The defendant moves, pursuant to CPL 30.30, for dismissal of the charges on speedy trial grounds. He was arraigned on July 19, 2009 on two misdemeanor complaints charging him with three counts of aggravated harassment in the second degree and one count of petit larceny. After a review of the moving papers, court file and record, the court decides as follows:

Where, as here, a defendant is charged with Class A misdemeanors, CPL 30.30 (1) (b) mandates that the People be ready for trial within 90 days of the commencement of the criminal action.

For the first adjournment, the People are charged 29 days from July 19, 2009 until August 17, 2009 when they filed off calendar supporting depositions and Certificates of Readiness. On the adjourn date, September 15, 2009, the dockets were consolidated on consent.

The next two adjournments, from September 15, 2009 until October 29, 2009 and from October 29, 2009 until November 20, 2009 were excluded for the People to provide discovery.

On November 20, 2009, the People were not ready and requested an adjournment until December 8, 2009. The Court adjourned the case until December 9, 2009. A total of 18 days is chargeable to the People (from November 20 to December 8).

The People were again not ready on December 9, 2009 and again requested a short adjournment. However, the court adjourned the case until January 27, 2010 and [*2]advised the People on the record to file a Certificate of Readiness when they were ready to proceed. The People did not file a Certificate during this period. The entire period, a total of 49 days, is charged to the People.

The People were again not ready on January 27, 2010 and requested an adjournment until February 23, 2010. The file indicates that all time should be charged to the People. However, since the defendant filed the instant speedy trial motion off- calendar on January 28, 2010, only one day is charged to the People, since the motion tolled the speedy trial clock.

The People were not ready on February 23, 2010, but the defendant's speedy trial motion was before the court. The court adjourned the case for decision on March 23, 2010 and set March 9, 2010 for the People's response.

The People failed to file their response to the defendant's motion on March 9, 2010, the date set by the court for their response to the motion. On March 23, 2010, an adjournment was granted for People's late response and decision by the court. The People filed their response on March 30, 2010.

The issue presented is whether the People should be charged for the extra time they used to respond to the defendant's motion. There has been some confusion regarding whether or not courts should charge the People when they file a late response to a defendant's motion. See e.g. People v Rodriguez, 15 Misc 3d 1146 [A], 2007 Slip Op 51156[U] (the People should be charged); contra People v Saunders, 8 Misc 3d 214, 219, n 3 (the People can not be charged).

The People are entitled to a reasonable amount of time to respond to defense motions (CPL 30.30 (4) [a]). People v Anderson, 216 AD2d 309 (2d Dept 1995). However, where the People fail to respond by a court-imposed deadline, the People must be charged from the date they were originally scheduled to respond until the date they actually respond. People v Delosanto, 307 AD2d 298 (2d Dept), appeal denied 100 NY2d 641 (2003); People v Gonzalez, 266 AD2d 562, 563 (2d Dept 1999), lv denied 94 NY2d 920 (2000). The exception to this rule occurs if the People have a legitimate reason to seek additional time. Then, the court may excuse the delay if it is not unreasonable. See eg People v Anderson, 216 AD2d 309, supra. However, in so doing, the People have an obligation to explain to the court the necessity of the extended deadline. People Owens, 209 AD2d 549 (2d Dept 1994). Thus, for example, an extension to respond may be granted if the issues raised were complex, or if minutes that were required to answer the motion were not yet available. See People v Holden, 260 AD2d 233 (1st Dept. 1999), lv denied 93 NY2d 1003. The need for additional time to respond has even been deemed excusable where the delay was caused when the People were unable to locate the file due to the reassignment of the motion within the District Attorney's office. See People v Lucas, 25 Misc 3d 1213(A), 2009 Slip Op 52085(U).

Additionally, it must be remembered, that it is the People's burden to clarify on the record the basis for which an adjournment is granted so that a reviewing court can determine to whom the adjournment should be charged. People v Cortes, 80 NY2d 201, 215-216 (1992); People v Liotta, 79 NY2d 841 (1992). Thus, to receive an exclusion for an extension of time to answer a defendant's motion, the People must [*3]state on the record the reason for their late response and need for additional time.

With this in mind, the court has reviewed the minutes from the adjourn date of March 23, 2010. When asked specifically why they needed more time to respond, the Assistant replied that there was no reason. Accordingly, because the People offered no justifiable reason for their delay, an additional 21 days, from March 9, 2010, which was the court imposed deadline for the People to respond, until March 30, 2010, the date that the People actually filed their response, are charged to the People.

Inasmuch as a total of 118 days is chargeable to the People, the defendant's motion to dismiss pursuant to CPL 30.30 is granted.

This constitutes the decision and order of the Court.

Dated: April 20, 2010______________________________

Kew Gardens, New YorkSuzanne Melendez, JCC