Defendant is charged with Criminal Trespass in the Second Degree (PL § 140.15[1]), Criminal Trespass in the Third Degree (PL § 140.10[a]), and Trespass (PL § 140.05).

Defendant moves pursuant to CPL §§ 170.30(1)(e) and 30.30 to dismiss the accusatory instrument on speedy trial grounds.

On May 14, 2015, defendant was arraigned on a misdemeanor complaint and the case was adjourned to July 6, 2015 to join. The People stated that they were ready as to all counts.

On July 6, 2015, the case was adjourned to August 17, 2015 for motion practice. This court directed defendant to file his motions on or before July 27, 2015.

On August 17, 2015, defendant filed a motion to dismiss on the grounds of facial insufficiency. The case was thereafter adjourned to November 10, 2015 for response and decision. In their papers in opposition filed on September 29, 2015, the People conceded that the accusatory instrument was facially insufficient. The People also submitted as an exhibit to their affirmation in opposition a copy of a superseding information which purportedly cured all of the defects in the original accusatory instrument.

Unbeknownst to this court, on October 7, 2015, defendant filed the instant motion to dismiss on speedy trial grounds. The People filed their response on October 21, 2015.

Wholly unaware of the filing of the instant motion, by decision and order dated November 10, 2015, this court granted defendant's motion to dismiss on the grounds of facial insufficiency without opposition. The decision and order further stayed sealing for thirty (30) days from the date of the decision and order and granted the People leave to move to amend or otherwise cure the defects in the accusatory instrument consistent with CPL §§ 30.30 and [*2]170.30.

At the next appearance date, November 10, 2015, when the decision and order was handed out, neither defense counsel nor the People alerted the court of the previously filed motion to dismiss on speedy trial grounds.

In accordance with this court's decision and order, on November 16, 2015, the People filed with the court and served on defense counsel a copy of the superseding information and a statement of readiness as to all counts.

Defendant argues that this case must be dismissed because the People have failed to be ready for trial within 90 days. Defendant asserts that the People should be charged with all of the time from the date of arraignment, May 14, 2015, to the date on which the superseding information was filed, September 28, 2015 ^[FN1] , for a total of 137 days.

In opposition, the People contend that they should be charged with 0 days. The People aver that defendant is mistaken in his assertion that since the People conceded that the misdemeanor complaint was facially insufficient that all time should be charged.

The top count of the accusatory instrument is an A misdemeanor, which is punishable by a sentence of imprisonment of up to one year. Pursuant to CPL § 30.30(1)(b), the People must be ready for trial within 90 days of the commencement of a criminal action where the defendant is charged with one or more offenses, at least one of which is a misdemeanor punishable by sentence of imprisonment of more than three months, and none of which is a felony.

For CPL § 30.30 purposes, in order for the People to be "ready for trial", the People must satisfy two elements. First, there must be a communication of readiness by the People which appears on the trial court's record by way of either a statement of readiness in open court or a written notice of readiness sent by the prosecutor to both defense counsel and the court clerk. People v. Kendzia, 64 NY2d 331 (1985). Second, the People must declare their readiness when there are in fact ready to proceed to trial. Id. at 337. "A statement of readiness at a time when the People are not actually ready is illusory and insufficient to stop the running of the speedy trial clock." People v. England, 84 NY2d 1, 4 (1994). The test is whether the People "have done all that is required of them to bring the case to a point where it may be tried." Id.

In order to satisfy his or her initial burden on a motion to dismiss on speedy trial grounds, the defendant must demonstrate that the People failed to declare their readiness within the statutorily prescribed time period. People v. Luperon, 85 NY2d 71 (1995). Once the defendant meets his or her initial burden, the onus is upon the People to establish sufficient excludable delay to withstand dismissal. People v. Santos, 68 NY2d 859 (1986); People v. Berkowitz, 50 NY2d 333 (1980). "Whether the People have satisfied [their 30.30] obligation is generally determined by computing the time elapsed between the filing of the first accusatory instrument [*3]and the People's declaration of readiness, subtracting any periods of delay that are excludable under the terms of the statute and then adding to the result any postreadiness periods of delay that are actually attributable to the People and are ineligible for an exclusion." People v. Cortes, 80 NY2d 201, 208 (1992).

In a misdemeanor prosecution, a defendant has a statutory right to be prosecuted by a misdemeanor information. CPL § 170.65(1). An information is sufficient where "non-hearsay allegations of the factual part of the information and/or any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof." CPL § 100.40(c).

The issue presented is whether delays occasioned by defense motion practice and other proceedings concerning defendant prior to the People filing a facially sufficient information are chargeable to the People.

The People cannot state ready on a jurisdictionally defective accusatory instrument. The People conceded that the original accusatory instrument was facially insufficient. Consequently, their statement of readiness at arraignment was illusory. People v. Colon, 59 NY2d 921 (1983); People v. Sherman, 24 Misc 3d 344 (Crim Ct, NY County 2008).

However, contrary to defendant's assertions, "[t]he fact that a superceding instrument is filed does not automatically render the entire period prior to thereto as includable. This is so especially when such periods include excludable times for motion practice or the Defendant waived the inclusion of the delay which occurred before the People filed an accusatory instrument sufficient to confer trial jurisdiction on the court." People v. Odoms, 143 Misc 2d 503, 504-505 (Crim Ct, Kings County 1989) (internal citations omitted). Pursuant to People v. Worley, 66 NY2d 523, 525 (1985), if the People fail to file a jurisdictionally sufficient accusatory instrument but a defendant requests or consents to an adjournment, such delay is not chargeable to the People.

In their papers in opposition, the People explicitly assert that 1) on May 14, 2015, the case was adjourned on consent so that this case could be joined with defendant's other open matter filed under docket no.: 2015BX020568 and 2) on July 6, 2015, the case was adjourned to August 17, 2015 at the request of defense counsel for motion practice. Affirmation in Opposition of ADA Darcel Calixte, at 3. Defendant did not submit any reply papers to dispute the People's explanation as to these specific adjournments.

In People v. Notholt, 242 AD2d 251 (1st Dept. 1997), the Appellate Division held that the lower court improperly charged the People with 103 days. In Notholt, the People asserted that the defendant requested and consented to the two adjournments at issue. The defendant failed to challenge the People's assertions. In addition, the court's own notations in the file indicated that these two adjournments were on consent. The court held that at the very least, the People should have been granted the opportunity to obtain the minutes of the adjourned dates if the lower court questioned the adjournment despite defendant's failure to dispute them.

Although defendant failed to dispute the People's assertions as to the adjourned dates of May 14, 2015 and July 6, 2015, this court cannot determine whether these two adjourned dates were granted on consent or at defendant's request without reviewing the minutes of the two adjourned dates. "Adjournments consented to by the defense must be clearly expressed to relieve the People of the responsibility for that portion of the delay. Defense counsel's failure to object to an adjournment does not constitute consent." People v. Smith, 82 NY2d 676, 678 (1993); see also, People v. Liotta, 79 NY2d 841 (1992).

As noted above, by decision and order dated November 10, 2015, this court granted defendant's motion to dismiss on the grounds of facial insufficiency and stayed sealing for thirty (30) days. Had defense counsel or the People alerted this court that there was a pending motion to dismiss on speedy trial grounds, this court would not have granted the motion to dismiss on the grounds facial insufficiency and directed this case to be sealed. Rather, this case would have been adjourned for decision. Ultimately, this court then would have held both motions to dismiss in abeyance pending receipt and review of the minutes for the May 14, 2015 and July 6, 2015 appearances.

Accordingly, defendant's motion to dismiss the instant action pursuant to CPL §§ 30.30 and 170.30 is hereby held in abeyance pending receipt and review of the minutes of the May 14, 2015 and July 6, 2015 appearances. This court sua sponte amends the decision and order dated November 10, 2015 granting defendant's motion to dismiss on the grounds facial insufficiency and directing sealing to be stayed for thirty (30) days to the extent that defendant's motion to dismiss on the grounds of facial insufficiency is held in abeyance pending receipt and review of the minutes of the May 14, 2015 and July 6, 2015 appearances.

This constitutes the decision and order of this court.