Criminal Court of the City of New York, New York County, June 30, 2021

Legal Aid Society, New York City (Khushboo Sapru of counsel), for defendant.

Cyrus R. Vance, Jr., District Attorney, New York City (Yesenia Brewster of counsel), for plaintiff.

The defendant, charged with one count each of menacing in the second degree (Penal Law § 120.14 [1]); criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [2]); unlawful possession of marihuana in the second degree (Penal Law § 221.05); and harassment in the second degree (Penal Law § 240.26 [1]), moves, pursuant to Criminal Procedure Law §§ 30.30 (5-a) and 170.40 (1) (e),^[FN1] for an order dismissing the information because he has been denied his right to a speedy trial.

In support of his motion, the defendant submits a notice of motion and supporting attorney affirmation, dated and filed April 6, 2021, and exhibits. The People submitted a [*2]response and a supplemental response with exhibits in opposition.

CPL 30.30 (1) (b) requires dismissal of an accusatory instrument where the People are not ready for trial within 90 days of the commencement of a criminal action where, as here, the charges carry the potential sentence of imprisonment of more than three months. The determination as to whether the People have satisfied their obligation under CPL 30.30 is done by computing the time between the filing of the accusatory instrument and the People's declaration of readiness, subtracting any periods of delay that are excludable under CPL 30.30 (4) and then adding any post-readiness periods of delay that are actually attributable to the People for which no statutory exclusions apply (People v Cortes, 80 NY2d 201, 208 [1992]).

In a motion to dismiss, pursuant to CPL 30.30, the defendant bears the initial burden of demonstrating that the People{**72 Misc 3d at 890} were not ready within the statutory time period (People v Sibblies, 22 NY3d 1174 [2014]; People v Santos, 68 NY2d 859 [1986]). The burden then shifts to the People to establish whether a period should be excluded from the speedy trial calculation (People v Santos, 68 NY2d 859 [1986]; People v Berkowitz, 50 NY2d 333 [1980]; CPL 30.30 [4]).

On January 1, 2020, new legislation took effect imposing additional requirements on the People before they could be deemed ready for trial pursuant to CPL 30.30.

CPL 30.30 (5), which relates to the People's discovery obligations, provides

"[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 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."

"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" (id.).

CPL 30.30 (5-a), which relates to the facial sufficiency of an accusatory instrument, provides,

"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."

CPL 100.15 provides the following:

"1. An information, a misdemeanor complaint and a felony complaint must each specify the name of the court with which it is filed and the title of the action, and must be subscribed and verified by a person known as the 'complainant.' The complainant may be any person having knowledge, whether personal or upon information and belief, of the commission of the offense or offenses charged. Each instrument must contain an accusatory part and a factual part. The complainant's verification of the instrument is deemed to apply only to the factual{**72 Misc 3d at 891} part thereof and not to the accusatory part.

"2. The accusatory part of each such instrument must designate the offense or offenses charged. As in the case of an indictment, and subject to the rules of joinder applicable to indictments, two or more offenses may be charged in separate counts. Also as in the case of an indictment, such instrument may charge two or more defendants provided that all such defendants are jointly charged with every offense alleged therein.

"3. The factual part of such instrument must contain a statement of the complainant [*3]alleging facts of an evidentiary character supporting or tending to support the charges. Where more than one offense is charged, the factual part should consist of a single factual account applicable to all the counts of the accusatory part. The factual allegations may be based either upon personal knowledge of the complainant or upon information and belief. Nothing contained in this section, however, limits or affects the requirement, prescribed in subdivision one of section 100.40, that in order for an information or a count thereof to be sufficient on its face, every element of the offense charged and the defendant's commission thereof must be supported by non-hearsay allegations of such information and/or any supporting depositions.

"4. Where a felony complaint charges a violent felony offense defined in section 70.02 of the penal law and such offense is an armed felony as defined in subdivision forty-one of section 1.20,

"(a) the accusatory part of the instrument must designate the offense as an armed felony, and (b) the factual part of the instrument must allege facts of an evidentiary character supporting or tending to support such designation."

CPL 100.40 provides the following:

"1. An information, or a count thereof, is sufficient on its face when:

"(a) It substantially conforms to the requirements prescribed in section 100.15; and

"(b) The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable{**72 Misc 3d at 892} cause to believe that the defendant committed the offense charged in the accusatory part of the information; and

"(c) Non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof.

"2. A simplified information is sufficient on its face when, as provided by subdivision one of section 100.25, it substantially conforms to the requirement therefor prescribed by or pursuant to law; provided that when the filing of a supporting deposition is ordered by the court pursuant to subdivision two of said section 100.25, a failure of the complainant police officer or public servant to comply with such order within the time provided by subdivision two of said section 100.25 renders the simplified information insufficient on its face.

"3. A prosecutor's information, or a count thereof, is sufficient on its face when it substantially conforms to the requirements prescribed in section 100.35.

"4. A misdemeanor complaint or a felony complaint, or a count thereof, is sufficient on its face when:

"(a) It substantially conforms to the requirements prescribed in section 100.15; and

"(b) The allegations of the factual part of such accusatory instrument and/or any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of such instrument."

On October 25, 2020, the court arraigned the defendant on the accusatory instrument and [*4]adjourned the matter for supporting deposition to January 21, 2021.^[FN2]

On January 8, 2021, the People served and filed, off-calendar, a supporting deposition, a certificate of compliance (COC), a certificate of readiness (COR) (hereinafter the "January 8, 2021 COR"), and an automatic discovery form (ADF).

On January 21, 2021, the court noted that the People, off-calendar on January 8, 2021, served and filed a supporting deposition, a COC, a COR, an ADF and an addendum to the ADF;{**72 Misc 3d at 893} the court deemed the accusatory instrument and the supporting deposition to be an information; and the court adjourned the matter for trial to March 11, 2021. Also, on January 21, 2021, the People stated ready at a second call, and the defendant, after declining a motion schedule and requesting an adjournment for trial, filed and served, off-calendar through the Electronic Document Delivery System (EDDS), a pretrial omnibus motion, dated January 14, 2021.^[FN3]

On March 11, 2021, the People stated not ready because a necessary witness was unavailable and requested a trial date of March 15, 2021; the parties did not address the defendant's pretrial omnibus motion (filed off-calendar on January 21, 2021); and the court adjourned the matter for trial to April 20, 2021.

On March 22, 2021, the People, off-calendar, served and filed a COR, dated March 19, 2021.^[FN4]

On April 20, 2021, the People stated ready and the court noted that the People previously filed an off-calendar certificate of readiness on March 22, 2021;^[FN5] resolved the defendant's January 21, 2021 omnibus motion; and adjourned the matter for hearings and trial to June 2, 2021.

On April 26, 2021, the defendant served and filed the instant motion off-calendar. On May 24, 2021, the People served and filed a response to the instant motion. On June 2, 2021, the court adjourned the matter for decision on June 30, 2021. On June 16, 2021, the People filed a supplemental response and exhibits.

The defendant contends that the entire 88-day period from October 25, 2020 (when the court arraigned the defendant and adjourned the matter for supporting deposition), to January 21, 2021, must be charged because the January 8, 2021 COR does not contain the certification language provided in CPL 30.30 (5-a) and is therefore invalid and does not toll the speedy trial time. Defendant relies on recent decisions by courts of coordinate{**72 Misc 3d at 894} jurisdiction that have deemed invalid a statement of readiness filed without prior or simultaneous CPL 30.30 (5-a) certification.

The People contend that only the 75-day period from October 25, 2020, to January 8, [*5]2021, should be charged because the language of CPL 30.30 (5-a) does not require the People to provide certification prior to or at the same time as the statement of readiness. The People contend that the information was fully converted and facially sufficient, and therefore in full compliance with CPL 100.15 and 100.40, when the January 8, 2021 COR was filed, and that it remains unchanged and unchallenged since then. The People further contend that the March 22, 2021 COR, which includes the certification language provided in CPL 30.30 (5-a), should relate back to and validate the January 8, 2021 COR and statement of readiness.

The People rely on recent decisions by courts of coordinate jurisdiction declining to invalidate a statement of readiness for failure to include a prior or simultaneous CPL 30.30 (5-a) certification and finding that a subsequent CPL 30.30 (5-a) certification validates the prior statement of readiness (see People v Lewis, 72 Misc 3d 686 [Crim Ct, Kings County, May 24, 2021]; People v Aviles, 72 Misc 3d 423 [Crim Ct, Kings County, May 4, 2021]).

This court agrees with the reasoning of the decisions by courts of coordinate jurisdiction that have declined to invalidate a statement of readiness involving a valid information for failure to include prior or simultaneous CPL 30.30 (5-a) certification (see People v Kupferman, 71 Misc 3d 1232[A], 2021 NY Slip Op 50550[U] [Sup Ct, Kings County 2021], discussing Aviles; cf. People v Paez, NYLJ, May 10, 2021 at 17, col 1, 2021 NYLJ LEXIS 405 [Crim Ct, Kings County, May 5, 2021]; People v Popko, 71 Misc 3d 1210[A], 2021 NY Slip Op 50345[U] [Crim Ct, Queens County, Apr. 22, 2021]; People v Lavrik, 72 Misc 3d 354 [Crim Ct, NY County, Apr. 22, 2021]).

Partial conversion is not at issue in this case. The information was fully converted and facially sufficient on January 8, 2021, when the People served and filed the January 8, 2021 COR. From that date, the facially sufficient and fully converted information remains unchanged and unchallenged. The defendant's instant motion does not contend that the information is jurisdictionally defective or facially insufficient.

As in Kupferman, Lewis, and Aviles, this court acknowledges that although the best practice for the People going forward is{**72 Misc 3d at 895} to certify the accusatory instrument prior to or contemporaneously with their statements of readiness for trial, the People's failure to do so in this case is not fatal. The seriousness of the charges against the defendant, who is alleged to have advanced toward the complainant while holding a knife, the plain reading of the statute and the interests of justice provide that this court permit the People to certify the "boilerplate" language required by CPL 30.30 (5-a), here where partial conversion and facial sufficiency of all the counts are not at issue and where the information remains unchanged and unchallenged from the filing of the January 8, 2021 COC and COR to the filing of the March 22, 2021 COR which includes the certification language provided in CPL 30.30 (5-a) (75 days charged).

Defendant's motion states that the defendant filed motions with the court on January 21, 2021, and that the court granted the defendant's request for hearings and adjourned the case for hearings and trial.

However, the minutes to the January 21, 2021 proceedings indicate that the defendant declined a motion schedule and requested an adjournment for trial. Later that same day, off-calendar, the defendant served and filed an omnibus motion, dated January 14, 2021. The [*6]minutes for the next court date, March 11, 2021, show that the parties did not address the January 21, 2021 omnibus motion. On April 20, 2021, the court resolved the defendant's January 21, 2021 omnibus motion.

Defendant's submission omits the period from January 21, 2021, to March 11, 2021, from his speedy trial calculation without explanation. The People contend that this adjournment period is excluded because it is a period of post-readiness not attributed to the People.

The court finds that because the defendant filed motions on January 21, 2021, which were not resolved until April 20, 2021, the period from January 21, 2021, through March 11, 2021, is excluded pursuant to CPL 30.30 (4) (a) (0 days charged).

Defendant contends that the People should be charged with the four-day period from March 11, 2021, through March 15, 2021, because the People stated not ready on March 11, 2021, and requested a trial date of March 15, 2021. Defendant also contends that the People should be charged with at least the{**72 Misc 3d at 896} four-day period from their requested trial date of March 15, 2021, to March 19, 2021,^[FN6] when the People filed a statement of readiness that included the certification language of CPL 30.30 (5-a).

The People contend that only the four-day period from March 11, 2021, through March 15, 2021, should be charged because this is a post-readiness period where the People stated not ready, explained why and requested a trial date when they could be ready.

Nevertheless, the court finds that this entire adjournment must be excluded pursuant to CPL 30.30 (4) (a), because the defendant filed an omnibus motion on January 21, 2021, which was decided on April 20, 2021 (CPL 30.30 [4] [a]).^[FN7]

Defendant contends that as of March 19, 2021, there were 96 days of chargeable time. The defendant's motion does not address whether any periods must be charged after March 19, 2021.

The People contend that the period from April 20, 2021, through June 2, 2021, must be excluded because the People answered ready on April 20, 2021.

The court finds that the period from April 20, 2021, through April 26, 2021 (the date when the defendant filed the instant motion), is excluded because the People stated ready on April 20, 2021. Both parties agree that the March 2021 COR includes the certification language of CPL 30.30 (5-a).

The court finds that the period from April 26, 2021, the date that the defendant filed the instant motion, until the date of this decision, must be excluded pursuant to CPL 30.30 (4) (a). From April 20, 2021, until the date of this decision no days are charged (0 days charged).{**72 Misc 3d at 897}

As of the date of this decision, the People are charged with 75 days (75 days from October 25, 2020, to January 21, 2021; 0 days from January 21, 2021, to March 11, 2021; 0 days from March 11, 2021, to April 20, 2021; 0 days from April 20, 2021, to June 2, 2021; and 0 days from June 2, 2021, to the date of this decision).

The People have not exceeded the statutorily prescribed period within which they must announce their readiness for trial. Accordingly, the defendant's motion to dismiss pursuant to CPL 30.30 is denied.