City Court of Utica, July 30, 2020

Anthony F. Brigano, Utica, for defendant.

Scott D. McNamara, District Attorney (Kimberly R. Sudakow of counsel), for plaintiff.

The defendant was charged with the following offenses on the date specified therein:

Docket No.: CR-06113-19

On or about August 4, 2019, the defendant was charged with the following offenses:

1. harassment in the second degree in violation of Penal Law § 240.26 (1)

2. criminal mischief in violation of Penal Law § 145.00 (1)

3. criminal obstruction of breathing in violation of Penal Law § 121.11 (a).

Docket No.: CR-06554-19

On or about August 15, 2019, the defendant was charged with the following offense:

1. criminal mischief in violation of Penal Law § 145.00 (1).

Docket No.: CR-09080-19

On or about December 1, 2019, the defendant was charged with the following offense:

1. criminal contempt in the second degree in violation of Penal Law § 215.50 (3).

On June 15, 2020, the defendant filed a "Notice of Motion" along with an attorney affirmation seeking the following relief:

1. dismissal of the charges based upon the defendant being denied the right to speedy trial pursuant to CPL 30.30 (1) (b) and 170.30 (1) (e);

2. such other and further relief as the court may deem appropriate.

The defendant argues pursuant to CPL 30.30 and 170.30 (1) (e) the People were not ready for trial on the underlying{**69 Misc 3d at 335} charges within the prescribed statutory time period and as such, all of the criminal offenses should be dismissed. Specifically, the defendant sets forth that prior to the enactment of CPL 245.50 (3) the People were required to communicate and declare their readiness for trial with such intent being made part of the court's record. The court notes, the defendant does not dispute the People announced their readiness prior to January 1, 2020, as it pertains to the underlying charges, and such time frames are accounted for in the calculations set forth herein.

The defendant further asserts that upon enactment and implementation of CPL 245.50 (3) the People have an affirmative obligation to file a certificate of compliance and until such filing occurs the People shall be "charged time" for the purposes of speedy trial calculations.

Specifically, the defendant relies upon the following calculations in support of a speedy trial violation:

Docket No.: CR-06113-19 Summary

[*2]Days Charged

31: Time period between filing of the accusatory instrument and arraignment (Aug. 5, 2019, to Sept. 6, 2019).

19: Time period between arraignment and adjourned date (Sept. 6, 2019, to Sept. 25, 2019).

6: Time period between the appearance date and notice of trial readiness filed (Sept. 25, 2019, to Oct. 1, 2019).

51: Time period between enactment of the new statute (CPL 245.50 [3]) and appearance for a Sandoval/Ventimiglia hearing which was adjourned due to a conflict declared by the Public Defender's Office (Jan. 1, 2020, through Feb. 21, 2020).

82: Time period from the last court appearance and when the certificate of compliance was filed by the People (Feb. 21, 2020, through May 13, 2020).

Total charged to the People: 189 days.

Docket No.: CR-06554-19 Summary

Days Charged

21: Time period between filing of the accusatory instrument and date of arraignment (Aug. 17, 2019, to Sept. 6, 2019).

19: Time period between arraignment and adjourned date (Sept. 6, 2019, to Sept. 25, 2019).

6: Time period between the appearance date and notice of trial readiness filed (Sept. 25, 2019, to Oct. 1, 2019).{**69 Misc 3d at 336}

51: Time period between enactment of the new statute (CPL 245.50 [3]) and appearance for a Sandoval/Ventimiglia hearing which was adjourned due to a conflict declared by the Public Defender's Office (Jan. 1, 2020, through Feb. 21, 2020).

82: Time period from the last court appearance and when the certificate of compliance was filed by the People (Feb. 21, 2020, through May 13, 2020).

Total charged to the People: 179 days.

Docket No.: CR-09080-19 Summary

Days Charged

14: Time period between filing of the accusatory instrument and date of arraignment at which time the People announced readiness (Dec. 5, 2019, to Dec. 18, 2019).

51: Time period between enactment of the new statute (CPL 245.50 [3]) and appearance for a Sandoval/Ventimiglia hearing which was adjourned due to a conflict declared by the Public Defender's Office (Jan. 1, 2020, through Feb. 21, 2020).

88: Time period from the last court appearance and when the certificate of compliance was filed by the People (Feb. 21, 2020, through May 19, 2020).

Total charged to the People: 153 days.

On July 15, 2020, the People filed an affirmation opposing the relief being requested, arguing they have complied with all requirements pursuant to CPL article 240, prior to January 1, 2020, and fulfilled all discovery obligations subsequent to the enactment of article 245 of the Criminal Procedure Law. Specifically, the People cite to their readiness as having been announced on the record along with filings of "Notice of Readiness" and the defendant having acknowledged compliance with all discovery obligations as evidenced in the defendant's prior motion filed on [*3]March 16, 2020. The People further assert there are extensive periods of time since the commencement of the action which should not be charged to the People, including delays due to the assignment of new counsel, adjournment of trial dates and those as a result of limited court operations due to the COVID-19 pandemic. The court notes, the specific exclusions as it relates to these arguments are not articulated in the responding papers submitted.

The People do, however, offer the following calculations for speedy trial purposes:{**69 Misc 3d at 337}

Docket No.: CR-06113-19 Summary

Days Charged

21: Time period from date of arraignment (Sept. 6, 2019) through date when readiness was declared (Sept. 27, 2019). Subsequent dates when readiness was declared—November 6, 2019, December 18, 2019, January 28, 2020, March 16, 2020, May 13, 2020.

Docket No.: CR-06554-19 Summary

Days Charged

21: Time period from date of arraignment (Sept. 6, 2019) through date of readiness declared (Sept. 27, 2019). Subsequent dates when readiness was declared—November 6, 2019, December 18, 2019, March 16, 2020, May 13, 2020.

Docket No.: CR-09080-19 Summary

Days Charged

14: Time period from date of arraignment (Dec. 4, 2019) through date of readiness declared (Dec. 18, 2019). Subsequent dates when readiness was declared—March 16, 2020, May 19, 2020.

As it pertains to a speedy trial motion, the initial burden rests upon the defendant and is met "by alleging only that the prosecution failed to declare readiness within the statutorily prescribed time period" (People v Luperon, 85 NY2d 71, 77-78 [1995]). The burden then shifts to the People to identify the exclusions, upon which the People rely, to the statutory time frame. (People v Amrhein, 128 AD3d 1412 [4th Dept 2015].)

In addition, pursuant to CPL 30.30 (1), the applicable speedy trial period is determined by the highest charge in the accusatory instrument and in the matters pending before the court a "Class A Misdemeanor" is the highest charge made part of each docket, thus, requiring the People to set forth their readiness within 90 days of commencement of the action. It is noted, although a criminal action commences with the filing of the accusatory instrument, counting for speedy trial purposes commences the following day. (People v Stiles, 70 NY2d 765 [1987].) Thus, the court finds based upon the filing of the accusatory instruments on August 5, 2019, August 16, 2019, and December 5, 2019, the People had to announce ready for trial by November 3, 2019, November 15, 2019, and March 4, 2020, respectively, unless the People can show excludable time warranting otherwise. (People v Cortes, 80 NY2d 201 [1992].){**69 Misc 3d at 338}

In light of the distinction which needs to be drawn between declarations of readiness announced prior to and subsequently to January 1, 2020, the court must undertake an examination of the various time periods. Prior to January 1, 2020, in order for the People to announce their readiness for trial, they must have either communicated such readiness to defense counsel while before the court or in the alternative served a written notice on the defendant along with filing same with the court clerk. (People v Kendzia, 64 NY2d 331 [1985].)

As such, the court will first determine the amount of days charged to the People, for purposes of speedy trial, from the commencement of the criminal proceedings through December 31, 2019. Unlike an appearance ticket, the time between the issuance of a summons by the court, and the time the defendant is directed to appear for arraignment, is not excludable, contrary to the calculation submitted by the People. (CPL 30.30 [5] [b]; People v Hauben, 12 Misc 3d 1172[A], 2006 NY Slip Op 51155[U] [Nassau Dist Ct 2006].) As such, the time period for each docket in the year 2019 is as follows: CR-06113-19, 57 days (Aug. 6, 2019, through Oct. 1, 2019, date when notice of readiness was filed); CR-06554-19, 46 days (Aug. 16, 2019, through Oct. 1, 2019, date when notice of readiness was filed); CR-09080-19, 13 days (Dec. 5, 2019, through Dec. 18, 2019, date of announcement of readiness). While the People assert readiness was declared before the court on September 26, 2020, as it relates to docket Nos. CR-06113-19 and CR-06554-19, such appearance did not occur and the matters were recalendared to November 6, 2019. The parties agree to the number of days accrued in 2019 for docket No. CR-09080-19.

This court must undertake further analysis for the period of time commencing January 1, 2020. As this court has previously found, upon enactment of CPL 245.50 (3), a statement of readiness alone is insufficient to announce "Ready for Trial" and now the People must file a certificate of compliance for speedy trial purposes. However, any announcements of readiness, prior to January 1, 2020, are not nullified nor should they be deemed to be "illusory" by the enactment of the new law as the statute states:

"Trial readiness. Notwithstanding the provisions of any other law, absent an individualized finding of exceptional circumstances by the court before which the charge is pending, the prosecution shall not be deemed ready for trial for purposes of section 30.30{**69 Misc 3d at 339} of this chapter until it has filed a proper certificate pursuant to subdivision one of this section."

Limited case law exists in this area given the recent enactment of the legislation. Upon review of relevant holdings since such time, the court agrees with the findings of People v DeMilio (66 Misc 3d 759 [Dutchess County Ct 2020]), in that a statement of readiness for trial which was communicated to the defendant, prior to the enactment of article 245, does not impair the validity of such notice. It has further been held that "CPL 245.50 (3) requires the People to file a certificate of compliance with the mandate of CPL 245.20 before they can be deemed ready for trial" (People v Roland, 67 Misc 3d 330, 336 [Crim Ct, Kings County 2020]). The court finds this to be the appropriate standard as it has subsequently been held, for matters in which readiness was declared prior to January 1, 2020, upon the new legislation being enacted "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" (People v Nge, 67 Misc 3d 650, 654 [Crim Ct, Kings County 2020]).

As previously noted in the "Memorandum Decision" executed by this court on May 18, 2020, the People were not ready for trial on January 1, 2020, as the appropriate certificates were not filed until May 13th (CR-06113-19 and CR-06554-19) and May 19th (CR-09080-19) respectively. However, the People must not be automatically charged this period of time as there are exclusions pursuant to statute which must be accounted for and credited.

Based upon the language of CPL 245.50 and time periods prescribed by statute requiring [*5]compliance with certain discovery obligations, various interpretations exist as to the exclusion of the first 15 days subsequent to enactment of the new law. Courts have held the People are to have filed a certificate of compliance on or before January 1, 2020, and if such filing did not occur, they will be charged time from the effective date of the statute until a certificate is filed. (People v Lobato, 66 Misc 3d 1230[A], 2020 NY Slip Op 50322[U] [Crim Ct, Kings County 2020].) In the alternative, courts have found the first 15 days from January 1, 2020, should be excluded for the purposes of speedy trial calculations. (People v Roland, 67 Misc 3d 330 [Crim Ct, Kings County 2020].)

The court finds a rational conclusion to this quandary. The first 15 days from the effective date of the reforms are excludable for speedy trial purposes. The purpose of the initial 15 day{**69 Misc 3d at 340} period is to afford the People an opportunity to comply with their discovery obligations as the statute states "the prosecution shall perform its initial discovery obligations under subdivision one of section 245.20 of this article as soon as practicable but not later than fifteen calendar days after the defendant's arraignment." (CPL 245.10 [1] [a].) To require compliance prior to January 1, 2020, would be premature and would not afford the People 15 days to adhere to the new provision. This would prejudice the prosecution. Thus, if a certificate of compliance is not filed by January 15, 2020, the speedy trial calculation shall commence the day thereafter.

This court notes that effective May 3, 2020, the legislature amended CPL 245.10 and this affords the prosecution additional time to provide discovery to the defendant and for the filing of the compliance certificate. These amendments delineate six separate time frames in which discovery must be provided, specifically not later than 35 days after arraignment if the defendant is at liberty. (CPL 245.10 [1] [a] [ii].) The court finds that the time frames enacted on January 1, 2020, control here. The arraignment occurred prior to January 1, 2020, thus, requiring compliance under the parameters as set by statute at that time.

While neither party specifically addresses and sets forth particular excludable dates, the court prefers to address the exclusions contained within Criminal Procedure Law § 30.30 (4) (a). This provision still exists and has not been amended nor repealed upon enactment of the provisions of article 245. In addition, it has been held that CPL 30.30 (4) (a) "still lists circumstances under which an adjournment is excludable and there is no basis upon which to conclude that CPL article 245 nullified the vast body of speedy trial case law in New York." (People v Erby, 68 Misc 3d 625, 636-637 [Sup Ct, Bronx County 2020].) As such, the court finds the extensive amount of case law, as it pertains to exclusions in favor of both the defendant and the People, must be preserved and applied to matters after the enactment of Criminal Procedure Law article 245.

Upon examination of the record, the defendant's prior counsel submitted correspondence on February 21, 2020, advising of a conflict of interest in the continued representation of the defendant, as having represented a complaining witness in one of the underlying criminal matters. The parties appeared and on the same date, the court granted the application for new counsel and assigned defendant's current attorney in court{**69 Misc 3d at 341} and the matter was adjourned until March 20, 2020. Upon inquiry as to time needed to become acquainted with the file, defendant's new attorney requested a 30 day adjournment.

An analysis of whether an exclusion should apply for the time period subsequent to February 21, 2020, is warranted and relevant portions of CPL 30.30 (4) (b) must be reviewed as the statute sets forth excludable periods for speedy trial purposes:

"the period of delay resulting from a continuance granted by the court at the request of, or with the consent of, the defendant or his or her counsel. The court may grant such a continuance only if it is satisfied that postponement is in the interest of justice, taking into account the public interest in the prompt dispositions of criminal charges."

It has long been held that upon a court determining time frames, for the purposes of a speedy trial calculation, the prosecution should not be charged time resulting from defense counsel's request for an adjournment. (People v Worley, 66 NY2d 523 [1985]; People v Warwick, 239 AD2d 124 [1st Dept 1997].) The Court in People v Whitley (68 AD3d 790, 791 [2d Dept 2009]) specifically found that upon appointment of new counsel "the People should not have been charged with the 27-day period of delay between September 6, 2007 and October 3, 2007 since newly appointed defense counsel requested an adjournment over that period to familiarize himself with the case." Thus, an exclusion of time, for the purposes of speedy trial, shall be applied for the time period subsequent to February 21, 2020, as the basis for the adjournment granted was upon defense counsel's need "to review the file" and ensure compliance with discovery obligations.

Further, in the event readiness is not properly declared by the People, such shall not have an impact upon the calculation. (People v D'Aquino, 163 Misc 2d 788 [Yonkers City Ct 1995].) The court in D'Aquino found that a "[d]efendant may not request an adjournment and at the same time disclaim any waiver of delay" (id. at 791). Thus, the defendant can not request an adjournment on February 21, 2020, and subsequently claim the period of time thereafter should be charged against the People due to readiness having not been properly declared.

The court notes, the appearance scheduled for March 20, 2020, was not conducted in light of the executive order which was enacted in response to the COVID-19 emergency disaster, thereby limiting court operations along with enacting tolling{**69 Misc 3d at 342} provisions of the Criminal Procedure Law as it relates to speedy trial time periods. Such tolling provisions were extended through August 6, 2020, by Executive Order (A. Cuomo) No. 202.49 (9 NYCRR 8.202.49); however, they are not applicable in light of the determination made herein.

Thus, the court finds the following calculations with respect to each docket:

Docket No.: CR-06113-19

Days Charged

57: Time period between filing of the accusatory instrument and filing of the notice of trial readiness (Aug. 6, 2019, to Oct. 1, 2019).

36: Time period between enactment of the new statute (CPL 245.50 [3]) and appearance for a Sandoval/Ventimiglia hearing (Jan. 16, 2020, through Feb. 21, 2020).

0: Time period from February 21, 2020, through May 13, 2020, when the certificate of compliance was filed by the People. All time after February 21, 2020, is excluded due to a conflict declared by the Public Defender's Office and the adjournment request made by the defendant.

Total charged to the People: 93 days.

Docket No.: CR-06554-19

Days Charged

46: Time period between filing of the accusatory instrument and filing of the notice of readiness (Aug. 16, 2019, to Oct. 1, 2019).

36: Time period between enactment of the new statute (CPL 245.50 [3]) and appearance for a[*7]Sandoval/Ventimiglia hearing (Jan. 16, 2020, through Feb. 21, 2020).

0: Time period from February 21, 2020, through May 13, 2020, when the certificate of compliance was filed by the People. All time after February 21, 2020, is excluded due to a conflict declared by the Public Defender's Office and the adjournment request made by the defendant.

Total charged to the People: 82 days.

Docket No.: CR-09080-19

Days Charged

13: Time period between filing of the accusatory instrument and date of arraignment at which time the People announced readiness (Dec. 5, 2019, to Dec. 18, 2019).{**69 Misc 3d at 343}

36: Time period between enactment of the new statute (CPL 245.50 [3]) and appearance for a Sandoval/Ventimiglia hearing (Jan. 16, 2020, through Feb. 21, 2020).

0: Time period from February 21, 2020, through May 13, 2020, when the certificate of compliance was filed by the People. All time after February 21, 2020, is excluded due to a conflict declared by the Public Defender's Office and the adjournment request made by the defendant.

Total charged to the People: 49 days.

Therefore the defendant's motion to dismiss the charges of harassment in the second degree in violation of Penal Law § 240.26 (1), criminal mischief in violation of Penal Law § 145.00 (1) and criminal obstruction of breathing in violation of Penal Law § 121.11 (a) filed under docket No. CR-06113-19, on the basis of a speedy trial violation, is hereby granted. Additionally, the motions to dismiss relative to docket Nos. CR-06554-19 and CR-09080-19 are hereby denied.