Criminal Court of the City of New York, Kings County, May 4, 2021

The Legal Aid Society (Brian Chelcun of counsel) for defendant.

Eric Gonzalez, District Attorney (Zachary Trkla of counsel), for plaintiff.

The defendant, Igor Aviles, was charged at arraignment in a local accusatory instrument with driving while intoxicated (Vehicle and Traffic Law § 1192 [3]), driving while impaired (Vehicle and Traffic Law § 1192 [1]), aggravated unlicensed operation of a motor vehicle in the second degree (Vehicle and Traffic Law § 511 [2] [a] [iv]), aggravated unlicensed operation of a motor vehicle in the third degree (Vehicle and Traffic Law § 511 [1]), and unlicensed operation of a motor vehicle (Vehicle and Traffic Law § 509 [1]). The People dismissed the felony charge on November 23, 2020, to proceed with only the misdemeanor counts. On December 30, 2020, the People filed a certificate of compliance stating ready for trial without adding or dismissing any further charges.

The issue before the court is the application of CPL 30.30 (5-a), specifically, whether the court can permit retroactive certification of a prosecutor's obligations under that section.^[FN*] In the present case, defendant argues that the People's statement of readiness is invalid because the People did not certify to the requirements of CPL 30.30 (5-a). Rather, the People only stated they were "ready for trial pursuant to CPL §§ 30.30 (5) [and] 245 (1)." (See prosecutor's certificate of compliance, dated Dec. 30, 2020.) As a result, defendant argues the December 30, 2020 statement of readiness is invalid and the charges should be dismissed since more than 90 days have elapsed pursuant to CPL 30.30 (1) (b).{**72 Misc 3d at 425}

CPL 30.30 (5-a) ensures that all charges in a local criminal court accusatory instrument [*2]are fully converted with nonhearsay evidence supporting every element of every charge. Compliance with section 30.30 (5-a) is required for the People to announce readiness for trial and to stop the speedy trial clock. Stated differently, the provision prevents the earlier practice of partial conversion, where unconverted and converted ran simultaneously in the parallel universes, with charges for trial being a moving target for the defense. CPL 30.30 (5-a) remedies that situation by requiring all charges to be converted with nonhearsay for the People to state ready, or, alternatively, requiring all charges supported by hearsay allegations to be dismissed. Specifically, CPL 30.30 (5-a) states:

"Upon a local criminal court accusatory instrument, a statement of readiness shall not be valid unless the prosecuting attorney certifies that all counts charged in the accusatory instrument meet the requirements of sections 100.15 and 100.40 of this chapter and those counts not meeting the requirements of sections 100.15 and 100.40 of this chapter have been dismissed."

Defendant, as well as other courts of coequal jurisdiction, maintain that CPL 30.30 (5-a) should be strictly construed; that a prosecutor commits a fatal error by not contemporaneously certifying compliance with 30.30 (5-a) at the time of filing of a statement of readiness; and that the law's plain language mandates automatic dismissal to effect the legislature's intent where a statement of readiness does not include this language. (See e.g. People v Lavrik, — Misc 3d —, 2021 NY Slip Op 21110 [Crim Ct, NY County, Apr. 22, 2021] [dismissing charges of endangering the welfare of a child and sexual abuse in the third degree]; People v Rivera, 71 Misc 3d 1210[A], 2021 NY Slip Op 50347[U] [Crim Ct, NY County, Apr. 6, 2021] [dismissing charges of forcible touching, sexual abuse in the third degree, and public lewdness]; People v Lafong, Crim Ct, NY County, Mar. 5, 2021, No. CR-016022-20NY [dismissing charges of assault in the third degree and aggravated harassment]; People v Ifty, Crim Ct, Queens County, Feb. 25, 2021, No. CR-03291-19QN [same]; People v Ramirez-Correa, 71 Misc 3d 570 [Crim Ct, Queens County, Feb. 25, 2021].)

Prior to the enactment of the current statutory framework, a valid statement of readiness had to meet two requirements: (1) that the People communicate their readiness either "in open {**72 Misc 3d at 426}court . . . or a written notice of readiness sent by the prosecutor to both defense counsel and the appropriate court," and (2) that the People are in fact ready at the time they make their statement. (People v Kendzia, 64 NY2d 331, 337 [1985] [precluding future statements of readiness]; People v Chavis, 91 NY2d 500, 506 [1998].) With the advent of criminal justice reform laws in New York State, the People must also comply with the requirements set forth in CPL 30.30 (5) which states, inter alia, that "[a]ny statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of section 245.20." (Emphasis added.) Henceforth, and unlike the previous system, this provision linked the concepts of discovery compliance and trial readiness for speedy trial purposes.

In contrast to CPL 30.30 (5), CPL 30.30 (5-a), a separate provision, and not a subsection of CPL 30.30 (5), contains no similar language that the statement of readiness "must be accompanied or preceded by" certification of compliance with the partial conversion proscriptions of section 30.30 (5-a). Rather, to be a valid statement of readiness, the section only provides that the prosecuting attorney must certify that the local criminal court accusatory instrument meets the requirements of CPL 100.15 and 100.40, and that those counts not meeting the requirements have been dismissed.

The legislature in its wisdom could have easily included the same or similar language in 30.30 (5-a), requiring that certification must "be accompanied or preceded by" a statement of readiness. But the legislature chose not to do so. That the distinction was a conscious decision by the legislature is supported by the fact that both 30.30 (5) and 30.30 (5-a) passed together as part of the April 2019 executive budget. Had the legislature wanted to mandate contemporaneous certification with the filing of a statement of readiness, the statute could have been written with that requirement. But the legislature did not proceed in that fashion. The only requirement of this provision is that the certification "shall be made" for a statement of readiness to be "valid," not that the certification must be made prior to or accompanying the statement of readiness. (See People v Jackson, 87 NY2d 782, 788 [1996] ["Where a statute describes the particular situations in which it is to apply and no qualifying exception is added, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded"] [internal quotation marks {**72 Misc 3d at 427}and citations omitted]; People v Tychanski, 78 NY2d 909, 911-912 [1991] ["The failure of the Legislature to include a matter within a particular statute is an indication that its exclusion was intended"] [internal quotation marks and citations omitted]; United States v Pristell, 941 F3d 44, 52 [2d Cir 2019] ["(T)he presence of a phrase applicable to one factor makes clear that the phrase's omission elsewhere was deliberate"] [citation omitted]; see also Barnhart v Peabody Coal Co., 537 US 149, 168 [2003] ["the canon expressio unius est exclusio alterius . . . has force . . . when the items expressed are members of an 'associated group or series,' justifying the inference that items not mentioned were excluded by deliberate choice, not inadvertence"]; Matter of Theroux v Reilly, 1 NY3d 232, 240 [2003] [a court "may not create a limitation that the Legislature did not enact"; if the legislature intended to restrict a statute's applicability, "it easily could have and surely would have" done so].)

A plain reading of the statute makes clear that CPL 30.30 (5-a) certification is necessary for a prosecution to move forward. But unlike CPL 30.30 (5), it does not establish the required timing of the certification with respect to the People's statement of readiness. Of course, the better practice for any prosecutor would be to follow the timing mechanism in CPL 30.30 (5), which requires that a declaration of trial readiness must be "accompanied or preceded by" a certificate of compliance, although such language is absent from CPL 30.30 (5-a). Even in cases with no dismissal or change of any charges from arraignment, prosecutors are well served to scrutinize afresh the local criminal court instrument to double-check each and every count that the People are announcing ready for trial to ensure they are completely supported by only nonhearsay allegations. The prosecutor who does not adopt this practice proceeds at their peril because it could be fatal to a case if a charge remains in the accusatory instrument that suffers from an undetected partial conversion error. No such infirmity exists in the present case since the felony charge was previously dismissed on the record on November 23, 2020.

The court observes that allowing a certification to relate back is permitted as a matter of discretion in other contexts in criminal practice. (See e.g. People v Reyes, 70 Misc 3d 133[A], 2020 NY Slip Op 51569[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists, Dec. 30, 2020] [Criminal Court properly exercised its discretion in giving the People the opportunity to{**72 Misc 3d at 428} cure a latent hearsay objection by filing a certificate of translation]; People v Rodriguez-Alas, 65 Misc 3d 914, 922 [Crim Ct, Bronx County 2019] ["courts have held that such latent defects may be addressed by trial courts in their discretion, and may lead to either a court order for the People to file curative documentation or even outright dismissal"].) The omission of CPL 30.30 (5-a) language from a statement of readiness is even more compelling for relation back than the discovery of a latent defect where hearsay needs to be cured, especially [*4]in the present case where defendant does not challenge any of the charges before the court.

Furthermore, permitting subsequent CPL 30.30 (5-a) certification is consistent with the policy interests that require a court to refrain from dismissing an otherwise defective instrument that "may be cured by amendment and where the people move to so amend." (See CPL 170.35 [1] [a].) Here, the defect is the lack of a boilerplate declaration that all the counts of the information are corroborated and, in the People's view, meet the requirements for a valid accusatory instrument as to each count for which the People are announcing ready for trial. Allowing the People to make such a subsequent 30.30 (5-a) declaration for a statement of readiness does not run afoul of the letter or intent of the law. To the contrary, it is in accord with the court's discretionary powers to bring about the intent of the legislature. (See e.g. CPL 245.35 [4] ["(t)o facilitate compliance with this article . . . the court in its discretion may issue an order . . . (r)equiring other measures or proceedings designed to carry into effect the goals of this article"].) The court is also ever cognizant of the need to interpret statutes so as to not bring about absurd results, which would be the effect of dismissing a valid local accusatory instrument for the omission of boilerplate language that has no effect on the charges in this matter. (See People v Santi, 3 NY3d 234, 243-244 [2004] ["we must interpret a statute so as to avoid an 'unreasonable or absurd' application of the law"].)

This court therefore holds that this case should not be dismissed for the People having not contemporaneously certified compliance with CPL 30.30 (5-a).

Accordingly, the defendant's motion to dismiss on this basis is denied.