Upon the following papers numbered 1 to X read on these motions to reargue Notice of Motion/xxxxxxxxxxxxxxx and supporting papers X Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers X ; Replying Affidavits and supporting papers X ;Filed papers; Other Exhibits X; Certificate(s) of Compliance X

ORDERED that this motion to reargue by the defendant with respect to the defendant's motion to dismiss for an alleged violation of his statutory speedy trial rights is GRANTED.

On May 31, 2021, the defendant was charged with Driving While Intoxicated in violation of New York State Vehicle and Traffic Law ["VTL"] section 1192.3, an unclassified misdemeanor, and Unlicensed Operator in violation of VTL section 509.1, an infraction.

Pursuant to CPL section 30.30(1)(b), the People were required to make an effective statement of their readiness for trial within 90 days of the commencement date of the within criminal action, taking into account all excludable time periods. The within criminal action was [*2]commenced on May 31, 2021. The People filed a Certificate of Compliance/Statement of Readiness [hereinafter "CoC" and "SoR"] on November 15, 2021.

On December 16, 2021, the defendant moved to dismiss the accusatory instrument on speedy trial grounds. In a decision dated February 15, 2022, this Court denied the motion to dismiss, and made the following speedy trial calculation:

During the defendant's arraignment on May 31, 2021, he was represented by arraignment counsel and the matter was adjourned to June 10, 2021. (Def.'s Aff. at ¶ 4). The defendant appeared with retained counsel on June 10, 2021 and the matter was adjourned to July 16, 2021. The defendant has conceded that the time from June 10, 2021 through July 16, 2021 is chargeable to him. (See Def.'s Aff. at ¶ 4; Def.'s Mot. to Reargue at ¶ 4).

On July 16, 2021, the defendant's counsel submitted a written request for an adjournment, and the matter was put over until September 14, 2021. Thereafter, the People's filing of the CoC on November 15, 2021 served to stop the running of speedy trial time. (See People v Giordano, 56 NY2d 524 [1982]; People v Brothers, 50 NY2d 413 [1980]; CPL 245.50[1], [3]). The People have conceded that the 62-day period from September 14, 2021 until the November 15, 2021 filing of their CoC is chargeable to them. (See People's Aff. in Opp. at ¶ 12).

In its February 15, 2022 order denying the defendant's motion to dismiss, the Court concluded that the People had only utilized a maximum of 72 days of speedy trial time. In so holding, the Court (1) assumed without deciding that the time from May 31, 2021 until June 10, 2021 was chargeable to the People (10 days), (2) deemed the time from June 10, 2021 until July 16, 2021 to be excludable, (3) deemed the time from July 16, 2021 through September 14, 2021 to be excludable, as defense counsel had requested an adjournment on July 16, 2021, and (4) deemed the time from September 14, 2021 until November 15, 2021 was chargeable to the People (62 days).

Presently before the Court is the defendant's March 28, 2022 motion to reargue the Court's denial of the defendant's motion to dismiss.

In general, a motion for leave to reargue or to renew is addressed to the sound discretion of the court. (See HSBC Bank USA, NA v Halls, 98 AD3d 718, 950 NYS2d 172, 174 [2d Dep't 2012]). A motion for renewal "shall be based upon new facts not offered on the prior motion that would change the prior determination" [CPLR 2221 [e][2]]. A motion for reargument must be "based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion." [CPLR 2221[d][2]].^[FN1]

In support of the defendant's motion to reargue, the defendant contends that the Court 'mistakenly overlooked' the written request submitted to the court by defendant's counsel, i.e., the July 16, 2021 email in which defendant's counsel stated that she was not able to appear virtually, [*3]and requested an adjournment, but expressly stated "no waivers." (Def.'s Mot. to Reargue at ¶ 7 & Ex. A). In opposition, the People argue that the 60-day time period, from July 16, 2021 until September 14, 2021, is nevertheless excludable from the 90 day speedy trial clock under CPL § 30.30(4)(b), since the defendant requested the adjournment.

CPL § 30.30(1)(b) states that, aside from certain enumerated exceptions, "...a motion made pursuant to paragraph (e) of subdivision one of section 170.30...must be granted where the People are not ready for trial within 90 days of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a misdemeanor."

CPL § 30.30(4)(b) expressly lists the periods of time that must be excluded from the speedy trial calculation, among which are "continuance[s]... [made] at the request of, or with the consent of, the defendant or his or her counsel." (See CPL § 30.30(4)(b) ["In computing the time within which the people must be ready for trial pursuant to subdivisions one and two of this section, the following periods must be excluded: (b) the period of delay resulting from a continuance granted by the court at the request of, or with the consent of, the defendant or his or her counsel"]).

It is well-established law that adjournments made at the request of the defendant's counsel are excludable pursuant to the plain language of CPL § 30.30(4)(b). See People v Martinez, 186 AD3d 1530, 130 NYS3d 828 [2d Dep't 2020] ["delay occasioned by adjournments at the request of or with the consent of the defense" are excludable under CPL 30.30(4)(b)]. Accord, People v Barnes, 160 AD3d 890, 890, 75 NYS3d 229, 231 [2d Dep't 2018] [adjournment granted at the request or with the consent of the defendant excludable] and People v Hall, 61 AD2d 1050, 1051 [2d Dep't 1978] [adjournments requested by the defendant are not chargeable to the prosecution]. In so holding, courts have reasoned that "CPL 30.30(4)(b)[,] which provides for exclusion based on defense consent to adjournments, operates on the premise that defendant waived the delay in the proceedings by requesting or consenting to these adjournments." People v Knight, 140 Misc 2d 1075, 1076, 532 NYS2d 485, 486—87 [Sup Ct 1988] [citing People v Worley, 66 NY2d 523 at 527, 498 NYS2d 116 [1985]].

Courts have applied this rule even where the People have not yet made a statement of readiness for trial. See, e.g., People v Delacruz, 241 AD2d 328, 660 NYS2d 7 [1st Dep't 1997] [reversing trial court's charge of time of adjournment requested by defendant's counsel to People; holding exclusion for adjournments requested by defendant's counsel "is free standing and applies irrespective of whether the People, previously or on the date of the request, answered ready"]. Accord, People v Cambridge, 230 AD2d 649 [1st Dep't 1996] [where the defense triggered one of the statutory exclusions, the People's unreadiness was irrelevant]; People v Gerstel, 134 AD2d 218, 520 NYS2d 451, 452 [2d Dep't 1987] [determining 11-day adjournment for vacation requested by the defendant's counsel was excludable, even where People had not yet announced readiness]; and People v Meierdiercks, 68 NY2d 613, 614 [1986] [rejecting argument that the period of adjournment should not be excludable since adjournments did not prevent the People from seeking indictments].

However, courts have further noted that CPL 30.30's exclusion is based on the premise that the defense consented to the waiver. People v Knight, 140 Misc 2d 1075, 1076, 532 NYS2d 485, 486—87 [Sup Ct 1988] ["CPL 30.30(4)(b)[,] which provides for exclusion based on defense consent to adjournments, operates on the premise that defendant waived the delay in the [*4]proceedings by requesting or consenting to these adjournments"].

In this case, although the adjournment was requested by the defendant's counsel, defendant's counsel also expressly stated "no waivers." In light of the fact that the defendant's counsel expressly withheld consent to waiver, this Court holds that the time is not excludable.

Moreover, in determining whether the time requested for an adjournment is excludable, courts have, in certain circumstances, deemed excludable only the actual time requested by the party seeking an adjournment. See also People v Boumoussa, 104 AD3d 863, 863, 961 NYS2d 297, 297—98 [2d Dep't 2013] [any period of adjournment requested by the People in excess of that actually requested by the People post-readiness is excluded]. In such cases, courts have reasoned that the defendant should not be charged with delay caused by court congestion or scheduling conflicts, particularly where the People are not prevented from declaring readiness during the pre-readiness period. See People v Yannarilli, 191 AD3d 1327, 1329, 141 NYS3d 593 [4th Dep't 2021] ["In general, 'the People should be charged with pre-readiness delays caused by court congestion," and that rule 'is premised on the idea that such delays do not inhibit the People from declaring readiness in writing, through an off-calendar statement'" (citing People v Barden, 27 NY3d 553, 556, 36 NYS3d 80 [2016])].

This rule arguably applies equally to pre-readiness adjournments requested by the defendant: the defendant should not be penalized for delay caused by court congestion or scheduling conflicts prior to the People's readiness announcement, because the People have the option to declare readiness off-calendar. See, e.g., People v Yannarilli, 191 AD3d 1327, 1329, 141 NYS3d 593 [4th Dep't 2021] [deeming only 7-day adjournment requested by defendant's counsel excludable, where court adjourned matter for 29 days due to scheduling conflicts and "calendar congestion"]. Thus, even assuming, arguendo, that the time is excludable because the adjournment was requested by the defendant's counsel, this Court deems only the actual time the defendant's counsel in fact requested, i.e., the 33-day extension, from July 16, 2021 until August 18, 2021,^[FN2] to be excludable. Therefore, the Court finds that the People are chargeable with 27 days from August 18, 2021 until September 14, 2021, and, as discussed above, 62 days from September 14, 2021 until the November 15, 2021. Consequently, the People are chargeable with 89 days.

In light of this calculation, the Court must next decide the question whether the ten-day period from May 31, 2021 until June 10, 2021, in which the Court adjourned the proceedings to allow the defendant to retain counsel, is excludable. It is axiomatic that "the period during which the defendant is without counsel through no fault of the court" is excludable [CPL 30.30(4)(f)]. Pursuant to this section, courts have generally excluded the time from arraignment until the next court appearance where the defendant sought to retain counsel after arraignment. See, e.g., People v Joseph, 47 Misc 3d 265, 270, 999 NYS2d 320, 325 [Crim Ct, NY Cnty 2014] [time period from arraignment until next appearance excludable where adjournment was for the [*5]purpose of permitting defendant to retain counsel].

Here, however, it is unclear from the papers submitted whether the defendant was "without counsel" during this time period. See, e.g., People v Masellis, 140 Misc 2d 1024, 532 NYS2d 465 [Crim Ct, NY Cnty 1988] [Legal Aid attorney not relieved by the court during period from arraignment to next court appearance, thus time period not excludable]. Neither party has submitted the minutes from the March 31, 2021 court appearance. The People have the burden of establishing their entitlement to a statutory exclusion for the period of delay. (See People v Cortes, 80 NY2d 201, 590 NYS2d 9 [1992] ["[]it is the People's burden to ensure, in the first instance, that the record of the proceedings at which the adjournment was actually granted is sufficiently clear to enable the court considering the subsequent CPL 30.30 motion to make an informed decision as to whether the People should be charged."). Without the minutes, the People have not established that the 10-day period from May 31 until June 10, 2021 is excludable. In addition, the People have conceded that the "case was adjourned to June 10, 2021 without waivers." People's Aff. in Opp. at ¶ 4 (emphasis added). Consequently, the Court deems the 10-day period from May 31, 2021 until June 10, 2021 to be chargeable to the People.

In sum, the People are chargeable with the period from May 31, 2021 until June 10, 2021 (10 days), the period from August 18, 2021 until September 14, 2021 (27 days), and the period from September 14, 2021 until the November 15, 2021 (62 days). Thus, the People are chargeable with a total of 99 days, which is in excess of the statutorily-required 90 days.

By reason of the foregoing, the defendant's motion to reargue his motion to dismiss the accusatory instrument for alleged violation of the defendant's speedy trial rights is GRANTED.