City Court of Utica, May 25, 2021

Leland McCormac, Public Defender (Timothy E. Stalnaker of counsel), for defendant.

Scott D. McNamara, District Attorney (Erin Elizabeth Donovan of counsel), for plaintiff.

On May 5, 2020, the defendant was charged with and arraigned on the charge of resisting arrest in violation of Penal Law § 205.30 (docket No. CR-01846-20). The defendant was also arrested on the charge of trespass in violation of Penal Law § 140.05, on May 5, 2020, and was subsequently arraigned on September 30, 2020 (docket No. CR-01952-20). The parties engaged in prior oral argument relative to the People's compliance with the production of certain discovery materials and the court issued a written decision on September 9, 2020, as it relates to the resisting arrest charge. Thereafter, on April 8, 2021, the defendant filed an omnibus motion seeking the following relief:

1. Motion to dismiss resisting arrest charge pursuant to CPL 30.30

2. Motion to dismiss trespass charge pursuant to CPL 30.30

3. Motion for Sandoval hearing

4. Motion for Ventimiglia hearing

5. Motion to suppress pursuant to Dunaway

6. Reservation of rights

On April 14, 2021, the People filed an answering affirmation opposing the relief sought by defendant. Upon consideration of the pleadings filed herein, the court will address the speedy trial motions first and finds as follows:

1. Speedy Trial, CPL 30.30 as it Relates to Docket No. CR-01846-20

The defendant moves to dismiss the charge of resisting arrest on the ground that the defendant has been denied the right to a speedy trial pursuant to CPL 30.30 (1) (b) and 170.30{**72 Misc 3d at 610}(1) (e). The defendant further asserts the People have failed to declare readiness pursuant to the requirements set forth in CPL 245.20. Specifically, although the People filed a "Certificate of Compliance" on May 14, 2020, such statement was ineffective as the People[*2]"have not certified that any counts of the accusatory" have met the statutory requirements for a local accusatory instrument. As such, the defendant contends, the People should not be considered ready for trial, as the People have not proffered a valid declaration of readiness within 90 days from the commencement of this criminal proceeding, under CPL 30.30 (5-a). The defendant contends that 338 days have passed without the People having properly announced readiness and as such, the court must dismiss the charge.

The defendant also argues that following the filing of the certificate of compliance/statement of readiness, the court has not conducted an inquiry on the record as to the People's actual readiness pursuant to CPL 30.30 (5).

The People argue that they announced readiness for trial on May 14, 2020, and at that time, turned over automatic discovery upon filing their "Certificate of Compliance under CPL 245.50 (1)." The People also set forth that the Governor of the State of New York's executive order issued on March 20, 2020, stopped the speedy trial clock and therefore, no time from that point through September 21, 2020, should be charged to the People.^[FN1]

Courts have long held that a defendant meets their initial burden on a speedy trial motion "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 they rely. The defendant's motion papers accurately state that the People were required to announce readiness within 90 days from commencement of the action, based upon the underlying class A misdemeanor charge. Although a criminal action commences with the filing of the accusatory instrument, counting for speedy trial purposes starts the next day. (People v Stiles, 70 NY2d 765 [1987].)

The court notes that assertions in this case rely not upon a discrepancy in the calculation of time, but rather, whether the{**72 Misc 3d at 611} certificate of compliance was valid or "illusory" as it did not contain certain language as prescribed by statute. In this circumstance, we can presume the truthfulness and validity of a previous statement of readiness for speedy trial purposes, and the defense can rebut this presumption by demonstrating that the People were in fact not ready at the time they declared readiness. In other words, the defendant can argue that the People's certificate of compliance did not comply with the law.

The court also notes, this case presents a unique situation as commencement of the action took place during the period of time of a suspension of the CPL 30.30 clock due to Executive Order 202.8 which addressed certain realities resulting from the COVID-19 pandemic. The Governor's Executive Order 202.67 lifted this suspension on October 4, 2020, at which time the speedy trial clock began to run again for criminal actions commenced during the period of [*3]suspension. As such, the court finds that in the instant matter, the People were required to properly announce readiness by January 4, 2021. The validity of the certificate filed on May 14, 2020, will determine if the People violated speedy trial rules, as they have not subsequently filed any further certificate of readiness.

While the analysis of this matter pertains to a speedy trial violation under CPL 30.30 (5), the court would be remiss in not addressing the companion provisions of CPL article 245, which became effective simultaneously on January 1, 2020. The question before the court is whether or not the "Certificate of Compliance," filed by the People, represents an effective announcement of readiness in the absence of the People specifically "certifying" that all counts of the accusatory instrument satisfied the requirements of CPL 100.40 and 100.15. Should the court find that such certification is necessary, the trial readiness which had been announced by the People, contained within their compliance certificate, must be deemed invalid, in that the People had not effectively stopped the speedy trial clock.

On January 1, 2020, the provisions of CPL article 245 became effective in New York State and required the People to disclose information referred to as "automatic discovery" without the necessity of filing discovery demands. The specifics of the automatic discovery provisions within CPL 245.20 (1) include 21 categories of items. The People must produce these items to the defendant "as soon as practicable," and no later than the times prescribed by section 245.10 (1) (a). The initial statute{**72 Misc 3d at 612} required disclosure within a 15-day period. On May 3, 2020, the legislature amended the law to require fulfillment of the People's discovery obligations within 35 days of a defendant's arraignment upon a misdemeanor complaint. Criminal Procedure Law § 245.50 (3) requires the People to file a certificate of compliance when they have provided the automatic discovery to the defendant, as required, and until such time, they cannot be deemed trial ready. In the underlying matter the People have fulfilled this obligation, as having timely filed a "Certificate of Compliance" within 10 days of arraignment, and the court notes that the People filed, within the same document, a "Statement of Readiness" which provides this opportunity for further examination.

Criminal Procedure Law § 30.30 (5) and (5-a) serve as the basis for the defendant's underlying motion and this section of the statute sets forth the People's obligation to properly announce readiness. The court must determine whether or not the People's declaration of readiness comports with the recently enacted statute or whether it is necessary for such "certification" to occur under the circumstances. Courts have held that "[a] statement of readiness not only declares that the People are ready to proceed to trial, but also stops the speedy trial clock" (People v Ramirez-Correa, 71 Misc 3d 570, 574 [Crim Ct, Queens County 2021], citing People v Stirrup, 91 NY2d 434, 440 [1998]).

Criminal Procedure Law § 30.30 states:

"5. Whenever pursuant to this section a prosecutor states or otherwise provides notice that the people are ready for trial, the court shall make inquiry on the record as to their actual readiness. If, after conducting its inquiry, the court determines that the people are not [*4]ready to proceed to trial, the prosecutor's statement or notice of readiness shall not be valid for purposes of this section. Any statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of section 245.20 of this chapter and the defense shall be afforded an opportunity to be heard on the record as to whether the disclosure requirements have been met. This subdivision shall not apply to cases where the defense has waived disclosure requirements.

"5-a. Upon a local criminal court accusatory instrument, a statement of readiness shall not be valid{**72 Misc 3d at 613} 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."

As such, based upon a cursory review of the plain language of CPL 30.30 (5-a), it would appear that in order for this court to determine that the People have properly announced "ready for trial" the following must have occurred: (1) the People must file a certificate of compliance indicating that they have complied with all discovery obligations as set forth in CPL 245.20 (CPL 245.50 [1], [3]) and (2) a statement of readiness must include an attorney certification that certain crimes charged are facially sufficient as deemed by law. The court notes that the People need not include a "Statement of Readiness" with a certificate of compliance; however, they shall file such statement before the court can make a valid determination of readiness. While the Criminal Procedure Law contains various references to a "Statement of Readiness" and "Certificate of Compliance," no statutory prohibition to fulfilling each of these requirements by including both within one filing currently exists. The People have utilized this singular filing protocol since the enactment of the new discovery laws and amendments to the speedy trial statute.

Case law decisions on CPL 30.30 (5-a), currently in the pupal stage of jurisprudential development, have uncovered an obligation upon the People to "certify" that the accusatory instruments meet the requirements of CPL 100.40 and 100.15. Courts have held that when the People do not fulfill this requirement the court cannot deem the People trial ready. The court finds such holdings instructive as to the issue before the court, although not binding, as they are based upon the language of the statute. Upon a question raised by either the People or the defendant, as to the meaning of a newly enacted statute, it is incumbent that the court determines the legislative intent of such law. The court further recognizes the long held notion that legislative intent can best be ascertained through the plain language of the statute as "when the statutory 'language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of [the] words' used" (People v Lavrik, 72 Misc 3d 354, 356 [Crim Ct, NY County 2021], citing People v Finnegan, 85 NY2d 53 [1995], Matter of{**72 Misc 3d at 614}Walsh v New York State Comptroller, 34 NY3d 520 [2019], and Colon v Martin, 35 NY3d 75 [2020]). In addition, the Court of Appeals found "[a]s the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof." (People v Golo, 26 NY3d 358, 361 [2015], quoting Majewski v [*5]Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998].) Upon plain reading alone, CPL 30.30 (5-a) states that it is up to the "prosecuting attorney" to issue a statement of readiness which certifies the facial sufficiency of all "counts" charged in the accusatory instrument, and in the event that they are not sufficient, an indication that such have been dismissed.

In some jurisdictions courts have held that enactment of CPL 30.30 (5-a) represents a vast departure from the long-standing burden placed upon the defendant to challenge the facial sufficiency of an instrument through the filing of a motion to dismiss. People v Ramirez-Correa (71 Misc 3d 570, 575 [Crim Ct, Queens County 2021]) held that it is now "the burden of the People to prove the sufficiency of each count of the information" and failure to do so continues the state of not being trial ready. In essence that court held that if the underlying accusatory is not certified as facially sufficient, the People may not be deemed ready to proceed. The very recent ruling in People v Popko (71 Misc 3d 1210[A], 2021 NY Slip Op 50345[U], *4 [Crim Ct, Queens County 2021]) held "the People's statements of readiness failed to certify in any way the facial sufficiency of the accusatory instrument as required by CPL 30.30 (5-a)" and therefore, it did not stop the speedy trial clock upon filing. In addition, the court in People v Lavrik (72 Misc 3d 354 [Crim Ct, NY County 2021]) noted that as defendants continue to raise this issue, the courts have consistently invalidated statements of readiness that do not contain the statutorily prescribed language related to certification, thus, resulting in dismissal of charges. This court declines to adopt the view that enactment of CPL 30.30 (5-a) caused a tectonic burden shift toward the prosecution but rather, it is merely a mechanism to prohibit improper conversion of remaining charges from complaint to information, upon the People announcing readiness.

The court in People v Brooks (190 Misc 2d 247, 252 [App Term, 1st Dept 2001, Suarez, J., concurring] [emphasis omitted]) brought forth this issue of "partial readiness" as the core {**72 Misc 3d at 615}issue when it addressed the question of "what constitutes a valid information within the meaning of CPL 100.40 (1) (c) for purposes of CPL 30.30 (1) (b), when charging converted and defective counts in the same accusatory instrument." Justice Suarez found that "as a matter of statutory construction, [the] defective counts must be removed from the complaint before it can be deemed an information" for the purposes of speedy trial, and that the "People should not be allowed to answer ready for trial in a piecemeal fashion, as it unjustifiably obscures the definition of an information." (Id.) The legislature addressed this legal quandary when it codified section 30.30 (5-a).^[FN2]

While other courts continue to rely upon a plain meaning interpretation of CPL 30.30 (5-a), this court finds that the legislature meant to rectify the long-standing practice, in some jurisdictions, where the People routinely announced readiness on partially converted accusatory instruments. In those jurisdictions, the People generally commence criminal proceedings by filing a criminal complaint for an alleged crime or crimes arising out of one time, place, and occurrence. There, it is routine for criminal actions to be handled through the filing of one [*6]accusatory consisting of multiple charges.^[FN3] Matters get adjourned to a separate court part for the purpose of reviewing conversion of the complaint to an information. In this jurisdiction, however, law enforcement commences nearly all criminal actions by filing an information. The practice of filing supplemental depositions for the purposes of conversion is nearly nonexistent in this court.

Furthermore, the legislature enacted CPL 30.30 (5-a) to prevent the prosecution from announcing trial readiness on an accusatory, commenced by complaint that the People later converted to information, as to some, but not as to all charges contained therein. In addition, the court agrees with this analysis and further points out that it has recently been held that the new provision of section 30.30 (5-a) "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." (People v Aviles, 72 {**72 Misc 3d at 616}Misc 3d 423, 425 [Crim Ct, Kings County 2021].) This leaves the question as to whether the statute requires the People to certify facial sufficiency where commencement by filing an information obviates any need for conversion.

This court finds that the legislature did not intend that an accusatory instrument brought by information, which contains no further charges subject to conversion, needs to adhere to the requirements of CPL 30.30 (5-a). Facial sufficiency requirements for prosecution of an information are already codified in CPL 100.40 (1) (c), that is sufficiency must be based upon "[n]on-hearsay allegations of the factual part of the information and/or of any supporting depositions [that must] establish, if true, every element of the offense charged and the defendant's commission thereof." An information which does not meet this prima facie requirement is already jurisdictionally defective, requiring dismissal (People v Casey, 95 NY2d 354 [2000]). The court not only relies upon the fact that the matter subject to this motion is brought by information, as opposed to a multi-count complaint requiring conversion, it also relies upon certain portions of the statute itself. A close reading of CPL 30.30 (5-a) refers to "all counts," notably not just a single "count," as made part of the accusatory instrument, which must meet the requirements of CPL 100.15 and 100.40 and those "counts" not meeting such requirements must be dismissed. Thereby, there are two prongs to this statute, which the People must meet as it relates to the certification: facial sufficiency of the accusatory and that unconverted counts must have been dismissed.

The court finds the requirements of CPL 30.30 (5-a) do not apply in the instant matter, as the accusatory contains one charge brought by information, which is already subject to facial sufficiency requirements. In addition, there are no, and never were any, unconverted counts brought by way of complaint pertaining to the defendant in this case. This procedural actuality makes "certification" set forth in CPL 30.30 (5-a) impractical, unnecessary, and redundant. The court further finds, based on the foregoing, the People validly declared readiness for trial upon their filing of the certificate of compliance on May 14, 2020, and no speedy trial violation has [*7]occurred. Any other finding would amount to an inorganic adherence to the raw words of the statute and as such, the court must deny defendant's motion.

In addition, the matter came before the court on June 1, 2020, for inquiry on the record as to the People's "actual readiness" {**72 Misc 3d at 617}and said proceeding was adjourned to June 5, 2020, June 9, 2020, and June 11, 2020, for said purpose. After further discussion with counsel the court determined that the People made proper disclosure of required discovery materials. Thus, the court finds that it made proper inquiry on the record, relative to the certificate of compliance, and all necessary elements of a valid declaration of readiness have been fulfilled by the People.

2. Motion to Dismiss Trespass Charge Pursuant to CPL 30.30 (Docket No. CR-01952-20)

The defendant states that this action was commenced on September 30, 2020, when the defendant appeared virtually, following the issuance of an appearance ticket by the Utica Police Department and since such time, the People have not declared readiness. The defendant further argues that due to the underlying matter being a violation, within 30 days of the commencement of the action the People must declare readiness. The People do not specifically address the assertions made by the defendant and upon review of the record, the court finds that the defendant's argument has merit as the People have not filed a "Certificate of Compliance" or "Statement of Readiness." The calculation for this charge must also commence on October 4, 2020, and therefore, the People must have declared readiness by November 4, 2020.

The court will reiterate that pursuant to CPL 245.50 (3) "the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper certificate pursuant to subdivision one of this section" and CPL 30.30 (5) sets forth, "Any statement of trial readiness must be accompanied or preceded by a certification of good faith compliance." Therefore, as the People have not filed a certificate of compliance as of the date of the motion being filed the statutory period to declare readiness has lapsed for speedy trial purposes, and the court must grant the motion to dismiss.

3. and 4. Motion for Sandoval and Ventimiglia Hearing

A pretrial motion is defined in CPL 255.10 (1) as any motion seeking an order of the court for any of the relief listed at paragraphs (a) through (g). The list in that section does not include a motion for a Sandoval or Ventimiglia hearing. Paragraph (f) allows a motion for suppression of evidence pursuant to CPL article 710. CPL 710.20 lists the type of evidence subject to suppression under that article. Suppression of evidence of prior criminal convictions or bad acts is not includable{**72 Misc 3d at 618} in that list. As such, a motion for a hearing to determine the admissibility of criminal convictions or bad acts is not properly included in a pretrial motion.

In any event, the People have until 15 days prior to the scheduled trial date to provide notice to the defendant of their intention to introduce evidence of defendant's prior bad acts or criminal convictions (CPL 245.10 [1] [b]). If, at that time, the People indicate their intention to [*8]use such bad acts or convictions, the court will conduct a hearing even in the absence of a motion.

5. Motion for Dunaway Hearing

In light of the foregoing and the existence of a question of fact, the court shall schedule a hearing to determine whether law enforcement obtained any evidence unlawfully, which would be inadmissible at trial.

6. Reservation of Rights

As the CPL specifically sets forth the circumstances under which motions may be renewed or filed notwithstanding provisions of time or inclusion in the initial motions, there is no need to file a motion for such relief. Nor could the court possibly determine at this time, whether the unspecified motions that defendant wishes to reserve the right to file in the future are based upon grounds which the defendant could not have raised in the instant motion. In light of the foregoing, the defendant's motion is denied.