The People assert that they are entitled to a reasonable period to prepare for trial. They are, indeed — 90 days.

Charged with assault in the third degree and resisting arrest, defendant moves to dismiss the information on the ground that his statutory right to a speedy trial has been violated. When, as here, a defendant is accused of a misdemeanor punishable by a sentence of more than three months in jail, the People must be ready for trial within 90 days of the commencement of the criminal action (see CPL 30.30 [1] [b]), minus any excludable periods (see CPL 30.30 [4]; People v Cortes, 80 NY2d 201, 208 [1992]).

On January 20, 2008, defendant was arraigned, and the case was adjourned to February 25, 2008, for the People to file a supporting deposition needed to convert the misdemeanor complaint to an information (see CPL 100.10 [1], [4]; 170.65 [1]). This 36-day period is chargeable to the People.

On February 25, the People failed to provide the required deposition, and the case was again adjourned, to April 30, for conversion. On March 25, the People filed with the court and served on defense counsel the necessary supporting deposition, along with a statement certifying their readiness for trial. Thus, the People are charged with the 29-day period from February 25 to March 25 (see People v Kendzia, 64 NY2d 331, 337 [1985]).

On April 30, 2008, the case was adjourned to June 18, for trial. On May 27, the People filed and served a certificate of readiness. Although defendant contends that the 27-day period from April 30 to May 27 is chargeable to the prosecution, the People argue that some portion of this adjournment should be excluded because they are entitled to an additional "reasonable period" to prepare for trial after pretrial motions are waived. [*2]

In People v Garrett (182 AD2d 496 [1st Dept 1992]), where defendant announced — on the date to which his case had been previously adjourned for the filing of pretrial motions — that he was in fact waiving motion practice, the Appellate Division held that the succeeding adjournment for trial was excludable because "the People could hardly have been expected to proceed to trial" on the date calendared for motions (182 AD2d at 497, citing People v Green, 90 AD2d 705 [1st Dept 1982]; accord People v Fuller, 8 AD3d 204, 205 [1st Dept 2004]; see also CPL 30.30 [4] [a] [pretrial motions excludable]). Accordingly, when a defendant seeks an adjournment for the purpose of engaging in motion practice, but motions are thereafter waived (or precluded), the People are entitled to a reasonable, excludable adjournment for trial (see People v Jones, 19 Misc 3d 1126[A], 2008 NY Slip Op 50884[U], *5-*6 [Crim Ct, NY County 2008]).

The flaw in the People's argument in this case, however, is that a defendant's declination to make motions is in no way akin to a waiver of motion practice after a defense-caused delay for that purpose. To be sure, since an adjournment for supporting deposition will be chargeable,^[FN1] whereas an adjournment for pretrial motions will be excluded, defendants as a general matter do not file motions until after conversion. But when, as here, the defendant does not at any time seek to make motions, there has been no excludable period of delay. Simply put, all time is charged to the People unless subject to an exclusion. While an adjournment "resulting from" pretrial motions is excludable (CPL 30.30 [4] [a]), an adjournment that is expressly not for motions cannot be excluded on that basis.

Whether a defendant stands mute when the complaint is converted or, as a courtesy to the court for purposes of calendar and case management, affirmatively states that he or she will not be seeking a motion schedule in the matter, the defendant signals nothing more than a desire to advance the case toward trial and a determination to put the prosecution to its proof by requiring the People to answer ready in the time allotted to them by statute. In either event, inasmuch as the defendant has done nothing to stop the clock, there has been no excludable time. Nor can the result be any different if the court, in memorializing defendant's stated intention that the case proceed directly to trial after conversion, notes through the use of a shorthand expression — perhaps a misnomer — that defendant "waives motions." And, of course, the same is true if the court asks the defendant upon conversion whether he or she "waives motions" and defendant answers, "Yes."

After all, when a criminal action is commenced by the filing of an information — such that no adjournment for conversion is needed — the defendant's "waiver" of motions at arraignment will result in the absence of any excludable period whatsoever. Indeed, the very purpose of a defendant's insistence at arraignment on an information that the case be adjourned immediately for trial is to guarantee that the speedy-trial clock run, without interruption, from the commencement of the criminal action until the prosecution answers ready. In that event, the [*3]People must declare their readiness within the 90-day statutory time frame, and not some longer period.^[FN2]

Similarly, when a case is adjourned from arraignment for supporting deposition; the complaint is converted to an information by the filing of the deposition in open court on the adjourned date; and the matter is then adjourned for trial, the People will be required to answer ready within 90 days of the initial arraignment, since no exclusion exists on the basis of which to toll or extend the statutory time. Although here the People converted the complaint off-calendar with an accompanying certificate of readiness, the same principle applies. When a case is immediately adjourned for trial upon conversion, there has been no delay "resulting from" pretrial motions, and no excludable time accrues. Of course, in the instant case the 36-day period from the off-calendar filing of the statement of readiness (and supporting deposition) to the previously scheduled adjourned date for conversion must be excluded (see People v Stirrup, 91 NY2d 434, 440 [1998]), but once that adjourned date had arrived, the People's failure to then answer ready in open court — or, put differently, that the case needed to be re-adjourned for a future date for trial — caused the clock to start to run again.

To the extent that the People argue that they must be given a reasonable period of time to prepare in every case, the Legislature has already determined what that reasonable period is — here, 90 days.^[FN3] But to the extent they contend that they are entitled to an additional period after conversion — even when the defendant does not seek or make pretrial motions — there is simply no support for their claim. Nor may the time be extended because they anticipated that a motion schedule might conceivably be set upon conversion (cf. People v Collins, 82 NY2d 177, 181 [1993] ["the record is entirely devoid of any suggestion that the adjournment was made for the purpose of defense motions or even for the purpose of setting up a motion schedule. To accept the People's argument that the adjournment was an excludable motion-related delay because transfer to (another court part) was a condition precedent to any defense motion which might later be made falls outside of a fair reading of the statutory language, which generally refers to delays attributable to responding to and deciding motions actually made" (citations omitted)]). Were it otherwise, the People would automatically be entitled to more than the statutory period in every case prosecuted by information. That, however, is not the law.^[FN4] [*4]

Accordingly, the 27-day period from April 30 to May 27, 2008, is chargeable to the People, such that 92 chargeable days had elapsed as of May 27, 2008.^[FN5]

The People could, of course, have filed a certificate of readiness at any time after the case was adjourned on April 30 for trial (see Stirrup, 91 NY2d at 440; People v Chavis, 91 NY2d 500, 506 [1998]). That they did not do so until after the statutory period had run, however, requires dismissal of the charges.

This opinion shall constitute the decision and order of the court.