Brooklyn Defender Services (Jeremy Ravinsky of counsel), for appellant. Kings County District Attorney (Leonard Joblove, Jeffrey Eng and Dmitriy Povazhuk of counsel), for respondent.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Michael D. Kitsis, J.), rendered November 29, 2021. The judgment convicted defendant, upon his plea of guilty, of driving while ability impaired, and imposed sentence. The appeal from the judgment of conviction brings up for review (1) so much of an order of that court (Adam D. Perlmutter, J.) issued April 13, 2021 as, upon, in effect, reargument, adhered to a March 8, 2021 order (Adam D. Perlmutter, J.) denying defendant's February 11, 2021 motion to dismiss the accusatory instrument on statutory speedy trial grounds, and (2) an order of that court (Adam D. Perlmutter, J.) issued October 28, 2021 denying defendant's September 9, 2021 motion to dismiss the accusatory instrument on statutory speedy trial grounds.

ORDERED that the judgment of conviction is reversed, on the law, so much of the order issued April 13, 2021 as, upon, in effect, reargument, adhered to the March 8, 2021 order denying defendant's February 11, 2021 motion to dismiss the accusatory instrument on statutory speedy trial grounds is vacated, the branch of defendant's motion seeking dismissal is granted, the accusatory instrument is dismissed, and the fine, if paid, is remitted.

Insofar as is relevant to this appeal, on October 3, 2020, defendant was charged in a misdemeanor complaint with aggravated driving while intoxicated per se (Vehicle and Traffic [*2]Law § 1192 [2-a] [a]), common-law driving while intoxicated (Vehicle and Traffic Law § 1192 [3]), operating a motor vehicle without a license (Vehicle and Traffic Law § 509 [1]), and driving while ability impaired (Vehicle and Traffic Law § 1192 [1]), and was arraigned thereon. At the time of defendant's arraignment, statutory speedy trial time for misdemeanor charges in Kings County, among other criminal matters, was tolled pursuant to executive orders issued by the Governor in response to the COVID-19 pandemic, which toll was lifted on October 4, 2020. On December 30, 2020, the People moved to dismiss the charge of aggravated driving while intoxicated per se and filed a superseding information charging defendant with common-law driving while intoxicated, operating a motor vehicle without a license, and driving while ability impaired. The People also filed a certificate of compliance (CoC) (see CPL 245.50 [1]) that included a statement of readiness (SoR) for trial, which SoR did not contain a CPL 30.30 (5-a) certification of the facial sufficiency of the accusatory instrument. The People attached to the CoC a document titled "Inventory of Discovery Provided under CPL 245," which listed, among other things, "911 calls (2 audio files)" as item No. 16, "Radio Run (1 audio file)" as item No. 17, and "I/NetDispatcher (26 pages)" as item No. 18. On January 26, 2021, the People filed a supplemental CoC and a second SoR, which SoR did contain a CPL 30.30 (5-a) certification.

On February 11, 2021, defendant moved to dismiss the accusatory instrument on statutory speedy trial grounds, arguing, among other things, that the People's December 30, 2020 SoR was invalid because the People had not certified the facial sufficiency of the accusatory instrument pursuant to CPL 30.30 (5-a) and that the People's December 30, 2020 CoC was invalid because the People had not turned over the 911 calls, radio run, or I/NetDispatcher materials listed in the CoC inventory until January 15, 2021. The People opposed, acknowledging that they had not turned over those items until January 15th and attributing the mistake to "a possible technological error in uploading those documents to [the discovery] portal," but contending that the December 30th CoC was nonetheless valid and filed in good faith. The People conceded that they were chargeable with the 86-day period from October 5, 2020 (the date the People claimed the Governor's toll of statutory speedy trial time ended) to December 30, 2020. On March 8, 2021, the Criminal Court (Adam D. Perlmutter, J.) denied defendant's motion, charging the People with the 86 days that they had conceded.

On April 13, 2021, defendant was arraigned on the superseding information. The court directed the People to turn over all outstanding discovery by June 21, 2021. Also on April 13th, defense counsel moved for, in effect, leave to reargue defendant's motion to dismiss the accusatory instrument on statutory speedy trial grounds. On the same day, the Criminal Court (Adam D. Perlmutter, J.), in effect, granted leave to reargue and, upon reargument, adhered to its prior determination.

On September 9, 2021, defendant filed a second motion to dismiss the accusatory instrument on statutory speedy trial grounds, arguing that the People were chargeable with post-June 21, 2021 time due to the People's failure to turn over outstanding discovery by that date, as previously ordered by the Criminal Court. By order issued October 28, 2021, the Criminal Court (Adam D. Perlmutter, J.) denied defendant's motion. On November 29, 2021, defendant pleaded guilty to driving while ability impaired in full satisfaction of the accusatory instrument, and sentence was imposed.

On appeal, defendant argues that his statutory speedy trial motions should have been [*3]granted, the denials of which are reviewable pursuant to CPL 30.30 (6). It is uncontroverted that the People were required to be ready for trial within 90 days of the commencement of the action on October 3, 2020, since the most serious offense charged in the original accusatory instrument was a misdemeanor punishable by a sentence of imprisonment of more than three months (see CPL 30.30 [1] [b]; Vehicle and Traffic Law § 1193 [1] [b]; see also People v Lomax, 50 NY2d 351, 356 [1980]).

The People concede that they are chargeable with the 86-day period from October 5 to December 30, 2020. First, we note that the toll of statutory speedy trial time applicable to the instant matter ended on October 4th, not October 5th (Executive Order [A. Cuomo] No. 202.67 [9 NYCRR 8.202.67]; see People v Pagan, 75 Misc 3d 11, 12 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]). Second, for the reasons stated in People v Ward (79 Misc 3d 129[A], 2023 NY Slip Op 50688[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2023]), the People's December 30, 2020 SoR did not stop the speedy trial clock because the People had not certified the facial sufficiency of the accusatory instrument pursuant to CPL 30.30 (5-a). As the People did not file a 5-a certification before the expiration of their statutory speedy trial time, the Criminal Court should have granted defendant's February 11, 2021 motion to dismiss the accusatory instrument on statutory speedy trial grounds.

Even if the December 30, 2020 SoR were not invalid on 5-a grounds, we would nonetheless find that the People could not be deemed ready for trial as of that date. On December 30, 2020, the People filed a CoC with an inventory of items allegedly produced that included, among other things, the 911 calls, radio run, and I/NetDispatcher materials, but the People did not actually turn those items over until January 15, 2021. CPL 245.50 (3) provides that, "[n]otwithstanding the provisions of any other law, absent an individualized finding of special circumstances in the instant case by the court before which the charge is pending, the prosecution shall not be deemed ready for trial for purposes of section 30.30 of [the CPL] until it has filed a proper certificate [of compliance] pursuant to [CPL 245.50 (1)]," which requires the People to certify that they have complied with all of their discovery obligations pursuant to CPL 245.20 (1) (see also CPL 30.30 [5]). Though the People attributed their failure to turn over the 911 calls, radio run, and I/NetDispatcher materials until January 15th to "a possible technological error in uploading those documents to [the discovery] portal," we would find that "a possible technological error" does not amount to "special circumstances" pursuant to CPL 245.50 (3) (see People v Guzman, 75 Misc 3d 132[A], 2022 NY Slip Op 50445[U], *5 [App Term, 2d Dept, 9th & 10th Jud Dists 2022]). Thus, the People's "filing of the certificate of compliance pursuant to CPL 30.30 (5) could not be deemed complete until all of the material and information identified in the certificate as subject to discovery and electronically shared with the defendant was actually produced to the defendant, pursuant to CPL 245.50 (1) and (3)" (People ex rel. Ferro v Brann, 197 AD3d 787, 788 [2021]; see also CPL 245.50 [1]). As the People had not "filed a proper certificate" of compliance with their discovery obligations by December 30, 2020, they could not be "deemed ready" as of that date (CPL 245.50 [3]), and, thus, the speedy trial clock would have expired under this alternate analysis as well.

In view of the foregoing, we reach no other issue.

Accordingly, the judgment of conviction is reversed, the order issued April 13, 2021 which, upon, in effect, reargument, adhered to the March 8, 2021 order denying defendant's [*4]February 11, 2021 motion to dismiss the accusatory instrument on statutory speedy trial grounds is vacated, defendant's motion is granted, and the accusatory instrument is dismissed.

OTTLEY, J.P., MUNDY and VENTURA, JJ., concur.