Criminal Court of the City of New York, Queens County, January 25, 2018

The Legal Aid Society (Ariel Schneller and Joel Schmidt of counsel) for defendant.

Richard A. Brown, District Attorney (Alyssa Prete of counsel), for plaintiff.

The defendant's motion to reargue his motion to dismiss the information^[FN1] pursuant to CPL 30.30 is granted to address a legal question concerning the statute. Does a judicial determination that an information is facially insufficient apply retrospectively, rendering illusory the People's good faith declarations of readiness for trial, if the defendant does not raise the issue until after the speedy trial period has expired? This court finds that it does.

The defendant was arraigned on May 16, 2015, on charges of operation of a motor vehicle while intoxicated per se (Vehicle and Traffic Law § 1192 [2]); common-law operation of a motor [*2]vehicle while intoxicated (Vehicle and Traffic Law § 1192 [3]); and unlicensed operation of a motor vehicle (Vehicle and Traffic Law § 509 [1]).^[FN2] Approximately 21 months later, the defendant filed a motion contesting the facial sufficiency of the accusatory instrument. He also moved to dismiss the information{**58 Misc 3d at 615} pursuant to CPL 30.30. By written decision dated March 31, 2017, this court dismissed the accusatory instrument as facially insufficient, denied dismissal pursuant to CPL 30.30 and stayed sealing of the matter for 30 days.

Thereafter, on April 18, 2017, the People filed a superseding information, again charging Vehicle and Traffic Law § 1192 (2) and (3), but dismissing the previously-charged count of Vehicle and Traffic Law § 509 (1). On June 1st, the defendant moved to reargue the denial of the branch of his February 27th motion to dismiss pursuant to CPL 30.30. Pursuant to this court's order the parties submitted extensive cross-briefs through December 2017, on the aforestated legal question.

The People argue that this court should exclude adjournments during which they were not put on notice by the court or the defendant of the facial insufficiency of the accusatory instrument. They contend that, because the statements of readiness were made in good faith, fundamental fairness requires that they not be charged retrospectively when the defendant fails to raise facial sufficiency challenges prior to the expiration of the "30.30 clock."

The People rely on People v Odoms (143 Misc 2d 503 [Crim Ct, Kings County 1989]). The Odoms court, one of coordinate jurisdiction, denied the defendant's 30.30 motion and held that a "defendant cannot silently lie in wait, while CPL 30.30 time expires, to raise an objection to the facial insufficiency of an information that was apparent at all times and then ask the court to charge the People ab initio." (Odoms, 143 Misc 2d at 505.)

This court respectfully disagrees. A "valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution." (People v Smalls, 26 NY3d 1064, 1066 [2015], quoting People v Dreyden, 15 NY3d 100, 103 [2010]; see also CPL 170.30, 170.35.) "Responsibility to confer upon the Criminal Court jurisdiction to try misdemeanor cases rests squarely upon the shoulders of the District Attorney." (People v Colon, 110 Misc 2d 917, 919-920 [Crim Ct, NY County {**58 Misc 3d at 616}1981] ["Like any other prosecuting litigant in an action of any nature . . . (the People) must file an accusatory instrument sufficient in its allegations to give the court reason to exercise its jurisdiction"], revd 112 Misc 2d 790 [App Term, 1st Dept 1982], revd 59 NY2d 921 [1983].) Thus, contrary to the People's contention, the defense has no burden to assist in ensuring that an accusatory instrument is without defect.

This court joins the holding of People v Vreeland (143 Misc 2d 141, 144 [Crim Ct, NY County 1989]) that

"[a]ssuming the People were proceeding in the mistaken good-faith belief that, prior to the determination of the jurisdictional defect, the instrument was valid, the policy question is raised as to where in such circumstances the burden should be placed—on the People or the defendant. In this court's view, the People have the responsibility for, and thus the burden of providing, a jurisdictionally valid instrument on which to proceed." (See also People v Worley, 66 NY2d 523, 527 [1985] ["In enacting CPL 30.30 the Legislature intended to impose an obligation on the People to be ready for trial"].)^[FN3]

The People's obligation—that they alone possess—to be ready for trial before the expiration of their "30.30 clock" incorporates the filing of a facially sufficient information. There is no "detrimental reliance" or "good faith" exclusion of time.

The defendant's procrastination in asserting the accusatory instrument's facial defects does not run counter to any statutory scheme. "CPL 30.30 . . . was specifically intended 'to address delays occasioned by prosecutorial inaction' "—not defense inaction. (People v Clarke, 28 NY3d 48, 52 [2016], quoting People v McKenna, 76 NY2d 59, 63 [1990].) Furthermore, because facial sufficiency (excepting a hearsay defect) is jurisdictional, it can be raised at any time during the pendency{**58 Misc 3d at 617} of a case or after a case has been adjudicated. It is not forfeited by plea and can be raised for the first time on appeal, even without preservation. (See People v Burca, 58 Misc 3d 147[A], 2018 NY Slip Op 50040[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018], citing inter alia People v Dreyden, 15 NY3d 100, 103 [2010].)

Additionally, any requirement that defense counsel assist the People in rooting out deficiencies of their own charging documents, and do so in time to preserve the continued prosecution of their client, would have the untenable effect of forcing defense attorneys to potentially harm the defendant and strain the attorney-client relationship. (See Rules of Professional Conduct [22 NYCRR 1200.0] rules 1.7 [a] [1]; 1.8 [b].)

"Responsibility to confer upon the Criminal Court jurisdiction to try misdemeanor cases rests squarely upon the shoulders of the District Attorney. Like any other prosecuting litigant in an action of any nature . . . [the People] must file an accusatory instrument sufficient in its allegations to give the court reason to exercise its jurisdiction." (People v Colon, 110 Misc 2d 917, 919-920 [Crim Ct, NY County 1981].)

In sum, an adjournment period, or a portion thereof, is not chargeable against the People if either of two specific conditions is met—(i) the prosecution is actually ready to proceed to trial and properly conveys that readiness to the court and defense counsel (see People v McCarthy, 146 AD3d 983 [2d Dept 2017]), or (ii) a legislatively-created exclusion applies. (See CPL 30.30 [4].) Otherwise, the time must be charged. Accordingly, this court finds that a statement of readiness based upon a good faith, but erroneous, belief of an accusatory instrument's sufficiency is illusory, and time is therefore chargeable to the People unless a basis for excludability exists in CPL 30.30 (4).

This court now makes a de novo calculation of chargeable and excludable times pursuant [*3]to CPL 30.30. Where, as here, the top count charged in an information is an unclassified misdemeanor punishable by incarceration of more than three months, the People must be "ready for trial within . . . ninety days of the commencement of [the] criminal action." (CPL 30.30 [1] [b].) A defendant has the initial burden of asserting that the{**58 Misc 3d at 618} People's "30.30 time" has expired. Thereupon, the burden switches to the People to demonstrate that certain periods within that time should be excluded pursuant to statutorily enumerated exemptions. (See CPL 30.30 [4]; People v Santos, 68 NY2d 859, 861 [1986]; People v Cantoni, 140 AD3d 782, 784 [2d Dept 2016].)

The Adjournment from May 16 to July 16, 2015

This case commenced with the defendant's arraignment on May 16, 2015. A motion schedule was ordered, and the matter was adjourned to July 16, 2015, for decision. This adjournment period is excluded. (See CPL 30.30 [4] [a].)

The Adjournments from July 16 to September 28, 2015; September 28 to November 12, 2015; and November 12, 2015, to January 21, 2016

During these adjournment periods, the defendant's motion remained sub judice. Accordingly, these times are excluded. (See id.)

The Adjournment from January 21 to April 13, 2016

In court on January 21, 2016, the court ordered a Dunaway/Huntley/Johnson/Mapp hearing, and the matter was adjourned to April 13, 2016, for the hearing. Because the information was facially insufficient (as this court found on Mar. 31, 2017), the People could not, as a matter of law, be ready to proceed to the hearing. However, since the case was adjourned for the first time for a hearing, the time period must, nevertheless, be excluded. (See People v Green, 90 AD2d 705 [1st Dept 1982].)^[FN4]

The Adjournments from April 13 to June 20, 2016, and June 20 to September 19, 2016

In court on April 13, 2016, the hearing was held, and the matter was adjourned to June 20, 2016, for a written decision. This adjournment is excludable. (See CPL 30.30 [4] [a].)

In court on June 20, 2016, the court's hearing decision was not yet ready for publication. The matter was adjourned to September 19, 2016, for trial, and the hearing decision was mailed to the parties in the interim. This adjournment period also is excludable as the defendant's suppression motion remained outstanding for decision. (See id.) Further, once the{**58 Misc 3d at 619} decision was rendered off-calendar, the People were entitled to exclusion of the remainder of the adjournment period to make themselves validly ready for trial.^[FN5] (See People v Cain, 291 AD2d 326, 327 [1st Dept 2002].)

The Adjournment from September 19 to November 30, 2016

In court on September 19, 2016, the People announced that they were ready for trial. Because the defense was not ready, the case was adjourned to November 30, 2016, for trial. [*4]However, as the information was facially insufficient, the People's statement of readiness was illusory, and per the legal analysis ante, this 72-day time period is charged to the People.

The Adjournment from November 30, 2016, to January 30, 2017

In court on November 30, 2016, the People were not ready for trial and requested December 7, 2016, for trial. The case was adjourned to January 30, 2017. However, as the People were never previously validly ready for trial, due to the facial insufficiency of the accusatory instrument, the time request is of no moment. This 61-day adjournment period is charged to the People.

The Adjournment from January 30 to February 27, 2017

In court on January 30, 2017, the People announced that they were ready for trial. Because the defense was not ready, this matter was adjourned to February 27, 2017, for trial. However, as the information was facially insufficient, the People's statement of readiness was illusory, and this 29-day time period is charged to the People.

The Adjournments from February 27 to March 31, 2017; March 31 to April 6, 2017; and April 6 to April 7, 2017

In court on February 27, 2017, the defendant filed and served a motion to dismiss the information as facially insufficient and pursuant to CPL 30.30. The motion remained sub judice during these adjournment periods, and they accordingly are excluded. (See CPL 30.30 [4] [a].)

The Adjournment from April 7 to May 5, 2017

In court on April 7, 2017, the decision dismissing the information as facially insufficient was published. Thereafter, on April 18, 2017, the People filed and served a superseding information and properly declared themselves ready to proceed to trial. The case was recalendared for May 5, 2017. The portion{**58 Misc 3d at 620} of the adjournment period prior to the April 18th filing is chargeable; the remainder is not. The 11-day time period is charged to the People.

The Adjournment from May 5 to June 2, 2017

In court on May 5, 2017, the defendant was not present, and the matter was adjourned for him to appear. This adjournment period is excludable. (See CPL 30.30 [4] [c] [i].)

The Adjournments from June 2 to September 21, 2017; September 21, 2017, to January 16, 2018; and January 16 to January 25, 2018

Off-calendar on June 1, 2017, the defendant filed and served the instant motion to reargue. This motion has remained sub judice ever since. This time period is excluded. (See CPL 30.30 [4] [a].)

Total Number of Chargeable Days

A total of 173 (0 + 0 + 0 + 0 + 72 + 61 + 29 + 0 + 11 + 0 + 0) chargeable days have elapsed since the commencement of this criminal action, more than the 90 days allotted pursuant to CPL 30.30 (1) (b). Accordingly, the portion of this court's decision and order, dated March 31, 2017, denying the defendant's motion to dismiss the two misdemeanor counts of Vehicle and Traffic Law § 1192 (2) and (3) is vacated. Upon reargument, the defendant's motion to dismiss the superseding information on statutory trial readiness grounds is granted.^[FN6]

Further, it is ordered that sealing of this case be stayed for 30 days.

However, in filing the superseding information, the People elected to not recharge the traffic infraction and, instead, to charge the DWI misdemeanors only. Accordingly, the entirety of the superseding information now must be dismissed.