Defendant has moved by way of Notice of Motion dated June 1, 2021, seeking dismissal of the charges pursuant to C.P.L. § 30.30 on the grounds that the defendant's right to a speedy trial has been violated in that the People have not been ready for trial within the 90-day statutory period. Defendant's motion is supported by the affirmation of Richard A. Berube, Esq., Sr. Assistant Public Defender, dated June 1, 2021. The People have opposed the motion, supported by the Affirmation in Response of Chelsy E. Jones, Esq., Sr. Assistant District Attorney, dated July 6, 2021. Defendant was originally charged with aggravated driving while intoxicated in violation of V.T.L. § 1192(2-a)(a); driving while intoxicated in violation of V.T.L. § 1192(3) - unclassified misdemeanors; no tail lamps in violation of V.T.L. § 375(2)(a)(3); and illegal signal in violation of V.T.L. § 1163(b) - both traffic infractions. On December 4, 2020, defense counsel requested supporting depositions for each of the simplified traffic infractions. Following, defense counsel filed a motion to dismiss, dated February 23, 2020, after the People failed to timely file same. With the consent of the People the traffic infractions were dismissed by this Court in a decision and order, dated April 20, 2021. Now, having read and deliberated on the defendant's motion and the People's response thereto, the Court hereby finds and determines the motion as follows:

The accusatory instruments were filed with the Court on November 17, 2020. The defendant demanded the supporting depositions on December 4, 2020. More than thirty (30) days passed without a supporting deposition having been served on defendant's attorney. On February 11, 2021, the People announced ready for trial, and filed a Certificate of Compliance pursuant to C.P.L. §245.50(1). Defendant moved to dismiss the charges pursuant to C.P.L. § 100.25(2) via Notice of Motion, dated February 23, 2020, which was granted via Decision and Order, dated April 20, 2021. Defendant argues that the People's statement of readiness filed on February 11, 2021, was insufficient because it lacked the certification under C.P.L. § 30.30(5-a) in that the prosecutor failed to certify that the unconverted counts (the traffic infractions) had been dismissed, or that no counts had been dismissed. Defendant relies in part upon People v. Lavrik, 2021 NY Slip Op. 21110 (Criminal Court City of New York), for the proposition that all time should be chargeable to the People for speedy trial purposes from November 30, 2020 through February 23, 2020 (when speedy trial motion was filed), because the People failed to certify that indeed the unconverted counts had been dismissed, which they could not do because the People failed to dismiss the unconverted counts when they filed their certificate of readiness on February 11, 2021. Alternatively, Defendant argues that the People's statement of readiness filed on February 11, 2021 was illusory because: 1) the Court failed to make the required inquiry on the record as to the actual readiness under C.P.L. §30.30(5); and 2) the People could not state ready for trial pursuant to C.P.L. § 30.30(5-a) on the traffic infractions that were ultimately dismissed, because those charges were never converted to trial ready instruments.

In opposition, the People argue that the February 11, 2021 statement of readiness is valid on the remaining charges before this Court. First, the People contend that the dismissal of the traffic infractions did not invalidate the Certificate of Compliance filed on February 11, 2021. Secondly, relying in part upon People v. Brooks, 190 Misc 2d 247 (1st Dept. 2001), the People argue that partial conversion has long been recognized by the courts. Third, the People argue that the all or nothing approach of "readiness" - advanced by Defendant - is illogical and in contravention with recent precedent such as People v. Shadrin, 2002 NY Slip Op 50468 citing People v. Singh, 187 Misc 2d 465 (Kings County 2001); People v. Monroe, 183 Misc 2d 374 (New York County 2000).

The law provides that if the People are not ready for trial within "ninety days of the commencement of a criminal action wherein the defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony," a motion to dismiss based upon statutory speedy trial grounds must be granted. C.P.L. § 30.30(1)(b). Here, the remaining charges before this Court are misdemeanors for which the People must be ready for trial within ninety (90) days of the commencement of the criminal action. C.P.L. § 30.30 (1)(b). In determining whether the People have met their statutory obligation under speedy trial time constraints, the Court must compute the time between the filing of the accusatory instrument and the People's statement of readiness, subtracting any periods of delay that are excludable under C.P.L. § 30.30(4), while adding any post-readiness period of delay for which no statutory exclusions apply. People v. Cortes, 80 NY2d 201, 208 (1982).

The defendant seeking dismissal based upon speedy trial grounds bears the initial burden [*2]to demonstrate that the People were not ready within the statutory time period. People v. Sibblies, 22 NY3d 1174; People v. Santos, 68 NY2d 859 (1986). A defendant meets this burden by simply, "alleging only that the prosecution failed to declare readiness within the statutorily prescribed time period." People v. Luperon, 85 NY2d 71, 77-78 (1995); People v. Goode, 87 NY2d 1045, 1047 (1996). Here, defendant has so alleged. In turn, once the burden is met, the burden then shifts to the People to show that the delay was not chargeable to them or that time should be excluded, and if the People fail to controvert the factual basis for the motion by identifying statutory exclusions on which they intend to rely, the motion to dismiss must be summarily granted. People v. Santos, 68 NY2d 859, 861 (1986); see, People v. Goode, supra. Being "ready for trial" used to be satisfied by demonstrating just two elements: 1) either a statement of readiness by the prosecutor in open court, transcribed by a stenographer, or recorded by the clerk or a written notice of readiness sent by the prosecutor to both defense counsel and the appropriate court clerk, and 2) the People must in fact be ready to proceed at the time they declare their readiness. People v. Kendzia, 64 NY2d 331, 337(1985); People v. Chavis, 91 NY2d 500, 505 (1998). Recent criminal justice reform laws in New York State have changed this however.

On January 1, 2020, new legislation in New York took effect that imposed additional requirements on the prosecution which replaced C.P.L. Article 240 with C.P.L. Article 245, and the law now requires that the People file a Certificate of Compliance when they have provided automatic discovery [C.P.L. § 245.30(1)] in order to be deemed ready for trial pursuant to C.P.L. § 30.30. People v. Ramirez-Correa, 71 Misc 3d 570 (NY Crim. Ct. February 25, 2021). For instance, C.P.L. § 30.30(5) provides that when the People state their readiness for trial, "the court shall make inquiry on the record as to their actual readiness . . . [and] 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." C.P.L. § 30.30(5). Moreover, C.P.L. § 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.

C.P.L. § 30.30(5-a). Toward this end, some Courts have held that the above statute [C.P.L. §30.30(5-a)] does not include language that the statement of readiness 'must be accompanied or preceded by' Certificate of Compliance with partial conversion proscription, but rather that a subsequent C.P.L. § 30.30(5-a) certification validates the prior statement of readiness. See, People v. Lewis, 2021 NY Misc. LEXIS 2963 (Kings County May 24, 2021); People v. Plaza, 2021 NY Misc. LEXIS 3751 (New York County 2021); People v. Aviles, 2021 NY Misc. LEXIS 2206 (Kings County 2021). Some courts have concluded that this differentiation between the language in the statutes was a conscious decision by the Legislature, reasoning that facial sufficiency certification 'shall be made' for a statement of readiness to be 'valid,' but the certification does not have to be made prior to or accompanying the statement of [*3]readiness." People v. Kupferman, supra; People v. Aviles, 2021 NY Slip Op. 50550. In other words, certification of the sufficiency of the accusatory instrument in accordance with C.P.L. §30.30(5-a) does not have to be contemporaneous or prior to the Certificate of Compliance and statement of readiness. People v. Kupferman, supra; People v. Aviles, supra.

The sole "condition precedent to the prosecutor's ability to file a Certificate of Compliance is the discovery of all material considered [a]utomatic [d]iscovery." People v. Napolitano, 67 Misc 3d 1241(A) (New York County 2020). Compliance with C.P.L. § 30.30(5-a) is required to stop the speedy trial clock and requires all charges to be converted with non-hearsay allegations before the People can announce readiness for trial, or, alternatively, requires that all charges supported by hearsay allegations be dismissed by the People. People v. Aviles, 2021 NY Slip Op. 21127.

Here, the People announced ready for trial, did not dismiss the traffic infractions that were based upon hearsay allegations, but also did not include language in their Certificate of Compliance that any unconverted counts had been dismissed in accordance with C.P.L. § 30.30(5-a). Albeit, they could not certify this because it was the Court that dismissed the unconverted charges via Decision and Order, dated April 20, 2021. While this Court does not find the Certificate of Compliance to have been illusory just because the People did not move to dismiss the traffic infractions, the People should have filed a Supplemental Certificate of Compliance to stop the proverbial "speedy trial clock" from ticking once the unconverted charges were dismissed. Indeed, no Supplemental Certificate of Compliance stating that the unconverted counts had been dismissed has been filed to date.

While this Court acknowledges that the best practice for the People is to certify the accusatory instrument prior to or contemporaneously with their statements of readiness for trial, failure to do so is not necessarily fatal. People v. Kupferman, supra; People v. Lewis, supra; People v. Aviles, supra. Indeed, courts are admonished to avoid adhering to an overly formalistic reading of statutory text in isolation that will risk unintended and absurd results. Natural Res. Def. Council, Inc. v. Muszynski, 268 F.3d 91, 98 [2d Circ. 2001]. This Court follows the rationale set forth in People v. Aviles, People v. Kupferman, and People v. Lewis in that the Certificate of Compliance does not have to be filed prior to or contemporaneous with the statement of readiness, and declines to follow the trial court decisions that have resolved this issue differently. Cf., e.g., People v. Ramirez-Correa, 71 Misc 3d 570 (Queens County 2021); People v. Paez, 2021 N.Y.L.J. LEXIS 405 (New York County 2021). Notwithstanding the above, the fact remains that the People never filed a Supplemental Certificate of Compliance after the Decision and Order, dated April 20, 2020, issued by this Court dismissed the traffic infractions for facial insufficiency - which makes it a fatal omission in this instance.

Based upon the foregoing, the time period from the date the accusatory instrument was filed, (November 17, 2020) to the date the People filed the Certificate of Compliance and Statement of Readiness (February 11, 2021) totals eighty-six (86) dayswhich are chargeable to the People. The Court finds as follows with respect to the dates calendared thereafter:

•February 12, 2021 - February 22, 2021. Eleven (11) days are chargeable to the People, as this Court finds that the Certificate of Compliance and Statement of Readiness, dated February 11, 2021, was illusory here based upon the fact that the People failed to file a supplemental Certificate of Compliance in conformity with C.P.L. § 30.30(5-a), averring that the counts had [*4]ultimately been dismissed.

• February 23, 2021 - April 20, 2021 - Defendant filed a motion to dismiss. This time is excludable from speedy trial calculations pursuant to C.P.L. § 30.30(4)(a), as defendant's pre-trial motion to dismiss was under consideration by the Court. C.P.L. § 30.30(4)(a). The Court dismissed the traffic infractions via Decision and Order dated April 20, 2021. The People did not announce ready for trial on the remaining charges.

• April 21, 2021 - May 31, 2021. Forty-one (41) days are chargeable to the People. This Court finds that the Certificate of Compliance and Statement of Readiness, dated February 11, 2021, was illusory, because no supplemental Certificate of Compliance was ever filed by the People in conformity with C.P.L. § 30.30(5-a), averring that the counts had been dismissed. Therefore, the time is not excludable.

• June 1, 2021 - present. Defendant filed the instant speedy trial motion. This time is excludable from speedy trial calculations pursuant to C.P.L. § 30.30(4)(a), as defendant's pre-trial motion to dismiss was under consideration by the Court.

Based upon the foregoing, this Court calculates that one hundred thirty-eight (138) days are chargeable to the People (86 + 11 + 41). The People have exceeded the statutorily prescribed period within which they must be ready for trial. Accordingly, defendant's motion to dismiss on the remaining counts of the docket must be granted, for the People failed to demonstrate a valid certification of readiness within the statutory 90-day period thereby violating defendant's right to a speedy trial.

Based upon the foregoing, this Court needs not reach Defendant's contention that the Court failed to make the required inquiry on the record as to the People's actual readiness under C.P.L. §30.30(5), especially here, since no minutes were provided in the instant motion to support this conclusory claim.

2. The defendant's request to file additional motions is rendered moot by the findings set forth in the foregoing.

WHEREFORE, it is NOW

ORDERED, that Defendant's speedy trial motion to dismiss the remaining counts on the docket is GRANTED in its entirety pursuant to C.P.L. §§ 170.30(1)(e) and 30.30(1).

SO ORDERED.