 2022 COC and June 2022 first supplemental COC were invalid because they failed to timely produce certain discovery, especially:

  • Grand jury minutes,
  • Body-worn camera footage, and
  • 911 call recordings.

He sought to strike those COCs and to dismiss the indictment on the theory that the COCs were “illusory.” The Third Department rejected this challenge, describing in detail how each missing or delayed item was handled:

  • Grand jury minutes: The record shows the People did not yet possess the minutes at the time of the initial COC; the COC itself noted the outstanding item, and the minutes were provided as soon as the People received them.
  • Body-worn camera footage: A technical error in uploading the footage to the discovery software caused it initially to be missing. When the defense alerted the prosecutor, the People quickly corrected the error and re-provided the footage.
  • 911 calls: There was confusion between:
    • State Police dispatch audio already produced, and
    • The specific 911 recordings that defense counsel wanted.
    When defense counsel clarified his request, the correct files were produced within six days.

The appellate court emphasizes:

  • The People engaged in “continuing dialogue” with the defense about discovery and responded promptly when gaps were identified.
  • Each omission had an explanation (technical glitch, not yet in possession, misunderstanding as to which recordings were requested) and was quickly remedied.
  • These facts fit well within Bay’s “due diligence” framework and Graham’s admonition that the law does not require “a perfect prosecutor.”

The court therefore concludes:

“[W]e cannot say that the People failed to satisfy their continuing discovery obligations under CPL article 245.”

And correspondingly, neither the initial nor supplemental COCs were rendered illusory by these later, diligent disclosures.

4. Practical guidance and impact

Gerhard continues the trend, especially in the Third Department, of interpreting CPL article 245 and the COC requirement in a pragmatic, reasonableness-based way. The case sends several clear messages:

  • No strict liability for discovery lapses: Minor, explained, and promptly cured omissions (even of important items like 911 audio) will not, standing alone, invalidate a COC or collapse the People’s readiness declaration.
  • Communication matters: The court repeatedly highlights “continuing dialogue” and how promptly the People responded once defense counsel clarified what was missing. Defense counsel who document such communications increase both their leverage and the record clarity.
  • Outstanding items can be noted on the COC: Listing missing materials in the COC (e.g., grand jury minutes not yet received) and providing them promptly later is consistent with due diligence and does not automatically render readiness illusory.
  • Good faith and speed in correction are crucial: The fact that the People remedied issues quickly when alerted – especially within six days for the 911 calls – was central to the court’s conclusion that they acted diligently.
  • Defense strategy implications: To successfully challenge a COC under Bay and Gerhard, a defendant will likely need to show:
    • That the People’s efforts were not reasonable under the circumstances, and/or
    • That missing items were obvious and left unaddressed for significant periods despite defense notifications.

In short, Gerhard solidifies the post-Bay standard: courts will not lightly strike COCs or dismiss indictments where the record reflects reasonable prosecutorial efforts, honest mistakes, and rapid correction.

D. Statutory Speedy Trial Rights and Post-Readiness Delay

1. CPL 30.30 framework

New York’s statutory speedy trial right, CPL 30.30, requires the People to be “ready for trial” within six months in felony cases (CPL 30.30[1][a]). The key inquiry, as the court recites from People v. Branton, 238 AD3d 1429 (3d Dept 2025), is:

“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.”

Thus, a valid, timely declaration of readiness stops the clock, but later periods of delay attributable to the People (without statutory justification) can add back chargeable time (“post-readiness delay”).

2. Interaction with discovery and supplemental COCs

Gerhard’s speedy trial argument is interwoven with the discovery issues. He contended:

  • The People were required to file a supplemental COC and statement of readiness after disclosing the 911 calls in July 2022, because that discovery was part of the CPL 245.20 “universe.”
  • Their failure to do so created a lengthy period of post-readiness delay that should be charged to them, pushing total chargeable time beyond six months and requiring dismissal.

Notably, the People did not dispute that they were required to file a supplemental COC when they turned over the 911 recordings. The Third Department accepts that premise and, for the sake of analysis, assumes that the period between disclosure of the 911 calls and the eventual cure (i.e., filing of a supplemental COC/readiness) is chargeable post-readiness delay.

Critically, the court calculates:

  • 85 days of pre-readiness delay, plus
  • 166 days of post-readiness delay related to the failure to file a supplemental COC after the July 2022 disclosure.

At first glance, that would appear to exceed six months. But CPL 30.30(4) permits exclusion of certain time periods, including:

  • CPL 30.30(4)(a): Periods of delay resulting from the court’s consideration of pretrial motions are not chargeable to the People.

Here, Gerhard filed an omnibus motion (in August 2022) that explicitly challenged the People’s failure to file a supplemental COC after producing the 911 calls. The time during which that motion was pending – 73 days – was treated as excludable motion time.

3. Excludable motion time: key precedents

The Third Department cites multiple cases reflecting the settled rule that time associated with court consideration of defense pretrial motions is excluded:

  • People v. Scaringe, 137 AD3d 1409, 1411 (3d Dept 2016), lv denied 28 NY3d 936 (2016): Delay due to the court’s consideration of defense motions is not chargeable to the People.
  • People v. Jordan, 220 AD3d 1187 (4th Dept 2023); People v. Abergut, 202 AD3d 1497 (4th Dept 2022), lv denied 38 NY3d 1068 (2022); People v. Brown, 149 AD3d 584 (1st Dept 2017), lv denied 29 NY3d 1124 (2017); People v. Sydlar, 117 AD3d 1314 (3d Dept 2014), lv denied 23 NY3d 1068 (2014); and more recently People v. Coley, 240 AD3d 122 (2d Dept 2025): All support the proposition that motion-related delays, including time up to and including the court’s decision, are excluded.

4. The calculation and its significance

Applying these rules, the court concludes:

  • Even if the entire 166-day post-readiness period at issue is initially charged to the People,
  • 73 days are subtracted as excludable motion time under CPL 30.30(4)(a), resulting in a net chargeable total under six months.

Consequently, the People did not violate CPL 30.30, and Gerhard was not entitled to dismissal on statutory speedy-trial grounds.

This aspect of Gerhard is particularly important because it:

  • Recognizes the obligation to file a supplemental COC after providing new CPL 245.20 material (here, the 911 recordings).
  • Confirms that failure to do so can create chargeable post-readiness delay.
  • But nonetheless affirms that defense motion practice itself can generate excludable time, even when that motion is predicated on the People’s discovery missteps.

For practitioners, the message is nuanced:

  • For the defense: While challenging discovery failures can build a record and potentially chip away at readiness, such motions also toll the speedy-trial clock. Counsel must carefully time and craft motions to avoid inadvertently saving the People from a 30.30 dismissal.
  • For the prosecution: Even when they miss a step (as they did here with the supplemental COC), prompt corrections and the natural tolling effect of defense motions may keep them under the statutory time limit.

E. Limits on Defense Summation and Harmless Error

1. Governing standards for summation

The trial court precluded defense counsel from arguing in summation that Gerhard did not know there was a weapon in the residence, based in part on the fact that certain jail calls (sought by the People) had been precluded and thus were not in evidence.

The Third Department acknowledges that courts have authority to police summations, citing:

  • People v. Ashwal, 39 NY2d 105, 109–110 (1976): The seminal case setting out limits on summation, prohibiting counsel from straying beyond the record or making unfair, inflammatory arguments.
  • People v. Mairena, 34 NY3d 473, 482 (2019): Reaffirmed that trial courts may prevent counsel from making arguments that misstate or unfairly extrapolate from the evidence.
  • People v. Conry, 230 AD3d 596 (2d Dept 2024), lv denied 42 NY3d 1035 (2024): A trial court may bar summation comments that are “misleading and not a fair inference from the evidence.”
  • People v. Jones, 147 AD3d 1551 (4th Dept 2017), lv denied 29 NY3d 1082 (2017): Courts may also limit arguments based on inadmissible or precluded evidence.

However, these rules must be applied carefully. A restriction is permissible only if the argument is misleading, unfairly inflammatory, or not grounded in evidence or legitimate inferences.

2. The error and its harmlessness in Gerhard

In Gerhard, the appellate court sides with the defense:

  • It agrees that County Court erred by barring defense counsel from arguing that Gerhard lacked knowledge of the gun’s presence.
  • The precluded jail calls did not directly address Gerhard’s knowledge of the gun; thus, preventing counsel from arguing lack of knowledge improperly restricted a central defense theory grounded in the actual evidence.

Nevertheless, the court concludes the error was harmless. It applies a standard articulated in cases like:

  • People v. Cole, 177 AD3d 1096 (3d Dept 2019), lv denied 34 NY3d 1015 (2019), and
  • People v. Mairena, 34 NY3d at 486, as well as general harmless-error doctrine.

Under that framework, an error is harmless where:

  • The evidence of guilt is overwhelming, and
  • There is no significant probability (or reasonable possibility) that the error contributed to the verdict.

The Third Department finds:

  • The evidence of constructive possession (discussed above) was strong.
  • Despite the limitation, defense counsel still argued various points that could cast doubt on Gerhard’s knowledge of the gun’s presence (e.g., no direct evidence he handled it, others had access to the home, etc.).
  • Therefore, there was no reasonable probability that the restriction on one articulation of the knowledge argument would have changed the outcome.

3. Future implications for trial advocacy

Gerhard underscores several lessons:

  • Defense counsel are entitled to argue lack of knowledge as long as that argument is a fair inference from the record, even if certain related statements (like parts of jail calls) have been excluded.
  • Trial judges must be cautious not to conflate:
    • Improper arguments based on excluded evidence, with
    • Proper arguments rooted in admitted evidence, even if they touch on themes also present in excluded material.
  • Appellate courts may acknowledge such limitations as error but still affirm if other evidence is strong and the defense was otherwise able to present its theory. That makes it very important for defense counsel to:
    • Make a clear record of the restriction, and
    • Continue to argue the core theory as fully as the court permits.

F. Sentencing, Preservation, and Appellate Review

1. Preservation of sentencing challenges

Gerhard argued that:

  • The sentencing court relied on “impermissible factors,” and
  • His sentence was an improper “penalty” for exercising his right to trial.

The Third Department holds that these arguments are unpreserved, citing:

  • People v. Jenne, 224 AD3d 953, 958 (3d Dept 2024), lv denied 42 NY3d 927 (2024): Many claims about sentencing courts’ reliance on improper considerations must be raised at sentencing to preserve them for appellate review.
  • People v. Brisman, 236 AD3d 1092, 1093 (3d Dept 2025): The claim that a court punished a defendant for going to trial also generally must be preserved.

Thus, the court declines to address them on the merits.

2. The sentence imposed and statutory ranges

Gerhard:

  • Was sentenced as a second felony offender on the new § 265.02(1) conviction to 3–6 years.
  • On the 2021 attempted second-degree weapon-possession case, upon revocation of probation, he received 4 years and 3 years’ postrelease supervision, consecutive.

The court notes that both sentences fall below the statutory maximums, citing:

  • Penal Law § 70.02(1)(c) (class C violent felony parameters),
  • Penal Law § 70.06(3)(d) (second felony offender sentencing ranges),
  • Penal Law §§ 100, 265.02, 265.03 (underlying offense classifications).

In reviewing for harsh and excessive sentencing, the court applies its discretionary “interest of justice” authority under CPL 470.15(3)(c), (6)(b), examining:

  • The record,
  • Presentence reports,
  • The defendant’s criminal history, and
  • The nature of the conduct.

It cites cases such as:

  • People v. Riddick, ___ AD3d ___, 2025 NY Slip Op 05992 (3d Dept 2025);
  • People v. Crawford, 235 AD3d 1174, 1179 (3d Dept 2025), lv denied 43 NY3d 1007 (2025), where similar sentencing challenges were rejected.

Here, the court declines to reduce the sentence in the interest of justice, leaving intact the aggregate 7–10 years of imprisonment plus postrelease supervision.

The decision thus reinforces that:

  • Sentences within statutory ranges are rarely disturbed absent extraordinary circumstances.
  • Alleged “trial penalties” must be properly preserved to be reviewed on appeal.

IV. Clarifying Complex Legal Concepts

A. Constructive Possession

“Constructive possession” allows the law to treat a person as possessing an item even when it is not found on their person, so long as:

  • They have the power and intention to exercise control over it, and
  • The circumstances show a close connection between the person and the contraband.

Typical indicators in New York case law include:

  • Keys or control over the premises where the item is found,
  • Presence near the item, especially in plain view,
  • Dominion over containers (e.g., bags, drawers, cars) containing the item,
  • Statements acknowledging awareness or control, and
  • Lack of credible alternative owners.

In Gerhard, the combination of keys/access, presence inside the home, the gun’s location on a common-area table, and disavowal of ownership by the only other people with access, supported the jury’s finding of constructive possession.

B. Certificates of Compliance and “Illusory Readiness”

A Certificate of Compliance (COC) under CPL 245.50 is the prosecutor’s sworn assertion that:

  • They have exercised due diligence and made reasonable inquiries, and
  • They have disclosed all known discovery subject to CPL 245.20.

If a COC is materially false – for example, major categories of discoverable materials were ignored or withheld without justification – then:

  • The COC can be deemed “illusory.”
  • Any associated statement of readiness under CPL 30.30 can be invalidated.

But under Bay, Contompasis, Grandoit, Graham, and now Gerhard:

  • Perfection is not required; honest mistakes and technical errors corrected in good faith do not automatically invalidate the COC.
  • What matters is the reasonableness of the efforts, the explanation for any misses, and the speed and good faith with which they are corrected.

Thus, “illusory readiness” is a term reserved for cases where the People significantly fail to comply or fail to act diligently — not where there are minor gaps addressed promptly once discovered.

C. Statutory vs. Constitutional Speedy Trial

New York recognizes:

  • Statutory speedy trial rights under CPL 30.30, which focus on prosecutorial readiness within specified time periods, and
  • Constitutional speedy trial rights under the U.S. and New York Constitutions, which look to broader factors (length of delay, reasons for delay, assertion of the right, and prejudice).

Gerhard deals only with CPL 30.30. Under 30.30:

  • “Readiness” (meaning both an actual ability and a present statement of readiness) is the central metric.
  • Various categories of time – including court consideration of motions – are excluded from the clock.
  • Post-readiness delay can be added back where attributable to the People and not excludable.

D. Harmless Error Doctrine

Not every trial error warrants reversal. Under New York’s harmless-error doctrine:

  • If an error affects a constitutional right (e.g., denial of counsel), a stricter standard (harmless beyond a reasonable doubt) may apply.
  • For many evidentiary and procedural errors, the question is whether there is a “significant probability” or “reasonable possibility” that the error contributed to the conviction.

In Gerhard, the court finds that limiting defense summation was error, but harmless because:

  • The overall evidence of guilt was overwhelming, and
  • Defense counsel was still permitted to make other arguments attacking the knowledge element.

V. Conclusion

People v. Gerhard is a comprehensive application of several core doctrines in New York criminal law and procedure:

  • It reaffirms that constructive possession of a firearm can be found in a non-resident defendant where access, presence, and ownership evidence converge, even absent direct evidence of handling.
  • It fortifies the post-Bay approach to CPL article 245 discovery: a prosecutor’s COC will generally stand where the People demonstrate due diligence, explain minor lapses, and rapidly cure omissions once identified.
  • It clarifies that failure to file a supplemental COC after turning over new discovery can create post-readiness delay, but that CPL 30.30’s exclusions for motion practice may nonetheless keep the People within the six-month window.
  • It acknowledges a summation error (unduly restricting a core defense theory) but illustrates how appellate courts will apply harmless error analysis in the face of strong circumstantial proof.
  • It underscores the importance of preserving sentencing issues and the difficulty of securing reductions of sentences that are within statutory ranges and supported by the defendant’s criminal history and conduct.

For practitioners, Gerhard offers a roadmap on:

  • How courts will evaluate constructive-possession evidence in domestic or shared-access contexts,
  • What constitutes adequate prosecutorial “due diligence” in discovery,
  • How to calculate and litigate statutory speedy trial claims in the era of article 245, and
  • How summation limits and alleged trial penalties will be treated on appeal.

In combination with Bay, Contompasis, Grandoit, and related authorities, People v. Gerhard further solidifies a pragmatic, reasonableness-based standard for prosecutorial compliance with discovery and readiness obligations, while signaling that defendants must make well-timed, well-documented challenges to leverage those obligations into meaningful pretrial or appellate relief.

Case Details

Year: 2025
Court: Appellate Division of the Supreme Court, New York

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