City Court of Cohoes, November 9, 2020

Stephen Herrick, Public Defender (Jessica Gorman of counsel), for defendant.

P. David Soares, District Attorney (Cheryl Fowler of counsel), for plaintiff.

This case requires the court to determine whether the legislature, in enacting the 2019 criminal discovery reforms, inadvertently created a loophole in the state's speedy trial statute (CPL 30.30).

Generally speaking, CPL 30.30 motions have always focused on two issues: first, did the People announce ready for trial within the time period fixed by statute; and second, if not, is there any "excludable time" that would excuse the People's dereliction in doing so? By design, the 2019 reforms fundamentally altered the scope of these inquires by requiring that the People withhold their announcement of readiness until they have completed their discovery obligations under the newly enacted CPL article 245. Less certain, as Judge Donnino noted in his commentaries, [*2]is whether the 2019 reforms also affected the People's ability to use excludable time under the speedy trial statute (see CPL 30.30 [4]; see also William C. Donnino, Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 30.30). In this case, the defendant's motion places that issue squarely before the court. Specifically, the court is asked to determine whether the 2019 reforms eroded the People's ability to invoke the exclusions under the speedy trial statute, or if the legislature unwittingly created a loophole for prosecutors so that they can use excludable time even if they do not comply with discovery.

The facts themselves are relatively straightforward. On July 9, 2019, the defendant was arraigned on a one count misdemeanor information charging him with endangering the welfare of a child, a class A misdemeanor. At arraignment, the People announced ready for trial but requested an adjournment to July 23, 2019, to review the case for a possible disposition. No plea bargain was reached by July 23, 2019, so the court established a motion and discovery schedule, with a court decision expected by September 24, 2019. Thereafter, there were several court appearances to address pretrial matters, as well as renewed proposals for the defendant to engage in a diversion program, known as UCANN. These negotiations ultimately fell through, and, on November 19, 2019, the court set a trial date for February 19, 2020.{**70 Misc 3d at 528}

On January 1, 2020, the new discovery laws took effect. Under the new law, the People could not announce ready for trial until they filed a certificate of compliance with discovery (see CPL 30.30 [5]; 245.50). That did not happen until June 26, 2020. In the interim, the defendant continued to make court appearances, with the next one of note occurring on February 11, 2020. At that appearance, the People conveyed a new offer. The defendant requested a one-week adjournment to consider the offer, to February 18, 2020, at which time he declined it, and the matter was rescheduled for trial for April 2020. However, on March 20, 2020, court operations were suspended due to COVID-19, and did not realistically resume until July 2020. As a result, the April trial was postponed.

Based on these facts, the defendant moved for dismissal on statutory speedy trial grounds. Of note, the defendant claimed that, after the effective date for the criminal discovery reforms, the People could not rely on excludable time unless they had satisfied their discovery obligations. To resolve the factual issues raised by the defendant's motion, a hearing was held on October 6, 2020, the facts adduced at which are set forth above. The following constitutes the decision and order of the court.

On a speedy trial motion, the defendant bears the initial burden of alleging that the People were not ready for trial within the statutorily prescribed time frame; the People, for their part, must show their eligibility for any statutory exclusions—or, in the nomenclature of the state speedy trial law, "excludable" time. (People v Luperon, 85 NY2d 71, 81 [1995].)

Here, the People announced ready for trial on July 9, 2019. Under the law as it existed before the 2019 reforms, that was enough for speedy trial purposes (see People v Kendzia, 64 NY2d 331 [1985]). Thus, the period from July 9, 2019, through December 31, 2019, cannot be charged to the People unless the delay constituted "postreadiness delay" that "is attributable to [the People's] inaction and directly implicates their ability to proceed to trial" (see People v Carter, 91 NY2d 795, 799 [1998]). There was only one such period prior to the discovery reforms—the initial adjournment of 14 days, from July 9, 2019, until July 24, 2019, which was requested by the People (see People v Friday, 160 AD3d 1052 [3d Dept 2018]). The remaining delays—for motion practice and other court appearances—cannot be charged to the People because the delays did not directly affect their ability to proceed to trial (see Carter; People v [*3]Anderson, 66 NY2d 529 [1985] [post-readiness delay in{**70 Misc 3d at 529} responding to defendant's discovery requests not chargeable to People]).

The analysis changes with the onset of the discovery reforms. As noted above, the People were required, as of January 1, 2020, to file a certificate of compliance with article 245 as a precursor to trial readiness, which did not happen until June 26, 2020 (CPL 245.50 [3]). Because the 2019 reforms apply retroactively (see People v DeMilio, 66 Misc 3d 759 [Dutchess County Ct 2020]), the new law also had the effect of nullifying the People's previous statement of readiness (see People v Roland, 67 Misc 3d 330 [Crim Ct, Kings County 2020]). Therefore, the court must charge the People with pre-readiness delay associated with the period from January 1, 2020, until June 26, 2020, unless the People can show "their entitlement to a statutory exclusion" (Luperon at 81).

One such period is not disputed by the parties. On March 20, 2020, CPL 30.30, like other statutory deadlines in the Criminal Procedure Law, was suspended by virtue of the Governor's executive orders issued to cope with the COVID-19 pandemic (see Executive Order [A. Cuomo] Nos. 202.14, 202.28, 202.38, 202.48, 202.55, 202.60, 202.67 [9 NYCRR 8.202.14, 8.202.28, 8.202.38, 8.202.48, 8.202.55, 8.202.60, 8.202.67]; see People v Haneiph, 191 Misc 2d 738 [Crim Ct, Kings County 2002]). Therefore, the time after March 20, 2020, will not be charged to the People for purposes of this motion. Thus understood, only the period from January 1, 2020, through March 20, 2020, will be charged to the People—a total of 80 days. Even so, the 80-day period, when coupled with the 14 days of delay occurring prior to the discovery reforms, would leave the People with 94 days chargeable to them, which is four days over the 90-day statutory limit for class A misdemeanors (see CPL 30.30 [1] [b]).

That leaves one additional period of potentially excludable time—the heart of the defendant's application. On February 11, 2020, the defendant requested a one-week adjournment to consider a plea offer. Adjournments have always been excludable under CPL 30.30 (4) (b) where they are "granted by the court at the request of, or with the consent of, the defendant or his . . . counsel." (See e.g. People v Manchester, 123 AD3d 1285 [3d Dept 2014].) Here, there is no question that the defendant requested the seven-day adjournment. Hence, excluding the seven-day period from February 11 through February 18 would result in the People being charged with 87 days of delay, which is under the 90-day threshold.{**70 Misc 3d at 530}

Defense counsel has suggested, however, that the People's belated compliance with the new discovery laws—they did not comply until June 26, 2020—rendered them ineligible for the CPL 30.30 (4) exclusions at the time of the February adjournment. If the defendant is correct, then the People's noncompliance with discovery means that they could not exclude the seven-day period from February 11 through February 18, thus requiring dismissal of the charges.

The court acknowledges the intuitive logic of the defendant's argument. As noted above, the 2019 reforms represented a fundamental shift in the speedy trial statute. No longer is the statute intended purely as a spur for prosecutorial readiness (cf. People v Sinistaj, 67 NY2d 236, 238 [1986]; People v Worley, 66 NY2d 523, 527 [1985]). If that were the case, it would make sense to deduct delays caused by the defendant because such delays could justly be construed as a "waiver" of the time attributable thereto. Under the reforms, however, the speedy trial statute must now be viewed as an integral part of a scheme to recalibrate a prosecutor's constitutional and ethical obligations to divulge crucial information—obligations that are hardly impaired by defense-induced delays. The shift in priorities thus negates a primary justification for the statutory speedy trial exclusions. The goal is not just an efficient trial, as before, but a just one.

Many of the CPL 30.30 exclusions, however, deal with delays that have no impact on [*4]the People's ability to provide discovery. For example, delays relating to defense motion practice (CPL 30.30 [4] [a]), joinder issues (CPL 30.30 [4] [d]), and the out-of-jurisdiction detention of defendants (CPL 30.30 [4] [e]) have no bearing on the People's ability to gather information and provide it to the defense. Nor, as applicable to this case, do adjournments of court appearances, whether granted at the defendant's request, or with his or her consent. Moreover, putting aside the absence of a rational relationship between the statutory exclusions and the People's discovery obligations, charging a defendant for adjournments seems particularly unfair where the adjournments are induced by plea offers that the People were not authorized to make due to their failure to provide discovery (see CPL 245.25 [where prosecutor has made an offer for a plea to a crime, they must provide discovery not less than seven days prior to expiration date of the offer]). In other words, the CPL 30.30 (4) (b) exclusion gives prosecutors a convenient loophole if they have not complied with discovery:{**70 Misc 3d at 531} simply make an offer, and exclude the time that the defendant will invariably request to consider it.

Despite its appeal, the defendant's argument founders on a critical legislative omission. None of the extensive 2019 reforms modified the definition of excludable time as it relates to discovery compliance. In fact, the two statutes which directly address the interplay between discovery and speedy trial (CPL 30.30 [5]; 245.50) do not mention a word about withholding the CPL 30.30 (4) exclusions from prosecutors who fail to provide discovery. The implication of this legislative inaction is clear: prosecutors who do not comply with discovery can still find refuge in the CPL 30.30 (4) exclusions. They can, in other words, still use excludable time, even if they did not provide discovery.

That may not be fair, or even desirable. However, it is not the job of the courts to fill a void left by the legislature. It is a basic rule of statutory construction that a court must not, in construing a statute, insert a provision which it is reasonable to suppose that the legislature intended to omit (Pajak v Pajak, 56 NY2d 394 [1982]; Matter of Virginia E.E. v Alberto S.P., 108 Misc 2d 565 [Fam Ct, Queens County 1981]; see McKinney's Cons Laws of NY, Book 1, Statutes § 74). Here, it is more than reasonable to suppose that the legislature intended to omit changes to the CPL 30.30 exclusions relative to discovery violations. After all, the reforms were lengthy, exhaustive and comprehensive. They added an entirely new article to the CPL (CPL art 245) and made corresponding changes to the speedy trial statute. Despite these changes, neither the new article 245 nor the conforming amendments to the speedy trial statute addressed the impact of discovery compliance on the availability of speedy trial exclusions—something the legislature could easily have done if it had wanted to.

Even more telling, where the legislature did—as part of the same legislation (see L 2019, ch 59, part KKK, § 1)—make adjustments to the CPL 30.30 exclusions, it did so for things like providing additional protections for unrepresented defendants who requested adjournment (see e.g. CPL 30.30 [4] [b]) or exclusions due to post-ready "exceptional circumstances" (see CPL 30.30 [4] [g]; see also William C. Donnino, Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 30.30). In other words, issues wholly unrelated to the impact of discovery compliance on excludable time. Further, other changes to CPL 30.30 corrected long-standing issues with respect{**70 Misc 3d at 532} to local court accusatory instruments (CPL 30.30 [5-a]), traffic infractions (see CPL 30.30 [1] [e]), and the waiver of appellate review of speedy trial determinations (see CPL 30.30 [6])—issues again having nothing to do with discovery compliance. The omission is glaring; its impact undeniable: the legislature, by its silence, must be construed as having intended to keep the CPL 30.30 [*5]exclusions fully intact (Pajak).

That does not mean that there is no possible recourse for a defendant whose speedy trial rights have been undermined by a discovery violation. For example, CPL 245.80, which governs sanctions for discovery violations, permits a court to impose, in addition to the sanctions listed therein, "such other order as it deems just under the circumstances" (CPL 245.80 [2]); while CPL 245.25 (3), dealing with discovery violations in connection with plea offers, contains a similar provision. Arguably, these sanctions are broad enough to encompass the specific relief sought here—charging the People with delays which would otherwise be excludable under CPL 30.30. The defendant has not moved for such sanctions, however, and it would be unfair to impose them without affording the People proper notice and an opportunity to be heard. That said, even if the defendant had moved for sanctions, it may not have mattered under the facts of this case. The alleged discovery violation is not so great as to justify imposing a sanction not specifically endorsed by statute, especially where, as here, the sanctions would run counter to the detailed and explicit statutory scheme of CPL 30.30.

By this decision, however, the court does not mean to suggest that the speedy trial exclusions should remain available to prosecutors who have not complied with discovery. As the adjournment scenario at issue in this case demonstrates, there may be unintended consequences to the legislative omission regarding excludable time which may require some sort of redress. Indeed, it is not difficult to envision other, more inequitable consequences of the legislative inaction. For example, some prosecutors could invoke the CPL 30.30 (4) exclusions to discount delays associated with defense motions to compel discovery compliance (see CPL 30.30 [4] [a])—an outcome not only at odds with the legislative goals of the discovery reforms, but arguably subversive of them. So, there may be good reasons to amend the law. In no way, however, does the authority to do so devolve onto the courts. The freedom to construe a statute is not freedom to amend it (see Application of Love, 155 NYS2d {**70 Misc 3d at 533}266 [Sup Ct, Kings County 1956]). It is the legislature that passed these reforms, and it is up to them to amend them—as, in fact, they have already done, and could easily do again (see L 2020, ch 56, part HHH, § 1). Until that happens, it is the conclusion of this court that the People are free to assert the CPL 30.30 (4) exclusions notwithstanding their failure to comply with discovery. The People have elected to do so here, and the court will honor that. In this case, as in so many others, courts must deal with laws as they are, not as they, or the parties, think they ought to be.

In light of the foregoing, the defendant's motion for dismissal of the charges must be, and the same is, hereby denied.