The defense has filed a C.P.L. § 30.30 motion to dismiss. Despite never validly stating ready for trial, (People v. Jawad, 78 Misc 3d 1217[A] [Crim. Ct., Queens County 2023]), the People oppose. The motion is granted.

The process for calculating C.P.L. § 30.30 time is well established. The time is calculated "by computing the time elapsed between the filing of the first accusatory instrument and the People's declaration of readiness, subtracting any periods of delay that are excludable under the terms of the statute." (People v. Cortes, 80 NY2d 201, 208 [1992]). Then, "any postreadiness periods of delay that are actually attributable to the People and are ineligible for an exclusion" are added. (Id.). Where, as here, an information's top count is a misdemeanor punishable by 364 days in jail, the People have ninety days of readiness time. (C.P.L. § 30.30[1][b]).

On a C.P.L. § 30.30 motion, "a defendant bears the initial burden of alleging that the People were not ready for trial within the statutorily prescribed time period." (People v. Allard, 28 NY3d 41, 45 [2016]). The defense "meets [their] initial burden on the motion simply by alleging only that the prosecution failed to declare readiness within the statutorily prescribed time period." (People v. Goode, 87 NY2d 1045, 1047 [1996]). Thereafter, "the burden of proving that certain periods within that time should be excluded falls upon the People." (People v. Headley, 100 AD3d 775, 776 [2d Dep't 2012]; see also People v. Smith, 110 AD3d 1141, 1142 [3d Dep't 2013] [noting that the People "bear the burden of establishing their entitlement to exclude any prereadiness delays from the calculation"]). Part of that burden requires the People to "ensure that the record is sufficiently clear as to who is chargeable for a delay." (Smith, 110 AD3d at 1142; People v. Matteson, 166 AD3d 1300, 1301-02 [3d Dep't 2018] [same]; People v. [*2]Robinson, 67 AD3d 1042, 1044 [3d Dep't 2009] [same]). If the People fail to carry their burden, then, if they have never answered ready, the entirety of every adjournment is generally chargeable to them. (See People v. Barden, 27 NY3d 550, 556 [2016]; People v. Chavis, 91 NY.2d 500, 505 [1998]; People v. Smith, 82 NY2d 676, 678 [1993]; People v. Brothers, 50 NY2d 413, 417 [1980]).

The defense here has met its initial burden. The People commenced this case on July 3, 2022. Ninety days after that date was October 1, 2022. That day was a Saturday, so the People had until the following Monday, October 3, 2022, to validly state ready for trial. (See Gen. Const. Law § 25-a). As this court previously held, the People never validly stated ready for trial. (People v. Jawad, 78 Misc 3d 1217[A] [Crim. Ct., Queens County 2023]). Accordingly, the burden then shifts to the People to identify prereadiness exclusions under C.P.L. § 30.30[4].

However, before arguing for any C.P.L. § 30.30[4] exclusion, the People first argue that "the Court should not charge the People with speedy trial time for the period between the filing of the COC and defendant's belated challenge to it." (Pr. Resp. at 6). The People seem to assume that the court possesses the discretionary authority to stop the C.P.L. § 30.30 clock if the defense did not promptly notify the People that their readiness was invalid. (See id.).

The People's argument misapprehends the well-established process for calculating C.P.L. § 30.30 time. Courts do not possess freewheeling authority to "not charge" the People with C.P.L. § 30.30 time when the People fail to validly state ready for trial. (Cf. Pr. Resp. at 6 [asking the court to do just that]). To the contrary, the prereadiness calculation proceeds "by computing the time elapsed between the filing of the first accusatory instrument and the People's declaration of readiness, subtracting any periods of delay that are excludable under the terms of the statute." (Cortes, 80 NY2d at 208). As a result, if seeking to subtract time prereadiness, the People must point to an exclusion under the "terms of the statute." (See id.). Those terms are found in C.P.L. § 30.30[4]. (See, e.g., People v. Myers, 171 AD2d 148, 151 [2d Dep't 1991] ["CPL 30.30[4] establishes the statutory methodology for the exclusion of various delays which have occurred prior to the People's announcement of readiness for trial."]; People v. Morris, 63 Misc 3d 626, 629 [Crim. Ct., Bronx County 2018] ["The People are charged for the entire period of delay prior to asserting their readiness unless there is a specific exclusion of the time under C.P.L. § 30.30[4]."]). Otherwise, the People were either ready, and the clock stopped, or they were not ready, and the clock ran.

Consequently, there is no requirement that the defense promptly notify the People that their readiness was illusory before the clock continues running. After all, under C.P.L. § 30.30, it is the People—not the defense—who bear the burden to "bring the case to a point where it may be tried." (People v. England, 84 NY2d 1, 4 [1994]). "The People" must validly state ready for trial within the prescribed time periods after commencing a criminal action. (C.P.L. § 30.30[1] [emphasis added]). "The inquiry is whether the People have done all that is required of them to bring the case to a point where it may be tried." (People v. Brown, 28 NY3d 392, 403 [2016] [emphasis added]). "CPL 30.30 . . . was specifically intended 'to address delays occasioned by prosecutorial inaction'"—not defense inaction. (People v. Clarke, 28 NY3d 48, 52 [2016] [quoting People v. McKenna, 76 NY2d 59, 63 [1990] [emphasis added]).

And it is a statutory prerequisite to the People's own readiness that they first properly certify compliance with their own automatic discovery obligations. (C.P.L. §§ 30.30[5], 245.50[3]). Like any other legal requirement that the People face before stating ready for the first time, that burden lies "squarely upon the shoulders of the District Attorney." (See People v. N.S., 58 Misc 3d 613, 616 [Crim. Ct., Queens County 2018] [making a parallel conclusion in the facial-sufficiency context], aff'd 71 Misc 3d 140[A] [App. Term, 2d Dep't 2021] ["The People's obligation—that they alone possess—[is] to be ready for trial before the expiration of their '30.30 clock.'"]). It would be odd, and contrary to fundamental legal principles, to shoulder the responsibility of one party's discovery obligations on the other. "The party in possession of information should bear the burden of producing it." (See People v. Spaulding, 75 Misc 3d 1219[A], at *4 [Crim. Ct., Bronx County 2022]; see also National Communications Ass'n v. AT & T Corp., 238 F.3d 124, 130 [2d Cir. 2001] ["[A]ll else being equal, the burden is better placed on the party with easier access to relevant information."]). The discovery statute is consistent with that basic principle. (See C.P.L. §§ 30.30[5], 245.50[3]). Prosecutors are responsible for their own automatic discovery. (See C.P.L. § 245.20[1]). Likewise, the defense is responsible for theirs. (See C.P.L. § 245.20[4]).

To be sure, the discovery statute asks that parties make challenges to certificates of compliance "as soon as practicable." (C.P.L § 245.50[3][c]). But nowhere does it state that failure to do so results in waiving a C.P.L. § 30.30 challenge. To the contrary, it explicitly states that "nothing in this section shall be construed to waive a party's right to make further challenges, including but not limited to a motion pursuant to C.P.L. section 30.30." (Id.). "Nothing . . . precludes the defendant from moving for relief (such as dismissal through CPL 30.30) to which they are entitled or requires the defendant to seek the People's permission before seeking such relief." (People v. Rahman, 74 Misc 3d 1214[A], at *3 [Sup. Ct., Queens County 2022]; see also People v. Audino, 75 Misc 3d 969, 977 [Crim. Ct., NY County 2022] ["Any argument from the prosecution that [the defense] had an obligation to confer with it in a way that would impact the accrual of speedy trial time is nowhere to be found in the statute."]). It is squarely the People's burden to diligently ascertain the existence of, and disclose, discoverable material within their own allotted speedy-trial time. (See C.P.L. §§ 245.20[1], [2]).

The court also rejects the People's argument that a standing Queens County judicial administrative order alters or modifies the statutory structure of readiness and discovery. The order "essentially urges both parties on a case to confer with each other and attempt to solve discovery disputes between themselves before bringing them before a Judge." (Rahman, 74 Misc 3d 1214[A], at *3). "Nothing about the order changes any of the People's statutory obligations (as indeed it could not)." (Id.; see also Matter of Butironi v. Putnam County Civ. Serv. Commn., 29 AD2d 474, 477 [2d Dep't 1968] ["In applying a rule adopted by the Judicial Conference, this court cannot do so in a manner inconsistent with statute or as to abridge or enlarge substantive rights of any party."]).

In any event, it is difficult to see what difference a more prompt notification would have made in this case. The People intentionally engaged in prosecutorial inaction. They intentionally failed to produce the underlying police misconduct records for their testifying police witnesses. (Jawad, 78 Misc 3d 1217[A], at *1-*2). And they intentionally failed to diligently review the [*3]police disciplinary histories for several other officers involved in this case. (Id. at *3-*5). If the defense had complained more promptly, the People presumably would have simply asserted their repeated, ongoing position that this inaction was justified. (All of this aside, it also strains credulity to claim that the defense's complaint about the missing discovery was not prompt. It was made within two court dates after the People's certificate.)

At the end of their response, the People finally proffer an exclusion under C.P.L. § 30.30[4]. Specifically, they point to C.P.L. § 30.30[4][a], which excludes "a reasonable period of delay resulting from . . . pre-trial motions." The People claim that:

[O]n September 15, 2022, during a court appearance before Judge Freire, the People consented to a Huntley/Dunaway hearing, but opposed defendant's request for a Mapp. At that point, Judge Freire adjourned the case until November 16, 2022. In the meantime, on October 17, 2022, the Defendant filed an omnibus motion. On the November 16, 2022, court date, a motion schedule for the omnibus motion was set.

(Pr. Resp. at 7). But the People do not simply argue that time is excluded from when the motion schedule was set on November 16th or from when the defense filed its motion beforehand on October 17th. Instead, they argue that time is excluded from September 15th. They assert that defense counsel's request on that court date that they consent to a Mapp hearing constituted a motion. (Id.).

The People fail to meet their "burden of proving" that time "should be excluded" from September 15, 2022. (See Headley, 100 AD3d at 776; see also Smith, 110 AD3d at 1142 [noting that the People must "ensure that the record is sufficiently clear as to who is chargeable for a delay"]). On the record before this court, it does not appear that on September 15th a motion "was actually made." (See People v. Thomas, 59 Misc 3d 64, 66 [App. Term, 1st Dept. 2018]). While the People assert that defense counsel asked that they consent to suppression hearings on that date, there is no indication that the prior court set "a motion schedule" or even "any return date." (See id.). As a result, it does not appear that court understood the defense's request to constitute a motion. Indeed, no court set a motion schedule until the next court date, on November 16th, after the defense had filed an actual motion. "Thus," it is more likely that on September 15th, "no motion was actually made." (See id.). The People do not provide any documentation—like court transcripts—proving otherwise. Accordingly, the court only excludes time under C.P.L. § 30.30[4][a] from October 17th, when the defense actually filed its motion.

In sum, the C.P.L. § 30.30 clock ran from July 3, 2022, to October 17, 2022. That is 106 days, which is more than the 90 days the People are allowed. (C.P.L. § 30.30[1][b]). Therefore, the motion must be granted, and this case must be dismissed. (See id.).

The foregoing constitutes the order and decision of the court.