County Court, Ulster County, January 25, 2022

Ruth L. Boyer, Public Defender (Jeffrey J. Provenzano of counsel), for defendant.

David J. Clegg, District Attorney (Shanza S. Malik of counsel), for plaintiff.

The defendant initially moved, pursuant to CPL 210.20 (1) (g) and 30.30, for an order dismissing the indictment on the sole ground that the People failed to announce their readiness for trial within the statutory time limit. The People opposed the motion on that ground but also on the ground that the certificate of compliance they served was proper and thus their simultaneous announcement of readiness was valid, though this latter ground was not asserted in the defendant's initial papers in support of the motion. However, in his reply papers, the defendant addressed this ground, and accordingly this court will treat his motion as based on both grounds, for which reason the court granted the People permission to submit papers in surreply, provided that their contents were limited to the issue of the validity of their certificate of compliance and simultaneous announcement of readiness.

The record of this case reveals the following:{**74 Misc 3d at 754}

On August 25, 2020, felony complaints charging the defendant with one or more counts of criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]) and one or more counts of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]) were filed in the City Court of the City of Kingston.

On September 22, 2020, the defendant was arrested, arraigned on the charges in City Court, and committed to the custody of the sheriff without bail until a preliminary hearing scheduled to take place on September 28, 2020.

On September 28, 2020, the defendant appeared in City Court for the preliminary hearing, but because the People did not proceed with it, the defendant was released from custody on his own recognizance.

On February 17, 2021, the defendant was held by City Court for the action of the grand jury.

On August 23, 2021, the People emailed to the defendant a link to their discovery disclosures made pursuant to CPL 245.20 (1).

On August 26, 2021, a grand jury of Ulster County handed up an indictment charging the defendant with three counts of criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]).

On August 27, 2021, the People served upon the defendant and filed with this court a certificate of compliance in which they announced their readiness for trial.

On September 22, 2021, the defendant was arraigned on the indictment in this court, at which time the People again announced their readiness for trial.

CPL 30.30 (1) (a) requires the dismissal of an indictment where the People are not ready for trial within "six months of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a felony." The phrase "ready for trial" is not defined in the statute but has been consistently interpreted by the courts as requiring two things: (1) that the People announce their readiness for trial either in open court in the presence of the defendant's attorney or by a written notice to the defendant's attorney and the court, and (2) that the People are actually ready for trial at the time of the announcement—that is, they have {**74 Misc 3d at 755}done all that is required of them to bring the case to a point where it can be tried immediately. (People v Kendzia, 64 NY2d 331 [1985]; People v Miller, 113 AD3d 885 [3d Dept 2014].)

CPL 1.20 (17) specifies that "[a] criminal action is commenced by the filing of an accusatory instrument against a defendant in a criminal court, and, if more than one accusatory instrument is filed in the course of the action, it commences when the first of such instruments is filed." As the actual day an action is commenced is excluded from the calculation of speedy trial time (General Construction Law § 20; People v Stiles, 70 NY2d 765 [1987]) the six-month time period in this case is to be measured from August 26, 2020, and thus would end on February 26, 2021, a period of 185 days.

"Whether the People have satisfied [their obligations under CPL 30.30 (1)] is generally determined by computing the time elapsed between the filing of the first accusatory instrument and the People's declaration of readiness [pre-readiness delay], subtracting any periods of [pre-readiness] 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].)

In this case, the People first announced their readiness for trial on August 27, 2021 (Friday), 182 days after the deadline for doing so. Accordingly, the first order of business is to [*3]determine whether any of this pre-readiness delay is excludable under CPL 30.30 (4), which the People bear the burden of establishing to the court's satisfaction. (People v Beasley, 16 NY3d 289, 292-293 [2011].) In this regard, the People contend that the issuance of various executive orders by the former Governor of New York suspending the time limits imposed by CPL 30.30 (1) during the COVID-19 pandemic constituted an "exceptional circumstance" under CPL 30.30 (4) (g), as a result of which the following periods of time must be excluded from the calculation: from August 26, 2020, through October 4, 2020, a period of 40 days, and from December 31, 2020, through May 23, 2021, a period of 144 days. (The People mistakenly counted from Dec. 30 and thus came up with 145 days.) The total number of days encompassed by these two periods is 184, and thus the People were required to announce their readiness for trial on or before August 29, 2021 (a Sunday). However, pursuant to General Construction Law § 25-a, their time to do so {**74 Misc 3d at 756}must be extended to Monday, August 30, 2021. Having announced their readiness for trial on August 27, by which date the indictment was filed with this court, the defendant could have been arraigned on Monday, August 30, 2021, within the two days required under CPL 210.10 (2) and within the required six-month period. That the arraignment did not take place until September 22, 2021, was the result of calendar congestion and therefore a post-readiness delay not attributable to the People. (People v England, 84 NY2d 1 [1994]; People v Goss, 87 NY2d 792 [1996]; People v Mandela, 142 AD3d 81 [3d Dept 2016].) In short, assuming that the two aforementioned periods were excluded from the calculation by reason of the Governor's executive orders, the People did indeed announce their readiness for trial, and were actually ready for it, within the time period prescribed by CPL 30.30 (1) (a).

In his initial papers in support of the motion, the defendant, apparently anticipating that the People would so contend, agreed that the aforementioned two periods must be excluded from the calculation. But in his papers in reply to the People's papers in opposition to the motion, the defendant changed horses midstream and argued that the period of December 31, 2020, through May 23, 2021, should not be excluded because the executive order (Executive Order [A. Cuomo] No. 202.87 [9 NYCRR 8.202.87] [issued on Dec. 30, 2020]) governing that period, unlike all of the previous executive orders affecting CPL 30.30, by its express terms suspended it "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 in the defendant's motion papers.) He went on to argue that so long as grand juries could be convened during that time, the suspension of the time periods prescribed by CPL 30.30 was not necessary, and correctly pointed out that grand juries have been continually convened in Ulster County from before December 30, 2020, until the present, during which time numerous cases have been presented to and indictments issued by grand juries in this county. (The court takes judicial notice of the fact that grand juries have been continually convened in this county since Oct. 2020.) In further support of this argument, the defendant cites People v Williams (73 Misc 3d 1205[A], 2021 NY Slip Op 50924[U] [Mount Vernon City Ct, Sept. 30, 2021]), and as of this writing, the court is not aware{**74 Misc 3d at 757} of any appellate court decision on the matter. Nevertheless, for the following reasons, this court agrees with the defendant's interpretation of the executive orders in question.

The New York Governor's authority to suspend laws is found in Executive Law § 29-a. In pertinent part, it provides that he may do so "temporarily . . . during a state disaster emergency, if compliance with such provisions would prevent, hinder, or delay action necessary to cope with the disaster." (Id. § 29-a [1] [emphasis supplied].) It goes on to provide that "no suspension shall be made . . . [*4]which is not reasonably necessary to the disaster effort" and that "any such suspension order shall provide for the minimum deviation from the requirements of the statute, local law, ordinance, order, rule or regulation suspended consistent with the disaster action deemed necessary." (Id. § 29-a [2] [b], [e] [emphasis supplied].) In short, if the suspension in question is not absolutely necessary to achieve its stated objective, it must be so interpreted in order to comply with the statute and to prevent the Governor from exceeding the authority granted to him therein.

From March 2020 through May 2021, in response to the pandemic, New York's former Governor issued numerous executive orders. The stated purpose of every one of them was

"to temporarily suspend or modify any statute, local law, ordinance, order, rule, or regulation, or parts thereof, of any agency during a State disaster emergency, if compliance with such statute . . . would prevent, hinder, or delay action necessary to cope with the disaster emergency or if necessary to assist or aid in coping with such disaster." (Executive Order No. 202.87 [emphasis supplied].)

The orders did not begin to suspend CPL 30.30 until July 6, 2020.

But as relevant to this case, our starting point is Executive Order (A. Cuomo) No. 202.60 (9 NYCRR 8.202.60) issued on September 4, 2020, which declared that "[t]he suspension of Section 30.30 of the Criminal Procedure Law, is hereby modified to require that speedy trial time limitations remain suspended in a jurisdiction until such time as petit criminal juries are reconvened in that jurisdiction" through October 4, 2020. (The court takes judicial notice of the fact that petit criminal juries were not reconvened in Ulster County until after Oct. 4, 2020.) On October 4, 2020, Executive Order (A. Cuomo) No. 202.67 (9 NYCRR 8.202.67) was issued declaring,{**74 Misc 3d at 758} in pertinent part, that "[t]he suspension and modification of Section 30.30 of the criminal procedure law, as continued and modified in EO 202.60, is hereby no longer in effect, except for felony charges entered in the counties of [New York City]." Then, on December 30, 2020, Executive Order No. 202.87 was issued declaring, in pertinent part, that

"[s]ection 30.30 . . . of the criminal procedure law [is] suspended 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 supplied.)

[1] Though not exactly models of clarity, a careful reading of such executive orders compels but one conclusion—that the suspension or tolling of the time period prescribed by CPL 30.30 (1) (a) was necessary only while grand juries could not be convened because of the pandemic, making it impossible for the People to obtain indictments. To interpret them otherwise would make no sense. But in this case, grand juries having been continually convened throughout the relevant period, there was nothing to prevent the People from obtaining an indictment well before the speedy trial time period expired. As the 144 days from December 31, 2020, through May 23, 2021, may not be excluded from the calculation, the People were not ready for trial by the statutory deadline.

The defendant also contends that the certificate of compliance filed and served by the People on August 27, 2021, was invalid, thereby rendering their simultaneous announcement of readiness for trial illusory. In support of this contention, the defendant points out that the discovery disclosures which accompanied the certificate indicated that the People were withholding certain electronic recordings, disclosure of which is required under CPL 245.20 (1) (g), because "[t]he material is the subject of a CPL 245.70 protective order," and that the People were withholding certain Giglio material, disclosure of which is required under CPL 245.20 (1) (l), because "[it] is the subject of a CPL 245.70 protective order." But as the defendant [*5]correctly notes, no such protective orders have been issued by the court in this case or even applied for by the People.{**74 Misc 3d at 759}

[2] With respect to the electronic recordings and Giglio material they withheld from the defendant, the People argue, correctly, that under CPL 245.20 (1) (c), because the recordings and Giglio material would identify a confidential informant, they are permitted to withhold such identifying information and to redact it from such recordings and material without having to apply for a protective order. However, this does not mean that the People may refuse to turn over their entire contents to the defendant. As the term "redact" in the statute makes abundantly clear, the People must turn over the entire contents but may redact from them any information that would reveal the identity of the informant and the means by which the informant could be contacted. This is reinforced by the provisions of CPL 245.10 (1) (a) and (1) (a) (iv) (A), both of which provide that "the discoverable portions of such materials shall be disclosed to the extent practicable."

The People's explanation for not doing so in this case is that the recordings "cannot be redacted and provided, as the actual recording and all attendant circumstances therein would provide substantial identifying information akin to disclosing the identity of the informant themselves [sic]." While this could certainly be the case, it is not for the People alone to make this determination; instead, it is incumbent upon them to apply to the court for a protective order, whereupon it shall be up to the court to decide to what extent, if any, the recording must be redacted so as to protect the identity of the confidential informant. This the People unaccountably failed to do. In addition, the People did not address at all their withholding of the Giglio material, but strangely they did address the failure to turn over certain Rosario material pertaining to laboratory tests even though no issue was raised by the defendant concerning such material.

Therefore, pursuant to CPL 245.50 (3), the court finds that the certificate filed and served by the People on August 27, 2021, was improper, and thus that the People were not actually ready for trial on that date.

Accordingly, it is hereby ordered that the motion is granted and the indictment is dismissed.