Criminal Court of the City of New York, New York County, February 10, 2020

The Legal Aid Society, New York City (Shinequa Charles of counsel), for defendant.

Cyrus R. Vance, Jr., District Attorney, New York City (Jennifer Soliman of counsel), for plaintiff.

On January 27, 2019, the defendant was arraigned on a misdemeanor complaint and charged with one count of driving while intoxicated (Vehicle and Traffic Law § 1192 [2]), an unclassified misdemeanor, one count of driving while intoxicated (Vehicle and Traffic Law § 1192 [3]), an unclassified misdemeanor, one count of driving while ability impaired (Vehicle and Traffic Law § 1192 [1]), a traffic infraction, and one count of leaving the scene of an incident without reporting (Vehicle and Traffic Law § 600 [1] [a]), a traffic infraction. By notice of motion, filed and served on January 24, 2020, the defendant moved for an order dismissing the charges based on the People's failure to be ready for trial pursuant to Criminal Procedure Law § 30.30 (1) and constitutional speedy trial grounds pursuant to Criminal Procedure Law § 30.20 (1). The People filed their response on February 4, 2020.

By decision and order, dated November 25, 2019, this court found that 88 days were charged to the People under Criminal Procedure Law § 30.30 and denied a prior motion to dismiss the misdemeanor charges. That decision also denied the motion to dismiss the traffic infractions under Vehicle and Traffic Law §§ 1192 (1) and 600 (1) (a) because, under the statute at the time, those charges were not subject to dismissal pursuant to Criminal Procedure Law § 30.30 (1) (People v Taylor, 189 Misc 2d 313 [App Term, 2d Dept 2001]; People v Gonzalez, 168 Misc 2d 136 [App Term, 1st Dept 1996], lv denied 88 NY2d 936 [1996]). Finally, the decision reminded the parties to be ready for hearings and trial on December 13, 2019, when the case was next on the Part E calendar.

On December 13, 2019, the People answered ready for hearings and trial. The defense answered not ready because the defendant had been assigned to a new attorney from The Legal Aid Society. The court adjourned the case to January 13, 2020, for hearings and trial. This adjournment is excluded for two reasons. First, the adjournment is excluded because the People answered ready for hearings and trial and second the adjournment is excluded because the defendant, through his attorney, requested the adjournment (CPL 30.30 [4] [b]).

On January 13, 2020, the People answered ready for hearings and trial and the newly assigned defense counsel from{**67 Misc 3d at 192} The Legal Aid Society appeared for the first time and requested a motion schedule. The court granted this request. The court directed the defense counsel to file and serve their motion by January 24, 2020, and the People to respond by January 31, 2020. The court adjourned the case to February 10, 2020, in Jury Part 9 for decision. This adjournment is excluded (CPL 30.30 [4] [a]; People v Reed, 19 AD3d 312 [1st Dept 2005]; People v Sinisgalli, 24 Misc 3d 135[A], 2009 NY Slip Op 51489[U] [App Term, 1st Dept 2009]).

Although the entire adjournment from December 13, 2019, until January 13, 2020, is excluded because the People answered ready for trial and the defense counsel requested the adjournment, the defendant argues the People should be charged with the first 13 days of the January 2020 calendar and thus, there are 101 chargeable days to the People. For the reasons stated below, the court disagrees and finds that only 88 days are charged to the People. Therefore, the defendant's motion to dismiss the charges pursuant to Criminal Procedure Law § 30.30 (1) is denied.

Additionally, the defendant argues the charges should be dismissed because he has been denied his due process right to a speedy trial (US Const 6th, 14th Amends; NY Const, art I, § 6; CPL 30.20). For the reasons stated below, the motion to dismiss the charges pursuant to Criminal Procedure Law § 30.20 (1) is denied.

On January 1, 2020, new legislation regarding criminal discovery and statutory speedy trial went into effect that impacts this case. Criminal Procedure Law § 245.50 now requires the People to file a certificate stating that the People have complied with their discovery obligations prior to them being able to announce their readiness for trial as required by Criminal Procedure Law § 30.30. In this case, the People filed a certificate of compliance (hereinafter C.O.C.) and a certificate of readiness (hereinafter C.O.R.) on December 31, 2019. This filing included an affirmation of service upon defense counsel. On January 2, 2020, the People filed with the court and served on defense counsel a supplemental C.O.C. and another C.O.R. On January 6, 2020, the People served on defense counsel the Gas Chromatography Record as is now required (CPL 245.20 [1] [s]). On January 8, 2020, the People served on defense counsel a copy of the memo book of a police officer witness and a command log (CPL 245.20 [1] [e]). On January 8, 2020, the People filed with the court and served on defense counsel another{**67 Misc 3d at 193} supplemental C.O.C. and another [*3]C.O.R. The defendant claims that the three C.O.C.s and three C.O.R.s are illusory because the People failed in their discovery obligations. However, because the adjournment from December 13, 2019, until January 13, 2020, is excluded, the determination as to whether these three off-calendar statements by the People were valid is irrelevant with regard to the instant motion to dismiss.

Furthermore, the continued efforts by the People in this case to comply with their discovery obligations do not render their prior statements of readiness for trial illusory (People v Wright, 50 AD3d 429 [1st Dept 2008], lv denied 10 NY3d 966 [2008] [nothing in CPL 30.30 precludes the People from declaring present readiness for trial but still gathering additional evidence]; People v Rodriguez, 306 AD2d 686 [3d Dept 2003], lv denied 100 NY2d 624 [2003]; People v Zale, 137 AD3d 634 [1st Dept 2016] [People's delay in obtaining and producing the calibration report which was ultimately provided to defense counsel just prior to trial was at most a failure to comply with a discovery obligation and did not render prior statements of readiness illusory], lv denied 27 NY3d 1141 [2016]). Under the new law, Criminal Procedure Law §§ 245.50 (1) and 245.80 provide guidance to a trial court regarding supplemental certificates of compliance.

"Whether the People have satisfied [their CPL 30.30] obligation is generally determined by computing the time elapsed between the filing of the first accusatory instrument 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]).

The adjournment from December 13, 2019, until January 13, 2020, cannot be attributed to the People. The fact that the People validly stated ready for trial on December 13, 2019, renders that entire adjournment excluded for statutory speedy trial purposes regardless of the defendant's response. Furthermore, the fact that the newly assigned defense counsel from The Legal Aid Society did not appear on December 13, 2019, and had a colleague request the adjournment renders the entire period excluded for statutory speedy trial purposes under Criminal Procedure Law § 30.30 (4) (b).

{**67 Misc 3d at 194}It is evident that the new legislation that went into effect on January 1, 2020, does place additional discovery obligations on the parties, particularly the People. However, the new legislation does not compel a departure from well-settled law. This court finds that the statutory speedy trial clock did not begin to run again on January 1, 2020, in this case merely because the People had not complied with their new discovery obligations.^[FN*] Neither does this court find that the new legislation going into effect on January 1, 2020, invalidated the exclusion of the entire adjournment from December 13, 2019, until January 13, 2020, under Criminal Procedure Law § 30.30 (4) (b) as granted at the request of defense counsel. Finally, nothing in the new legislation, nor in defendant's arguments compel the court to invalidate any of the People's statements of readiness for trial on this case prior to the year 2020. Accordingly, the defendant's motion to [*4]dismiss the accusatory instrument pursuant to Criminal Procedure Law § 30.30 (1) is denied.

With respect to the defendant's constitutional claim, the court finds that both the extent of the delay and the reasons for the delay do not support the defendant's claim of a constitutional speedy trial violation. The Court of Appeals described five factors for courts to consider in determining whether there has been a constitutional speedy trial violation of defendant's due process right: (1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there had been an extended period of pretrial incarceration; and (5) whether or not the delay has impaired the defense (People v Taranovich, 37 NY2d 442, 445 [1975]). The court must evaluate the term "speedy trial" using a sensitive balancing of these factors with no single factor being dispositive and no formalistic precepts to resolve whether a deprivation of defendant's right has occurred (Doggett v United States, 505 US 647, 651 [1992]; Taranovich, 37 NY2d at 444-445; People v Vernace, 96 NY2d 886 [2001]; People v Romeo, 12 NY3d 51 [2009]).

Upon review of the particular facts and circumstances of this case, especially considering the extent and reason for the delay,{**67 Misc 3d at 195} the absence of any prejudice to the defendant, the nature of the charges, and the lack of an extended period of pretrial incarceration, this court finds that the defendant has not been denied his constitutional right to a speedy trial. Thus, his motion to dismiss the charges pursuant to Criminal Procedure Law § 30.20 (1) is denied.