Criminal Court of the City of New York, New York County, September 23, 2020

The Legal Aid Society, New York City (Charanya Viswanathan of counsel), for defendant.

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

On July 26, 2019, the defendant was arraigned on a misdemeanor complaint and charged with one count of driving while intoxicated (Vehicle and Traffic Law § 1192 [3]), an unclassified misdemeanor, and one count of driving while ability impaired (Vehicle and Traffic Law § 1192 [1]), a traffic infraction. By notice of motion, served and filed on March 12, 2020, the defendant has moved for an order dismissing the charges based on the People's failure to be timely ready for trial, pursuant to the mandates of Criminal Procedure Law §§ 30.30 and 170.30 (1) (e). The People oppose the motion. For the following reasons, the motion to dismiss is granted and the case is hereby dismissed.

If, as here, the top charge is a misdemeanor where the defendant could be sentenced to a term of imprisonment of more than three months, the People are required to be ready for trial within 90 days after commencement of the criminal action, less any excludable time (CPL 30.30 [1] [b]). If a defendant has shown the existence of a delay greater than the 90-day time period allowed by CPL 30.30, it is the burden of the People to demonstrate that the excessive time is excludable (see People v Santos, 68 NY2d 859 [1986]).{**69 Misc 3d at 844}

The parties do not dispute that a total of 42 days are chargeable from the date of arraignment to December 13, 2019.^[FN1] The case was on for hearings and trial on December 13, 2019; however, the People were not ready for trial because the assigned Assistant District Attorney was out of the office. The case was adjourned to January 15, 2020, for hearings and trial. December 13, 2019, was the final court appearance of 2019. The People filed and served an off-calendar certificate of readiness (COR) on December 17, 2019. The December 17, 2019 certificate of readiness, made shortly before the Christmas break, was the People's first statement of readiness in this case. The People never stated their readiness, in 2019, on a date the matter was before the court and could have been sent to trial. The People concede that the four days from December 13, 2019, to December 17, 2019, are chargeable to them. The People were not ready at the next court appearance on January 15, 2020.

The People contend that the filing of the certificate of readiness on December 17, 2019, tolled the speedy trial clock for the remainder of that adjournment period. The defendant contends that, due to changes in the Criminal Procedure Law, the People should be charged with the adjournment period from January 1, 2020, to January 15, 2020.

The focal point of the dispute concerns the effect of the new discovery and speedy trial laws on the People's discovery obligations and on the requirements the People must satisfy before they can make a valid representation that they are ready for trial. The newly enacted article 245 of the CPL designates certain items of discovery as mandatory or automatic and sets forth a specific time frame for the People to fulfill those discovery obligations (CPL 245.20, 245.10). CPL 245.10 (1) (a) provided, in pertinent part, "The prosecution shall perform its initial discovery obligations under subdivision one of section 245.20 of this article as soon as practicable but not later than{**69 Misc 3d at 845} fifteen calendar days after the defendant's arraignment."^[FN2] This paragraph further provides for an extension of up to 30 days of the prosecution's obligation, without the need for a motion, for "materials [which] are exceptionally voluminous or, despite diligent, good faith efforts, are otherwise not in the actual possession of the prosecution." Pursuant to the time frame set forth in CPL 245.10, the People must comply with their mandatory discovery obligations without any need for a demand from the defense, unless the defense specifically waives discovery pursuant to CPL 245.75. In other words, the onus is placed squarely on the People to produce what must be produced and no input or action from the defense is required or expected.

Additionally, and of great importance here, the newly enacted provisions of the CPL also require that the People comply with all discovery obligations outlined in section 245.20 as a prerequisite to their filing of a valid statement of readiness (CPL 245.50). CPL 245.50 (1) requires that the prosecution "shall serve upon the defendant and file with the court a certificate of compliance," when they have provided the discovery required by section 245.20. CPL [*3]245.50 (3) further provides:

"Notwithstanding the provisions of any other law, absent an individualized finding of [exceptional] circumstances . . . by the court before which the charge is pending, 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 pursuant to subdivision one of this section."

Simultaneously with this enactment and effective date of this new article 245, the legislature added a new CPL 30.30 (5), providing, in pertinent part:

"Any statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of section 245.20 of this chapter and the defense shall be afforded an opportunity to be heard on the record as to whether the disclosure requirements have been met."

In this case, as of January 15, 2020, the People had not filed a certificate of compliance. They did not file a certificate of compliance until February 20, 2020. While the People concede{**69 Misc 3d at 846} that the time period from January 15, 2020, to February 20, 2020, is chargeable, they maintain that the time period from January 1, 2020, to January 15, 2020, is excludable. The People put forth two arguments as to why they believe the adjournment period from January 1, 2020, to January 15, 2020, is not chargeable to them. First, they contend that the December 17, 2019 certificate of readiness served to toll the speedy trial clock from running for the remainder of the adjournment period and was not invalidated by the implementation of new discovery laws requiring a certificate of compliance (see People v Percell, 67 Misc 3d 190 [Crim Ct, NY County 2020]). Second, the People contend that this period should be excluded pursuant to CPL 30.30 (4) (a) as a reasonable period of delay resulting from other proceedings concerning the defendant, including but not limited to demand to produce (see People v Roland, 67 Misc 3d 330 [Crim Ct, Kings County 2020]).

Essentially, the People are arguing that while the new laws may have affected the People's discovery obligations and ability to declare readiness for trial post January 1, 2020, they do not serve to invalidate or alter the status of an otherwise valid certificate of readiness that was filed prior to the effective date of the amendments to the CPL. The People cite to the language of the CPL which provides that its provisions "do not impair or render ineffectual any proceedings or procedural matters which occurred prior to the effective date thereof" (CPL 1.00, 1.10 [3]). The People also cite to the holding of People v Percell, determining that the new legislation did not compel a departure from previously settled CPL 30.30 law (see Percell, 67 Misc 3d at 194). The court in Percell determined that the new provisions did not invalidate a statement of readiness made in 2019 merely because the People did not comply with their new discovery obligations in 2020 (see id.). The Percell court found that the People's continuing attempts to meet their discovery obligations under the new provisions did not render their prior statements of readiness for trial illusory (see id.; see also 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]). Thus, in Percell the statutory clock was tolled and did not begin to run again until the next adjourned date. The People urge the same result here.

The problem with the People's argument is that it ignores what this court believes to be the intent of the legislature in{**69 Misc 3d at 847} enacting reforms to the discovery process. It is clear that the newly enacted article 245 not only reworked the procedural framework within which the People are to provide discovery but also, for the first time, clearly linked or interwove those obligations [*4]with the People's ability to declare readiness for trial. Article 245 applies to all cases, including those cases pending on its effective date of January 1, 2020. In combination with article 245, CPL 30.30 (5) requires that the People comply with all mandatory discovery obligations and evidence their compliance by filing a certificate of compliance prior to declaring readiness for trial. It is uncontroverted that the People did not comply with their discovery obligations until, at the earliest, February 20, 2020. To hold, as the People urge, that their prior declaration of readiness should control and serve to exclude any part of the adjournment after the effective date of the new laws and up till that time, would clearly contravene the intent of the legislature to make the validity of readiness contingent on the People complying with their discovery obligations.

Contrary to the People's argument, this is not tantamount to declaring their prior statement of readiness invalid or illusory. There was nothing flawed or invalid about the certificate of readiness when it was filed in 2019. What has happened is that the legislature has reset the People's readiness status by tying it to the fulfillment of their obligations under the new discovery laws. As one court has aptly put it, "What constitutes 'trial ready' as of January 1, 2020, is not the same as when the People announced ready [o]n July [30], 2019" (People v Lobato, 66 Misc 3d 1230[A], 2020 NY Slip Op 50322[U], *5 [Crim Ct, Kings County 2020]).

While the People may argue that this "reset" of readiness is nowhere explicitly stated, as already discussed above, support for the court's interpretation can be found in the text and the structure of the new statutory provisions. The new statutory framework now provides explicit direction to this court, requiring that it assess whether the People are actually ready, in other words, if the "People have done all that is required of them to bring the case to a point where it may be tried" (People v Brown, 28 NY3d 392, 404 [2016]). By intertwining discovery compliance and trial readiness, such that discovery compliance is a condition precedent to a valid announcement of readiness for trial, the provisions of CPL 245.50 and 30.30 (5) fundamentally alter the role of the court in determining and validating{**69 Misc 3d at 848} readiness. No longer can the court presume that a statement of readiness is truthful and accurate. Instead, the court is mandated, once a challenge to the certificate of readiness is raised by the defense, to make its own immediate inquiries on the record as to the People's actual readiness to proceed to trial. There is no reason to think that this mandate only applies to cases commenced after January 1, and every reason to think, given the clear intentions of the legislature to reform discovery practice in this state, that it applies to all cases where the People have declared readiness but may not have fulfilled their discovery obligations. To the extent Percell holds otherwise, this court respectfully declines to follow it.^[FN3]

Instead, this court will follow the line of cases that hold that, in order to declare readiness for trial and stop the CPL 30.30 clock, the People were required to have filed a [*5]certificate of compliance on January 1, 2020, the day the new law went into effect (see People v Rambally, 68 Misc 3d 1212[A], 2020 NY Slip Op 50921[U] [Nassau Dist Ct 2020]; People v Piasecki, 66 Misc 3d 1231[A], 2020 NY Slip Op 50335[U] [Crim Ct, Kings County 2020]; Lobato). Accordingly, they should be charged for the entire adjournment period from January 1, 2020, until they filed the certificate of compliance on February 20, 2020. The People have not demonstrated any special circumstances for delaying automatic discovery or the filing of a certificate of compliance. As of January 1, 2020, the case had been pending for over five months and the People had previously stated that they were ready for trial. The People knew, or should have known, what discovery materials the new laws mandate be turned over to the defendant on January 1, 2020, the effective date of the statute. The People had notice of the new laws, which were passed in April of 2019—over eight months before the law went into effect—and could have voluntarily provided {**69 Misc 3d at 849}the automatic discovery to the defense before the new laws went into effect. They simply failed to comply, without excuse, and the court must effectuate the intentions of the legislature to ensure compliance with discovery, even at the risk of dismissal.

This court must conclude that speedy trial time was only tolled until January 1, 2020. What constitutes trial ready as of January 1, 2020, is not the same as when the People announced ready in 2019, and there is no cognizable basis under the current law to excuse the failure of the People to meet the discovery mandate by the required date. Accordingly, 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 (see People v Roland, 67 Misc 3d 330, 335 [Crim Ct, Kings County 2020]). For the reasons set forth above, the People are chargeable for the 15 days from January 1, 2020, to January 15, 2020.

Finally, the court rejects the People's position that the first 15 days of January are excludable pursuant to CPL 30.30 (4) (a) as a discovery related delay. Pursuant to CPL 245.10 (1) (a), as in effect on January 1, 2020, the People were required to perform their initial discovery obligations "as soon as practicable but not later than fifteen calendar days after the defendant's arraignment." These discovery obligations are a statutory obligation of the People and do not require a demand by the defendant. Accordingly, a delay in providing this discovery is not a delay resulting from other proceedings concerning the defendant, and does not fall within the ambit of the CPL 30.30 (4) (a) exclusion. The 15 days is a deadline for discovery compliance at the risk of sanctions; it is not a grace period or a tolling of the speedy trial clock. The wording of the statute does not provide for any phase-in or grace period before the People answer ready. "If it were the intention of the legislature to offer a grace period to the prosecution, they would have done so" (People v Akramov, 67 Misc 3d 558, 560 [Crim Ct, Kings County 2020]). Therefore, the People were required to meet their discovery obligations on the date the law came into effect. As stated above, the People have not demonstrated or even alleged any special circumstances that would allow this court to excuse the People's failure to provide automatic discovery or file a certificate of compliance.

The People were not ready for trial on January 15, 2020, and the matter was adjourned to February 28, 2020. The People{**69 Misc 3d at 850} filed a certificate of readiness and certificate of compliance on February 20, 2020. Therefore, the People are charged with the 36 days from January [*6]15, 2020, to February 20, 2020.^[FN4] Accordingly, the People are chargeable with at least 97 days (42 days from arraignment to Dec. 13, 2020, plus four days from Dec. 13, 2019, to the filing of the COR on Dec. 17, 2019, plus 15 days from Jan. 1, 2020, to Jan. 15, 2020, plus 36 days from Jan. 15, 2020, to the filing of the COR and certificate of compliance on Feb. 20, 2020, equals 97 days) and the defendant's motion to dismiss must be granted.

For the reasons set forth herein, it is hereby ordered that the defendant's motion to dismiss is granted.