“One Letter Is Not Due Diligence”: People v. Ernst Clarifies Discovery Due Diligence and the Limits of CPL 30.30 Tolling for “Pending” Motions

Introduction

People v. Ernst (2025 NY Slip Op 04329) is a Fourth Department decision that sits at the intersection of New York’s discovery reform (CPL article 245) and speedy trial rights (CPL 30.30). The case arises from an alleged assault of the mother of the defendant’s infant son. Two days after the incident, police conducted a welfare check of two of the defendant’s other children—a fact the prosecution used before the grand jury. The dispute centers on whether the prosecution exercised “due diligence” to obtain and disclose the police report and body-worn camera (BWC) footage from that welfare check, and, in turn, whether their certificate of compliance (COC) was valid. If not, any statement of trial readiness would be “illusory,” and a CPL 30.30 violation could mandate dismissal.

The decision also squarely addresses when pretrial motion practice tolls the speedy-trial clock under CPL 30.30(4)(a). The majority holds that time is not excludable merely because some discovery issue was mentioned in an omnibus motion; the issue must actually be “under consideration by the court.” A two-judge dissent would have excluded the time because, in its view, a portion of the defense omnibus motion (seeking to compel the welfare-check materials) remained pending until the later speedy-trial motion.

On appeal by the People from an order dismissing the indictment, the Fourth Department affirmed, crystallizing two practical, forward-looking rules:

Discovery due diligence requires proactive, follow-up efforts. A single request that is not pursued is generally insufficient when the prosecution knows the material likely exists and is important.
For CPL 30.30 tolling based on pending motions, exclusion applies only when the motion (or a discrete issue) is actually under consideration by the court—not merely referenced in filings or left to party negotiations with no request for court action.

Summary of the Judgment

The Fourth Department affirmed an order dismissing the indictment on statutory speedy-trial grounds. The court held:

The People’s appeal was timely under CPL 460.10(1)(a) because no judgment of conviction had been entered; People v. Coaye did not control.
The prosecution’s COC was invalid: despite knowing about the welfare check (a subject presented to the grand jury), the People sent only one letter to the police department and failed to follow up to obtain the police report and BWC footage. This did not satisfy the “due diligence” standard under People v. Bay.
Because the COC was improper, the readiness statement was “illusory.” With more than six months of chargeable time and insufficient excludable periods, CPL 30.30 required dismissal.
As to tolling, once the trial court’s August 17, 2023 order resolved the only issue explicitly identified as remaining (grand jury minutes), nothing else was under consideration by the court. Thus, the omnibus motion did not continue to toll time.

Two justices dissented in part. They agreed the COC was invalid but would have held that the omnibus motion remained pending because the motion to compel the welfare-check materials was neither decided nor withdrawn. They would have excluded that time, found fewer than 181 days chargeable to the People, and reinstated the indictment. The dissent also concluded the trial court abused its discretion in alternatively dismissing as a discovery sanction without considering lesser remedies.

Analysis

Key Precedents and How They Shaped the Decision

People v. Bay, 41 NY3d 200 (2023): The Court of Appeals established that when a defendant seeks dismissal under CPL 30.30 on the ground that the People improperly filed a COC, the People bear the burden to show due diligence and reasonable inquiry before filing, even if disclosures are late or missing. If they fail, the COC is improper, readiness is illusory, and—if the People’s chargeable time exceeds the statutory limit—dismissal follows. Bay also references CPL 245.50(4)(b)’s obligation to promptly alert the opposing party to known COC defects. Ernst squarely applies Bay’s framework to hold that a single unanswered letter is not due diligence where the prosecution knew of specific, important materials.
People v. Mitchell, 228 AD3d 1250 (4th Dept 2024): Reinforces Bay’s burden and the case-specific nature of due diligence. The Ernst majority cites Mitchell in concluding the People failed to meet their burden under the circumstances presented.
People v. Lawrence, 231 AD3d 1497 (4th Dept 2024), lv denied 43 NY3d 945 (2025): Describes due diligence as a flexible, case-specific standard accounting for factors such as prosecutorial efforts, volume and complexity of discovery, obviousness of missing items, explanations for lapses, and responsiveness once alerted. Ernst applies this multifactor lens, emphasizing the obviousness and centrality of the welfare-check materials.
People v. Cooperman, 225 AD3d 1216 (4th Dept 2024): Provides a contrasting scenario where due diligence may have been satisfied; Ernst distinguishes on its facts, underscoring that “due diligence” turns on context.
People v. Gaskin, 214 AD3d 1353 (4th Dept 2023); People v. Barnett, 158 AD3d 1279 (4th Dept 2018): Restate the six-month readiness period for felonies and the method of computing CPL 30.30 time.
People v. Shammah, 229 AD3d 1250 (4th Dept 2024): Once the defendant shows delay beyond the statutory period, the People bear the burden of proving excludable time. Ernst uses this burden-shifting framework to reject the People’s tolling arguments.
People v. Sheard, 236 AD3d 826 (2d Dept 2025): Confirms that reasonable delay from pretrial motions and their consideration by the court is excludable. Ernst narrows focus to when a matter is truly “under consideration.”
People v. Allard, 28 NY3d 41 (2016); People v. Kendzia, 64 NY2d 331 (1985): Address readiness mechanics and burdens—concepts that undergird the illusory readiness doctrine in Bay and here.
People v. Jordan, 220 AD3d 1187 (4th Dept 2023); People v. Edmead, 197 AD3d 937 (4th Dept 2021): Illustrate exclusion of time while motions are pending. The dissent relies on this line to argue for tolling during the unresolved discovery dispute; the majority distinguishes them by emphasizing the need for actual judicial consideration.
People v. Douglas, 209 AD2d 161 (1st Dept 1994): Holds that even “pro forma” motions are motions for tolling purposes. The dissent analogizes; the majority, by contrast, focuses on the absence of any live issue “under consideration” after August 17, 2023.
People v. Coaye, 68 NY2d 857 (1986); People v. Baker, 131 AD2d 491 (2d Dept 1987): Address timeliness of appeals. Ernst clarifies that where there is no judgment of conviction, Coaye does not apply; appeal time is governed by CPL 460.10(1)(a).
People v. Jenkins, 98 NY2d 280 (2002); People v. Bookman, 224 AD3d 1269 (4th Dept 2024): Set standards for discovery sanctions. The dissent invokes these to fault the trial court’s alternative dismissal sanction for not considering lesser remedies (such as preclusion or adverse inference instructions).
Other authorities: People v. Osgood, 52 NY2d 37 (1980) (commencement of action); People v. Sweet, 98 AD3d 1252 (4th Dept 2012); People v. Cortes, 80 NY2d 201 (1992) (181-day calculation for six months).

Legal Reasoning

1) Discovery and Due Diligence under CPL 245

The central discovery dispute involved a police welfare check conducted two days after the alleged assault. The prosecution elicited testimony about that check before the grand jury; the materials (police report and BWC footage) thus bore directly on issues already injected into the case. Under Bay and its progeny, the People had to show that, before filing their COC, they exercised due diligence and made reasonable inquiries to obtain and disclose these items.

The majority’s analysis leans on the Bay factors (reinforced in Lawrence and Mitchell):

Obviousness and centrality: Because the welfare check was used before the grand jury, a prosecutor exercising diligence should have recognized the likelihood that a report and BWC footage existed, and the importance of obtaining them.
Efforts made: The People sent one letter to the police department and never followed up. No phone calls, subpoenas, emails, liaison outreach, or judicial assistance were sought, despite knowing precisely what to look for.
Responsiveness upon notice: Once the defense raised the insufficiency in the omnibus motion, the People still did not cure in a manner sufficient to salvage timeliness.

These facts led the court to conclude the COC was improper. The court emphasized that “good faith” is not the standard; due diligence is. A single, unpursued outreach was inadequate in the circumstances presented.

2) Illusory Readiness and CPL 30.30

Under Bay, an improper COC renders any statement of readiness “illusory” because the prosecution cannot be truly ready for trial when it has not met its discovery obligations. The court therefore struck the readiness statement. With more than six months of chargeable time (CPL 30.30[1][a]), dismissal followed.

The defense’s obligation to alert the People to obvious COC defects (CPL 245.50[4][b]) was addressed and rejected as a barrier to relief. The majority found the defendant’s omnibus motion sufficiently and promptly alerted the prosecution to the defect.

3) What Counts as a “Pending Motion” for Tolling?

CPL 30.30(4)(a) excludes “a reasonable period of delay” from speedy-trial calculations for, among other things, “pre-trial motions” and the “period during which such matters are under consideration by the court.” The People argued that the defense omnibus motion tolled time because one portion (seeking to compel disclosure of welfare-check materials) remained unresolved. The majority disagreed on these facts.

The record showed that at the close of an August 14, 2023 Huntley hearing, defense counsel told the court that the only issue requiring a judicial ruling from the omnibus motion was review of grand jury minutes; counsel anticipated any remaining discovery issues could be worked out without court intervention and did not ask the court to decide them. The trial court issued an August 17, 2023 order deciding the grand-jury issue. After that, neither party asked the court to take up any other aspect of the omnibus motion, and the court did not consider any.

Against that backdrop, the majority held there was no “motion” or motion segment “under consideration” after August 17, 2023. The mere existence of an unresolved discovery topic that parties were negotiating off the record did not keep the matter “pending” for tolling purposes. Put differently, tolling requires an actual, live submission or issue before the court for decision, not a dormant disagreement the parties might later revive.

4) Timeliness of the People’s Appeal

Finally, the court rejected a timeliness challenge. Because there was no judgment of conviction (contrary to the posture in People v. Coaye), CPL 460.10(1)(a) controlled; the People’s notice of appeal was filed within 30 days of service of the written order and was therefore timely.

The Dissent’s View and Points of Departure

Two justices dissented in part. They agreed the COC was invalid under Mitchell but diverged on tolling and sanctions:

Motion tolling: The dissent read CPL 30.30(4)(a) broadly. It emphasized that the omnibus motion explicitly sought an order compelling the welfare-check materials; that portion was neither decided nor withdrawn; and defense counsel signaled at the August 14 hearing that the parties might return to court if they could not resolve it. In the dissent’s view, that kept the motion “pending” (and thus the clock tolled) until the speedy-trial motion. It drew support from cases like Jordan and Edmead, and analogized to Douglas’s holding that even “pro forma” motions suffice for tolling—the point being that unresolved motion segments remain motions for statutory purposes.
Discovery sanctions: The dissent also addressed the trial court’s alternative dismissal as a sanction under CPL 245.80(2). Quoting Jenkins and Bookman, it faulted the court for not considering “all other remedies” and for failing to tailor a proportionate sanction (e.g., preclusion or an adverse inference instruction). On this record, it would have found dismissal to be an abuse of discretion.

In essence, the split turns on how strictly to read “under consideration by the court”: the majority demands an actually submitted and considered question; the dissent allows exclusion so long as a discrete motion issue remains undecided and unwithdrawn, even if parties are trying to work it out and the court is not actively seized of it.

Impact and Practical Consequences

A. Discovery Practice under CPL 245

Prosecutors must be proactive. Where the prosecution knows specific materials likely exist and are important (e.g., a welfare-check report and BWC used at the grand jury), due diligence requires more than a single written request. Follow-up and escalation (calls, emails, subpoenas, liaison outreach, judicial assistance) are indicia of diligence.
Good faith alone is insufficient. The standard is due diligence—objective, reasonable efforts judged case-by-case. Office systems should track outstanding items and document repeated outreach.
COC risk management. Filing a COC while obvious items are outstanding invites a Bay-based challenge and can render readiness illusory. If a gap cannot be closed despite diligent efforts, the COC should transparently explain steps taken and why materials are unavailable.
Defense leverage. Defense counsel should flag COC deficiencies “as soon as practicable” (CPL 245.50[4][b]). Ernst confirms that raising the issue in an omnibus motion can suffice; doing so bolsters later 30.30 arguments.

B. Speedy-Trial Tolling under CPL 30.30(4)(a)

Exclusion requires an actually pending matter. After Ernst, prosecutors should not assume that informal, unresolved issues in motion papers toll time. To preserve tolling, ensure the court is asked to decide the issue, or obtain a clear order holding the issue sub judice.
Make the record explicit. If counsel wants motion tolling, put on the record that a specific motion issue remains to be decided, request a schedule, and prompt the court to take the matter under submission.
Defense strategy. If defense counsel prefers not to toll time, clarify that no issues remain for court decision and avoid inviting court intervention unless necessary. Ernst shows that once the only identified issue is decided, time will run unless something else is actively before the court.

C. Sanctions Calibration (if reached)

Proportionality matters. Although the majority did not need to reach sanctions, the dissent underscores that dismissal as a discovery sanction requires the court to consider and reject lesser remedies (preclusion, adverse inference) and to tailor the response to actual prejudice (CPL 245.80[2]).

Complex Concepts Simplified

CPL: New York’s Criminal Procedure Law. Key sections here are 245 (discovery), 30.30 (speedy trial), 460.10 (appeals).
Certificate of Compliance (COC): The prosecution’s filing certifying that it has met its discovery obligations. If invalid, a readiness statement based on it is “illusory.”
Due Diligence in Discovery: Reasonable, proactive efforts to obtain and disclose required items. It asks what a careful prosecutor would do, considering the case’s complexity and the obviousness of missing items.
Illusory Readiness: A statement of readiness that lacks legal effect because the prosecution has not actually met conditions precedent (e.g., valid discovery compliance).
Omnibus Motion: A consolidated pretrial motion typical in New York practice (suppressions, discovery relief, grand jury issues, etc.).
“Under Consideration by the Court”: For CPL 30.30 tolling, the court must actually be seized of the motion or issue—submissions made, decision pending. Mere party negotiations or unresolved topics not actively before the court do not count.
Huntley Hearing: A pretrial hearing on the voluntariness/admissibility of a defendant’s statements.
Grand Jury Minutes/Instructions: Materials that may be reviewed upon motion to assess legal sufficiency or charge errors.
Body-Worn Camera (BWC): Video recorded by officers. Often central discovery that can be exculpatory, impeaching, or otherwise material.

Practical Guidance and Best Practices

For Prosecutors

Inventory all known events referenced in complaints or grand jury proceedings (e.g., welfare checks) and identify likely documentary and video artifacts (reports, BWC) at the outset.
Document outreach with timestamps; escalate when initial efforts fail (multiple contacts, supervisory intervention, subpoena, or on-the-record applications for court assistance).
Do not file a COC while obvious, important items remain unaccounted for absent documented due diligence. If unavailable, explain why with specificity.
To preserve tolling, explicitly ask the court to decide unresolved motion issues and obtain an order taking them under submission.

For Defense Counsel

Promptly alert the People to COC deficiencies in writing (omnibus motion or separate notice) and seek tailored relief (compel disclosure, sanctions, or schedule adjustments).
Be explicit on the record about what, if anything, remains for court decision. If you want time to run, clarify that no issues are under submission; if you want tolling, request a schedule and a ruling.
Build the speedy-trial record: track dates, identify exclusions (or object to them), and preserve arguments that readiness was illusory under Bay.

For Trial Courts

When resolving omnibus motions, specify which parts are decided, which are withdrawn, and which remain under submission. Consider setting deadlines or status dates for any unresolved discovery issues.
When imposing discovery sanctions, articulate consideration of lesser remedies (preclusion, adverse inferences, continuances) and the proportionality analysis under CPL 245.80.

Conclusion

People v. Ernst reinforces two pivotal principles that will resonate throughout New York criminal practice. First, due diligence in discovery requires concrete, follow-up efforts commensurate with the obviousness and importance of the missing material; a single, unanswered request will rarely suffice when the prosecution knows what to look for and why it matters. Second, CPL 30.30 tolling for pretrial motions turns on whether a motion or discrete issue is actually “under consideration by the court.” Unresolved topics that parties discuss informally do not automatically stop the clock unless and until the court is asked to decide them.

The majority’s approach incentivizes transparent motion practice and robust discovery work by prosecutors, while giving defense counsel a clear roadmap for challenging illusory readiness. The dissent usefully flags that courts imposing discovery sanctions must explicitly consider lesser remedies. Together, the opinions provide a richer, more precise understanding of New York’s discovery-readiness regime and the contours of speedy-trial tolling—a roadmap that will shape litigation strategies, motion calendars, and case management going forward.