Criminal Court of the City of New York, Kings County, March 3, 2020

Brooklyn Defender Services (Alyssa Briody of counsel) for defendant.

Eric Gonzalez, District Attorney (Gavrielle E. Kube of counsel), for plaintiff.

{**67 Misc 3d at 559}On February 7, 2020, defendant moved to dismiss the accusatory instrument pursuant to CPL 30.30 (1). Opposition was filed by the People on February 24, 2020.

Pursuant to CPL 30.30 (1), the applicable speedy trial period is determined by the highest charge in the accusatory instrument. Where the highest charge is a class A misdemeanor, the People are required to state their readiness for trial within 90 days of the commencement of the criminal action (see CPL 30.30 [1] [b]).

Defendant has the initial burden under CPL 30.30 to demonstrate by sworn allegations of fact that there has been an inexcusable delay beyond the time set forth in the statute (see People v Santos, 68 NY2d 859, 861 [1986]). Once defendant has alleged that more than the statutorily prescribed time has elapsed without a declaration of readiness by the prosecution, the prosecution bears the burden of establishing sufficient excludable delay (see id.; People v Berkowitz, 50 NY2d 333, 348-349 [1980]). The burden is on the People to ensure "in the first instance" that the record of the proceedings is sufficiently clear to enable the court deciding the 30.30 motion to make an informed decision as to whether the People should be charged (see People v Cortes, 80 NY2d 201, 215-216 [1992]).

Defendant contends that this matter should be dismissed on speedy trial grounds. He asserts that the People have failed to meet their CPL 30.30 obligation as 95 days elapsed before the People first announced ready for trial. While the People acknowledge that they did not answer ready until 95 days following arraignment, they assert that they should only be charged 80 days because the time period between January 1, 2020, and January 15, 2020, should be excluded under the new law.

Of note, the People's opposing affirmation filed with the court was unsigned. Pursuant to CPLR 2101, Form of papers, subdivision (d), "Each paper served or filed shall be indorsed with the name, address and telephone number of the attorney for the party serving or filing the paper." The Second Department has held that an unsigned attorney's affirmation within the context of motion practice is defective (see Standard Fruit & S.S. Co., Div. of Castle & Cooke v Russo, 67 AD2d 970 [2d Dept 1979]). "An affirmation that is not signed is considered by the court to be an unsworn statement" (People v O'Brady, 16 Misc 3d 879, 881 [Crim Ct, Kings County 2007]). The court is not required to consider affirmations that do not contain sworn allegations{**67 Misc 3d at 560} by the affirming attorney (id.). Nonetheless, this court considers the People's affirmation in opposition to defendant's motion to dismiss.

Based on review of the court file and the submissions of the parties, the court finds as follows:

November 3, 2019, through December 5, 2019

Defendant was arraigned on November 3, 2019, and charged with assault in the third degree (Penal Law § 120.00 [1]); attempted assault in the third degree (Penal Law § 110.00, 120.00 [1]); endangering the welfare of a child (Penal Law § 260.10 [1]); menacing in the third degree (Penal Law § 120.15) and harassment in the third degree (Penal Law § 240.26 [1]). The case was adjourned to December 5, 2019, for conversion. Accordingly, 32 days are chargeable to the People.

December 5, 2019, through February 6, 2020

On December 5, 2019, the People answered not ready and the matter was adjourned to February 6, 2020, for conversion.

Defendant asserts that the People should be charged the time until they answered ready for trial. In opposition, the People contend that the period of time between January 1, 2020, and January 15, 2020, should be excludable as a reasonable period of delay for the People to comply with their discovery obligation under CPL 30.30 (4). The People cite no statutory law or case law that would require, or even support the position, that this court must exclude 15 days before the People ever answer ready. If it were the intention of the legislature to offer a grace period to the prosecution, they would have done so. This court declines the invitation to extend a courtesy that the legislature specifically excluded by not giving it statutorily.

Accordingly, 63 days are chargeable to the People.

February 6, 2020, through March 2, 2020

On February 6, 2020, the People filed and served their supporting deposition and answered ready. The case was adjourned for decision of the within motion. Accordingly, this time is excludable pursuant to CPL 30.30 (4) (a).

A total of 95 days are chargeable to the People.

Conclusion

Defendant's motion to dismiss pursuant to CPL 30.30 is granted.