Criminal Court of the City of New York, Kings County, March 10, 2022

Office of Brooklyn Defender Services (Elizabeth Forester of counsel) for defendant.

Eric Gonzalez, District Attorney (Devyn Hebert of counsel), for plaintiff.

Defendant is charged with assault in the third degree, in violation of Penal Law § 120.00 (1); obstruction of governmental administration in the second degree, in violation of Penal Law § 195.05; resisting arrest, in violation of Penal Law § 205.30; and related charges.

By motion dated November 9, 2021, defendant moves for an order dismissing the accusatory instrument pursuant to Criminal Procedure Law § 30.30 as beyond speedy trial time. The People filed opposition on November 19, 2021, and defendant filed a reply on November 24, 2021.

On January 4, 2022, this court rendered an oral decision dismissing the accusatory instrument. This written decision memorializes that oral decision.

The defendant claims that the People must be charged approximately 94 days and therefore, the People have failed to{**75 Misc 3d at 217} meet their CPL 30.30 obligation as more than 90 days elapsed since the accusatory instrument was filed.

Defendant asserts that the People filed a certificate of compliance (CoC) and statement of readiness (SoR) which was stamped by the Electronic Document Delivery Service (EDDS) and was served on defense counsel at 7:10 p.m. on Friday, November 5, 2021. The defendant asserts that since the CoC and SoR were served and filed after the close of business on the 90th day, the papers did not serve to stop the speedy trial clock on the 90th day.

The defendant relies on People v Min Jiang (Crim Ct, Kings County, 2021, Calabrese, J., CR-001717-21KN), wherein the court held:

"In the instant case here, the People filed [a] COC and SoR after business hours on April 19th at 8:37:39 pm. This time was recorded in the EDDS and [UCMS] systems. As such, the materials were not processed and stamped by the clerk of the courthouse until [*2]4/20/21—91 days after the defendant's arraignment . . .

"Therefore, the People's service of the COC and SoR upon defense counsel several hours after the close of business, [sic] the People have exceeded the parameters of defense counsel's consent to electronic service and therefore the Court finds that the People should be charged the full time period of January 19, 2021 through April 20, 2021—91 days." (Slip op at 2.)

See also People v Eugenio Gonzalez (Crim Ct, Kings County, Arriaga, J., docket No. CR-001716-21KN), which finds that the People waited until Monday, April 19, 2021, at 6:08 p.m., to submit their CoC and SoR. The court took judicial notice that the court clerk's office closes at 5:00 p.m. The court ruled that the People's SoR was not filed with the court until the 91st day since the submission of the CoC and SoR to EDDS occurred after close of court on the 90th day.

The defendant also argues that the CoC the People attempted to serve and file on November 5, 2021, was illusory as the People did not serve "911 audio, radio runs, SPRINT report" (defendant affirmation ¶ 7).

The People counter that CPL 30.30 does not specify a time of day before which an SoR and CoC must be filed. Further, they assert that pursuant to General Construction Law § 19, "[a] calendar day includes the time from midnight to midnight."

{**75 Misc 3d at 218}Regarding the incomplete discovery, the People state that they made good faith efforts to comply with their discovery obligations, and that any delay was due to exceptional circumstances related to the pandemic and the shortage of employees able to work on and to send the requested materials. Therefore, the People argue that if the court finds more than 90 days are chargeable, the People are still timely with their CoC and SoR based on extraordinary circumstances due to the allegedly short staffing of the New York City Police Department (NYPD) due to the COVID-19 vaccine mandate.

Further, the People contend that they did turn over most of the material, and that they would turn over any outstanding discovery promptly upon receipt.

Certificate of Compliance and Statement of Readiness Submitted on the 90th Day

As the highest charge against the defendant is a class A misdemeanor punishable by a sentence of over three months, the People had 90 days to be ready for trial (CPL 30.30 [1] [b]).

The parties agree that the People served and filed the CoC and SoR on the 90th day at approximately 7:10 p.m. The primary issue before the court is whether this was timely as served on the 90th day.

This court concludes that it was not timely served on the 90th day.

People v Kendzia (64 NY2d 331 [1985]) remains the touchstone for the method in which the People can announce their readiness, which can be done in two distinct ways. The first is through a communication of readiness on the trial court record; and the second, as it was attempted in this case, a written notice of readiness is sent by the prosecutor to both defense counsel and the appropriate court clerk, to be placed in the original record. (Kendzia at 337.)

[1] This court agrees with the rulings in the Min Jiang and Gonzalez cases. The service of the CoC and SoR after regular business hours cannot be deemed to be filed on that calendar date [*3]since further action by the court clerk needed to be done pursuant to Kendzia. Any other ruling would be contrary to the formula articulated in Kendzia.

A submission or scan of the CoC and SoR does not equate to a filing. The court's review of the UCMS log indicates that the{**75 Misc 3d at 219} CoC and SoR were not filed on the date of submission, Friday, November 5, 2021, but only on the following week.

The generic application of General Construction Law § 19 to this alleged filing is unpersuasive given the precise and unequivocal holding in Kendzia. There is nothing presented to this court which would allow a contrary ruling. When EDDS was enacted with Administrative Order of the Chief Administrative Judge of the Courts AO/87/20, there was nothing in the order which suggested any digital allowance, modification or variance from Kendzia. In fact, the language of the order is consistent with Kendzia by stating that the electronically delivered papers are "presented for filing."

This point is further reiterated in the Frequently Asked Questions about EDDS which accompanied the issuance of the order. The very first question and answer advises that "filing requests . . . may take one or more days for filing requests to be reviewed and approved." The court notes that if the People's position was correct, the administrative order could have simply said that any papers submitted are deemed filed, rather than the language: "presented for filing."

Moreover, one does not have to look beyond the People's own exhibit to substantiate this point. In their opposition papers, the People cite and attach as exhibit A, a receipt from edds@nycourts.gov. At the end of this email notification is the following: "NOTE: The sending and/or receipt of any documents through the Electronic Document Delivery System (EDDS) does not constitute service upon any other party, nor does it constitute filing of those documents with the court or County Clerk."

The court declines to apply General Construction Law § 19 here since it is of the belief that the Kendzia ruling is dispositive as to when a filing of an SoR occurs. It is worth noting that courts which have grappled with General Construction Law § 19, which section has been litigated almost exclusively in civil contexts, have found that fractions of days must be considered if due process concerns are presented. In Wallace v Syracuse, Binghamton & N.Y. R.R. Co. (27 App Div 457, 458-459 [3d Dept 1898], quoting Prentiss v Bowden, 8 Misc 420, 420-421 [1894]), the Court held that "[c]ourts will take notice of the fractions of a day 'when there are conflicting rights, for the determination of which it is necessary for them to do so.' " In Marvin v Marvin (75 NY 240, 243 [1878]) the Court reasoned that "[t]he law does not regard fractions of a day, except in cases where the hour itself is material."

{**75 Misc 3d at 220}The formula enunciated in Kendzia makes it clear that the submission of the People's CoC and SoR must be done before the close of regular business hours in order for the proper filing by the clerk to occur.

Extraordinary Circumstances

The People's application of extraordinary circumstances to exclude chargeable time in order to secure the 911 tape and radio runs is similarly denied.

On their CoC the People represented that they were claiming extraordinary circumstances, pursuant to CPL 30.30 (4) (g), for their inability to secure the 911 call and radio runs due to the vaccine mandate. They stated therein that they had subpoenaed this material on October 27, 2021, and that on the 90th chargeable day, November 5, 2021, the People were still not in receipt of this material.

The People aver that they called the NYPD Tapes and Records Unit in an effort to "expedite the fulfillment of the 911 records." The People were informed that the request could not be completed due to staffing shortages because of the vaccine mandate, and that the "911 [*4]response unit has over 300 employees out of work."

Defendant vigorously denied the magnitude of the number of employees furloughed by citing news articles in the Washington Post and the New York Post.

[2] For the court to consider any application to exclude chargeable time pursuant to CPL 30.30 (4) (g), the People must demonstrate due diligence. (People v Clarke, 28 NY3d 48 [2016].) The court finds that this is not the case in this matter.

First, the People failed to turn over these materials (which are considered automatic discovery) within the 35-day window provided by CPL 245.10 (1) (a) (ii). Although this is not fatal to an application to exclude time because of exceptional circumstances, the court does find it material to the analysis. The People not only did not turn over this material within the 35-day period but apparently made no attempt to subpoena the material until mere days before the 90th day.

Without any information from the People as to why the People waited until the 82nd day to subpoena the 911 tape and radio run, or why a protective order pursuant to CPL 245.70 (2) was not sought, the court cannot truly begin to evaluate the application for extraordinary circumstances.

Secondly, the People claim due diligence when they made a phone call to the NYPD Tapes and Records Unit to expedite{**75 Misc 3d at 221} their subpoena. As discussed above, to wait until the 82nd day to subpoena these tapes without further explanation is essentially a nonstarter. Moreover, the People's affidavit does not have any efforts beyond the one phone call that was placed, and there is no effort to document the exorbitant number of personnel that were allegedly furloughed because of the vaccine mandate. This information would be critical for any meaningful exploration of the merits of the extraordinary circumstances application.

This court finds that the People have exceeded 90 days of speedy trial time, and the matter is dismissed and sealed.