By motion filed May 9, 2023, defendant moves, inter alia, for an Order granting dismissal pursuant to Criminal Procedure Law ("CPL") § 30.30 or, in the alternative for an Order precluding the prosecution from cross-examining defendant as to any prior criminal convictions and/or bad acts, granting pre-trial Sandoval and Ventimiglia hearings, and for an order requiring the prosecution to amplify the charges in the indictment by providing a Bill of Particulars ("BP") pursuant to CPL § 200.95 (1) and § 200.50 (7).

Specifically, defendant asserts that his right to a speedy trial was violated because the People failed to declare their readiness within their statutorily prescribed time. On June 13, 2023, the People opposed the part of the motion seeking to dismiss the accusatory instrument, and stated they had responded to defendant's demand for a BP.

Upon review and consideration of the submissions, court file and relevant legal authority, defendant's motion is GRANTED in part and DENIED in part, as follows:

1. Dismissal pursuant to CPL § 30.30 is DENIED;

2. Defendant's request for an order precluding Sandoval/Ventimiglia evidence is DENIED;

3. Pre-trial hearings are ORDERED as provided herein;

4. Defendant's request for an order reserving his rights to make further and additional motions is DENIED; and

5. The People are DIRECTED to provide, if still outstanding as of the date of this Decision and Order, a Bill of Particulars pursuant to CPL § 200.95 (1) and § 200.50 (7) within 10 days.

On August 22, 2022, defendant Yesenia Ventura Flores was arrested along with her co- defendant Yassuri Cordova ("Cordova") and two juvenile offenders. Defendant and Cordova were issued desk appearance tickets pursuant to CPL §150.10. On September 10, 2022, both defendants [*2]were arraigned and charged, by way of felony complaint, with Penal Law ("PL") § 110/120.07 (Attempted Gang Assault in the First Degree) and PL §120.06 (Gang Assault in the Second Degree), Class B and Class C felonies, respectively, PL § 120.00 (1) (Assault in the Third Degree), a Class A misdemeanor, and PL § 240.26 (1) (Harassment in the Second Degree), a violation. The matter was adjourned to September 22, 2022, for grand jury action.

At the September 22, 2022 conference, the People advised the court that there had been no grand jury action, and Cordova and defendant's dockets were adjourned to November 3, 2022, and November 16, 2022, respectively.^[FN1] On both adjournment dates, the People advised the court that there had been no grand jury action taken, and the dockets were adjourned to December 13, 2022, and January 3, 2023 for Cordova and defendant, respectively. Cordova was not present at her scheduled court appearance, at which time the People stated that no grand jury action had been taken, a bench warrant was stayed, and Cordova's docket was adjourned to December 19, 2022. Cordova was not present at her adjournment date, and a bench warrant was issued for her arrest.

At the January 3, 2023 conference, the People made a motion to dismiss the two felony counts and defendant's docket was adjourned to February 7, 2023, for discovery compliance and conversion. At the adjournment date, the prosecution stated that no Supporting Deposition ("SD") nor Certificate of Compliance ("CoC") had been filed and the matter was adjourned to March 16, 2023.

At the next court appearance, the People were still neither converted nor compliant, and the matter was adjourned to April 27, 2023. On April 6, 2023, co-defendant Cordova returned to court voluntarily and the warrant was vacated. The People advised the court that they had filed a CoC and Statement of Readiness ("SoR") on March 10, 2023, and a SD and Affidavit of Translation on April 12, 2023. Thereafter, defendant was arraigned on the information and a motion schedule was set.

Criminal Procedure Law § 30.30 (7) (c) provides, in pertinent part, that where a criminal action is commenced by the filing of a felony complaint but is subsequently replaced with or converted to an information, prosecutor's information or misdemeanor complaint, then the 30.30 period for the new accusatory instrument will apply and run from the date of the reduction or conversion of charges- except that if the period of time already elapsed from the filing of the felony complaint to the filing of the new accusatory instrument added to the time accorded to the 30.30 clock for the new accusatory instrument exceeds six months then "the period applicable to the charges in the felony complaint must remain applicable and continue as if the new accusatory instrument had not been filed" (see CPL § 30.30 (7) (c); see also People v Pierna, 74 Misc 3d 1072, 1075 [Crim Ct, Bronx County 2022] citing People v Cooper, 98 NY2d 541, 544 [Ct App 2002][emphasis added]).

In the case at bar, defendant was arraigned on a felony complaint on September 10, 2022. Accordingly, the prosecution had six months to declare readiness for trial (see CPL § 30.30 [1] [a]), and pursuant to controlling law, the "first-day exclusion has been the accepted practice in making the computations" (see People v Stiles, 70 NY2d 765, 767 [Ct App 1987]).

Therefore, the prosecution's 30.30 time commenced on September 11, 2022. When the People moved to dismiss the two felony counts on January 3, 2023, a total of 114 days had elapsed. Because the top charge of the remaining counts was Assault in the Third Degree, a Class A misdemeanor, a ninety-day 30.30 clock would apply to the reduced accusatory instrument (see CPL § 30.30 [1] [b]; People v Galino, 38 NY3d 199, 205 [Ct of App 2022]["(t)he readiness time requirement is based on the most serious offense charged in the criminal action"][internal citations omitted]).

Here, when the time elapsed before dismissal of the felony charges (114 days) is added to the 30.30 speedy trial period applicable to the reduced misdemeanor charge (90 days), the total amount (204 days) exceeded six months. Consequently, the People's readiness will be measured against the felony 30.30 period (see CPL § 30.30 [7] [c] and § CPL [1][a]).

It is settled law that the People's declaration of readiness must communicate an actual, not anticipatory, readiness to proceed to trial (see People v Kendzia, 64 NY2d 331, 337 [1985]). The prosecution has a statutory mandate to do "all that is required of them to bring the case to a point where it may be tried" (see People v Rodriguez-Alas, 65 Misc 3d 914, 925 [Crim Ct, Bronx County 2019] citing People v England, 84 NY2d 1, 4 [1994]). Moreover, "the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper certificate pursuant to subdivision one of this section" (see People v Martinez, — NY3d —, 2023 NY Slip Op 23194, *2 [Crim Ct, Bronx County 2023] citing Kendzia at 337).

Additionally, the People cannot be ready for trial until they convert a misdemeanor complaint to an information pursuant to CPL § 170.65 which provides, in pertinent part, that "(f)or purposes of prosecution, such instrument must be replaced by an information, and the defendant must be arraigned thereon" (see CPL § 170.65 [1]; see also People v Rosenblatt, 49 Misc 3d 372, 374 [Crim Ct, NY County 2015] citing People v Caussade, 162 AD2d 4, 8 [2d Dept 1990]; People v Quinlan, 71 Misc 3d 266, 268 [Crim Ct, Bronx County 2021]["(a)n information is facially sufficient when, among other things non-hearsay allegations of the factual part . . . and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof"][internal quotation and citations omitted]).

Where a defendant meets his burden to demonstrate that the prosecution failed to declare readiness within the statutorily prescribed time, the burden then shifts to the People to identify excludable delays (see People v Luperon, 85 NY2d 71, 77-78 [1995]["(T)he People must ordinarily identify the exclusions on which they intend to rely, and the defense must identify any legal or factual impediments to the use of these exclusions"]; see also CPL § 30.30 [4]).

Initially, defense counsel argues that the prosecution was untimely because the People failed to file a SD to convert the reduced (misdemeanor) instrument within 90 days (affirmation of [*3]defendant's counsel at ¶ 7). Defendant argues that the prosecution was afforded six months from the commencement of the felony charge to declare readiness pursuant to the CPL § 30.30 (7) (c) analysis (affirmation of defendant's counsel at ¶ 11). Defense counsel concedes that CPL § 30.30 (4) provides that certain periods are excludable from computation of the People's speedy trial time (affirmation of defendant's counsel at ¶ 12).

Without exposition, defendant asserts that even after accounting for excludable time, more than 90 days has elapsed before the prosecution declared trial readiness (affirmation of defendant's counsel at ¶ 12). Defendant avers that the People should be charged with 210 days, more than the statutorily allotted 30.30 time (affirmation of defendant's counsel at ¶ 22, ¶ 23). Defense counsel requests that the People disclose any evidence of prior convictions, bad acts and uncharged crimes, or alternatively, Sandoval and Ventimiglia hearings (affirmation of defendant's counsel at ¶ 26, ¶ 27). Lastly, defense counsel requests a BP to amplify the charges in the indictment (affirmation of defendant's counsel at ¶ 28 - ¶ 35).

The prosecution maintains that defendant's motion is baseless because the People declared their readiness within six months (People's affirmation in opposition at 1). The prosecution further claims it should only be charged with 83 or 99 days (People's affirmation in opposition at 2, 5). The People aver they should only be charged for post-declaration of readiness adjournments when the delay was solely the fault of the prosecution (People's affirmation in opposition at 3). The People also argue that where time is excludable for one defendant it is also excludable to any co-defendant (People's affirmation in opposition at 4). The prosecution avers that the period of Cordova's bench warrant is properly excluded, and that defendant proffered no good cause for severance (People's affirmation in opposition at 6).

The People acknowledge defendant's demand for evidence of prior bad acts and aver that any information, if it exists, will be disclosed as provided by the CPL and Ventimiglia, however, the prosecution opposes defendant's demand for Sandoval disclosures and requests that any decision be held in abeyance until trial (People's affirmation in opposition at 8-6). Lastly, the prosecution states that it has responded to defendant's demand for a BP (People's affirmation in opposition at 9).

Criminal Procedure Law § 30.30 (4) (c) (ii) provides that time is excludable from the computation of the prosecution's 30.30 clock "where the defendant has either escaped from custody or has failed to appear when required after having previously been released on bail or on his own recognizance, and provided the defendant is not in custody on another matter, the period extending from the day the court issues a bench warrant pursuant to section 530.70 of this chapter because of the defendant's failure to appear in court when required, to the day the defendant subsequently appears in the court pursuant to a bench warrant or voluntarily or otherwise" (see § 30.30 [4] [c] [ii] [emphasis added).

Moreover, CPL § 30.30 (4) (d) states that a reasonable period of delay will be excludable from the People's 30.30 time "when the defendant is joined for trial with a co-defendant for whom the time for trial [ ] has not run and good cause is not shown for granting a severance" (§ 30.30 [4] [c] [ii]; see also United States v Payden, 620 F Supp 1426, 1428 [SD NY 1985]["the efficiency and economy of joint trials far outweighs the desirability of granting a severance where the criterion is simply the passage of time"][internal citations omitted]).

Defendant's motion elides any mention that co-defendant Cordova bench warranted. However, the uncontroverted facts at bar demonstrate that the court ordered, but stayed, a warrant after Cordova's absence on December 13, 2022, and a warrant for Cordova's arrest was issued on [*4]December 19, 2022, when she failed to appear at her adjournment date. Additionally, the record is devoid of any indication that defense counsel moved the court for severance of defendant and Cordova's trial.

Conversely, the People repeatedly invoke case law analyzing the consequence of post- readiness adjournments when proffering their calculation of excludable time (People's affirmation in opposition at 2-3). However, the record is clear that the prosecution did not declare its readiness for trial until April 12, 2023, six days after Cordova's return on the bench warrant. Accordingly, the gravamen of defendant's complaint, that the People have exceeded their 30.30 time because all the delays should be chargeable to the prosecution, hinges on the Court's consideration of pre-readiness delays as follows:

The parties have no disagreement, except that defense counsel improperly included defendant's arraignment day in the calculation.

The Court concurs with the parties' assessment that the entire period is includable in the prosecution's 30.30 computation.

Defense counsel avers that 55 days should be chargeable.^[FN2] The People assert that only 27 days are chargeable. The Court concurs with the People's computation of excludable time. It is settled law that pre-readiness delays will not be chargeable to the prosecution where statutorily excludable period apply (see England, supra at 10 ["(i)n prereadiness cases, all of the elapsed time that precedes the readiness declaration is charged to the People except to the extent that particular delay periods may be excused under the explicit statutory provisions"]; see also People v Acosta, 2022 NYLJ LEXIS 941, *1 [Crim Ct, Bronx County 2022]["(e)xclusion of time for defense adjournments is free standing and applies prior to and irrespective of the People's readiness"]).

As discussed herein, co-defendant Cordova's non-appearance at her December 13, 2022 court appearance was not excused and a bench warrant was stayed. An arrest warrant was issued when she failed to appear in court on December 19, 2022. Pursuant to CPL § 30.30 (4) (c) (ii), the period extending from when the court orders a bench warrant is excludable since defendant has made him or herself unavailable to the court (see People v Malivert, 15 Misc 3d 478, 480 [Crim Ct, Kings County 2002] citing People v Benjamin, 292 AD2d 191, 192 [1st Dept 2002]["The 18-day period at issue was properly excluded from the time in which the People were required to be ready because defendant failed to appear and a bench warrant was issued and stayed against him"][internal citations omitted]).

Additionally, although defendant's motion ignores the 30.30 implications of a co-defendant for whom a bench warrant is issued, CPL § 30.30 (4) (d) unambiguously addresses that contingency [*5](see People v Bravman, 89 Misc 2d 596, 599 [Sup Ct, Suffolk County 1977]["adjournments attributable to one or more defendants are excludable time as to all other defendants who did not object thereto"]; People v Barnett, 135 Misc 2d 1127, 1129 [Crim Ct, Kings County 1987]["(T)his provision creates a unitary speedy trial clock in a criminal action for all defendants whereby exclusion of time for one defendant is applicable to all defendants"][emphasis added]).

Therefore, absent any evidence or argument that defense counsel moved for severance, or that the delay caused by co-defendant Cordova's failure to appear and subsequent return on the bench warrant was not reasonable, only 27 of the 48 days elapsed are includable.

Defense counsel notes that the felony charges were dropped at the defendant's court appearance on January 3, 2023, at which time the matter was adjourned for conversion, and he argues that 35 days are includable. This is incorrect because while the People could not declare readiness on the misdemeanor complaint, for the reasons stated herein, CPL § 30.30 (4) (c) (ii) and § 30.30 (d) provide that the period pending co-defendant Cordova's return on her bench warrant is excludable as against the co-defendants' joint speedy trial clock (see CPL § 170.65 [1]; CPL §§ 30.30 [4] [c] [ii] and [d]).

Defense counsel asserts that 37 days should be chargeable to the People, who failed to convert the misdemeanor complaint during this period. However, for the reasons already discussed, the Court finds that this period is excludable as against the co-defendants' unitary 30.30 time.

Defendant asserts that 26 days are chargeable because the People converted on April 11, 2023. However, the People state the date of conversion as April 12, 2023, and they claim that only six days are includable. The court record indicates that the prosecution reported at the last appearance date that their SD had been filed on April 12, 2023. It must be noted again that the record, including the instant motion, does not indicate that defense counsel argued for severance, or that the delays occasioned by the CPL §§ 30.30 (4) (c) (ii) and (d) exclusions were unreasonable. Consequently, the excludable 30.30 time runs from March 16, 2023 through April 6, 2023. The People are properly charged with six days until they converted the accusatory instrument.

Although the original Decision and Order date of June 22, 2023 was subsequently administratively adjourned, and this time is excludable for motion practice (see CPL §§ 30.30 [4] [a]). The Court finds that 99 days are chargeable to the People, who declared their readiness within the statutorily prescribed time, six months (see CPL §§ 30.30 [7] [c]).

Therefore, defendant's motion for dismissal pursuant to CPL § 30.30 is DENIED.

Defendant moves alternatively for an order precluding the prosecution from introducing [*6]Sandoval/Ventimiglia evidence at trial. This Court respectfully defers to the trial court to decide defendant's request for suppression orders.

Based upon the foregoing, defendant's motion for an order dismissing the misdemeanor charges on statutory speedy trial grounds pursuant to CPL § 30.30 or precluding evidence of prior bad acts and/or convictions pursuant to Sandoval/Ventimiglia is DENIED.

The Court GRANTS defendant's request for an order for Sandoval/Ventimiglia pre-trial hearings.

Defendant's request for an order reserving his rights to make further and additional motions is DENIED subject to rights under CPL § 255.20 (3) to move for further leave upon good cause shown.

To the extent that the prosecution has not already complied, the People are directed to respond to defendant's demand for a Bill of Particulars pursuant to CPL § 200.95 (1) and § 200.50 (7) within 10 days, and the People are further reminded of their continuing discovery obligations pursuant to CPL Article § 245.

This constitutes the opinion, decision, and the order of the Court.