Criminal Court of the City of New York, Bronx County, August 26, 2021

The Legal Aid Society, Bronx (Masooma Javaid of counsel), for defendant.

Darcel D. Clark, District Attorney, Bronx (Christopher Conway of counsel), for plaintiff.

Defendant Richard Herrera was initially charged with three counts of forcible touching (Penal Law § 130.52 [1]), one count of endangering the welfare of a child (Penal Law § 260.10 [1]), three counts of sexual abuse in the third degree (Penal Law § 130.55), and three counts of harassment in the second degree (Penal Law § 240.26 [1]), based on alleged conduct directed at three different complaining witnesses. Defendant now moves this court to dismiss the accusatory instrument pursuant to CPL 30.30, 245.50, and 170.30 (1) (e). In particular, he relies on CPL 30.30 (5-a) in arguing that the prosecution cannot validly state their readiness for trial, because they never converted those counts related to one of the three complaining witnesses, and only moved to dismiss those counts after the applicable speedy trial period had run out. The People oppose defendant's application.

Where, as here, the top count charged in the complaint is an A misdemeanor, the People are required to be ready for trial within 90 days of the filing of the accusatory instrument, less any excludable time (CPL 30.30 [1] [b]; 1.20 [17]). The court finds that 110 days of chargeable time elapsed between the commencement of the action on February 13, 2021, and the setting of a motion schedule on June 3, 2021. For the reasons discussed below, defendant's motion to dismiss pursuant to CPL 30.30 is granted and the accusatory instrument is dismissed in its entirety.

On February 13, 2021, defendant was arraigned on the criminal complaint. The People did not file supporting depositions at arraignment, and the case was adjourned to March 19, 2021, for conversion of the complaint to an information, and for the People to file a certificate of compliance (COC) pursuant to CPL 245.50. Off-calendar on February 25, 2021, the People filed two supporting depositions for two of the three complaining witnesses; they did not file a supporting deposition for the third complaining witness. The next day, the People served defendant with a discovery package and filed and served a COC and statement of readiness (SOR). The People served two additional discovery packages on defendant on March 3, 2021, and March 18, 2021. Based on the additional discovery, they{**73 Misc 3d at 336} filed a supplemental COC and SOR on March 18, 2021. The People filed a second supplemental COC and SOR on April 6, 2021, maintaining their readiness since February 26, 2021. The People continued to serve Giglio material and additional discovery throughout April and May 2021.

After two administrative adjournments, the case was scheduled for June 3, 2021. During [*2]the calendar appearance on that date, the court granted the People's application to dismiss all counts related to the third complaining witness, who had never signed a supporting deposition. The court then arraigned defendant on the information, the People maintained their readiness for trial, and a motion schedule was set.

Prior to the broad criminal justice reforms that took effect on January 1, 2020, applicable to all pending cases, "partial conversion" was a common practice. That practice ended with the new legislation, which provides in relevant part that "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 [those sections] have been dismissed" (CPL 30.30 [5-a]). Here, the criminal complaint filed at the commencement of this action on February 13, 2021, was not cured of hearsay allegations until June 3, 2021, when the unconverted counts related to the third complaining witness were dismissed on the People's application, but only after the 90-day speedy trial period had expired. As such, despite the People filing SORs on February 26, 2021, March 18, 2021, and April 6, 2021, they had not met their burden for actual trial readiness under CPL 30.30 (5-a).

The People argue in opposition to defendant's motion that defendant should be estopped from challenging the validity of their SORs, and that the People's certification of facial sufficiency was compliant (see CPL 100.15, 100.40). These arguments miss the point that the People did not meet their burden of full conversion within the applicable 90-day speedy trial period (CPL 30.30 [5-a], [1] [b]; 1.20 [17]).

The court finds after review of the parties' motion papers and court file, and based upon the foregoing calculation, the{**73 Misc 3d at 337} People are charged with a total of 110 days, and therefore defendant's motion to dismiss the information pursuant to CPL 30.30 (1) (b) is granted.