Defendant-Appellant, Shane T. Morissette, appeals a judgement of the Justice Court of the Town of Greece, Monroe County (O'Keefe Pero, J.), entered June 29, 2021, convicting him, following a plea of guilty, of Aggravated Driving While Intoxicated (DWI) in violation of Vehicle and Traffic Law § 1192-2 (a) (a), and sentencing him to four Day Reporting Center weekends, $1000 fine, $400 surcharge, one year revocation of driving privileges, mandatory installation of ignition interlock device for one year, and enrollment into the Victim Impact Panel and Impaired Driver's Program, and a one year conditional discharge. After review of Defendant-Appellant's brief, Respondent's brief, Defendant-Appellant's reply brief, and all relevant documents submitted, based on the law and facts outlined below, this Court holds that the judgement is reversed.

Appellant was arraigned in Greece Town Court on or about October 3, 2020, following his arrest for Driving While Intoxicated, Driving With .08% or More of alcohol, and Aggravated Driving While Intoxicated with .18% of One Percent or More of Alcohol in violation of NY Vehicle and Traffic Law. On November 5, 2020, the People filed their Certificate of Compliance ("COC") and Statement of Readiness ("SOR"). Appellant filed an Omnibus Motion on March 15, 2021, and the People filed a Cross Motion and Responding Affirmation on March 16, 2021. The People disclosed additional discovery on April 20, 2021, and then provided a Supplemental COC. On April 27, 2021, the trial court scheduled the trial for June 29, 2021. On June 29, 2021, Defendant-Appellant filed a Motion to Dismiss based on a violation of his speedy trial rights, [*2]challenging the validity of the People's COC and SOR. The People responded opposing the motion on grounds that the People had turned over all discoverable materials and that Defendant-Appellant's motion was improperly served, was late and a delaying tactic. On June 29, 2021, the trial court denied Defendant-Appellant's motion without any explanation, fact finding or hearing. Defendant filed another motion on that date challenging the People's COC and the trial court denied that motion without any inquiry with the People or any fact finding regarding the missing discovery. Defendant filed notice of appeal in the Town of Greece on or about June 30, 2021, following a conviction of Aggravated Driving While Intoxicated and sentencing on June 29, 2021. This court granted a stay of enforcement of the judgement on September 15, 2021. All briefs were timely received.

"On any appeal taken hereunder the appellate court shall have full power to review any exercise of discretion by the court or justice below" (UJCA 1702 [d]; see CPL 470.15). The People submit that Defendant-Appellant has not preserved his right to appeal, given that he executed an appeal waiver and advised the Court that he discussed it with his attorney and understood its provisions. However, it is clear from the record that the waiver of appeal was reviewed and executed after Defendant-Appellant pled and was sentenced and that he "did not personally enter into the court's colloquy with his lawyer when the details of the bargain were stated" (People v Seaberg, 74 NY2d 1, 11 [1989]). There is no overwhelming evidence that Defendant-Appellant took a knowingly, intelligent, and voluntary waiver (id.). Additionally, a speedy-trial motion survives a waiver of appeal, and it explicitly states so in the waiver of appeal that was executed. Also, Appellant-Defendant's appeal of the trial court's order denying a motion to dismiss survives the plea of guilty pursuant to CPL 30.30 (6). "An order finally denying a motion to dismiss pursuant to subdivision one of this section shall be reviewable upon an appeal from an ensuing judgment of conviction notwithstanding the fact that such judgment is entered upon a plea of guilty" (CPL § 30.30 [6]). Defendant-Appellant preserved their right to appeal.

Defendant-Appellant's contention is that the court below denied his motion to dismiss on grounds that the People violated his speedy trial rights by exceeding the maximum number of days, ninety, to be ready for trial by failing to provide the required discovery pursuant to CPL § 245.20 (1). The People filed a COC on November 5, 2020, representing that they complied with the requirements of CPL § 245.50. Their COC disclosed that there were no CPL § 245.20 (1) (k) or (l) disclosures applicable. On April 20, 2021, the People disclosed Giglio information regarding Sergeant Joseph Robinson and subsequently filed a supplemental COC. In his June 29, 2021 motion to the court below, Defendant-Appellant moved for dismissal pursuant to CPL § 170.30 (e) for denial of speedy trial. Defendant argued that the People's COC dated November 5, 2020, was illusory and that their SOR was ineffective when the People disclosed Giglio discovery of records from 2013-2015 that should have been in the possession of the People on November 5, 2020. Further, Defendant-Appellant argues that the People failed to provide any basis for their late disclosure. The People argued in their response that they turned over all discoverable materials under their custody and control in good faith as soon as practically possible, that defense had discovery related to the DWI for seven months, that Defendant-Appellant had not effectuated proper service, and that the People have been ready for trial since November 5, 2020.

On June 29, 2021, the trial court stated that it did receive a late motion from Defendant-Appellant, reviewed the motion, the People's response, and Appellant-Counsel's response and stated that the motion is denied. Defendant-Appellant clarified regarding their 30.30 motion and [*3]the trial court confirmed it was denied. When Appellant-Counsel tried to submit further motions, the trial court reviewed, indicated that it was the same motion and stated that it was denied.

Defendant-Appellant met his burden in his motion filed June 29, 2021, in which he argued that the People failed to establish readiness within the statutory period. Based on CPL Article 245, the People must disclose Giglio material during initial discovery and prior to announcing readiness for trial. During the filing of the COC and SOR, the People must state that they exercised due diligence and made reasonable inquiries to ascertain the existence of material and information subject to discovery (CPL 245.50 [1]). Given that the People filed Giglio information late, an inquiry should have been made into the People's readiness (CPL 30.30 [5]). The People's COC filed on November 5, 2020 appears to be illusory and it appears that the time from the arraignment on October 3, 2020 to April 20, 2020 could be chargeable to the People, more than ninety days.

The burden then shifted to the People. Based on the response from the People and the trial court's denial of same, this Court is only left to speculate the basis for the trial court's denial. For instance, it is not clear whether the trial court found that the People met their burden in establishing that they were ready for trial and that no more than 90 days were chargeable to the People. "Thus, once a defendant has shown the existence of an unexcused delay greater than [ninety days], the burden of showing that time should be excluded falls upon the People" (People v Santos, 68 NY2d 859, 861 [1986]). The People's motion is a recitation of the filing of their COC's and SOR and does not indicate any excludable time. The People's motion response failed to articulate a basis for the delay in disclosure of records in April 2021. Therefore, there is no apparent legal basis for the denial of Defendant-Appellant's motion.

Further, Defendant-Appellant was not given an opportunity to be heard on the record. The trial court decided the motion submissions without giving Defendant-Appellant a reasonable opportunity to be heard after stating he was not done with motions and after declaring that there were 32 specific things that have been outlined in his motion. "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" (CPL § 30.30 [5]). Based on the motion submissions and the record which lacks an articulation of the basis for Defendant-Appellant's motion denial, this Court is unable to determine a legal basis for the trial court's denial, without speculation.

Defendant-Appellant served their motion late, the day of trial, and failed to provide reasonable notice to the People (CPL §§ 210.45, 170.45). However, it does not appear to be the basis for why the trial court dismissed Defendant-Appellant's motion since the lower court nevertheless acknowledged reading the motions and deciding on same.

The trial court failed to provide any reasoning for its denial of Defendant-Appellant's motion. This Court is not convinced that Defendant-Appellant failed to establish a basis for their motion to dismiss (CPL §§ 170.30, 170.45, 210.45) and the People's response did not solidify a legal basis for the trial court to deny the Appellant-Defendant's motion without a legal basis on the record or a hearing.

Accordingly, the judgment of conviction of the Justice Court of the Town of Greece, Monroe County (O'Keefe Pero, J.) is reversed upon the law. The case is remanded to the trial court to allow Defendant-Appellant the opportunity to be heard on their motions, as well as the People, and for the trial court to articulate the grounds for any decision.

This constitutes the Decision and Order of the Court.

Dated this 2nd day of August 2022 at Rochester, New York.

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HONORABLE K. BAILEY TURNER
MONROE COUNTY COURT JUDGE