Defendant contends that County Court erred in denying his motion to set aside the verdict, despite finding that the records from the victim's forensic child sexual abuse evaluation and physical examination were Brady material. To that end, the issue on appeal is not whether the court's determination that these records were Brady material was correct (see CPL 470.15[1] ), but whether defendant's receipt of the records four days before trial deprived him of a fair trial such that reversal is required (seePeople v. Cortijo, 70 N.Y.2d 868, 870, 523 N.Y.S.2d 463, 517 N.E.2d 1349 [1987] ; People v. Richardson, 192 A.D.3d 432, 433, 142 N.Y.S.3d 539 [2021], lv denied 37 N.Y.3d 959, 147 N.Y.S.3d 515, 170 N.E.3d 389 [2021] ). " ‘[W]hile the People unquestionably have a duty to disclose exculpatory material in their control,’ a defendant's constitutional right to a fair trial is not violated when, as here, he [or she] is given a meaningful opportunity to use the allegedly exculpatory material to cross-examine the People's witnesses or as evidence during his [or her] case" ( People v. Cortijo, 70 N.Y.2d at 870, 523 N.Y.S.2d 463, 517 N.E.2d 1349, quoting People v. Brown, 67 N.Y.2d 555, 559, 505 N.Y.S.2d 574, 496 N.E.2d 663 [1986], cert denied 479 U.S. 1093, 107 S.Ct. 1307, 94 L.Ed.2d 161 [1987] ).

Defendant contends that County Court erred in denying his motion to set aside the verdict, despite finding that the records from the victim's forensic child sexual abuse evaluation and physical examination were Brady material. To that end, the issue on appeal is not whether the court's determination that these records were Brady material was correct (see CPL 470.15 [1]), but whether defendant's receipt of the records four days before trial deprived him of a fair trial such that reversal is required (see People v Cortijo, 70 N.Y.2d 868, 870 [1987]; People v Richardson, 192 A.D.3d 432, 433 [2021], lv denied 37 N.Y.3d 959 [2021]). "'[W]hile the People unquestionably have a duty to disclose exculpatory material in their control,' a defendant's constitutional right to a fair trial is not violated when, as here, he [or she] is given a meaningful opportunity to use the allegedly exculpatory material to cross-examine the People's witnesses or as evidence during his [or her] case" (People v Cortijo, 70 N.Y.2d at 870, quoting People v Brown, 67 N.Y.2d 555, 559 [1986], cert denied 479 U.S. 1093 [1987]).

Disposition: Applications for Criminal Leave to appeal denied Decision Reported Below: 1st Dept: 192 A.D.3d 432 (NY)

However, "a statement of readiness is presumed valid, and a defendant who challenges such a statement must demonstrate that it is illusory by showing that the People were not actually ready at the time they filed it" (People v Brown, 28 N.Y.3d 392, 407 [2016]). Here, defendant did not meet his burden of demonstrating that the October 5, 2022 SOR was illusory because the record supports a finding that the People could have proceeded to trial without the laboratory report (see People v McTyere, 215 A.D.3d 1274, 1274-1275 [2023]; People v Richardson, 192 A.D.3d 432, 432 [2021]; People v Hernandez, 187 A.D.3d 1502, 1503 [2020]; People v Zale, 137 A.D.3d 634, 635 [2016]; People v Hunter, 23 A.D.3d 767, 768 [2005]; People v Duffin, 28 Misc.3d 126 [A], 2010 NY Slip Op 51174[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2010]).

During that period, the court set a schedule for the People to move for an order to take a buccal swab from defendant, the People so moved, the defense responded, and the court denied the motion. Defendant has not demonstrated that the motion was made in bad faith (see e.g. People v Richardson, 192 A.D.3d 432, 433 [1st Dept 2021], lv denied 37 N.Y.3d 959 [2021]). Because the People did not claim excludability on the ground of exceptional circumstances under CPL 30.30(4)(g), the requirements of that provision do not apply.

Furthermore, defense counsel was able to interview the only identifiable person involved in the 911 call. Defendant's assertions that the 911 recording would have been helpful to the defense, or that earlier disclosure would have led to the discovery of more witnesses, are speculative, and there is no reasonable possibility that the result of the trial would have been different if the recording had been preserved or the information had been disclosed earlier (see e.g. People v Richardson, 192 A.D.3d 432, 433 [1st Dept 2021], lv denied 37 N.Y.3d 959 [2021]). The motion court providently exercised its discretion in denying defendant's CPL article 680 application to take out-of-state testimony from the only identifiable person who spoke with the victim immediately after the robbery.

Furthermore, defense counsel was able to interview the only identifiable person involved in the 911 call. Defendant's assertions that the 911 recording would have been helpful to the defense, or that earlier disclosure would have led to the discovery of more witnesses, are speculative, and there is no reasonable possibility that the result of the trial would have been different if the recording had been preserved or the information had been disclosed earlier (see e. g.People v. Richardson, 192 A.D.3d 432, 433, 142 N.Y.S.3d 539 [1st Dept. 2021], lv denied 37 N.Y.3d 959, 147 N.Y.S.3d 515, 170 N.E.3d 389 [2021] ). The motion court providently exercised its discretion in denying defendant's CPL article 680 application to take out-of-state testimony from the only identifiable person who spoke with the victim immediately after the robbery.

If a prosecutor's motion that is actually filed but then subsequently withdrawn is a legal "nullity" and chargeable to the People, certainly a motion that is never even filed does not stop the speedy trial clock. However, when the People file a motion that is later rendered inapplicable by facts or litigation outside their control, withdrawal of the motion is necessary and courts have still applied CPL 30.30 (4) (a) to exclude time for motion practice (see People v James, 170 A.D.3d 477 [1st Dept, 2019] [where People filed a motion to consolidate with a co-defendant, yet ultimately withdrew that motion after unsuccessfully litigating a Bruton issue, speedy trial time was nevertheless excluded for motion practice]; People v Richardson, 192 A.D.3d 432 [1st Dept 2021], lv denied 37 N.Y.3d 959 [2021] [where People made a Sirois application to introduce victim's out of court statement due to a belief that the defendant caused the victim's unavailability, time was properly excluded even though the People later withdrew their application once they located the victim and found they could not prove the defendant had threatened him]). In this case, the decision to withdraw their intent to file a motion to reargue was not in response to any change in facts or law, but solely based on the People's review of the case itself.

Furthermore, defense counsel was able to interview the only identifiable person involved in the 911 call. Defendant's assertions that the 911 recording would have been helpful to the defense, or that earlier disclosure would have led to the discovery of more witnesses, are speculative, and there is no reasonable possibility that the result of the trial would have been different if the recording had been preserved or the information had been disclosed earlier (see e.g. People v Richardson, 192 A.D.3d 432, 433 [1st Dept 2021], lv denied 37 N.Y.3d 959 [2021]). The motion court providently exercised its discretion in denying defendant's CPL article 680 application to take out-of-state testimony from the only identifiable person who spoke with the victim immediately after the robbery.

The Court of Appeals has made the obligation clear: the People must evaluate the proof they are presently able to present at trial and, in exercising their professional judgment, honestly state that their proof would establish a pima face case at trial. see generallyPeople v Richardson , 192 AD3d 432 (1st Dept 2021), People v Zale , 137 AD3d 634 (1st Dept 2016), People v Williams , Albany County Court, July 6, 2021, Ackerman, J. index No. DA 260-20. Similarly evident, the obligation to state actual readiness requires more from the People than being a mere advocate.