County Court, Orange County, November 22, 2021

Larkin Ingrassia, LLP, Newburgh (John Ingrassia of counsel), for defendant.

David M. Hoovler, District Attorney, Goshen (Richard J. Giordano of counsel), for plaintiff.

Defendant Michael Taback is charged by indictment No. 2021-210 with one count of assault in the first degree pursuant to Penal Law § 120.10 (1) and one count of assault in the second degree pursuant to Penal Law § 120.05 (2). The charges pertain to defendant's alleged shooting and pistol-whipping of an individual at approximately 11:23 p.m. on October 16, 2020, in the vicinity of the Golden Rail Ale House, located at 29 Old North Plank Road in the Town of Newburgh.

On July 6, 2021, defendant was arraigned by this court on the charges contained in indictment No. 2021-210 and the court acknowledged receipt of the People's statement of readiness which has, inter alia, a notice and disclosure form, a certificate of compliance dated July 6, 2021, a three-page index and 23 "Compliance Report for Discovery Package" pages identifying items and materials that were provided and made available to defense counsel, and three "eDiscovery Instructions" pages attached thereto. Within the statement of readiness and the certificate of compliance, the People aver that they "are in all respects ready for trial" and they so announced at defendant's arraignment in response to this court's inquiry of actual readiness (see CPL 30.30 [5]).

The court received defendant's notice of motion, accompanying affirmation and nine exhibit attachments, seeking various forms of judicial intervention and relief including, but not limited to, dismissal of the indictment on the ground that the defendant's right to a speedy trial [*2]pursuant to CPL 210.20 (1) (g) and 30.30 (1) (a) was violated.

The court thereafter received the People's supplemental certificate of compliance, and an attached one-page index identifying 10 additional items and materials that were provided and made available to defense counsel. The supplemental certificate of compliance sets forth that "[t]he People are in all respects ready for trial."

{**74 Misc 3d at 305}The People filed an affirmation in response^[FN1] with a copy of Executive Order (A. Cuomo) No. 202.87 (9 NYCRR 8.202.87) attached thereto, an unredacted certified copy of the stenographic transcript of the June 2, 2021 grand jury proceeding, and 12 grand jury exhibits.

Defendant subsequently filed a reply affirmation in which, inter alia, he again seeks dismissal of the indictment on the grounds that his right to a speedy trial pursuant to CPL 210.20 (1) (g) and 30.30 (1) (a) was violated and argues that the People's reliance upon Executive Order 202.87 to toll the time periods of CPL 30.30 is misplaced. Five additional exhibit attachments are attached to defendant's reply affirmation.

After consideration of the above referenced submissions, the court decides defendant Taback's motion as follows:

Pursuant to CPL 210.20 (1) (g) and 30.30 (1) (a), defendant requests that the court dismiss the charges filed against him because "he has been denied a speedy trial."

Specifically, defendant contends that the "eight months and nineteen days of time" from October 17, 2020 (the date that the felony complaint was filed), through July 6, 2021 (the date that the People filed the certificate of compliance and announced their readiness for trial), are chargeable to the People.^[FN2]

In response, the People contend that defendant's right to a speedy trial has not been denied due to former New York State Governor Andrew Cuomo's issuance of Executive Order 202.87, which, they assert, suspended CPL 30.30 from December 30, 2020, until it was rescinded by Executive Order (A. Cuomo) No. 202.106 (9 NYCRR 8.202.106) on May 23, 2021. While conceding that the 75 days from October 17, 2020 (the date that the felony complaint was filed), through December 30, 2020 (the effective date of Executive Order 202.87), and the 43 days from May 23, 2021 (the end date of Executive Order 202.87), through July 6, 2021 (the date that the People filed the certificate of compliance and announced their readiness for trial), are chargeable to them, the People aver that the 144 days from{**74 Misc 3d at 306} December 30, 2020, through May 23, 2021 (the applicable dates of Executive Order 202.87), are excludable and not chargeable to them.

"Pursuant to CPL 30.30 (1) (a), the People must be ready for trial within six months of the commencement of a criminal action accusing a defendant of a felony offense" (People v Clarke, 28 NY3d 48, 52 [2016], quoting People v Carter, 91 NY2d 795, 798 [1998]; see People [*3]v Price, 14 NY3d 61 [2010]; People v Bowman, 197 AD3d 714, 714 [2d Dept 2021]; People v Stiebritz, 192 AD3d 705, 705 [2d Dept 2021]; People v Connell, 185 AD3d 1048, 1049 [2d Dept 2020]; People v Huger, 167 AD3d 1042, 1042 [2d Dept 2018], lv denied 33 NY3d 949 [2019]), "not including excludable periods" (People v Clinkscales, 171 AD3d 1086, 1087 [2d Dept 2019]; see People v Huger, 167 AD3d at 1042; People v Cox, 161 AD3d 1100, 1100 [2d Dept 2018]; CPL 30.30 [4]). "The failure to declare readiness within the statutory time limit will result in dismissal of the prosecution, unless the People can demonstrate that certain time periods should be excluded" (People v Brown, 28 NY3d 392, 403 [2016], quoting People v Price, 14 NY3d 61, 63 [2010]).

"Whether the People have satisfied [their] obligation is generally determined by computing the time elapsed between the [commencement of the criminal action] and the People's declaration of readiness, subtracting any periods of delay that are excludable under the terms of the statute and then adding to the result any postreadiness periods of delay that are actually attributable to the People and are ineligible for an exclusion" (People v Cortes, 80 NY2d 201, 208 [1992]; see People v Carter, 91 NY2d at 799; People v Clinkscales, 171 AD3d at 1087; People v Huger, 167 AD3d at 1042; People v Lynch, 103 AD3d 919, 920 [2d Dept 2013], lv denied 21 NY3d 1017 [2013]; People v Headley, 100 AD3d 775, 776 [2d Dept 2012]).

A criminal action is commenced by the filing of an accusatory instrument against a defendant in a criminal court (see CPL 1.20 [17]), which includes a felony complaint (see CPL 1.20 [1]; People v Huger, 167 AD3d at 1042; People v Cox, 161 AD3d at 1100; People v Sant, 120 AD3d 517, 518 [2d Dept 2014]). On October 17, 2020, a felony complaint charging defendant with assault in the first degree was filed and he was virtually arraigned thereon by a Justice of the New Windsor Town Court on that same date. Thus, the criminal action against defendant{**74 Misc 3d at 307} and the speedy trial clock commenced on October 17, 2020, and, absent excludable delay, the People were required to be ready for trial within 182 days thereafter.^[FN3]

On March 20, 2020, due to the COVID-19 health crisis, former New York State Governor Andrew Cuomo issued Executive Order (A. Cuomo) No. 202.8 (9 NYCRR 8.202.8), which, inter alia, limited court operations to essential matters, and unconditionally suspended CPL 30.30 and tolled its speedy trial calculations. The suspension of CPL 30.30 and the tolling of its speedy trial calculations remained in effect through a series of executive order extensions until October 4, 2020, when they were lifted with the Governor's issuance of Executive Order (A. Cuomo) No. 202.67 (9 NYCRR 8.202.67).

As the filing of the felony complaint charging the defendant in this case occurred 13 days after the issuance of Executive Order 202.67, there are indisputably no excludable time periods during the 75 days from October 17, 2020, through December 30, 2020, and such are chargeable to the People.

On December 30, 2020, Executive Order 202.87 suspended CPL 30.30 and 190.80 "to the extent necessary to toll any time periods contained therein for the period during which the criminal action is proceeding on the basis of a felony complaint through arraignment on the indictment or on a superior court information and thereafter shall not be tolled" (emphasis added). This suspension remained in effect until May 23, 2021, when it was rescinded by the issuance of Executive Order 202.106.

In the instant case, defendant was arraigned on the charges contained in indictment [*4]No. 2021-210 on July 6, 2021, and the People filed and served a "Statement of Readiness" and a certificate of compliance on that date asserting that "[t]he People are in all respects ready for trial." The People's certificate of compliance certifies that, "after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery under CPL § 245.20 (1), the People have disclosed and made available to the defendant all known material and information that is subject to discovery." Attached to the certificate of compliance is a three-page index and 23 "Compliance Report for Discovery Package" pages identifying items and materials that were provided and made available to defense counsel, and three "eDiscovery Instructions" pages.

{**74 Misc 3d at 308}Without considering the merits of defendant's motion to strike the certificate of compliance and assuming for the sake of the instant speedy trial argument that the People's statement of readiness in response to this court's inquiry of actual readiness was not illusory (see People v Maslowski, 187 AD3d 1211, 1214 [2d Dept 2020], lv denied 37 NY3d 973 [2021]), it is irrefutable that there are no excludable time periods during the 43 days from May 23, 2021, through July 6, 2021, and such are likewise chargeable to the People.

Accordingly, as 118 days have been charged to the People under the two time periods discussed above and as they were required to announce their readiness within 182 days of October 17, 2020, the People's delay in doing so, barring excludable delay, must not exceed 64 days.

The People rely upon Executive Order 202.87 as the basis of their argument that CPL 30.30 was tolled from December 30, 2020, through May 23, 2021, and that the 144 days within that time period are, thereby, excludable.

"[T]he governing rule of statutory construction is that courts are obliged to interpret a statute to effectuate the intent of the Legislature, and 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 Williams, 19 NY3d 100, 103 [2012], quoting People v Finnegan, 85 NY2d 53, 58 [1995]; see People v Badji, 36 NY3d 393, 399 [2021]; People v Middlebrooks, 25 NY3d 516, 523 [2015]; People v Brown, 25 NY3d 247, 250 [2015]; Moore v City of New York, 197 AD3d 93, 95 [2d Dept 2021]). In interpreting the language of Executive Order 202.87, it is clear that the use of the phrase "to the extent necessary" is qualifying language that must be narrowly construed, as it is language that was not included in Executive Order 202.8, which initially tolled CPL 30.30.

Here, the People have not provided the court with any information as to why it was "necessary" for the time period of December 30, 2020, through May 23, 2021, to be tolled. This court takes notice of the fact that an Orange County grand jury commenced hearing cases on October 14, 2020,^[FN4] three days before the felony complaint in this matter was filed, and the court is unaware of a "necessary" pausing of subsequent grand {**74 Misc 3d at 309}jury presentations after that date.^[FN5] The [*5]People have also not provided the court with any information as to why it was "necessary" for this matter to not be presented to a grand jury until June 2, 2021, 228 days from the filing of the felony complaint. Accordingly, as there were no "necessary" excludable time periods from December 30, 2020, through May 23, 2021, the People are charged with the 144 days thereof.

Therefore, as 262 days elapsed between the commencement of the criminal action against the defendant and the People's declaration of readiness, in contravention of the 182 days permitted by CPL 30.30 in this case, and as there are no discernible periods of delay that are excludable under the terms of that statute, defendant's motion to dismiss indictment No. 2021-210 on the ground that he was denied his right to a speedy trial is granted.

In light of this determination, the court need not address defendant's remaining contentions.