Criminal Court of the City of New York, Kings County, April 14, 2020

Brooklyn Defender Services (Lawrence Campbell of counsel) for defendant.

Eric Gonzalez, District Attorney (Taaj Robinson of counsel), for plaintiff.

The defendant, charged with assault in the third degree (Penal Law § 120.00 [1]); menacing in the second degree (Penal Law § 120.14 [1]); criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [2]); attempted assault in the third degree (Penal Law §§ 110.00, 120.00 [1]); menacing in the third degree (Penal Law § 120.15); and harassment in the second degree (Penal Law § 240.26 [1]), now moves for an order dismissing the information pursuant to CPL 30.30 (1) (b).

After careful review of the defendant's motion, the People's response, and all relevant legal authority, the motion to dismiss is denied. The court finds that 54 chargeable days have accrued since arraignment.

July 11, 2019—August 13, 2019

On July 11, 2019, the defendant was arraigned on a misdemeanor complaint on which the highest charge was a class A misdemeanor, punishable by a maximum imprisonment term of one year. Thus, the People had 90 days to be ready to proceed to trial. (CPL 30.30 [1] [b].) The defendant was released on his own recognizance and the case was adjourned to August 13, 2019, for conversion. On August 6, 2019, the People served and filed a statement of readiness along with a supporting deposition from Shaughnessy Brown.

26 chargeable days.

August 13, 2019—September 18, 2019

On August 13, 2019, the People maintained their readiness for trial and the case was adjourned for discovery by stipulation to September 18, 2019. Because adjournments for discovery are designated in the statute as "other proceedings concerning the defendant," this time period is excludable from the 30.30 calculation. (See CPL 30.30 [4] [a]; People v Dorilas, 19 Misc 3d 75 [App Term, 2d Dept, 2d & 11th Jud Dists 2008].)

0 chargeable days.

September 18, 2019—October 16, 2019

On September 18, 2019, the People served discovery materials on the defendant and the case was adjourned to October 16,{**67 Misc 3d at 652} 2019, for hearings and trial. Under the rules for calculating speedy trial time as they existed in 2019, this adjournment is excludable pursuant to People v Reed (19 AD3d 312 [1st Dept 2005]) and People v Greene (223 AD2d 474 [1st Dept 1996]). (But see People v Collins, 190 Misc 2d 72 [App Term, 2d Dept 2001].)

0 chargeable days.

October 16, 2019—October 30, 2019

On October 16, 2019, the People were not ready for trial because the arresting officer was not available and requested 13 days. The case was adjourned to October 30, 2019, for hearings and trial. Because the People had previously announced their readiness to proceed, they are not charged for the time period of the adjournment in excess of the time they requested. (People v Nielsen, 306 AD2d 500 [2d Dept 2003]; People v Williams, 229 AD2d 603 [2d Dept 1996].)

13 chargeable days.

October 30, 2019—December 5, 2019

On October 30, 2019, the People stated they were ready for trial. Defense counsel was not ready for trial and requested an adjournment, and also requested some outstanding discovery materials. The case was adjourned to December 5, 2019, for hearings and trial. Because this adjournment was at the request of defense counsel, it is excluded from the speedy trial calculation. (CPL 30.30 [4] [b]; see also People v Worley, 66 NY2d 523 [1985].)

0 chargeable days.

December 5, 2019—January 15, 2020

On December 5, 2019, the People initially announced ready for trial. However, later that day, the People withdrew that statement of readiness because subsequent to announcing ready for trial, the assigned Assistant District Attorney (ADA) learned that the arresting officer, whom the People intended to call as a witness at the pretrial hearing, had in fact been wearing a body camera at the time of the arrest. The People had not yet obtained the footage from that body-worn camera, and also had not been able to provide a copy to defense counsel. The People requested that the case be adjourned to the following Monday, which was December 9, 2019. Defense counsel indicated that he was awaiting phone records which he had subpoenaed; additionally, defense counsel raised the belief that the complainant had previously received psychiatric treatment{**67 Misc 3d at 653} and the People were directed to look into that matter. The case was then adjourned to January 15, 2020, for hearings and trial. The People served and filed a statement of readiness for trial off-calendar on December 20, 2019. In the People's response to the defendant's motion to dismiss, the People concede that they should be charged 15 days for this adjournment.

15 chargeable days.

The law of the State of New York has long required that the People announce their readiness for trial only when they are actually prepared to proceed. The Court of Appeals has repeatedly reaffirmed the test for trial readiness as contemplated by CPL 30.30: it "means both a communication of readiness by the People on the record and an indication of present readiness" made at a time when the People are actually ready for trial. (People v England, 84 NY2d 1, 4 [1994].) Consequently, "the statement 'ready for trial' contemplates more than merely mouthing those words." (Id. at 5.)

While the specific actions that must be taken by an individual prosecutor in order to be ready for trial will necessarily vary from case to case, at a minimum, the People must "have done all that is required of them to bring the case to a point where it may be tried." (Id. at 4, citing People v McKenna, 76 NY2d 59, 64-65 [1990].) Prior to January 1, 2020,

"present readiness for trial is established when the People have a valid accusatory instrument upon which the defendant may be brought to trial, where the People have complied with their obligation to produce for trial a defendant in their custody and where the People have complied with all pending proceedings required to be decided before trial can commence." (People v Caussade, 162 AD2d 4, 8 [2d Dept 1990] [citations omitted].)

Readiness is not satisfied merely by walking through a mechanical checklist; trial readiness also contemplates an individual prosecutor who is actually prepared to try the case. More than "merely mouthing [the] words," a prosecutor cannot announce ready unless he is presently ready to begin trial. (England at 5.) Accepting otherwise would be to permit "readiness in the air, without readiness on the ground." (People v Sibblies, 22 NY3d 1174, 1178 [2014, Lippman, Ch. J., concurring].)

On January 1, 2020, new legislation took effect that imposed additional discovery requirements on the People before they{**67 Misc 3d at 654} can be deemed ready for trial. In addition to the long-standing requirements that the People only announce ready for trial when actually and presently ready for trial, the new legislation created, as a prerequisite for trial readiness, a requirement that the People certify their good faith compliance with the discovery obligations of the newly enacted CPL article 245. (CPL 30.30 [5].)

Legislative amendments that take effect during the pendency of a case apply to subsequent proceedings (see Simonson v International Bank, 14 NY2d 281, 289 [1964]), but do not serve to invalidate prior proceedings (see Matter of Berkovitz v Arbib & Houlberg, Inc., 230 NY 261, 270 [1921]; Charbonneau v State of New York, 148 Misc 2d 891 [Ct Cl 1990]). Therefore, the changes in the law that took effect on January 1, 2020, do not invalidate the People's previous statements of readiness. However, beginning on January 1, 2020, the People reverted to a state of unreadiness and could not be deemed ready until filing the proper certificate of compliance required by CPL 245.50. This court has previously held that, because the legislature has deemed 15 days a reasonable period of time for the People to comply with their discovery obligations under CPL 245.10 (1), that 15 days are excludable from the speedy trial calculation pursuant to CPL 30.30 (4) (a). (People v Roland, 67 Misc 3d 330 [Crim Ct, Kings County 2020].) Consequently, the People had 15 days from January 1, 2020, the effective date of the legislation, to serve and file a certificate of compliance and announce ready for trial.

January 15, 2020—February 18, 2020

The People did not have a certificate of compliance on January 15, 2020, because they had just determined the specifics of their complaining witness's prior psychiatric treatment, and needed time to obtain those records. The People stated that they had previously asked the complainant whether she had ever received psychiatric treatment, which she denied on at least two occasions. (People's affirmation ¶ 9.) The complainant first disclosed to the People on January 13, 2020, that she had in fact received prior psychiatric treatment. (Id. ¶ 11.)

The case was adjourned to February 18, 2020, for the People to serve and file a certificate of compliance. On February 14, 2020, the People submitted an affirmation in support of an extension of time to comply with discovery under CPL 245.10 (1) (a), stating that the complainant's psychiatric records were not within the People's actual possession despite diligent, good{**67 Misc 3d at 655} faith efforts. The People detailed those efforts in the February 14 affirmation and the court concludes that once the People learned of the complainant's psychiatric treatment, the People did indeed make diligent, good faith efforts to obtain those records. The complainant, as a civilian witness, was under no special obligation to provide information to the People, and information held by civilian witnesses is not imputed to the knowledge of the prosecution, as the same information would be if the witness were a member of law enforcement. (Compare CPL 245.55 [1], [2].)

Nor was it immediately apparent from the outset of the case that these psychiatric records existed or could contain material information. The complainant in this case obtained a brief [*2]course of psychiatric treatment roughly one month after the incident charged in this case. Her treatment did not coincide with the date of the incident charged, nor was she hospitalized for a prolonged period during the pendency of the case such that the assigned ADA was not able to communicate with her. In the face of the complainant's repeated denials that she had undergone psychiatric treatment, it is reasonable that the assigned ADA accepted them. Certainly, the People would have been hard-pressed to try to obtain psychiatric records they could not confirm existed in the absence of crucial information, such as the facility where the treatment was provided and the dates of treatment, that was known only to the complainant. Once the People did obtain the necessary information, the assigned ADA acted diligently to obtain a subpoena for the necessary records, and communicated regularly with the treatment provider to ensure timely receipt of the records. The People are entitled to an additional 30 days to complete discovery "[w]hen the discoverable materials, . . . despite diligent, good faith efforts, are otherwise not in the actual possession of the prosecution." (CPL 245.10 [1] [a].) Following the analysis of People v Roland (67 Misc 3d 330 [Crim Ct, Kings County 2020]), the court deems this 30-day period to have been reasonable in the instant matter, and therefore excludable pursuant to CPL 30.30 (4) (a).

The 30-day extension of CPL 245.10 (1) (a) is applicable in the absence of a motion from the People. On the 30th day, February 14, 2020, the People served and filed an application to modify the time period for discovery, pursuant to CPL 245.70 (2). An attached affirmation detailed the People's ongoing efforts to obtain the complainant's psychiatric records. The court{**67 Misc 3d at 656} retains the authority to alter the time periods for discovery, upon motion of a party, where there is a showing of good cause. (CPL 245.70 [2].) The court finds good cause exists in this case, where the People were acting diligently to obtain psychiatric records for the purpose of locating existing exculpatory information. The principal purpose of the People seeking the psychiatric records was for the benefit of the defendant, and not to bolster the People's case. In essence, the People here acted in the true spirit of their obligation to seek potentially exculpatory evidence. Therefore, this time period is excludable.

0 chargeable days.

February 18, 2020—February 25, 2020

On February 18, 2020, the People did not have a certificate of compliance because the People were still awaiting the complainant's psychiatric records. The People requested seven days to obtain those records. Defense counsel also requested the contact information for various witnesses named in previously disclosed materials, pursuant to CPL 245.20 (1) (c), and the People agreed to provide that information. The case was adjourned to February 25, 2020, for the People's certificate of compliance. For the reasons stated above, this time period is excludable pursuant to CPL 245.70 (2).

0 chargeable days.

February 25, 2020—March 30, 2020

On February 25, 2020, the People served and filed a certificate of compliance and announced ready for trial. Defense counsel filed the instant motion to dismiss and a motion schedule was set for the People's response and the court's decision. The case was adjourned to March 30, 2020, for decision, hearings and trial. Adjournments for the purpose of deciding a pretrial motion are excludable. (CPL 30.30 [4] [a].)

0 chargeable days.

As a result, the court finds a total of 54 days chargeable to the People, and therefore the People have not exceeded their allowable CPL 30.30 (1) time. For the foregoing reasons, the defendant's motion seeking an order of dismissal is denied.