Defendant Justin Rivera, charged with two counts of Forcible Touching [PL §§ 130.52(1) and (2)], one count of Sexual Abuse in the Third Degree [PL § 130.55], and one count of Public Lewdness [PL § 245.00(a)] moves, by notice of motion dated February 4, 2021, for an order: 1) deeming the prosecution's certificate of compliance, filed on March 2, 2020, invalid due to the non-disclosure of certain discoverable materials pursuant to CPL 245.20(1); 2) dismissing the accusatory instrument pursuant to CPL 30.30 and CPL 210.20 (1)(g); 3) suppressing physical evidence, or granting a Mapp/Dunaway hearing; 4) suppressing statements, or granting a Huntley/Dunaway hearing; and the granting of other forms of pretrial relief.

For reasons that follow, the People's certificate of readiness filed on March 2, 2020 failed to comply with the certification requirements of CPL 30.30 (5-a), necessitating dismissal of the charges for violation of the speedy trial statute. Defendant's remaining motions are rendered moot.

Mr. Rivera, the Defendant, is charged with Forcible Touching, Sexual Abuse in the Third Degree, and Public Lewdness relating to an incident on February 21, 2020, in which he is accused of pushing his groin against the buttocks of a female passenger on a subway train, without her consent, and exposing his private parts on the subway train.

Mr. Rivera was arrested on the same day and arraigned on February 22, 2020. The case was adjourned for conversion to March 24, 2020, however on March 2, 2020, the People filed off-calendar two supporting depositions, a certificate of compliance (hereinafter, "COC") and a certificate of readiness (hereinafter, "COR"). On March 23, 2020, and on subsequent dates until December 21, 2020, the case was administratively adjourned due to the Coronavirus pandemic, [*2]as only emergency matters were being calendared at that time.^[FN1] On December 21, 2020, the court deemed the complaint an information. Mr. Rivera challenged the "COC" and "COR" dated March 2, 2020, arguing that the People had not disclosed certain discoverable material at the time they filed the "COC."^[FN2] Mr. Rivera also argued that as a result of the "COC" being invalid, the "COR" was by default invalid. Additionally, Mr. Rivera argued that the "COR" filed did not meet the People's statutorily required certification.

The People responded that any discovery challenges must be made in writing. The case was adjourned to February 9, 2021 for trial. However, on February 4, 2021, Mr. Rivera filed the instant motion, and the People filed their response on February 25, 2021. Mr. Rivera also filed a reply on April 1, 2021.

In 2019, New York amended its speedy trial statute with the addition of CPL 30.30 (5-a), which 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." (emphasis added)

* * *

The statute imposes on the Court a simple language interpretation and this Court relies on long-standing Court of Appeals precedent that "[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. Finnegan, 85 NY2d 53, 58 (1995); People v. Francis, 30 NY3d 737, 740 (2018); Matter of Walsh v. New York State Comptroller, 34 NY3d 522, 524 (2019); Colon v. Martin, 35 NY3d 75, 78 (2020).

The Supplementary Practice Commentary to CPL 30.30 (5-a) by William Donnino notes that this new subsection was added to abrogate the practice of partial conversion, whereby some counts of an accusatory instrument have been deemed converted, while at the same time leaving other existing counts unconverted on the same accusatory instrument. Therefore, the enactment of CPL 30.30 (5-a) was a response to critics of the practice of partial conversion and to provide a bright-line rule as to when the People can answer ready for purposes of speedy trial. See, People [*3]v. Brooks, 190 Misc 2d 247, 252 (App. Term 1st Dept. 2001) (concurring opinion, Suarez, J.)^[FN3]

As such, a CPL 30.30 (5-a), certification requires the People to attest in a "COR": (1) that all counts of an accusatory instrument are facially sufficient in compliance with CPL 100.15 and 100.40 and (2) that those counts not meeting the requirements for facial sufficiency have been dismissed, before they can "answer ready" and toll the speedy trial clock.^[FN4] This requirement does not place an additional burden on the People.

Consistent with this Court's view, several other courts have begun to invalidate "statements of readiness" which do not contain the required certification language, resulting in dismissal. See, People v. Aaron Ross, Decision and Order, Dkt. No. CR-025918-19NY (Crim. Ct. NY Co., Aug. 2020) (Gaffey, J.); People v. Manny Lopez, Decision and Order, Dkt. No. CR-001527-20NY (Crim. Ct. NY Co., Jan. 2021) (Chu, J.); People v. Maria Ramirez-Correa; 2021 Slip Op. 21040 (Crim. Ct. Queens Co. Feb. 2021).^[FN5]

In the case at bar, the People's "COR" filed on March 2, 2020 simply states: "Yesenia Brewster, an Assistant District Attorney in the County of New York, hereby certifies that the People are ready for trial in the above-entitled action."^[FN6]

The People respond that although their "COR" dated March 2, 2020 did not include the required certification language contained in CPL 30.30(5-a), the accusatory instrument "did, in fact, satisfy the statutory requirements of CPL 100.15 and 100.40." See, People's Aff. in response, ¶ 26, p.8. The People also argue that when the court deemed the complaint an information on December 21, 2020, the court was somehow also validating the People's "COR".^[FN7] This Court disagrees and finds that the "COR" does not comply with the statute, is invalid, and therefore cannot toll the speedy trial clock.

Therefore, the Court finds that the following time periods are chargeable:

February 22, 2020 — March 20, 2020(27 Days charged)

October 5, 2020 — December 21, 2020(78 Days charged)

December 21, 2020 — February 4, 2021(45 Days charged)

A motion to dismiss, pursuant to CPL 30.30 and CPL 210.20(1)(g), must be granted where the People are not ready for trial within 90 days of the commencement of the action, where the top count of the information is a class A misdemeanor. CPL 30.30 (1)(b). Because the total includable time here amounts to 150 days, exceeding the allowable time of 90 days, the information must be dismissed.

This court finds the People's "COR" filed on March 2, 2020 invalid as lacking the required certification pursuant to CPL 30.30 (5-a). Therefore, since the speedy trial time elapsed exceeds the allowable 90 days the information is dismissed. The Defendant's remaining motions are therefore rendered moot.

This opinion constitutes the decision and Order of the Court.