Criminal Court of the City of New York, Queens County, October 1, 2020

The Legal Aid Society (Jesse Kropf of counsel) for defendant.

Melinda Katz, District Attorney (Amanda Dolan of counsel), for plaintiff.

Defendant is charged by an accusatory instrument with criminal mischief in the fourth degree (Penal Law § 145.00 [1]), possession of an imitation pistol (Administrative Code of City of NY § 10-131 [g]), harassment in the second degree (Penal Law § 240.26 [1]), and related charges. By motion filed on August 24, 2020, defendant moves to dismiss the accusatory instrument pursuant to CPL 30.30 (1) (b), claiming that his statutory speedy trial rights were violated. The People filed a response on September 2, 2020, and oppose defendant's motion. After a review of the motion papers filed by defendant and the People, as well as the court file and other documents on file with the court, defendant's motion is denied in its entirety.

On or about October 29, defendant allegedly approached the vehicle of his ex-girlfriend, Genobeva Rojas, and stated in sum and substance, "come with me or I will kill you." The complainant further alleges she observed him break her vehicle's windshield wiper.

On November 1, 2019, at approximately 9:48 p.m., Police Officer Johnmich Schramm (PO Schramm), of the 110 Precinct, allegedly observed defendant operating a 2013 Jeep Cherokee with a defective rear left light and placed him under arrest.

On November 2, 2019, PO Schramm recovered, pursuant to a search of defendant's home, a black imitation pistol from a shelf inside his bedroom.

At defendant's November 2, 2019 arraignment, the People, lacking a supporting deposition from the complainant, were unable to declare their readiness for trial. Defendant pleaded not guilty and was released on his own recognizance. The case was then adjourned until December 17, 2019, for the purpose of such filing.{**69 Misc 3d at 884}

Then, on November 29, the People filed and served a supporting deposition from the complainant along with a written statement of their readiness to proceed with trial.

On December 17, the case was adjourned until February 11 for the purpose of discovery in accordance with the new CPL 30.30 provision, which became effective on January 1, 2020, requiring the People to file a discovery compliance certificate as a condition of their trial readiness obligation.

On February 11, 2020, however, the People had yet to file a certificate of discovery compliance. The case was then adjourned until April 7 for such compliance. Since then, this case has been administratively adjourned because of the COVID-19 pandemic health crisis, which necessitated a scaled back—though still entirely functional—operation of the New York City Criminal Court (see generally People ex rel. Nevins v Brann, 67 Misc 3d 638 [Sup Ct, Queens County, Apr. 13, 2020]). And, since March 20, 2020, CPL 30.30 has, and continues to be, suspended through a series of executive orders issued by Governor Andrew Cuomo (see Executive Order [A. Cuomo] No. 202.8 [9 NYCRR 8.202.8]).

Criminal Procedure Law § 30.30 was enacted to serve the narrow purpose of ensuring prompt prosecutorial readiness for trial (People v Brown, 28 NY3d 392 [2016]; People v Price, 14 NY3d 61 [2010]; People v Sinistaj, 67 NY2d 236 [1986]). Being ready for trial requires two elements (People v Chavis, 91 NY2d 500, 505 [1998]). First, the People must state their readiness on the record in open court, or in a written notice served on defense counsel and filed with the court (id.). Second, the People must in fact be ready to proceed at the time they declare readiness (id.). Mere statements of predictions or expectations of future readiness are insufficient (People v Kendzia, 64 NY2d 331, 337 [1985]).

To determine whether the People have satisfied their obligation of trial readiness, the time elapsed between the filing of the first accusatory instrument is calculated along with the People's declaration of readiness, less any periods of delay excludable under the statute terms (see CPL 30.30 [4], [5]). "The failure to declare readiness within the statutory time limit will result in dismissal of the prosecution, unless the People can demonstrate that certain time periods should be excluded" (Price, 14 NY3d at 64). Once the defendant has alleged{**69 Misc 3d at 885} that the People were not ready within the statutory period, the People must establish an applicable exclusion (Brown, 28 NY3d at 403; People v Luperon, 85 NY2d 71, 81 [1995]).

To prevail on a motion to dismiss pursuant to CPL 30.30 (1) (b), a defendant must present sworn allegations of fact establishing an unexcused delay in excess of the 90-day statutory limit (People v Allard, 28 NY3d 41 [2016]; People v Cortes, 80 NY2d 201, 215-216 [1992]; People v Santos, 68 NY2d 859, 861 [1986]; People v Lomax, 50 NY2d 351, 357 [1980]). At minimum, the defendant must claim that the People failed to announce their readiness for trial within the statutorily prescribed period (Allard, 28 NY3d at 41; People v Luperon, 85 NY2d 71, 77-78 [1995]). Until the People make the initial statement of readiness, all delays are chargeable entirely to the People absent the defendant's consent (pre-readiness delay).

Once the defendant has shown the existence of delay beyond the statutory period, the burden of proving that certain periods should be excluded falls on the District Attorney (Allard, 28 NY3d at 41; Kendzia, 64 NY2d at 338; People v Berkowitz, 50 NY2d 333, 349 [1980]). If the District Attorney fails to do so, the motion must be summarily granted (CPL 210.45 [4]).

As of January 1, 2020, CPL 30.30 conditions the People's declaration of readiness for trial on [*3]satisfying their significantly expanded discovery obligations (see CPL 30.30 [5]). The People are also required to file and serve a written certificate demonstrating their compliance with those discovery obligations (id.).

The resolution of this motion depends on the answers to two questions: (1) whether the People properly conveyed their readiness on December 17, 2019, and (2) whether the December 17 adjournment, which occurred prior to the effective date of the new legislation, remained valid after the new legislation went into effect, notwithstanding the People's failure to file a certificate of compliance on January 1, 2020.

Regarding the first question, the People assert, and defendant does not dispute, that they were not ready for trial at arraignment and remained in that posture until November 29 when they filed and served a supporting deposition and conveyed their readiness. With it, this case entered a post-readiness posture. In a post-readiness posture, the People are only charged time when "the delay is attributable to their inaction and directly implicates their ability to proceed to trial" (People v Brown, 28 NY3d 392, 404 [2016]), not for periods of adjournments beyond that which they actually request (see{**69 Misc 3d at 886} People v Boumoussa, 104 AD3d 863, 863 [2d Dept 2013]). Here, the People came to the December 17 appearance having previously filed a supporting deposition along with their statement of readiness for trial. Maintaining their readiness, the case was then adjourned for discovery and compliance to February 11.

As to the second question, prior to the enactment of the new legislation, periods of adjournment for voluntary discovery were excluded from speedy trial calculations and not chargeable to the People (see People v Dorilas, 19 Misc 3d 75, 77 [App Term, 2d Dept, 2d & 11th Jud Dists 2008] [superseded by legislation on other grounds, namely the application of CPL 30.30 to traffic infractions]). In other words, when the court adjourned the case on December 17, it did so pursuant to a valid excludable period under CPL 30.30 (4) (a). That the purpose of such adjournment was for the People to comply with a discovery compliance requirement not yet in effect is of no consequence.

Defendant's claim, of course, rests on the presumption that since the newly enacted discovery obligations became effective on January 1, the People should be charged with the time between then and February 11 but cites no authority in support. Rather, he argues that People v Percell (67 Misc 3d 190 [2020]), which found an adjournment prior to January 1 occasioned by a defense request could carry over into 2020, is inapposite. But Percell underscores the People's key contention: the December 17 adjournment was validly excludable and remained so throughout the entire adjournment period. Notably, this is consistent with the principle that the People are not charged for delays caused by court congestion, a principle that remained unaffected by the new legislation.

Moreover, defendant's claim that the adjournment here is different from Percell because it was not requested by defense counsel is based on the erroneous premise that the only valid exclusion available is one that defendant specifically requests. To the contrary, under CPL 30.30 (4)—before and after January 1—any valid exclusion would have the effect of tolling the speedy trial clock for the entire length of the [*4]adjournment period. That was plainly satisfied here under CPL 30.30 (4) (a) (contra People v Rambally, 68 Misc 3d 1212[A], 2020 NY Slip Op 50921[U] [Nassau Dist Ct 2020] [finding no valid exclusion where the People declared not ready]). Had the legislature intended the proverbial speedy trial clock to reset on January{**69 Misc 3d at 887} 1, they could have made it explicitly clear in either the statutory text or its legislative history. With good reason, they did not. Because doing so would necessarily require the clock begin at zero, invalidating both previously excluded and charged periods—an untenable position with which no one would agree.

In any event, counsel did not object to the December 17 adjournment for discovery compliance. Had it been counsel's desire not to have the case adjourned for that purpose, "then defense counsel as much as the prosecutor would have had the obligation so to inform the court" (Dorilas, 19 Misc 3d at 77).

Thus, the speedy trial time attributable to the People is as follows:

November 2, 2019-December 17, 2019—26 days (certificate of readiness filed on Nov. 29)

December 17, 2019-February 11, 2020—0 days

February 11-April 7—38 days (CPL 30.30 suspended on Mar. 20).

Accordingly, a total of 64 days are chargeable to the People. Because the People have not exceeded the 90-day period permitted for readiness on a class A misdemeanor, defendant's motion is denied.

This court finds that, given the People are charged with 64 days for a class A misdemeanor and the 90-day period in which the People are required to be ready for trial has not elapsed, defendant's motion is therefore denied in its entirety.