Defendant is charged with Menacing in the Second Degree in violation of PL § 120.14 [1]; Menacing in the Third Degree in violation of PL § 120.15; Criminal Contempt in the Second Degree in violation of PL 215.50 [3]; Endangering the Welfare of a Child in violation of PL 260.10, and Harassment in the Second Degree in violation of 240.26 [1]. By motion filed on January 3, 2020, defendant moves to dismiss the accusatory instrument pursuant to CPL § 30.30. On January 15, 2020, the People filed a response, and on January 24, 2020, the defendant filed a reply. For the following reasons, defendant's motion to dismiss the remaining charges pursuant to CPL § 30.30 is GRANTED.

Where, as here, the top count charged on the information is an A misdemeanor, the People are required to be ready for trial within ninety days, less any excludable time (CPL § 30.30 [1] [b]). The ninety-day period commences with the filing of the accusatory instrument (see CPL § 1.20 [17]); People v Stirrup, 91 NY2d 434, 438 [1998]). The day on which the accusatory instrument is filed is excluded (see People v Stiles, 70 NY2d 765 [1987]).

Before answering ready for trial, the People must have "done all that is required of them to bring the case to a point where it may be tried" (People v England, 84 NY2d 1, 4 [1994]). Readiness for trial encompasses two elements. First, the People must "answer ready" by either communicating their readiness in open court or by filing a certificate of actual readiness with the court and serving a copy on the defendant's attorney (see People v Brown, 28 NY3d 392, 403 [2016]; People v Kendzia, 64 NY2d 331, 337 [1985]). Second, "the People must in fact be ready to proceed at the time they declare readiness" (id.; see also People v Chavis, 91 NY2d 500, 505 [1998]).

Generally, once a statement of readiness is filed, the People are only charged for adjournments when the delay is solely and exclusively the fault of the prosecution, and the time cannot otherwise be excluded under Section 30.30[4] (see Brown at 404; People v Cortes, 80 NY2d 201, 210 [1992]). Otherwise, post-readiness the People are charged with the amount of time they request on the record (People v Bruno, 300 AD2d 93, 95 [1st Dept 2002]).

The People bear the burden of establishing that the statement of readiness is valid and that the People are actually ready to proceed with trial at the time they announce ready (Kendzia at 339). While the People are only charged with the amount of time they request on the record after a statement of readiness, unless the time is otherwise excludable under CPL § 30.30[4] (see Brown, at 404), an "illusory" statement of readiness is insufficient to stop the speedy trial clock (England, 84 NY2d at 4). If the court finds a prior statement of readiness was illusory, the court "should calculate any delay chargeable to the People as required by statute as if the illusory statement of readiness was never made" (Brown at 406; see also CPL § 30.30[5]).

On January 1, 2020, new discovery and speedy trial laws went into effect, replacing CPL Articles 30 and 240. Article 245 delineates the People's discovery obligation and further sets out a statutory time frame for the completion of certain discovery (CPL §§ 245.20; 245.10).^[FN1] Pursuant to the timing provisions set forth in CPL § 245.10, the People must comply with their discovery obligations without any demand from the defense, unless the defense waives discovery under CPL § 245.75.

Of particular relevance here, the newly enacted provision of CPL § 245.50 requires that the People comply with the discovery obligations enumerated in section 245.20 as a precondition to a valid statement of readiness. Once initial discovery is fulfilled, the People must affirm their compliance by filing a "certificate of compliance" on the defense and the court (see CPL § 245.50 [1]). Subdivision three of section 245.50, entitled "Trial Readiness," states that "absent [*3]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 [of compliance]"(CPL § 254.50 [3]). CPL § 30.30 was also amended to incorporate this change, and now states that "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" (CPL § 30.30 [5]). Once the certificate of compliance is filed by the prosecution, the defense is entitled to contest its validity on the record (id.). Furthermore, once the People answer ready, the court is required to conduct an immediate inquiry into the People's actual readiness, and if not convinced the People are ready, the statement of readiness is deemed invalid for speedy trial purposes (CPL § 30.30 [5]).

The parties do not dispute that as of December 13, 2019, the People had accrued 89 days of chargeable time under the applicable statutes and laws in effect at the time. Because the chronology of the case is relevant to the disputed issue, a brief synopsis of the timeline is provided here.

On April 20, 2019, the defendant was arraigned, and the case was adjourned for conversion to June 4, 2019, and then again to July 29, 2019, as the People were not ready.

On July 8, 2019, the People filed an off-calendar superseding information alongside two supporting depositions and a statement of readiness. On the following court date of July 29, 2019, the information was deemed converted and the People announced ready in court. The case was adjourned for discovery, which was partially filed on the next court date of September 5, 2019. The case was then adjourned to October 16, 2019, for hearing and trial.

On October 16, 2019, the People announced not ready, stating that the complainant was unavailable, and requested 6 days. Defense counsel filed and served a notice of outstanding discovery, listing, 911 call(s), radio runs, a scratch complaint report and video surveillance of the alleged incident, among other items (see Def.'s Brief, Exhibit A). In their response papers, the People assert that when they requested six days for trial they believed that the 911 call(s) would be available for disclosure within that time frame (see People's Brief, p 3). The case was adjourned to November 12, 2019 for trial.

On the next court date, the People answered not ready because the complainant was unavailable and requested three days. No additional discovery was filed. The defense counsel reiterated her request for the outstanding discovery materials in open court on November 12th, December 12th and January 7th.^[FN2] The matter was adjourned to December 12, 2019, when the People were not ready because the arresting officer was unavailable and requested one day. The defense counsel reiterated her request for the outstanding discovery materials. The transcript for the calendar call on December 12th shows that the court offered to calendar the case for the following day in accordance with the People's request. When defense counsel announced her unavailability for the next day of December 13, the court endeavored to select a trial date during the following week. At that point, defense counsel requested an adjournment into January, citing [*4]the toll of numerous court appearances on Mr. Lobato. The case was then adjourned to January 7, 2020 for trial.

On January 3, 2020, the defendant filed the instant motion, claiming, inter alia, that the time period from January 1, 2020 to January 3, 2020, is chargeable to the People due to their non-compliance with discovery under CPL §§ 245.20 and 245.50. Specifically, the defendant argues that as of the effective date of these new laws, the People were restored to a pre-readiness posture due to their failure to comply with the discovery requirements or to file a certificate of compliance. The defendant argues that the speedy trial clock restarted on January 1st when the People had 89 days charged, rendering them beyond their 90-day window on the day the motion was filed three days later on January 3, 2020.

The People counter that the adjournment from December 12, 2019 to January 7, 2020 exceeded their request for one day and was the product of "court congestion" thereby tolling their discovery obligations under CPL § 245.20, 245.50 [3] until the January 7, 2020 appearance date (People's Brief, p. 9). The People contend that that period of delay was not attributable to the People, and further that their statement of readiness previously filed on July 8, 2019 effectively kept them in post-readiness status until January 7, 2020, notwithstanding their failure to file a certificate of compliance.

On January 7, 2020, the People again did not have a certificate of compliance to file with the Court.^[FN3] The Court set a schedule for the instant motion and adjourned for decision as well as hearing and trial.

As a threshold matter, the Court notes that the new legislation described under articles 30 and 245 of the CPL went into effect on January 1, 2020. The statutes establish a new procedural framework for discovery compliance and trial readiness, and therefore, apply to all pending proceedings as of their effective date (see McKinney's Consolidated Laws of NY § 55; Wade v. Byung Yang Kim, 250 AD2d 323 [2nd Dept. 1998]). Uniform application of the law to both pending and new matters is constitutionally required by the Equal Protection and Due Process clauses of both the United States Constitution and the New York State Constitution (US Const Amend V, XIV: NY Const, art I, § 6, 11).

The principles of what constitutes trial readiness have long been established through relevant caselaw (e.g. Kendzia, 64 NY2d 331, 338) (readiness requires a statement of "present readiness, not a prediction or expectation of future readiness"); England, at 3 ("statement 'ready for trial' means more than merely mouthing the words")). The new statutory framework now provides explicit direction for the Court to assess if the "People have done all that is required of them to bring the case to a point where it may be tried" (id.). The provisions of CPL § 245.50 and 30.30 interlace discovery compliance and trial readiness, such that discovery compliance is a condition precedent to a valid announcement of readiness for trial, absent "exceptional [*5]circumstances" on a particular case (CPL § 245.50[3]). The principle that a statement of readiness may later be rendered invalid due to changed circumstances or challenges of illusoriness is also well established. (see People v. Sibblies, 22 NY3d 1174, 1181 [Graffeo J., concurring] (a statement of readiness may be considered illusory "where the People do not provide an explanation for the change in circumstances between the initial statement of readiness and the subsequent admission that the People were not ready to proceed" such that the prior statement of readiness "did not accurately reflect the People's position"); see also Anderson at 538 (some post readiness delay still chargeable to the People notwithstanding statement of readiness). Now, however, the earlier standard that "a statement of readiness is presumed to be truthful and accurate" has been replaced by a mandate that the Court hear defense challenges to a certificate of compliance and inquire themselves immediately into the validity of a claim by the People of readiness to proceed to trial (CPL § 30.30 [5]; cf. Brown, 28 NY3d at 405).

The People argue that the previous statement of readiness filed on July 8, 2019 remains effective past January 1, 2020, notwithstanding the changes in the law. The Court disagrees. What constitutes "trial ready" as of January 1, 2020, is not the same as when the People announced ready in July 8, 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 to stay within their allotted 90 days of chargeable time.

In this case, the outstanding discovery items encompass witness statements, police investigation, and potential video surveillance related to the incident, all items which are indisputably material and relevant to the determination of the case, and which fall within the required discovery delineated in CPL § 245.20 [1] as well as the old discovery laws under Article 240 of the CPL. The People do not ask to be excused from filing a certificate of compliance, nor do they cite to any exceptional circumstances to explain their failure to provide these items. Moreover, although the People stated ready upon conversion of the information some six months ago, they have not answered ready since the case has been in a trial posture. The Court notes that the People cannot claim unfair surprise regarding either the new laws or their effective date, and they were on specific notice of the outstanding discovery by defense counsel's repeated requests. Indeed, the People do not cite to anything that prevented them from complying with these obligations, and filing a certificate of compliance on, or before, January 1, 2020.

There is the separate but related issue of whether the defendant's request for an adjournment on December 12, 2019 to after January 1, 2020, effectively tolls People's obligation to meet the requirements of the new discovery and speedy trial statutes. Generally, when defense counsel actively participates in selecting an adjourn date beyond the People's request, the defense is deemed to have consented to the adjournment and any time beyond the requested date is excludable from the speedy trial clock (People v. Liotta, 79 NY2d 841 [1982]; People v. Robinson, 269 AD2d 410 [2nd Dept. 2000]; People v. Matthews, 227 AD2d 313 [1st Dept. 1996]). Here, the transcript shows that the adjournment to January 7th was granted at defendant's request.^[FN4] However, the Court finds that this fact alone does not override the People's obligation to meet the appropriate standards for trial readiness in this case. The defense request for an [*6]adjournment beyond the next day was made under the old trial readiness standard, and at the same court appearance, counsel reiterated her request for the outstanding discovery. Once the new laws were in effect on January 1, 2020, the trial readiness standard changed and the People cannot evade the mandate of the new law by claiming the adjournment is excludable without either exercising due diligence to meet that standard or claiming an applicable statutory exception. As the Court of Appeals stated in Kendzia, "while the People are not to be penalized if court congestion causes a trial date to be set beyond the applicable time period of CPL § 30.30 they cannot take advantage of court congestion so as to ignore their own responsibility of being ready for trial on time" (Kendzia, 64 NY2d at 338). Similarly here, the defense request for a longer adjournment does not excuse the People from meeting their obligations to be "trial ready" under the applicable standards of the new law.

As there is no indication of "exceptional circumstances" for discovery non-compliance and the People's delay is ongoing and without explanation, the Court finds that the People were obligated to file an appropriate certificate of compliance as of January 1, 2020, and their failure to do so rendered them "not ready" as of January 1, 2020. Accordingly, from their total of 89 days conceded as of December 13, 2019, the People are charged with two days from January 1, 2020 to January 3, 2020, the date the defense filed the instant motion.^[FN5]

Accordingly, defendant's motion to dismiss pursuant to CPL § 30.30 is GRANTED. The People are charged with a total of 91 days. The foregoing constitutes the opinion, decision and order of the Court.