The defendant, Simon Jones, moves to dismiss the charges on the ground that he has been denied his right to a speedy trial pursuant to CPL 30.30 (1) (b), alleging that more than ninety days have elapsed since arraignment. The People concede that sixty-eight (68) days are chargeable to them. There is one disputed adjournment for trial following the preclusion of defense motions. At issue is whether this entire sixty-five (65) day period is excludable pursuant to CPL 30.30 (4) (b) as a reasonable period of delay resulting from defendant's pretrial motions or the time during which they are under consideration by the court. Because this Court holds that this period is indeed excludable under this statutory exception, the defendant's motion to dismiss is denied.

The defendant was arraigned on August 4, 2007 on a criminal court complaint charging him with Auto Stripping in the Third Degree (PL 165.09 [1]), Reckless Endangerment in the [*2]Second Degree (PL 120.20) and Criminal Mischief in the Fourth Degree (PL 145.00 [3]). The complaint alleges that a police officer observed the defendant, while crossing the street against a red light, curse and throw an object resembling a golf bag at a moving vehicle causing the vehicle to swerve into traffic and onto the shoulder of the road, thereby denting the vehicle's passenger door and damaging the window frame. The matter was adjourned to September 21, 2007 when a supporting deposition was served and filed and the complaint was deemed an information. The People concede that the forty-eight (48) day period prior to conversion is chargeable to them. On September 21, 2007 a motion schedule was set and the matter was adjourned to November 26, 2007 for response and decision, with defense motions due off calendar on October 17, 2007.

On November 26, 2007 the defendant had not yet served and filed motions as anticipated. The Court precluded defense motions as untimely (see CPL 255.20 [1] ["all pretrial motions shall be served and filed within forty-five days after arraignment"]) and adjourned the case until January 30, 2008 for trial.

On December 19, 2007, the People attempted to serve and file a certificate of readiness in the case (see People v Stirrup, 91 NY2d 434 , 440 [1998] [a certificate of readiness, served upon the defendant and filed with the court off calendar satisfies the People's duty to be ready for trial and tolls the speedy trial clock]; People v Smith, 82 NY2d 676, 678 [1993]). The certificate of readiness, however, was served upon prior defense counsel (The Legal Aid Society). Since current defense counsel's notice of appearance had been filed on September 21, 2007, the certificate of readiness is invalid (see People v Kendzia, 64 NY2d 331, 337 [1985] [written notice of readiness must be sent both to defense counsel and the appropriate court clerk]).

On January 30, 2008 the People answered not ready and requested a two week adjournment . The Court adjourned the matter to February 19, 2008 for trial. Because the certificate of readiness previously filed with the court was not properly served on defense counsel, the People concede that this entire twenty (20) day adjournment is chargeable to them.

On February 19, 2008, the case was ready and passed to February 21, 2008 when the defendant indicated his intention to file a speedy trial motion. On February 22, 2008, the instant motion was served upon the People and filed with the court. The matter was adjourned to March 5, 2008 when the People filed their response. On that date, the court reserved decision until May 12, 2008.

CPL 30.30 is not a speedy trial statute in the constitutional sense. Rather, it was enacted to enforce prosecutorial readiness and is intended only to address delays occasioned by prosecutorial inaction (see People v McKenna, 76 NY2d 59, 63 [1990]; People v Sinistaj, 67 NY2d 236, 239 [1986]; People v Anderson, 66 NY2d 529, 535 [1985]). As such, a defendant's right to a speedy trial under the statute is separate and distinct from his right to a dismissal on the ground that he has been denied his constitutional right to a speedy trial (see Sinistaj, 67 NY2d at 239; People v Brothers, 50 NY2d 413, 416 [1980]; People ex rel Franklin v Warden, 31 NY2d 498 [1973]).

Pursuant to CPL 30.30 (1) (b) the People must be ready for trial within ninety (90) days of commencement of a criminal action charging a defendant with a class A [*3]misdemeanor. To be "ready for trial" under CPL 30.30 the People must in fact be ready to proceed and must communicate their readiness on the record (see Kendzia, 64 NY2d at 337). Once the People have announced their readiness to proceed to trial they have satisfied their obligation under the statute (see People v Giordano, 56 NY2d 524 [1982]) and are chargeable only with delay they have caused which "directly implicates their ability to proceed to trial" (see People v Cortes, 80 NY2d 201 [1992]).

Because CPL 30.30 is not a constitutional speedy trial statute but a prosecutorial readiness statute, it demands only that the prosecutor be ready for trial, not that court facilities also be available (see Brothers, 50 NY2d at 416; Franklin,31 NY2d at 501-502). Accordingly, once the People have declared their readiness for trial, they are not chargeable with any delay in proceeding due to court congestion (see People v Chavis, 91 NY2d 500 [1998]). In contrast, where the People have not yet announced their readiness to proceed to trial, court congestion will not excuse their failure to be ready (see Smith, 82 NY2d at 678; Brothers, 50 NY2d at 417 ["While court congestion may prevent a trial, in no sense does it operate to prevent the District Attorney from being ready for trial"]).

Whether the People have satisfied their obligation to be ready under CPL 30.30 is generally determined by calculating the time between the filing of the first accusatory instrument and the People's declaration of readiness, then subtracting statutorily excludable periods of delay and finally adding any additional delays that transpire after readiness has been declared, when such delays are attributable to the People and are ineligible for any exclusions under the statute (see Cortes, 80 NY2d at 208).

Under CPL 30.30 (4) (a), "a reasonable period of delay resulting from other proceedings, including but not limited to . . . pretrial motions . . .and the period under which such matters are under consideration by the court" is specifically excluded from "the time in which the People must be ready for trial." Indeed, while a defendant's pretrial motion is sub judice, that period of delay is excludable regardless of the People's readiness or unreadiness at the time (see People v Douglas, 209 AD2d 161, 162 [1st Dept 1994]. Inasmuch as the legislature intended CPL 30.30 to address delays caused by the People, the time required for defendant's pretrial motions is rightfully excluded as a delay which has been "caused by the defendant for his own benefit" (see People v Worley, 66 NY2d 523, 527 [1985]).

Where a defendant has moved before trial to suppress evidence, the court may summarily deny the motion if it does not allege a ground constituting a legal basis for the motion, or if the sworn allegations of fact do not as a matter of law support the ground alleged (see CPL 710.60 [3] [a], [b]).^[FN1] Where the court does not summarily deny the motion, the court "must conduct a hearing and [make] findings of fact essential to the determination of the motion" (see CPL 710.60 [4]). Moreover, the trial "may not be commenced until determination of the motion" (see CPL 710.40 [3]). Thus, where the court orders a hearing on a defendant's pretrial suppression motion, the motion remains [*4]under consideration by the court until it renders a decision after the hearing is held (see People v Taylor, 16 Misc 2d 339, 342 [Crim Ct, NY County 2007].

As a rule, the time the court takes to decide a defendant's pretrial motion is not chargeable to the People unless the People, by their action or inaction, have caused or contributed to the delay in the court's decision (see People v McKenna, 76 NY2d 59 [1990] [People's failure to provide the grand jury minutes necessary for the court to render decision on defendant's motion pursuant to CPL 210.30 was a "direct, and virtually insurmountable, impediment" to the commencement of trial]; see also People v Harris, 82 NY2d 409 [1993] [People's inaction in failing to provide grand jury minutes in response to defendant's motion to inspect the grand jury minutes and dismiss the indictment "resulted in a delay in the court's disposition of the motion"]; Douglas, 209 AD2d at 162 ["the law is clear that the People cannot be charged with the time a court takes to decide a defense motion unless the People, by their unjustified action or inaction, are directly responsible for all or a portion of the delay"]).

Moreover, when the court has ordered a pretrial suppression hearing on defendant's motion, the People are entitled to a reasonable period of time to be ready for the hearing and an adjournment for that purpose is properly excludable as a reasonable period of delay resulting from pretrial motions (see People v Wells, 16 AD3d 174 [1st Dept 2005] [thirty-five (35) day adjournment properly excluded as a reasonable period of time for the People to prepare for hearings ordered by the court on pretrial motions]; People v Rene, 292 AD2d 302 [1st Dept 2002] [adjournment properly excluded under CPL 30.30 (4) (a) as a reasonable period of time for the People to prepare for the newly ordered hearing]; People v Ailes, 268 AD2d 370 [1st Dept 2000] [adjournment properly excluded as a reasonable time for the People to prepare for suppression hearing and was a reasonable period of delay resulting from pretrial motions under CPL 30.30 (4) (a)]; People v Moolenaar, 262 AD2d 60 [1st Dept 1999] [thirty-two (32) day period after decision on omnibus motion was a reasonable period of delay resulting from motion practice since the People were entitled to a reasonable time to prepare for the suppression hearings ordered therein]; People v Silas 233 AD2d 103 [1st Dept 1996] [thirty-four (34) day period excludable as a reasonable time for the People to prepare for pretrial hearings]; People v Greene, 223 AD2d 474 [1st Dept 1996] [period after court rendered decision on defendant's omnibus motion granting a Wade hearing excludable since prosecution could not be expected to be ready for hearing immediately]; People v Green, 90 AD2d 705 [1st Dept1982] [fifteen (15) day adjournment for the People to prepare for a pretrial suppression hearing reasonable since there was "no suggestion in the record that the People were expected to go forward on that date in the event a hearing were ordered" and because the People could "hardly be expected to prepare for a hearing before they were aware that the court was ordering one"]; People v Perez-Cortes, NYLJ, Mar. 3, 1999, at 26, col 2 [App Term, 1st Dept] [forty-two (42) day adjournment excludable as a reasonable time for People to prepare for pretrial hearings]; see also People v Reed, 19 AD3d 312, 314 [1st Dept 2005] [thirty-five (35) day adjournment after court ordered hearings on defendant's omnibus motion excludable since People are entitled to a reasonable period of time to prepare for hearings and trial]; People v Forbes, 7 AD3d 473, 474 [1st Dept 2004] [*5][twenty-one (21) day adjournment properly excluded as a reasonable period of delay resulting from pretrial motions since People were entitled to a reasonable time to prepare for hearings and trial after court decided defendant's omnibus motion]; People v Diaz, 275 AD2d 652, 653 [1st Dept 2000] [twenty-eight (28) day adjournment after court decided pretrial motions excludable since People entitled to a reasonable time thereafter to prepare for hearings and trial]; People v Heine, 238 AD2d 212 [1st Dept 1997] [thirty-two (32) day period properly excluded as a reasonable amount of time to prepare the case following motion practice]; People v Chambers, 226 AD2d 284 [1st Dept 1996] [twenty-nine (29) day adjournment from decision on defendant's omnibus motion to hearing and trial date excludable as a reasonable period for the People to prepare for trial]; People v Park, NYLJ, July 7, 1997, at 25, col 6 [App Term, 1st Dept] [thirty-six (36) day adjournment excludable as a reasonable amount of time to prepare the case following motion practice]).

CPL 30.30 (1) expressly requires that the People be ready for trial. A pretrial suppression hearing is not the equivalent of a trial, however, since it serves a different purpose: a pretrial suppression hearing determines narrow issues of admissibility of evidence and often does not involve the same witnesses as will be used at trial. For statutory speedy trial purposes, therefore, the People's readiness for a pretrial suppression hearing is not the same as their readiness for trial (see Chavis, 91 NY2d at 505).

Additionally, since it is reasonable and expected that the People will require time to be ready for a hearing after one has been ordered by the court in order to determine a defendant's pretrial suppression motion, an initial adjournment for that purpose cannot be said to be due to the People's action or inaction. Indeed, any delay in the disposition of the motion as a result of this adjournment is not attributable to the fault of the People, but is instead a necessary and practical consequence of the court's action in ordering hearings, and ultimately, of the defendant's action in moving to suppress evidence. It stands to reason, therefore, that if this initial adjournment is lengthened by court congestion, that court congestion, occurring within the period encompassed by the statutory speedy trial exclusion for motion practice a time when the People's trial readiness is irrelevant is excludable (see Green, 90 AD2d at 706 [where the People requested ten (10) days to be ready for a pretrial suppression hearing, the court's having adjourned the matter for fifteen (15) days "for its own convenience . . . [did] not affect the reasonableness of the adjournment"]). Therefore, an initial adjournment for a hearing ordered on a defendant's pretrial suppression motion must be excluded in its entirety, regardless of its length.^[FN2]

Although, in contrast to an adjournment for a pretrial suppression hearing, determination of a defendant's motion was not a condition precedent to trial in this case where defense motions were precluded as untimely, the November 26, 2007 [*6]adjournment here is similarly excludable under CPL 30.30 (4) (a) (see People v Fuller, 8 AD3d 204, 205 [1st Dept 2004] [adjournment excluded as "a reasonable period of delay resulting from defendant's failure to accomplish his stated intention to file motions"]; People v Garrett, 182 AD2d 496 [1st Dept 1992] [forty (40) day adjournment for trial after defendant announced that he was waiving motions on the date he was to have filed them was properly excluded since "the People could hardly have been expected to proceed to trial on that date"]).

In the instant case, defendant was to have filed motions, in accordance with the schedule set by the court, off calendar on October 17, 2007. The case was calendared for response and decision on November 26, 2007. On November 26th, after defendant failed to timely file motions as scheduled, the court precluded defense motions and the matter was adjourned to January 30, 2008 for trial. Since the matter had been adjourned for response and decision on November 26th , the People can hardly have been expected to be ready for trial on that date. Thus the adjournment was not necessitated by the People's action or inaction, but by the action or inaction of the defendant: it was occasioned, in fact, by the expected submission of defense motions. This expectation was not mere supposition, but was founded in the defendant's stated intention to file motions and in the court's setting of a motion schedule to that end. Because the adjournment to January 30, 2008 resulted from the defendant's failure to file motions as anticipated, the adjournment is entirely excludable as a reasonable period of delay under CPL 30.30 (4) (a).

The length of the adjournment for "the convenience of the court" (see Green, 90 AD2d at 706) is immaterial in this context. Although an excessively long adjournment of this nature may potentially implicate a defendant's constitutional right to a speedy trial, which is encompassed by CPL 30.20, it is not a violation of his right to a speedy trial under CPL 30.30, which is a prosecutorial readiness statute. Moreover, the adjournment in this case was of standard length, as measured by the calendar and caseload of the court (see Taylor,16 Misc 2dat 343).

Nor could this, or any court, arbitrarily designate a portion of the sixty-five day adjournment herein as a "reasonable" period of time for the People to be ready for trial. Such a determination would require findings of fact that are properly beyond the court's purview, such as knowledge of the quantity and quality of the People's evidence and how they intend to prove their case. In this, or in any case, the court cannot know how many witnesses the People intend to call, or who they are, or what evidentiary issues may accompany their prospective testimony. Are there foundational problems to be resolved, such as whether certain testimony is admissible under a hearsay exception, eg., excited utterance or present sense impression, or under a Molineux exception, eg., motive or intent? Besides any legal research necessary to be performed, are there memoranda of law to be submitted on these or any other questions? How much time is actually needed to prepare each witness, given the witness' age, intelligence and capacity? Does the witness have impeachment issues? Are there prior inconsistent statements to be reconciled with the witness' prospective testimony? Does the witness have a criminal record, or any pending criminal matters? Is the witness cooperative with the prosecution, or will the witness require a subpoena or material witness order to appear and testify? Is there any physical evidence to be introduced? What is it? What [*7]is the chain of custody of that evidence? Has any physical evidence been submitted for scientific testing, eg., DNA analysis? Are there experts to be consulted and potentially called as witnesses? Any one of a number of endless possibilities, including but most certainly not limited to those named above, may bear on the length of time the People need to be ready for trial in any case. Given the number of variables involved, any attempt to determine what constitutes a reasonable time to prepare for trial based upon the nature of the charges in the case is, at best, an oversimplification of the matter, and at worst, an act of divination not appropriate for the court. In any event, as demonstrated above, there is ample appellate precedent for the exclusion of the entire adjournment period under circumstances such as this where the delay in proceeding is a consequence of the defendant's motion practice.

Accordingly, because this court finds only sixty-eight (68) days to be chargeable to the People, defendant's motion to dismiss is denied.

This constitutes the decision and order of the court.

Dated:April 30, 2008

New York, New York

_________________________

Elisa S. Koenderman, JCC