Defendant is charged with assault in the third degree (Penal Law § 120.00 [1] - a class A misdemeanor); menacing in the second degree (Penal Law § 120.14 - a class A misdemeanor); criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [2] - a class A misdemeanor); menacing in the third degree (Penal Law § 120.15 - a class B misdemeanor); and, harassment in the second degree (Penal Law 240.26 [1] - a violation). The defendant now moves, pursuant to Criminal Procedure Law (CPL) §§ 30.30 (1) (b) and 170.30 (1) (e), for an order to dismiss the accusatory instrument on the grounds that the statutory rights to a speedy [*2]trial has been violated.

For the reasons set forth below, defendant's motion to dismiss the accusatory instrument on the grounds asserted is granted.

Defendant faces charges for which she could be imprisoned for more than three months. The People must, therefore, announce readiness for trial within ninety (90) days of the commencement of the criminal action, after deducting excludable periods. CPL § 30.30 (1) (b).

In determining whether the People have met their statutory burden in this case, the court has examined the defendant's motion, the People's affirmation in opposition to defendant's motion, defendant's reply and supplemental affirmation, the People's sur-reply, Official Court Transcripts and all applicable case law. The court finds as follows:

On November 1, 2016, the defendant appeared in criminal court as required by the Desk Appearance Ticket (DAT) that she was issued. The People were not ready and concede that they failed to file an accusatory instrument. The defendant was informed to return to criminal court on December 1, 2016. As the People now concede, they are chargeable for this time period (30 days).

On December 1, 2016, it is undisputed that the defendant was arraigned on a criminal court information and the People answered ready for trial. The case was adjourned to January 18, 2017, for trial. This adjournment is excludable (0 days).

On January 18, 2017, the People answered not ready for trial as the assigned assistant district attorney was in training. The People requested an adjourn date of January 23, 2017. The case was adjourned to February 28, 2017, for trial. In the post-readiness context, the People are only charged with the time that they request. People v Brown, 28 NY3d 392, 404 (2016). The People are charged with 5 days.

On February 28, 2017, the People answered not ready for trial. The Official Court Transcript for February 28, 2017 (pg. 5; line 25; pg.6, lines 1-14) reads on the record as follows:

MR. OXENREITER: Your Honor, may I make a record as well?

That is correct, I do believe Mr. Hamburg was informed that we were looking for medical records. With that having been said, we would have been ready today if the complaining witness was available, so there is no sleight (sic) of hand here.

THE COURT: So you need no medical records, all you need is a complaining witness?

MR. OXENREITER: That's correct, your Honor.

MR. HAMBURG: Just very briefly, the complaining witness was never going to be available today because the People told her she didn't need to be here.

THE COURT: Understood. We just need a date on the record now.

The People requested March 9, 2017, as a date that they would be ready, and the court adjourned the case until March 30, 2017, for trial. In the post-readiness context, the People are only charged with the time that they request. People v Brown, 28 NY3d at 392, supra. (10 days).

On March 30, 2017, the People answered ready for trial. Defense counsel requested an adjournment to review discovery that was served on the record. The case was adjourned to June 29, 2017, for trial. This adjournment is excludable. (0 days).

On June 29, 2017, at the first calendar call, the ADA standing on the case stated that the People were not ready for trial and requested an adjournment to June 30, 2017, as the assigned ADA was on nights on June 29th. The case was adjourned to July 7, 2017 for a "trial Friday" as [*3]the ADA standing up on the case mistakenly thought that the People were pursuing a bench trial. The date of July 7, 2017 was selected to accommodate the defendant's schedule as she had to work on June 30th and she would be out of the country from July 10th to September 4th. The People stated that the complainant was "leaving New York City for basic training on July 12 and will not be finished with basic training until November 10." Official Court Transcript pg. 3, lines 3-7.

Later that same day, subsequent to clarification via a phone conversation with the assigned ADA and the assigned defense counsel, the defense requested the court to second call the case having reconfirmed that the People would be conducting a jury trial in the instant case, not a bench trial.

The Official Court Transcript for June 29, 2017 (Official Court Transcript: pg. 5, line 25; pg. 6, lines 1-24) reads (at the second call) as follows:

MR. HAMBURG: Good afternoon, Judge. Daniel Hamburg on behalf of Miss Flores from the Bronx Defenders.

I asked for this recall because I was engaged earlier in the morning and only just able to make it up here now. My client already left for work after her case was adjourned to, the 7th, does not work for me.

After having spoke to the Assigned for the People over the phone, I think that the only thing that works for both sides is actually to adjourn the case in November. I can explain if we can approach.

MS. GARY: Jade Gary for the People.

Your Honor, it seems we're going to pursue this case as a jury trial, not as a bench trial, so that would require a little bit more time than we anticipated; and, obviously, we don't do jury trials on a trial Friday, so that changes circumstances, because this case was adjourned to a trial Friday.

THE COURT: What date in November, then?

MR. HAMBURG: November 6?

THE COURT: People, does that date work for you?

MS. GARY: We made the record during the previous call that the complaining witness is going to be on leave until November 10, so it would have to be after that date.

MR. HAMBURG: November 13 is fine.

MS GARY: That works for the People, as well.

The Court of Appeals stated, citing People v Smith, 82 NY2d 676 (1993),

Contrary to defense counsel's assertion that the record lacks clarity, this court finds that not only did defense counsel participate in the adjourn date selection, but the record reflects that he specifically requested the case to be recalled by the court, to set an adjourn date in November, since the adjourn date on the first call he stated, " did not work for me." (Official Court Transcript: pg. 6, lines 2-6). He expressly voiced on the record his request to select a date "that works for both sides", to wit, "November". Defense counsel then requested November 6th; and [*4]agreed to the later date of November 13th. Defense counsel stated on the record, "November 13 is fine." p.6, line 24, supra.

This court finds that the People are chargeable with June 29th, 2017, the day the People answered not ready and requested one day, to wit, June 30th , 2017. (1 day chargeable). People v Brown, 28 NY3d at 392, supra. Additionally, this court finds that the remainder of the adjournment is further excludable as an adjournment specifically requested and expressly consented to by the defendant. People v Barden, 27 NY3d at 554; CPL§ 30.30 (4) (b).

On November 13, 2017, the People were not ready for trial. The Official Court Transcript indicates that the People took the position that this adjournment is excludable pursuant to CPL § 30.30 (4) (g) (i). The People argued on the record that, "[t]he complaining witness in this case is in military training and, pursuant to People v Thompson, it's the People's position that that time is not chargeable." Official Court Transcript pg. 2, lines 20-23. The case was adjourned to January 17, 2018, for trial at the request of the People. Official Court Transcript pg. 4, lines 7-8.

Here, the People have submitted documentary proof in their sur-reply ( People's Exhibit A) that, with patient discernment, this court deciphered that on November 13, 2017, the complaining witness was on military training duty until December 1, 2017. Subsequent to that, the complaining witness was under instruction to report to the George H. W. Bush Naval Ship no later than December 20th, 2017.

In viewing the evidence presented here in the light most favorable to the People, this court finds that this adjournment is excludable as an "exceptional circumstance", and that the People reasonably believed January 17, 2018, was a date that the complainant would become available and the People would be ready for trial (0 days). CPL § 30.30 (4) (g) (i).

On January 17, 2018, the People were not ready for trial, and stated that the adjournment was excludable, pursuant to CPL § 30.30 (4) (g) (i), as the complainant was on active military service. Official Court Transcript for January 17, 2018, pg. 2, lines 12- 20. The People and defense counsel agreed to an adjourn date of April 17th, 2018. Defense counsel stated on the record that the complainant was seen by the defendant in defendant's neighborhood as recently as yesterday. ( Official Court Transcript pg. 7, lines 11-19). The court directed the People to make a note of the complainant allegedly being observed in New York and raising the issue as to whether or not she is on active duty. Official Court Transcript pg. 8, lines 4-8.

The People responded affirmatively, the court reiterated that the matter was adjourned for trial on the date of April 17, 2018, and, thereafter, the People made the following record (Official Court Transcript, pg. 8, lines 9-24):

MS. JOHNSTON: For the record, in the event that it is found that the People's adjournment isn't excludable, the People state for the record that we would be ready on February 19.

THE COURT: You're requesting February 19?

MS. JOHNSTON: Yes.

THE COURT: You claim it's excludable, but in the event —

MS. JOHNSTON: In the event I would like to cover my bases.

In this court's view, the documentary proof submitted with respect to this adjournment lends nothing to making a clear record as to the complainant's asserted unavailability due to [*5]military leave during this time period. This court informed the People on the record (Official Court Transcript July 19, 2018, pg. 4, lines 5-25; pg. 5, lines 1-10), that the People were to submit clear proof of the complainant's military leave to support their "exceptional circumstance" exclusions. The pertinent record reads as follows:

THE COURT: But what I want to make abundantly clear, before I get to that, because I don't want the People to be caught off guard — I mean, I would have expected that proof would already exist somewhere in my file since the People are relying on it as a 30.30 exception.

If it's in my file , you know, through diligent efforts by the court, by myself and my court attorney, we have not found it. So, at this point, I'm telling you, on the record — does counsel have any documented proof that you're aware of?

MS. MAUKSCH: Your Honor, based on the information I have from Mr. Hamburg and what I am —and if gleaning from the Court's record, it seems like Mr. Hamburg's motion calls into question, you know, whether the People have provided any such proof.

THE COURT: Right.

MS. MAUKSCH: I haven't read the motion myself, but —

THE COURT: So the People are being put on clear and [un]ambiguous [sic] notice, A, of the Court's concern and, B, of the potential 30.30 implications and consequences, should the People not — and, you know, this is a 2016 case. As far as I'm concerned, that proof should have already been in the file, but I am giving you an extra week. You know, so when I look at that surreply that's due on July 26th and I don't see that proof then my sense is, right now, that I'm going to be charging you the time and you know what the consequences are. So I want that abundantly clear today to Mr. Strauss.

MR.GILBERT: Understood.

Despite this record, this court finds that the documentation (People's Exhibit A) presented by the People in their sur-reply is inadequate to support their contention that the complaining witness was on military leave during this adjournment. There is no documentary proof that the complainant was on military duty on January 17, 2018, and if there was evidence, which there is not, the question remains not only when did military duty commence, but also when did it terminate within this specific adjournment.^[FN2]

Furthermore, the record reflects that the People questioned their ability to prove the "exceptional circumstance" exception for this adjournment. The People, on the Official Court [*6]Transcript of January 17, 2018, pg.4, line 14, clearly stated that April 17, 2018, is a date that "works for us". It is not until the court directs the People to make a note of the complainant's alleged appearance in the defendant's neighborhood, that the People state that in the event this adjournment is found not to be excludable, "the People state for the record that we would be ready on February 19." Official Court Transcript pg. 8, lines 15-17. The People stated that they are requesting February 19th, because "in the event I would like to cover my bases." Official Court Transcript pg. 8, line 24.

It is imperative for this court to clearly state that the statutory speedy trial guarantees, pursuant to CPL § 30.30, were not legislated to "cover the [People's] bases". Id. The legislature intended to ensure, via § 30.30, that a legal prosecution would be brought to trial in an efficient and effective manner as soon as possible, without delay. The record declaration of applying this statute for other than it's intended purpose renders a record statement of readiness illusory, as argued by the defendant in his instant motion. This court agrees and will not permit the rule of law to be applied for reasons other than its intended purpose.^[FN3]

Having failed to submit documentary proof of military duty for the complainant, as directed, this court, having found the People's record declaration of readiness on February 19th illusory and in contravention to the intent of the speedy trial statute, for the reasons stated, charge the People with the entire adjournment (90 days).

On April 17, 2018, the People answered ready for trial. The court stayed a bench warrant for the defendant. The case was adjourned to April 26, 2018, for trial. This adjournment is excludable (0 days).

On April 26, 2018, the People answered ready for trial. Defense counsel requested the instant speedy trial motion schedule. The case was adjourned to June 27, 2018, for decision and trial. This adjournment is excludable (0 days). CPL§ 30.30 (4) (a).

On June 27, 2018, the court noted that the People filed and served their response on June 26, 2018, and that the defendant had been a week late in filing the defense motion. The court also set a date for the defendant to reply to the People's response. The case was adjourned to July 19, 2018, for decision. On July 19, 2018, the court granted the People an additional week's time to file and serve a sur-reply. The case was adjourned to August 8, 2018, for decision. This adjournment is excludable (0 days). CPL§ 30.30 (4) (a).

In total, the People are charged with 136 days, which exceeds the allowable time period set forth in CPL § 30.30 (1) (b).

Accordingly, defendant's motion to dismiss the accusatory instrument on the ground that the statutory right to a speedy trial has been violated is granted.

This opinion constitutes the decision and order of the court.