The defendant, Lalchan Singh, is charged with Assault in the Third Degree, Penal Law ["PL"] § 120.00(1), Attempted Assault in the Third Degree, PL § 110/120.00(1), Criminal Possession of a Weapon in the Fourth Degree, PL § 265.01(2), and Harassment in the Second Degree, PL § 240.26(1). The defendant moves to dismiss the criminal action against him on the ground that he has been denied his statutory right to a speedy trial, alleging that more than ninety (90) days have elapsed since his arraignment (see Criminal Procedure Law ["CPL"] § 30.30[1][b]). The People concede that they have exceeded their time limitation as to Assault in the Third Degree but contend that they are chargeable with less than ninety (90) days on the remaining offenses. The Court's analysis turns on a single adjournment, from April 25, 2013 to June 20, 2013, following the People's failure to announce ready upon filing a superseding information. Because the People did not satisfy their obligation to reiterate their readiness after a substantial break in the proceeding (see People v Cortes, 80 NY2d 201, 214 [1992]), fifty-six (56) days are chargeable to them for this adjournment. In conjunction with the other periods of delay, a total of one hundred and twelve (112) days have accrued to the People since the defendant's arraignment. Accordingly, the defendant's motion to dismiss is granted.

Pursuant to CPL § 30.30(1)(b), the People must be ready for trial within ninety (90) days of commencement of a criminal action charging a defendant with a misdemeanor punishable by a sentence of imprisonment of more than three months. Although a criminal action commences when the accusatory instrument is filed, counting for speedy trial purposes starts the following day (see People v Stiles, 70 NY2d 765 [1987]).

Whether the People have satisfied their obligation to be ready under CPL § [*2]30.30 is generally determined by calculating the time between the filing of the first accusatory instrument and the People's declaration of readiness, then subtracting statutorily excludable periods of delay and finally adding any additional periods of post-readiness delay which are attributable to the People and ineligible for any exclusions under the statute (see Cortes, 80 NY2d at 208).

For the People to be ready for trial under CPL § 30.30, they must meet two requirements. First, they must communicate their readiness either on the record in open court or by a written notice simultaneously sent to defense counsel and filed with the court clerk (see People v Kendzia, 64 NY2d 331, 337 [1985]). Second, the People must declare their readiness only when they are presently ready to proceed to trial (see id.). Once the People have declared their readiness for trial they have satisfied their obligation under the statute (see People v Giordano, 56 NY2d 524 [1982]).

To be ready for trial, the People must do "all that is required of them to bring the case to a point where it may be tried" (People v England, 84 NY2d 1, 4 [1994]). The People are ready for trial where they "have a valid accusatory instrument upon which the defendant may be brought to trial, where [they] have complied with their obligation to produce for trial a defendant in their custody and where [they] have complied with all pending proceedings required to be decided before trial can commence" (People v Caussade, 162 AD2d 4, 8 [2d Dept 1990] [internal citations omitted]).

The defendant was arraigned on the original misdemeanor complaint on February 9, 2013. In pertinent part, the misdemeanor complaint alleges, in sum and substance, that Parbatee Singh informed the deponent officer that on February 8, 2013, in Queens County, the defendant struck her on the face with a broom stick, causing her to suffer a laceration and bleeding as well as substantial pain, for which she was removed to a hospital for treatment. The matter was adjourned to March 13, 2013 for the People to file and serve the supporting deposition from Parbatee Singh necessary to convert the complaint to an information.

Off-calendar on March 6, 2013, the People filed and served a Domestic Incident Report ["DIR"] with a statement of readiness for trial. The DIR, which is handwritten and signed by Parbatee Singh under penalty of perjury, states that on February 8, 2013, in Queens County, "my husband and I had an argument about his drinking. [H]e became angry. He then grabbed a broom behind where I was sitting and swung the broom, hitting me in the face, causing the broom to break." These sworn, first-party factual allegations supplement those of the misdemeanor complaint and support the charges of Criminal Possession of a Weapon in the Fourth Degree and Harassment in the Second Degree (see People v Modica, 187 Misc 2d 635, 636 [Crim Ct, Richmond County 2001]). Thus, the misdemeanor complaint and DIR comprise a facially sufficient information as to these offenses (see CPL § 100.40).

A statement of readiness, filed and served simultaneously when a complaint is converted to a facially sufficient information, is a legitimate declaration of readiness which tolls the speedy trial clock (see People v Kendzia, 64 NY2d 331, 337 [1985] see also People v Sherman, 24 Misc 3d 344, 347 [Crim Ct, NY County 2009]). Because the People satisfied their obligation under the statute by announcing their readiness for trial upon a valid accusatory instrument as to Criminal Possession of a Weapon in the Fourth Degree and Harassment in the Second Degree (see Giordano, 56 NY2d at 525; see also Caussade, 162 AD2d at 8), twenty-five (25) days are chargeable to the People [*3]for the initial adjournment on these offenses.

Nevertheless, the complaint is not a facially sufficient information as to Assault in the Third Degree since the DIR does not cure the hearsay allegations supporting the requisite element of physical injury. Although the DIR states that the defendant hit Parbatee Singh on the face with a broom, causing the broom to break, it alleges neither any subjective experience of pain nor any objective injury from which substantial pain may be inferred (see People v Chiddick, 8 NY3d 445, 447 [2007] see also People v Perez, 40 Misc 3d 448, 453-454 [Crim Ct, Queens County 2013]). Accordingly, it fails to corroborate the evidentiary facts alleged in the complaint that as a result of the defendant's actions, the complainant suffered a laceration, bleeding and substantial pain requiring hospital treatment. Because the non-hearsay factual allegations of the misdemeanor complaint and DIR therefore do not establish every element of this offense, the People's off-calendar statement of readiness as to Assault in the Third Degree is illusory (see Sherman, 24 Misc 3d at 347). Accordingly, thirty-two (32) days are chargeable to the People for the initial adjournment on this offense.

On March 13, 2013, the Court granted the People's motion to add Attempted Assault in the Third Degree, PL § 110/120.00(1) to the information and the People announced ready for trial. The Court adjourned the matter to April 25, 2013 for the People to provide open file discovery on Criminal Possession of a Weapon in the Fourth Degree, Attempted Assault in the Third Degree, and Harassment in the Second Degree and to convert the offense of Assault in the Third Degree to an information. This adjournment is excludable as a period of delay for discovery by stipulation as to all but the last offense (see People v Thomas, 2010 NY Slip Op 50441[U] at 1 [App Term, 2nd,11th & 13th Jud Dists 2010]). Zero (0) days are chargeable to the People on Criminal Possession of a Weapon in the Fourth Degree, Attempted Assault in the Third Degree and Harassment in the Second Degree. Conversely, forty-three (43) days are chargeable to the People on Assault in the Third Degree.

On April 25, 2013, the People filed and served a superseding information upon which the defendant was arraigned, charging him with Assault in the Third Degree, Criminal Possession of a Weapon in the First Degree and Harassment in the Second Degree. The People may file a superseding information at any time before the defendant pleads guilty or a trial commences (see CPL § 100.50[1]). Once the defendant is arraigned on a superseding information, the court must dismiss any offense contained in the first instrument which is also charged in the second one (see id.). In contrast, any offense contained in the original accusatory instrument which is not charged in the superseding information continues to exist (see id.; see also People v Bowman, 84 NY2d 923, 925 [1994] People v Druskovic, 139 Misc 2d 318, 320 [Crim Ct, NY County 1988]). Consequently, the offense of Attempted Assault in the Third Degree, which was added to the original instrument at the People's request on March 13, 2013 but is not charged in the superseding information, remains extant.

The superseding information alleges, in pertinent part, that on February 8, 2013, in Queens County, the deponent officer responded to the scene five (5) minutes after receiving a radio run to the location. He there observed Parbatee Singh sitting down at a table, holding the left side of her face. She was "breathing rapidly, tearing, [and] had difficulty speaking," and had "fresh blood and a deep laceration above her left eye" as well as swelling and bruising around her eye. When the officer asked what happened, [*4]she stated that the defendant had hit her with a broom.

When viewed in the light most favorable to the People (see People v Barona, 19 Misc 3d 1122[A], 1, 2008 NY Slip Op 50814[U] [Crim Ct, NY County 2008]), the facts alleged in the superseding information are sufficient to demonstrate that the complainant's statement to the officer was "made under the stress of excitement caused by an external event" (People v Johnson, 1 NY3d 302, 306 [2003]) before there was "time to contrive and misrepresent" (id. at 307, citing People v Brown, 70 NY2d 513, 518 [1987]). Hence, for pleading purposes, the statement is properly classified as an excited utterance exception to the rule against hearsay (see People v Valentine, 40 Misc 3d 28, 30-31, 2013 NY Slip Op 23189 [App Term, 2nd, 11th & 13th Jud Dists 2013]). Because the nonhearsay factual allegations of the instrument, accepted as true, suffice to establish every element of the offenses charged, the superseding information is facially sufficient. As such, it is a valid accusatory instrument upon which the defendant may be tried (see Caussade, 162 AD2d at 8).

Although the People generally are not required to declare their readiness repeatedly while a criminal action is pending, they must do so if there is a "substantial break in the proceedings" (People v Reed, 19 AD3d 312, 313-314 [1st Dept 2005], citing Cortes, 80 NY2d at 214). For example, when the People file a new indictment after the initial one is dismissed, that represents "such a substantial break in the proceeding that a new communication of readiness is needed" (Cortes, 80 NY2d at 214). Similarly, the filing of a felony indictment which supersedes a misdemeanor information "constitute[s] such a substantial break in the proceeding' that the People [are] again required to declare their readiness for trial" (People v Piquet, 46 AD3d 1438, 1439 [4th Dept 2007], quoting Cortes, 80 NY2d at 214). Under both sets of circumstances, the People must reiterate their readiness to avoid speculation about whether they are prepared for trial (see People v Respress, 195 AD2d 1053, 1054 [4th Dept 1993]).

Here, the filing of the superseding information in court on April 25, 2013 likewise created a substantial break in the proceeding which required the People to reassert their readiness for trial. The minutes of the calendar-call, however, reflect that the People did not announce ready. Rather, following the defendant's arraignment, they provided him with open file discovery and conveyed a plea offer, which he rejected. Thereafter the Court adjourned the matter to June 20, 2013 for trial. Consequently, fifty-six (56) days are chargeable to the People for this adjournment.

On June 20, 2013, the People announced not ready and requested two (2) weeks. The Court adjourned the matter to July 9, 2013 for trial. Despite their failure to announce ready when they filed the superseding information, the People previously declared their readiness upon the prior misdemeanor information charging Criminal Possession of a Weapon in the Fourth Degree, Attempted Assault in the Third Degree and Harassment in the Second Degree from which the superseding information was derived. This adjournment therefore qualifies as a period of post-readiness delay.

The speedy trial statute intends to ensure "readiness in a criminal action, not readiness on a particular instrument"(People v Marsh, 127 AD2d 945, 947 [4th Dept 1987]). Accordingly, the commencement of a criminal action " includes the filing of all further accusatory instruments directly derived from the initial one'" (People v Farkas, 16 NY3d 190, 193 [2011], quoting CPL § 1.20[16][b]). The period of limitation applicable to a superseding information thus begins with the filing of the original [*5]instrument and relates back to this moment for the purpose of computing excludable time (see id., citing People v Sinistaj, 67 NY2d 236, 239 [1986]). Moreover, where there are successive accusatory instruments for the same crimes, the People's statement of readiness on the original instrument satisfies their statutory obligation on the subsequent one (see Marsh, 127 AD2d at 947; see also Respress, 195 AD2d at 1054).

Once the People have satisfied their obligation under the statute by declaring their readiness upon a valid accusatory instrument (see Giordano, 56 NY2d at 525; Caussade, 162 AD2d at 8), they are chargeable only with delay they have caused which "directly implicates their ability to proceed to trial" (Cortes, 80 NY2d at 201). Accordingly, because the speedy trial statute demands only that the People be ready for trial, not that court facilities also be available (see People v Brothers, 50 NY2d 413, 416 [1980]), the People are not chargeable with post-readiness delay due to court congestion (see People v Chavis, 91 NY2d 500, 502 [1998]).

Consequently, since the People satisfied their statutory obligation by stating ready on the prior misdemeanor information (see Marsh, 127 AD2d at 947; Respress, 195 AD2d at 1054), only the fourteen (14) days which they requested are chargeable to them for this adjournment (see Cortes, 80 NY2d at 210; People v Bruno, 300 AD2d 93, 95 [1st Dept 2002]).

On July 9, 2013, the People announced not ready and requested two (2) weeks. The Court adjourned the matter to July 26, 2013 for trial. Fourteen (14) days are chargeable to the People for this adjournment.

On July 26, 2013, the People announced not ready and requested July 29, 2013. The Court adjourned the matter to July 29, 2013. Three (3) days are chargeable to the People for this adjournment.

On July 29, 2013, the People announced ready for trial. The defendant stated his intention to file a speedy trial motion, the Court set a motion schedule and adjourned the matter to October 11, 2013 for decision. The defendant filed and served the instant motion on August 1, 2013 and the People filed and served their affirmation in opposition on August 21, 2013. The defendant subsequently filed and served a reply to the People's affirmation on September 12, 2013. Thereafter, the Court directed the People to order the minutes of the April 25, 2013 calendar-call in order to decide the motion.

On October 11, 2013, the People stated that they were awaiting receipt of the requisite minutes. The Court adjourned the matter to November 22, 2013 for decision. On November 22, 2013, the People still had not received the minutes. The Court again adjourned the matter to January 27, 2014 for decision. Off-calendar prior to the January 27, 2014 adjournment date, the People provided the Court with the minutes. On January 27, 2014, the Court adjourned the matter to March 6, 2014 for decision.

Delays occasioned by adjournments which are requested or consented to by the defendant are not chargeable to the People (see People v Worley, 66 NY2d 523, 525 [1985] People v Kopciowski, 68 NY2d 615, 617 [1986]). The period of delay resulting from a defendant's pretrial motion and the time during which it is under consideration by the court is excludable as having been "caused by the defendant for his own benefit" (id. at 527; see CPL § 30.30[4][a]). Indeed, while a defendant's pretrial motion is sub judice, that period of delay is excludable regardless of the People's readiness (see [*6]People v Douglas, 209 AD2d 161, 162 [1st Dept 1994]). Moreover, a reasonable period of delay to secure minutes necessary to decide a speedy trial motion generally is excludable (see People v Holden, 260 AD2d 233, 234-235 [1st Dept 1999]). Nevertheless, the Court notes that it took approximately four (4) months for the People to produce the requisite minutes. Although the court reporters are not under their control (see People v Bey, 44 AD3d 1065, 1066 [2d Dept 2007]), the People, as the party with the burden of proof on the motion (see People v Berkowitz, 50 NY2d 333, 349 [1980] People v Russo, 99 AD2d 498 [2d Dept 1984]), must act diligently in attempting to obtain the minutes (see People v Hueston, 171 AD2d 812, 812-813 [2d Dept 1991]). It is not necessary, however, to decide whether it is appropriate to charge the People with any part of this delay, since they already had exceeded their period of limitation prior to the filing of the instant motion.

Accordingly, one hundred and twelve (112) days are chargeable to the People to date on Criminal Possession of a Weapon in the Fourth Degree, Attempted Assault in the Third Degree and Harassment in the Second Degree, and one hundred and sixty-two (162) days are chargeable to them on Assault in the Third Degree. Since the People have exhausted their time to be ready for trial in this case, the defendant's motion to dismiss pursuant to CPL § 30.30(1)(b) is granted.

This constitutes the decision and order of the Court.

Dated:February 27, 2014

Queens, New York

_________________________

Elisa S. Koenderman, JCC