Criminal Court of the City of New York, Kings County, February 28, 2020

The Legal Aid Society (Sneha Dhanapal of counsel) for defendant.

Eric Gonzalez, District Attorney (Jerome Bivona of counsel), for plaintiff.

The defendant, charged with operating a motor vehicle while under the influence of alcohol or drugs (Vehicle and Traffic Law § 1192 [1], [2], [3]), along with one count each of aggravated unlicensed operation of a motor vehicle (Vehicle and Traffic Law § 511 [1] [a]) and unlicensed operator (Vehicle and Traffic Law § 509 [1]),^[FN1] now moves for an order dismissing the information pursuant to CPL 30.30 (1) (b).

After careful review of the defendant's motion, the People's response, the defendant's reply, and all relevant legal authority, the motion to dismiss is denied. The court finds that 87 chargeable days have accrued since arraignment.

March 31, 2019-May 8, 2019

On March 31, 2019, the defendant was arraigned on a misdemeanor complaint on which the highest charge was a misdemeanor punishable by a maximum imprisonment term of one year. (Vehicle and Traffic Law § 1193.) Thus, the People had 90 days to be ready to proceed to trial. (CPL 30.30 [1] [b].) The defendant was released on his own recognizance and the case was adjourned to May 8, 2019, for conversion. On May 6, 2019, the People served and filed a statement of readiness along with a superseding information. The Vehicle and Traffic Law § 600 (1) (a) count remained unconverted.

Thirty-six chargeable days.

May 8, 2019-June 5, 2019

On May 8, 2019, the People maintained their readiness on all counts except the one [*2]charging Vehicle and Traffic Law § 600 (1) (a). Prior to January 1, 2020, courts have accepted statements of "partial readiness" by the People. (See People v Dion, 93 NY2d 893 [1999]; People v Brooks, 190 Misc 2d 247 [1st Dept 2001].) The case was adjourned for discovery by stipulation to June 5, 2019, as well as conversion of the Vehicle and Traffic Law § 600 (1) (a) count. Because adjournments for discovery are designated in the statute as "other proceedings concerning the defendant," this time period is excludable from the 30.30 calculation. (See CPL 30.30 [4] [a].){**67 Misc 3d at 332}

Zero chargeable days.

June 5, 2019-July 15, 2019

On June 5, 2019, the People served discovery on the defendant and the case was adjourned to July 15, 2019, for hearings and trial and conversion of the Vehicle and Traffic Law § 600 (1) (a) count.^[FN2] Under the rules for calculating speedy trial time as they existed in 2019, this adjournment is excludable pursuant to People v Reed (19 AD3d 312 [1st Dept 2005]) and People v Greene (223 AD2d 474 [1st Dept 1996]; but see People v Collins, 190 Misc 2d 72 [App Term, 2d Dept 2001]).

Zero chargeable days.

July 15, 2019-September 12, 2019

On July 15, 2019, the People were not ready for trial and requested 11 days because the arresting officer was not available. The case was adjourned to September 12, 2019, for hearings and trial. Because the People had previously announced their readiness to proceed, they are not charged for the time period of the adjournment in excess of the time they requested. (People v Nielsen, 306 AD2d 500 [2d Dept 2003]; People v Williams, 229 AD2d 603 [2d Dept 1996].)

Eleven chargeable days.

September 12, 2019-October 18, 2019

On September 12, 2019, the People were not ready for trial because the assigned ADA was engaged on another trial, and the People requested 21 days. The case was adjourned for hearings and trial to October 18, 2019. Again, the People are not charged for the period of the adjournment in excess of the time they requested.

Twenty-one chargeable days.

October 18, 2019-November 12, 2019

On October 18, 2019, the People were not ready for trial because the arresting officer was not available and the People requested 14 days. The case was adjourned for hearings and trial to November 12, 2019. As stated above, the People are not charged for the period of the adjournment in excess of the time they requested.{**67 Misc 3d at 333}

Fourteen chargeable days.

November 12, 2019-November 20, 2019

On November 12, 2019, the People announced ready for trial but defense counsel was unavailable. The case was adjourned to November 20, 2019, for hearings and trial. Since the adjournment was granted at the defendant's request, it is excludable. (CPL 30.30 [4] [b]; see also People v Barden, 27 NY3d 550 [2016]; People v Worley, 66 NY2d 523 [1985].)

Zero chargeable days.

November 20, 2019-November 21, 2019

On November 20, 2019, the arresting officer was unavailable and the assigned ADA was engaged on another case. At the People's request, the case was adjourned one day, and the People were charged for that day.

One chargeable day.

November 21, 2019-December 16, 2019

On November 21, 2019, the parties appeared before this court, and preliminary matters were resolved. It was too late in the day to start testimony, and the case was put over one day, at which point this court presided over the pretrial suppression hearing, which lasted two days. The case was then adjourned to December 16, 2019, for decision and trial. This period is excludable as a period necessary for the decision of pretrial motions, namely, the defendant's motions to suppress.

Zero chargeable days.

December 16, 2019-December 20, 2019

On December 16, 2019, this court issued its decision on the defendant's suppression motions. The People were not ready to start trial because a necessary witness was unavailable, and the case was adjourned to December 20, 2019, for trial.

Four chargeable days.

December 20, 2019-January 6, 2020

On December 20, 2019, both parties were ready to proceed to trial. However, there were no trial parts available, and the case was adjourned to January 6, 2020, for trial. Because the People were ready and this adjournment was due to court scheduling alone, it is excludable. (People v Watson, 255 AD2d 344 [2d Dept 1998].)

Zero chargeable days.

January 6, 2020-January 13, 2020

On January 6, 2020, the People announced ready for trial, and served and filed a certificate of compliance pursuant to{**67 Misc 3d at 334} CPL 245.50 (1), which had taken effect on January 1, 2020. However, defense counsel immediately challenged the validity of the People's certificate of compliance because specific items that were required to be disclosed under CPL 245.20 (1) (s), including the Intoxilyzer machine operator's certificate and the gas chromatography records related to the certification of the simulator solution, were not provided. The case was adjourned one day for the People to satisfy their discovery obligations. On January 7, 2020, the People served and filed a supplemental certificate of compliance, which defense counsel again challenged as invalid, because the People at that point had provided incomplete gas chromatography records. The case was again adjourned one day for the People to comply. On January 8, 2020, the case was called and the People were still missing certain gas chromatography records; the case was then adjourned to January 13, 2020.

Following the calendar call on January 8, 2020, the People served and filed a new certificate of compliance (COC) with a statement of readiness. On January 13, 2020, the court conducted an inquiry of the People pursuant to CPL 30.30 (5), and was satisfied that the People had actually been ready on January 8, 2020. The defendant raised no further objections and requested 30 days to comply with his reciprocal discovery obligations under CPL 245.10 (2). The case was adjourned to February 24, 2020, for the defendant's COC and trial. On February 10, 2020, the defendant served and filed this motion to dismiss. This case presents a novel question for the court's consideration, which is the effect of the 2020 discovery and [*3]speedy trial legislative reforms on the People's readiness on a pending case.

The defendant argues that the time period beginning January 1, 2020, when the legislation took effect, until the People's statement of readiness and unchallenged COC on January 8, 2020, should be charged to the People, because pursuant to CPL 245.50, "the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper certificate" of compliance certifying that it has exercised due diligence and "has disclosed and made available all known material and information subject to discovery." (CPL 245.50 [3], [1].) Legislative amendments that take effect during the pendency of a case apply to subsequent proceedings (see Simonson v International Bank, 14 NY2d 281, 289 [1964]), but do not serve to invalidate prior proceedings (see Matter of{**67 Misc 3d at 335} Berkovitz v Arbib & Houlberg, Inc., 230 NY 261, 270 [1921]; Charbonneau v State of New York, 148 Misc 2d 891 [Ct Cl 1990]). Therefore, the changes in the law that took effect on January 1, 2020, do not invalidate the People's statements of readiness on May 8, 2019, November 12, 2019, and December 20, 2019. However, beginning on January 1, 2020, the People reverted to a state of unreadiness and could not be deemed ready until filing a proper certificate of compliance as required by CPL 245.50. The People served and filed a valid certificate of compliance and statement of readiness on January 8, 2020. Therefore, the People were not ready from January 1, 2020, to January 8, 2020.

Nonetheless, the court finds this period excludable from the speedy trial calculation under CPL 30.30 (4) (a), which excludes time regardless of the People's readiness. On January 1, 2020, CPL article 245 took effect, replacing the former CPL article 240. The New York State Legislature has laudably worked to cure the serious problems that accompanied article 240's less expansive discovery process. In 2017, when discovery reform legislation was proposed, the bill's sponsor's memo observed that the discovery laws then in place made it "often impossible to intelligently investigate the facts, to secure and use exculpatory evidence, to fairly weigh a guilty plea offer, or to develop a trial strategy." (Introducer's Mem in Support of Legislation, 2017 NY Senate Bill S6848.) Since the current legislation contains many of the same elements as the 2017 proposal, the court deems this legislative history relevant. Reading the history along with the language of the newly enacted legislation, it appears that, in requiring more complete and more prompt disclosure of information, documents, and physical items, the general purpose of article 245 is to benefit defendants, so that they can make better informed decisions about how to defend themselves against criminal charges. The statute greatly increases the burden of prosecutorial disclosure to make the criminal justice process more fair.

Article 245 sets forth that discovery must be served "as soon as practicable but not later than" 15 days from the beginning of the case, with a possible 30-day extension. (CPL 245.10 [1] [a].) Article 245 also sets forth other, more exacting requirements than article 240 did, including the scope, specificity and timing of the People's discovery obligations. As with the introduction of any new, broad statutory mandate, litigants and courts have needed a period of time to adjust; however,{**67 Misc 3d at 336} other than the lead time between article 245's enactment and effective date, the statute does not provide a phase-in period. All provisions apply fully to cases begun before 2020 as well as to cases begun in the new year.

When the legislature enacted article 245, it also made changes to other laws that the new statute affected. Notably, CPL 245.50 (3) requires the People to file a certificate of compliance with the mandate of CPL 245.20 before they can be deemed ready for trial. The legislature amended CPL 30.30 (5) to include that requirement.

Equally notable is that the legislature made no change to CPL 30.30 (4) (a), which [*4]states that in computing the time in which the People must be ready for trial, the following time period must be excluded: "a reasonable period of delay resulting from other proceedings concerning the defendant, including but not limited to . . . demand to produce [and] request for a bill of particulars . . . ." Prior to 2020, discovery practice, including production under article 240, varied from county to county. For example, in New York County, formal motion practice was the norm. Next door, in Kings County, discovery was accomplished "by stipulation," so that a defendant did not need to file a demand to produce or a request for a bill of particulars. Regardless of the particular norm of a county, though, a "reasonable" period for discovery was excluded from the speedy trial calculation, due to the mandate of CPL 30.30 (4) (a). (See People v Dorilas, 19 Misc 3d 75 [App Term, 2d Dept, 2d & 11th Jud Dists 2008].) This was so even though the specific length of a "reasonable" period of time for discovery was not defined by any authority. Courts looked to the particular circumstances of the case as well as the body of case law to determine whether the prosecution had exceeded the bounds of what should be excluded under CPL 30.30 (4) (a). (See e.g. People v Trinidad, 8 AD3d 106 [1st Dept 2004].)

As of January 1 of this year, discovery under the old norms ceased. Now the process statewide is mandated in article 245. However, CPL 30.30 (4) (a) has not changed. The logical reason for not changing that statute is that the legislature intended the speedy trial rule to remain as it had been prior to January 1, 2020, and that the period during which the People are required to produce discovery must be excluded from the calculation. Since CPL 245.10 (1) (a) mandates the delivery of the People's discovery within 15 days from the start of the case (with a possible 30-day extension), then the 15-day period must{**67 Misc 3d at 337} be excluded from the speedy trial calculation in order to comply with CPL 30.30 (4) (a).^[FN3]

In this case, the People served and filed certificates of compliance along with statements of readiness on January 6, 7 and 8. The defendant argues that the People should be charged until the final, valid certificate of compliance was served and filed. The People argue that the first certificate of compliance, because it was made in good faith, stopped the clock. The court does not need to determine whether the People exercised the required due diligence prior to filing the January 6, 2020 certificate, or whether the need for subsequent disclosures invalidated the January 6, 2020 certificate, because the court finds the entire time period excludable on other grounds.

Article 245 became effective on January 1, 2020, thereby triggering the People's obligation to comply with its mandate within 15 days. The People delivered the required discovery materials within that period. Therefore, the period from January 1, 2020, through January 8, 2020, is excludable under CPL 30.30 (4) (a). The court makes this ruling notwithstanding the court's preliminary ruling that some of those days may have been includable [*5]without a valid certificate of compliance and statement of readiness by the People.^[FN4] As the Court of Appeals has held, calendar notations "do not comprise a binding determination as to whether in fact the time span covered by a particular adjournment is to be excluded . . . . That determination is one which must be made following an adversarial proceeding . . . ." (People v Berkowitz, 50 NY2d 333, 349 [1980]; see also People v David, 253 AD2d 642, 644 [1st Dept 1998] ["(T)he People are not entitled to rely on the court's erroneous{**67 Misc 3d at 338} statement at the time (of the adjournment) that the entire period at issue was excludable"].)

Here, during the calendar call on January 7, 2020, the court made a preliminary determination on the record that the time was includable because the People had yet to complete their discovery obligations under CPL 245.20 (1). The court notes that the speedy trial and discovery reforms took effect on January 1, 2020, and so this case was one of the first before this court to raise the question of whether any of the time needed for the People to comply with their new discovery obligations ought to be excluded from the speedy trial calculation. Having had more time now to reflect on the interplay between the discovery and speedy trial statutes, the court concludes that, in the typical case, up to 15 days are excludable under CPL 30.30 (4) (a).

As a result, the court finds a total of 87 days chargeable to the People, and therefore the People are within their remaining CPL 30.30 (1) time. For the foregoing reasons, the defendant's motion seeking an order of dismissal is denied.