Defendant is charged with Criminal Impersonation in the Second Degree, in violation of Penal Law (P.L.) section 190.25 (3), Stalking in the Fourth Degree, in violation of P.L. section 120.45 (1), and Harassment in the Second Degree, P.L. sections 240.26 (1), (2) and (3). Defendant moves for dismissal of the accusatory instrument on the grounds that he has been denied his right to a speedy trial pursuant to Criminal Procedure Law (C.P.L.) sections 30.30 and 170.30.

The factual allegations state, in pertinent part, that on October 21, 2013, at approximately 7:50 AM in Kings County:

The deponent [ADA James Slatterly] is informed by Jerry Williams that ... while informant was driving ... and upon picking up a passenger and driving away, the defendant, while driving a white Chevrolet Tahoe ... followed behind before cutting off informant's vehicle, preventing informant from travelling [sic] any further and defendant did state to informant in sum and substance that defendant is a police officer, that defendant is armed with a firearm, that informant was under arrest and that defendant was authorized ... to take pictures of informant.

In this case, the highest crime charged against the defendant is a class A misdemeanor (see P.L. §190.25). Class A misdemeanors are punishable by a sentence of imprisonment not to exceed one year (P.L. §70.15). Where a defendant is charged with a misdemeanor punishable by a sentence of imprisonment of more than three months, a speedy trial motion must be granted where the People are not ready for trial within 90 days of commencement of the criminal action (C.P.L. §30.30 [1][b]).

The defendant has the initial burden of showing, through sworn allegations of fact, that there has been an inexcusable delay beyond the time allotted by the statute (People v. Santos, 68 NY2d 859, 861 [1986]). Once the defendant has made that showing, the People bear the burden [*2]of demonstrating sufficient excludable time in order to withstand a motion to dismiss (id.).

Based on a review of the official court file, the submissions of the parties, and the official minutes of the calendar call on December 10, 2013, the court finds as follows:

October 22, 2013 - December 10, 201338 days

On October 22, 2013, defendant was arraigned on a misdemeanor complaint and released on his own recognizance. Defendant was represented at that time by the Legal Aid Society (L.A.S.). The matter was adjourned to December 10, 2013, for conversion.

On October 25, 2013, privately retained counsel, Gregory G. Gomez, filed with the court a Notice of Appearance. There is no indication that private counsel served either L.A.S. or the District Attorney's office with his Notice of Appearance, nor does he assert that he did.

On November 27, 2013, the People served on L.A.S. the supporting deposition required to convert the complaint together with a Statement of Readiness (SOR). The People also filed the supporting deposition and SOR with the court on November 29, 2013. It is undisputed that the supporting deposition and SOR were not served on private counsel Gomez.

The People are ready for trial when they communicate their actual readiness in open court

or file with the court and serve on defense counsel a certificate of actual readiness, at a time when the People are in fact ready to proceed (see People v. Kendzia, 64 NY2d 331, 337 (1985). There is no question that the SOR filed with the court on November 29, 2013, " accurately conveyed the People's readiness to proceed with their case against the defendant ' " (see People v. Dixon, 40 Misc 39 1229[A], *2 [Sup Ct, Kings County 2013]). The question here, however, is whether, by serving the SOR on L.A.S., the People effectively communicated their trial readiness to defense counsel.

Defendant argues that the SOR was served on the wrong defense counsel and is thus ineffective. In support of his position, the defendant cites several cases including People v. Telemaque, 36 Misc 3d 1239[A] (Crim Ct, Kings County 2012), People v. Stewart, 873 NYS2d 236 (Crim Ct, NY County 2008), and People v. Chittumuri, 189 Misc 2d 743 (Crim Ct, Queens County 2001), where the court held that the People's service of an SOR on defendant's former counsel was ineffective.

The cases cited by the defendant, while numerous, are in apposite and thus, not persuasive. In all of the cases cited by the defendant, the prosecution had actual notice of new counsel. For example, in People v. Stewart, supra, the court assigned new counsel on the record and in the presence of the People. In People v. Chittumuri, supra, new counsel appeared on the record in the presence of an Assistant District Attorney. Similarly, n People v. Telemaque, supra, new counsel appeared on the record, in open court, in the presence of an Assistant District Attorney, indicated that he was "newly retained" and handed the People his business card with his contact information. In another case cited by the defense, People v. Jordan, 153 AD2d 263 (2nd Dept 1990), the defendant was represented by L.A.S. for the purposes of "arraignment only." The court file indicated that the defendant was represented by L.A.S. for the limited purposes of arraignment and further indicated that the defendant was going to retain his own attorney. The Court found that, under those circumstances, the People were on notice that L.A.S. was not the attorney to whom they should send any notice of a Grand Jury presentation.

The People submit that service on L.A.S. was proper because the People were not aware of a change in defendant's counsel until the calendar call of December 10, 2013. The People [*3]submit that prior to December 10, 2013, the People had no notice of a change in counsel as defendant had not provided the People with notice of a change of attorney pursuant to Civil Procedure Law and Rules (C.P.L.R.) section 321(b)(1), nor had prior counsel L.A.S. been relieved or changed by official court order pursuant to CPLR section 321(b)(2).^[FN1] The People rely heavily on People v. Almarales, 2002 WL 31995811 (Sup Ct, Kings County 2002), where the court found that service of an SOR on prior counsel satisfied the notice requirement in Kendzia. In Almarales, the court held that where retained counsel filed a Notice of Appearance, and entered her name and address for the record, but did not otherwise "communicate to anyone that [prior counsel] had been effectively dismissed as defendant's attorney," the People could not be faulted for serving prior counsel with the statement of readiness (Almarales, 2002 WL 31995811 at*5-6). It found that "[t]o hold otherwise would impose an unreasonable burden on the People to ascertain at every critical stage of the proceedings whether defendant's last known attorney has remained on the case" (id. at*6).

22 New York Codes, Rules and Regulations (N.Y.C.C.R.) section 200.5 provides that "[e]ach attorney appearing in a criminal action is required to file a written notice of appearance on or before the time of the attorney's first appearance in court or not later than 10 days after appointment or retainer, whichever is sooner ... ." Notwithstanding the provisions of CPLR section 321(b), which is cited by the People, "common custom and practice in Criminal Courts of NYC recognize the substitution of counsel [when an attorney appears on the record and/or files a Notice of Appearance] without the formality of the Court uttering the words prior counsel is relieved' " (Telemaque, 36 Misc 3d 1239[A] at *2, n2). Moreover, courts have consistently held that "when the People are on notice that a new attorney has been assigned to represent a defendant, or a new attorney was retained and has appeared and become the attorney of record and filed a notice of appearance,' service of the certificate of readiness on the prior attorney will not automatically satisfy the Kendzia requirement that defense counsel' be promptly notified of the People's readiness (see, e.g., People v. Burroughs, 35 Misc 3d 1209[A] *3, [Sup Ct, Bronx County 2012] [service of SOR on prior institutional defender found sufficient where new institutional defender, who represented defendant on older case and appeared on behalf of defendant on two consecutive adjourn dates in instant case, had not filed a notice of appearance or otherwise requested to be assigned as attorney of record]).

Here, there is no question that newly retained counsel filed a notice of appearance with the court and that he did so within ten days of having been retained and three days after defendant's arraignment. The question thus becomes were the People "on notice" of private defense counsel's substitution in the case? The court answers this question in the negative. Where, as here, new counsel files a notice of appearance solely with the court in between adjourn dates and does not alert the People of his or her status as new attorney of record, the People can [*4]not be faulted for serving prior counsel with the SOR (see Almarales, 2002 WL 31995811 at*5-6). The People are not required to repeatedly check the court file to ascertain whether original counsel has remained on the case or new counsel has been retained as such a requirement "would impose an unreasonable burden on the People" (id. at*6).

Accordingly, the court finds that the People's act in filing and serving an SOR on L.A.S., the counsel who represented the defendant as attorney of record on the court appearance prior to the People's service of the SOR and supporting deposition and the only counsel of whom the People were aware, was effective under Kendzia and served to toll the speedy trial clock for the remainder of the adjournment (People v. Stirrup, 91 NY2d 434, 440 [1998]). The People are thus only charged with the period that preceded their declaration of readiness, in this case, thirty-eight (38) days.

December 10, 2013 - January 23, 20140 days

On December 10, 2013, the People answered ready and stated that an SOR and supporting deposition were filed and served off-calendar on November 29, 2013. Mr. Gomez then advised the court that he had been retained and filed a notice of appearance on October 25, 2013, but had not received "the supporting deposition nor other paperwork." The minutes reflect that the judge presiding in the part inquired as to whether the matter should be adjourned for conversion, to which defense counsel Gomez answered "yes" (see Minutes of October 10, 2013, page 2, lines 18 - 19). The matter was then adjourned to January 23, 2014, for conversion.^[FN2]

The misdemeanor complaint here, however, was already converted. As discussed above, the complaint was properly converted when the People filed with the court and served on defense counsel, L.A.S., the supporting deposition of the informant. Accordingly, the People's declaration of readiness made on the record and in the presence of new defense counsel on December 10, 2013, was a valid statement of readiness as the People "[had] done all that was required of them to do to bring the case to a point where it may be tried" (see People v. England, 84 NY2d 1, 4 [1994]). This adjournment is thus excludable because the People answered ready on the record in the presence of defense counsel (see People v Cajigas, 224 AD2d 370, 372 [1st Dept 1996], app den 88 NY2d 845 [1996]).

January 23, 2014 - March 17, 20140 days

On January 23, 2014, the defendant filed and served the instant motion to dismiss the accusatory instrument on speedy trial grounds. The court directed the People to file and serve their response off-calendar by January 30, 2014, and adjourned the matter to March 17, 2014, for [*5]decision. An adjournment for motion practice and the period during which defendant's motion is "under consideration by the court" is excludable (C.P.L. §30.30[4][a] see People v. Shannon, 143 AD2d 572, 572-573 [1st Dept], lv den 73 NY2d 860 [1988] [time while speedy trial motion under consideration by court is excludable]).

In total, the People are charged with 38 days, which does not exceed the allowable time set forth in C.P.L. section 30.30 (1) (b). Accordingly, defendant's motion to dismiss the accusatory instrument for lack of a speedy trial is denied.

This constitutes the decision and order of the court.

Dated:March 17, 2014_____________________________

Brooklyn, New York

Hon. Joanne D. Quiñones

J.C.C.