Defendant, FLORENCE ODJODY, is charged with one count of Assault in the Third Degree (Penal Law § 120.00 [1]); one count of Attempted Assault in the Third Degree (P.L. § 110/120.00 [1]); one count of Menacing in the Third Degree (P.L. § 120.15); and one count of Harassment in the Second Degree (P.L. § 240.26 [1]). On October 13, 2011 the defendant moved to dismiss the complaint pursuant to Criminal Procedure Law § 30.30 (1) (b) on the grounds that she has been denied her statutory right to a speedy trial. The key issue in this case revolves around the service of documents upon defense counsel.

The People argue that the key to the validity of the conversion of the complaint and statement of readiness lies in whether the People acted in good faith. In People v. Vaughn, 36 [*4]AD3d 434 (1st Dept 2007), although the statement of readiness was sent to the former address of same defendant's counsel, the defense attorney himself conceded that there was no bad faith. Id. at 434. However, in the case at bar an entirely different attorney was served with the supporting deposition and Mr. Rankin has not made any concessions regarding the characterizations of the People's actions. In the instant case the defendant argues that serving the papers on another attorney prevented the defendant from receiving key documents in this case in a timely manner.

In People v. Chu Zhu, 171 Misc 2d 298; 654 N.Y.S.2d 272 (Sup Ct, Kings County 1997), the People possessed actual knowledge of the substitution of counsel and conceded that they were aware of the change in lawyers. The court held that the People had chosen to "perfunctorily deliver their notice to an attorney whose representation of the defendant they knew had terminated more than two weeks before," and ruled that the People's argument of good faith in attempting to serve former defense counsel might be far more persuasive if they had only "had mere constructive notice of substituted counsel, but not where there is actual notice." This is comparatively analogous to the case at bar, because the only Notice of Appearance in the file prior to August 3, 2011 came from the Legal Aid Society. Therefore, it can be argued that the People, having no reason to believe that the court file was inaccurate, had acted in good faith in serving the converting documents and statement of readiness up on Mr. Godfrey.

Courts have held that in cases where the People are on actual notice of the substitution of counsel their disregard of that change in circumstances can not be ignored and the service of documents up on the wrong attorney will be deemed to be ineffective. People v. Stewart, 2008 NY Slip Op 52025U; (Crim Ct, New York County), citing, People v. Chittumuri, 189 Misc 2d 743 [Crim. Ct. Queens Cty. 2001] [service on prior counsel ineffective]; People v. Starkey, 4 Misc 3d 1002A; 791 N.Y.S.2d 872 [Sup Ct, Kings County 2004] [defense counsel had moved offices; service at old address ineffective].

However, based upon the court file and the submissions of the parties, and in light of the facts and circumstances in this matter, this court finds that the People acted in good faith and that their July 11, 2011 service of the supporting deposition along with a statement of readiness is therefore valid. Accordingly, the People are charged with only 4 days during the July adjournment period.

As noted above, on August 3, 2011, the defendant was not present in court and a warrant was stayed at the request of counsel. The case was adjourned to October 5, 2011 for Discovery by Stipulation ("DBS"). Because DBS is regarded as a courtesy provided to the defendant in lieu of motion practice and discovery practice in Kings County, the adjournment is excludable under CPL § 30.30 (4)(a) "irrespective of the People's readiness". People v. Khachiyan, 194 Misc 2d 161 (Crim. Ct., Kings Co., 2002). See, also, People v. Wilson, 2010 NY Slip Op 20136, Crim. Ct., Kings Co.; People v. Dorilas, 19 Misc 3d 75 (2008); People v. Sai, 223 AD2d 439 (1st Dep't, 1996); People v. Burton, 133 Misc 2d 701 (Crim. Ct. NY County 1986); C.P.L. § 30.30 (4)(a). This time is also excludable due to the defendant's absence. People v. Benjamin, supra; People v. Patterson, supra; People v. Notholt, supra; and CPL 30.30 (4) (c).]" 0 days included.

On October 5, 2011 the case was adjourned to October 13, 2011 because defense counsel was absent from court due to the fact that he was on trial in another matter. This period is excludable as defendant was without counsel through no fault of the court. (CPL 30.30[4] [f]). People v. Burton, supra; People v. Sai, supra; C.P.L. § 30.30 (4) (a). 0 days included.

On October 13, 2011, the defense attorney returned to court and was served with a copy of the "DBS". The defendant then filed and served the instant motion to dismiss and the case was [*5]adjourned to December 19, 2011 for the People to respond and submission and for review of the motion. This entire period is excludable and continues to be excludable to date. People v. Burton, 133 Misc 2d 701 (Crim. Ct. NY County 1986) (court found period during which a case was adjourned for defense motions was excludable in computation of statutory speedy trial time); People v. Sai, 223 AD2d 439 (1st Dept 1996) (court found that time requested by defense counsel to submit motions is excludable from speedy trial calculations). C.P.L. § 30.30 (4) (a). 0 days included.

Total 78 days Conclusion

Based on the foregoing, in total, the People are charged with 78 days of includable delay since the commencement of the action on April 23, 2011. Because less than 90 days of chargeable time has elapsed on these charges, Defendant's motion to dismiss the complaint pursuant to C.P.L. § 30.30, is denied.

The foregoing is the decision and the order of the court.

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Dated: May 8, 2012EVELYN J. LAPORTE

Brooklyn, New YorkJudge of the Criminal Court