Criminal Court of the City of New York, Bronx County, November 13, 2018

David Berlin, New York City, for defendant.

Darcel D. Clark, District Attorney, Bronx (Stephanie J. McCarthy of counsel), for plaintiff.

By motion, filed on September 14, 2018, the defendant moves to dismiss the instant proceeding pursuant to CPL 30.30. The People by affirmation filed on October 18, 2018, oppose defendant's motion.

Having reviewed the parties' submissions, the court file, relevant statutes, and case law, the court finds as follows:

The relevant portion of the information reads as follows:

"PO ASHLYN RODRIGUEZ of 40 PCT, Shield No. 3458, states that on or about May 28, 2018 at approximately 10:30 AM rear of 574 East 138th Street, County of the Bronx, State of New York,

"THE DEFENDANT COMMITTED THE OFFENSES OF:

"1. (M) P.L. 145.00 (1) Criminal Mischief 4^ DQO

"1. (V) P.L. 240.26 (1) Harassment 2^."

To establish a violation under CPL 30.30, a defendant must demonstrate the existence of a delay in excess of the statutory time period. (People v Santos, 68 NY2d 859, 861 [1986].) Upon meeting this burden, the burden shifts to the People to establish that certain periods within that time period should be excluded pursuant to CPL 30.30 (4). (See People v Fields, 214 AD2d 332 [1st Dept 1995].)

Here, the defendant is charged with criminal mischief in the fourth degree in violation of Penal Law § 145.00 (1), and harassment in the second degree in violation of Penal Law § 240.26 (1). The top charge is criminal mischief in the fourth{**63 Misc 3d at 628} degree pursuant to Penal Law § 145.00 (1), which is a class A misdemeanor.

Accordingly, pursuant to CPL 30.30:

"1. Except as otherwise provided in subdivision three, a motion made pursuant to paragraph (e) of subdivision one of section 170.30 or paragraph (g) of subdivision one of section 210.20 must be granted where the people are not ready for trial within: . . .

"(b) ninety days of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony."

Consequently, the prosecution in the instant matter was required to be ready for trial within 90 days, less any excusable time. (CPL 30.30 [1] [b]; see People v Rosenblatt, 49 Misc 3d 372, 373 [Crim Ct, Kings County 2015].) The 90 days commences with the filing of the accusatory instrument. (See CPL 1.20 [17]; see also People v Stirrup, 91 NY2d 434, 438 [1998].) However, the actual date of the filing of the accusatory instrument is not includable in the CPL 30.30 calculation. (People v Stiles, 70 NY2d 765 [1987].)

In People v Kendzia, the Court of Appeals held under CPL 30.30 (1), "ready for trial" means "a statement of readiness by the prosecutor in open court, transcribed by a stenographer, or recorded by the clerk or a written notice of readiness sent by the prosecutor to both defense counsel and the appropriate court clerk" (64 NY2d 331, 337 [1985]). In the event that the statement of readiness is made in the absence of defense counsel, which would encompass the off-calendar written statement under consideration herein, "the prosecutor would have to promptly notify [defense counsel] of the statement of readiness." (Id. at 337 n [emphasis added].) "Readiness requires more than simply 'mouthing' the words"; it requires the People to do "all that is required of them to bring the case to a point where it may be tried." (People v Sibblies, 22 NY3d 1174, 1177 [2014].) Effective readiness also requires the filing of a jurisdictionally sufficient accusatory instrument. (See People v Acosta, 249 AD2d 161 [1st Dept 1998], lv denied 92 NY2d 892 [1998]; see also People v Brooks, 190 Misc 2d 247 [App Term, 1st Dept 2001]; People v Matthew P., 26 NY3d 332, 335 [2015].){**63 Misc 3d at 629} The People's "failure to declare readiness within the statutory time limit will result in dismissal of the prosecution, unless the People can demonstrate that certain time periods should be excluded." (People v Price, 14 NY3d 61, 63 [2010].) Once a defendant sufficiently alleges that the People were not ready within the statutory period, "the [*2]People [have] the burden of showing their entitlement to a statutory exclusion" (People v Luperon, 85 NY2d 71, 81 [1995]; see People v Santos, 68 NY2d 859, 861 [1986]).

May 29, 2018—July 16, 2018

Defendant was arraigned on May 29, 2018, and was released on his own recognizance with the consent of the People. The case was adjourned to July 16, 2018, for conversion, as the People stated they were not ready on May 29, 2018. The People are charged for the entire period of delay prior to asserting their readiness unless there is a specific exclusion of the time under CPL 30.30 (4) that prevents the People from being able to assert their readiness (see People v Cortes, 80 NY2d 201, 213 [1992]; People v Correa, 77 NY2d 930, 931 [1991]). In the instant proceeding, the People never asserted their readiness on the record on May 29, 2018, and no specific exclusion of time under CPL 30.30 (4) applies to the respective time period. Accordingly, 48 days should be charged to the People. The People have not contested this.

48 Days Charged (Total = 48 Days)

July 16, 2018—September 4, 2018

On July 16, 2018, the People were not converted, and the case was adjourned to September 4, 2018, for conversion. On August 10, 2018, the People filed a supporting deposition and a notice of readiness with the court. It is undisputed that the People should be charged for the time period prior to asserting their readiness. (See People v Cortes, 80 NY2d 201, 213 [1992]; People v Correa, 77 NY2d 930, 931 [1991].) Accordingly, the People are charged from July 16, 2018, through August 10, 2018, totaling 25 days chargeable to the People for the time period prior to asserting their readiness. The People have not contested this.

The question before this court is whether the People should be charged with the time period after the People filed the supporting deposition and the notice of readiness with the court on August 10, 2018, until September 4, 2018, when the defendant{**63 Misc 3d at 630} alleges to have become aware of the People's readiness at the court appearance on that date.

Specifically, the defendant moves this court for an order dismissing the instant case pursuant to CPL 170.30 (1) (e) and 30.30 on the ground that his speedy trial rights have been violated. The defendant asserts that although the People filed a superseding information and notice of readiness with the court on August 10, 2018, they mailed it to defense counsel's former address, which had not been his address since 2014, and this failure to effectuate proper service on the defendant is fatal to any claim the People might make that they were ready for trial. Defense counsel asserts that he did not receive the superseding information or the People's notice of readiness and did not become aware of said documents and the People's claim of readiness until he was provided with same in court on September 4, 2018.

Defense counsel further asserts that the notice of appearance contained in the court file, dated May 29, 2018, clearly shows his current, correct address located at 207 East 94th Street, Mezzanine Level, New York, NY 10128. However, the People's affidavit of service indicates that the supporting deposition and notice of readiness were mailed to 25 West 43rd Street Suite 711, New York, NY 10036, an address that defense counsel states has not been his address since April 2014. The defendant argues that the People's failure to serve defense counsel at the proper address within the 90 days required by law is fatal to any claim the People might make that they were ready for trial and for this reason the case should be dismissed.

The People by affirmation oppose defendant's motion and deny defendant's allegations contained therein. The People assert that they filed and served a statement of readiness off-calendar on August 10, 2018, along with a supporting deposition and affidavit of translation, and converted all counts of the information as of that date. (The People incorrectly reference five counts in their affirmation in opposition, but there are only two counts charged in the complaint/information.) The People further assert that the address they had for defense counsel was the address the Bronx District Attorney's office database lists as defense counsel's address and attach one undated page of the purported list to their affirmation in opposition as exhibit B. The People further argue that courts have held that mailing a statement of readiness off-calendar to a defense counsel's former address was still effective notice, as the statement{**63 Misc 3d at 631} accurately reflects the People's position and it was sent in good faith, citing People v Clark (31 Misc 3d 152[A], 2011 NY Slip Op 51135[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]); People v Carter (91 NY2d 795, 799 [1998]); and People v Vaughn (36 AD3d 434 [1st Dept 2007]).

The court is not persuaded by the People's argument and finds that the People did not act in good faith when they mailed the notice of readiness to defense counsel's former address, when the People had actual notice of defense counsel's correct address through a valid notice of appearance filed with the court at the inception of the case, and available in the court file for the People to review.

Defense counsel availed himself of "the most direct and foolproof method to inform the People of his new address, i.e., either stating the change on the record or filing a notice of appearance" (see People v Tejada, 59 Misc 3d 422, 425 [Crim Ct, NY County 2018]).

Uniform Rules for Trial Courts (22 NYCRR) § 200.5, appearance of counsel in criminal actions, 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" (emphasis added). (See also People v Burroughs, 35 Misc 3d 1209[A], 2012 NY Slip Op 50638[U] [Sup Ct, NY County 2012].) "This requirement not only places the court on notice of who represents a particular defendant for its own very important administrative purposes, which includes notifying the correct attorney of court decisions, or other action, but it also provides the same notice to the People." (2012 NY Slip Op 50638[U], *3 [emphasis added].)

Here, defense counsel complied with 22 NYCRR 200.5 and filed a valid notice of appearance at arraignments on May 29, 2018, which contained his current, correct address, providing the People with actual notice of defense counsel's correct address. Notably, the People do not allege that they even attempted to verify defense counsel's address in the most simple, reliable way they could have, by checking the court file for the notice of appearance. They provide no explanation for their failure to do so. They relied instead on their internal office list, which is clearly outdated. The People give no indication of how often the list is updated.

The court cannot find that the People acted in good faith when they had actual notice of defense counsel's correct address{**63 Misc 3d at 632} when he filed a valid notice of appearance at the defendant's arraignment, and it has remained stapled to the court file and readily available to the People ever since. While the criminal court has held that "[t]he Defendant should not suffer because the People's mistake was made in 'good faith' " (People v Chittumuri, 189 Misc 2d 743, 747 [Crim Ct, Queens County 2001]), in this case the People have not demonstrated good faith.

The People cite several cases in support of their position that mailing a statement of readiness off-calendar to defense counsel's former address was effective notice, as the statement accurately reflects the People's position and it was sent in good faith including People v Clark (31 Misc 3d 152[A], 2011 NY Slip Op 51135[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]); People v Carter (91 NY2d 795, 799 [1998]); and People v Vaughn (36 AD3d 434 [2007]). However, the facts in the instant matter are clearly distinguishable.

In People v Carter, the People sent letters to the defendants at their last-known addresses (noted on the felony complaint) apprising them of their right to testify before a grand jury. The Court of Appeals held that the People made an effective statement of readiness prior to each defendant's arraignment, finding that the People filed the indictment, announced their readiness on the record, and attempted to notify defendants by sending letters to their last-known addresses, the only addresses they had for the defendants. The Court of Appeals held there that "[i]n the absence of proof that the readiness statement did not accurately reflect the People's position or that the mailing was made in bad faith, the People discharged their duty under CPL 30.30." (People v Carter, 91 NY2d 795, 798-799 [1998] [citations omitted].)

The facts in the instant matter are distinguishable from those in People v Carter in many ways, but most significantly, the defendant here is represented by counsel, and the People had actual notice of his current address when he filed a notice of appearance in arraignments with his current, correct address, in accordance with 22 NYCRR 200.5. For the People to have relied on an outdated, internal database list in the Bronx District Attorney's office instead of the most current information available to them, contained in the court file, demonstrates bad faith, not good faith in their efforts to serve defendant's attorney with the notice of readiness. While the People may have met the first requirement set forth in Carter for proper service{**63 Misc 3d at 633} of a notice of readiness, that it accurately reflect their position of readiness, they have failed to meet the second, that the mailing must not have been made in bad faith.

Likewise, the facts here are distinguishable from those in People v Vaughn, in which counsel conceded that there was no bad faith on the part of the People. In the instant matter there has been no such concession. Defendant maintains that the People's failure to properly serve counsel, when they had his current, correct address, warrants dismissal of the charges against him. Good faith by the People has not been conceded.

Based on the foregoing, this court finds that the People did not act in good faith by mailing the notice of readiness to defense counsel's former address when the People had actual notice of defense counsel's correct address through a valid notice of appearance. Thus, the People are charged with the 25 days from July 16, 2018, until August 10, 2018, and the 25 days from August 10, 2018, until September 4, 2018, totaling 50 days chargeable to the People.

50 Days Charged (Total = 98 Days)

September 4, 2018—October 18, 2018

On September 4, 2018, defense counsel argued he was not properly served with the People's notice of readiness and requested a motion schedule to file a motion pursuant to CPL 30.30. The court provided the parties with a motion schedule, defense was to file a motion on or before September 18, 2018, and the People were to submit a response on or before October 2, 2018. The case was adjourned to October 18, 2018, for response and decision. Thus, the People are not charged for an adjournment period granted for motion practice pursuant to CPL 30.30 (4) (a) and People v Brown (227 AD2d 237 [1st Dept 1996]).

0 Days Charged (Total = 98 Days)

October 18, 2018—November 13, 2018

On October 18, 2018, the parties appeared for a decision on defendant's pending motion. However, the People failed to timely submit their opposition on or before October 2, 2018, and instead filed and served their affirmation in opposition in court on October 18, 2018. The People provided no reasonable explanation for the delay in filing their response. As a result, the court charged the People for their delay in filing their response. (See People v Reid, 245 AD2d 44 [1st Dept 1997], lv denied 91 NY2d 1012 [1998] [People were properly charged{**63 Misc 3d at 634} with 20 days of delay for failing to respond to motion on originally scheduled date]; see also People v Bonilla, 94 AD3d 633, 634 [2012].)

16 Days Charged (Total = 114 Days)

For the foregoing reasons, the People are charged with 114 days, which exceeds the 90-day requirement within which the People must announce their readiness for trial pursuant to CPL 30.30 (1) (b). Accordingly, the defendant's motion to dismiss pursuant to CPL 30.30 is granted.

Given the dismissal of this matter, the remaining branches of defendant's motion are hereby deemed moot.