On July 30, 2019, the Defendant was arraigned on the charges of driving while intoxicated per se, common law driving while intoxicated, operating at an unreasonable and imprudent speed and following too closely, in violation of VTL §§ 1192(2), 1192(3), 1180(a) and 1129(a), respectively. At the time of the arraignment the People, on the record, declared their readiness for trial. The Defendant neither contests the fact of this declaration nor the sufficiency thereof.

On December 17, 2019, pursuant to a prior stipulation of the parties, the matter appeared on the court's calendar for a suppression hearing. At that time, the People indicated that they were not ready to proceed with the hearing and requested an adjournment of two (2) weeks. The matter was adjourned to February 7, 2020, for hearing.

On February 7, 2020 the matter again appeared on the court's calendar for hearing. Once again, the People were not ready to proceed with the hearing. They did not request any particular adjourn date. The matter was adjourned to February 27, 2020, for hearing. At this same time, this being the first time this matter appeared before the court after the January 1, 2020 effective date of CPL Article 245, applying the new discovery statute, the court instructed the People to comply with their discovery obligations during this fifteen (15) day adjournment.

On February 27, 2020, once again, the People were not ready to proceed with the scheduled hearing. The matter was adjourned, for hearing, to March 31, 2020. At this same time, not being in actual possession of certain discoverable material, the People made an application for an extension of their time to complete their discovery obligations for thirty (30) days, [*2]pursuant to CPL § 245.10(1)(a). Without objection, the court set March 23, 2020 as the date by which the People were to complete their discovery obligations.

On March 7, 2020, due to "the threat that Covid-19 poses to the health and welfare of its residents and visitors[,]" Governor Andrew M. Cuomo issued Executive Order No. 202, inter alia, declaring "a State disaster emergency for the entire State of New York."

On March 16, 2020, at 5:30 p.m., the District Court of Nassau County shut down its operations pursuant to an Administrative Order of Hon. Norman St. George, the Administrative Judge, 10th Judicial District, Nassau County. Pursuant to that order, all "non-essential matters" would be administratively adjourned to a date on or after April 30, 2020. All "essential matters," defined as arraignments, applications for Orders of Protection and any matter deemed to be essential by the Supervising Judge in consultation with the Administrative Judge, would be handled in the Nassau County Court, located at 262 Old Country Road, Mineola, New York.

On March 18, 2020, the People provided the Defendant with a Certificate of Compliance pursuant to CPL § 245.50(1). The People did not file the certificate with the court at that time, due to the court's closure.

On March 20, 2020, Governor Andrew M. Cuomo issued Executive Order No. 202.8, inter alia, temporarily suspended "any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed in the procedural laws of the state, including but not limited to the criminal procedure law ."

Against this backdrop, the Defendant presently moves for an order dismissing the all charges herein, pursuant to CPL §§ 30.30 and 170.30. It is the Defendant's position that the People should be charged with the entire time from December 17, 2019 to March 18, 2020, a total of ninety-two (92) days. It is the People's position, in opposition, that they should be charged with a maximum of fifty-three (53) days. As will be discussed hereinafter, the difference lies in the application of CPL § 245 and its interplay with CPL § 30.30.

On December 17, 2019 the People were not ready to proceed with a previously scheduled suppression hearing. The People requested an adjournment for two (2) weeks; and, the court adjourned the matter to February 7, 2020.

Having declared their readiness for trial at the time of arraignment in a proper manner, See: People v. Kendzia, 64 NY2d 331, 337, 486 N.Y.S.2d 888, 890 (1985), the People argue that they are to only be charged with the time they requested for this adjournment. The Defendant, in tacit agreement with the propriety of the People's prior declaration of readiness, agrees.

At this time, this being a "post-readiness" adjournment request by the People, they shall only, at this point, be charged with the time they requested. See: People v. Anderson, 66 NY2d 529, 498 N.Y.S.2d 119 (1985); People v. Cortes, 80 NY2d 201, 590 N.Y.S.2d 9 (1992)

Accordingly, the People will be charged with fourteen (14) days for period of December 17, 2019 to December 31, 2019.

On January 1, 2020 the newly enacted CPL Article 245 became effective. CPL Article 240 was simultaneously repealed. Amendments subsequently made to Article 245, which became effective on May 3, 2020 are not relevant to the determination of this motion.

CPL § 245.20(1) delineates what items the prosecution is required to disclose to a defendant. Notably, pursuant to the rubric established by the newly effective Article 245, unlike its predecessor, Article 240, a defendant need not serve a demand for these items upon the prosecution. The new discovery statute clearly places the onus on the prosecution to disclose that [*3]which is required.

CPL § 245.10 sets forth the time frames for the prosecution's compliance with their discovery obligations. Specifically, CPL § 245.10(1)(a) originally 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 fifteen calendar days after the defendant's arraignment ." This subparagraph further provides for an extension of up to thirty (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 ."

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. Section 245.50(1) further provides, "No adverse consequences to the prosecution or the prosecutor shall result from filing of a certificate of compliance in good faith; but the court may grant a remedy or sanction for a discovery violation as provided in section 245.80 of this article."

CPL § 245.80(1)(a) provides possible remedies or sanctions for discovery violations, in pertinent part: "When material or information is discoverable under this article but is disclosed belatedly, the court shall impose an appropriate remedy or sanction if the party entitled to disclosure shows that it was prejudiced." Subparagraphs (2) and (3) of this section set forth various remedies or sanctions which the court may impose.

CPL § 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.

With all of this in mind, a determination of whether the People are to be charged with the time from January 1, 2020 to February 7, 2020, is to be made, as it always has been made. As the court pointed out in People v. Percell, 67 Misc 3d 190, 119 N.Y.S.3d 731 (Crim. Ct. NY Co. 2020:

'Whether the People have satisfied [their CPL § 30.30] obligation is generally determined by computing the time elapsed between the filing of the first accusatory instrument and the People's declaration of readiness, subtracting any periods of delay that are excludable under the terms of the statute and then adding to the result in any post readiness periods of delay that are actually attributable to the People and are ineligible for exclusion.' (People v. Cortes, 80 NY2d 201, 208, 590 N.Y.S.2d 9, 604 N.E.2d 71 [1992]).

It is clear to this court that Article 245 is a procedural statute, which entirely reworked the framework within which discovery is to be provided, applicable to cases pending on January 1, 2020, as well as to cases commenced on or after that effective date. See: People v. Piasecki, 66 Misc 3d 1231(A), 2020 NY Slip Op 50335(U); People v. Napalitano, 67 Misc 3d 1241(A), [*4]202 NY Slip Op 50802(U) As a practical matter, if Article 245 were not given such retroactive effect, there would be no statute governing discovery in cases already pending on January 1, 2020, given the fact that Article 240 was repealed in its entirety on that date.

While the People acknowledge that Article 245 is applicable to all cases pending prior to January 1, 2020, as well as to those commenced on or after that date, they suggest the court should exercise some flexibility, in determining the actual start date for the application of the new discovery statute and the running of 30.30 time to cases pending prior to January 1, 2020. Relying on People v. Askin, 124 N.Y.S.3d 133, 2020 NY Slip Op 20102 (County Ct. Nassau Co. 2020); and People v. Percell, supra., they argue that the new discovery statute and CPL § 30.30 should not apply to them in the year 2020 until February 7, 2020, the first date this matter appeared before the court in the new year. The People further argue that in the intervening period, from January 1, 2020 to February 7, 2020 their prior declaration of readiness controls. It is for these reasons, that the People argue that this entire time should be excluded from the speedy trial calculation herein.

The People's reliance on Atkin, supra. and Purcell, supra. is misplaced. Each of those cases, unlike the matter presently before this court, involved a defense request for an adjournment from December 2019 into January 2020. It should be noted that, for this reason the court in Percell, supra. found the adjournment to be excludable in the speedy trial calculation, pursuant to CPL § 30.30(4)(b), and the court in Askin, supra. used the adjourn date requested by the defendant "as the date that '30.30 time' would start to accrue against the People if they had not filed a certificate of compliance or a statement of readiness under the new discovery laws." Contrary to the People's argument, theses courts did not find that the new statute did not apply until the first court appearance in 2020. These courts found that the time before the first court appearance was excludable due to the defendant's request for the adjournment, pursuant to CPL § 30.30(4)(b).

The facts in the matter before this court are similar to those found in People v. Piasecki, 66 Misc 3d 1231(A), 2020 NY Slip Op 50335(U), wherein the People were not ready to proceed on December 13, 2019, requested a two (2) week adjournment and the matter was adjourned to January 31, 2020. Under these circumstances the court found, "The entire period time between January 1, 2020 and January 31, 2020 is not excludable, as the People assert."

Contrary to the People's argument, CPL Article 245 and CPL § 30.30(5) caused a re-set of the People's readiness status. While their prior declaration of readiness was not illusory, commencing on January 1, 2020 it was no longer of any effect. Beginning on January 1, 2020, "[t]he 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 circumstances' on a particular case (CPL § 245.50[3])." People v. Lobato, 66 Misc 3d 1230(A), 122 N.Y.S.3d 492 (Crim. Ct. Kings Co. 2020); See also: People v. Piasecki, supra. As the court aptly noted in Lobato, supra., "What constitutes 'trial ready' as of January 1, 2020, is not the same as when the People announced ready in July [30], 2019 ."

While Article 245 does not state when the clock on the People's discovery obligation will commence for cases arraigned prior to January 1, 2020, there was nothing that prevented the People from completing their discovery obligation, filing a certificate of compliance and declaring their readiness in accordance with CPL § 245.50(3) and 30.30(5) at any time between January 1, 2020 and February 7, 2020, particularly where the matter has been pending since July 30, 2019 and at least some discovery had been provided to the Defendant prior to January 1, [*5]2020.

The People conflate the running of the speedy trial clock, absent excludable time, and an extension of their time to complete discovery, file a certificate of compliance and declare their readiness for trial. The court's extending the People's time to complete their discovery obligation may forestall the imposition of sanctions pursuant to CPL § 245.80, but in no way stays the speedy trial clock. Such a rule would completely neuter the unequivocal language of CPL §§ 245.50(3) and 30.30(5) and the intent of the Legislature. As the court noted in People v. Freeman, 67 Misc 3d 1205(A), 2020 NY Slip Op 50398(U) (Crim. Ct. Bronx Co. 2020), "The new mandate also provides that 'absent an individualized finding of exceptional circumstances by the court' the speedy trial time shall not be tolled until a proper certificate has been filed." There are no exceptional circumstances presented herein for the period of January 1, 2020 to February 7, 2020. "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, 124 N.Y.S.3d 639 (Crim. Ct. Kings Co. 2020)

Accordingly, the People will be charged with thirty-eight (38) days for the period of time from January 1, 2020 to February 7, 2020.

The People concede that on February 7, 2020 they were not ready to proceed with the scheduled suppression hearing, nor had they served and filed a certificate of compliance and statement of readiness.

Accordingly, the People will be charged with twenty (20) days for this period.

Once again, on February 27, 2020 the People were not ready to proceed with the scheduled hearing.

The People argue that they should not be charged any time for this adjournment due to what they believe were exceptional circumstances, excludable from speedy trial calculation, pursuant to CPL § 30.30(4)(g). In the alternative, the People argue that they should only be charged with the eighteen (18) days, from February 27, 2020 to March 16, 2020.

The People's reliance on CPL § 30.30(4)(g) is misplaced. While time may be excludable due to "exceptional circumstances" created by the unavailability of a material witness, See: People v. Goodman, 41 NY2d 888, 393 N.Y.S.2d 985 (1977)["the unavailability of a principal prosecution witness, for medical reasons, is a sufficient exceptional circumstance to warrant the exclusion of the period of delay."]; People v. Marshall, 91 AD2d 900; 457 N.Y.S.2d 521 (1st Dept. 1983)[officer's injury and recuperation an exceptional circumstance]; People v. Lopez, 2 AD3d 234, 768 N.Y.S.2d 468 (1st Dept. 2003)[officer unavailable due to family crisis], this is not such a case.

"There is no precise definition of what constitutes an exceptional circumstance under CPL 30.30(4)(g)." People v. Smietana, 98 NY2d 336, 341, 746 N.Y.S.2d 678, 681 (2002); See also: People v. Clarke, 28 NY3d 48, 41 N.Y.S.3d 200 (2016) "It is clear, however, that the range of the term's application is limited by the dominant legislative intent of informing CPL 30.30, namely, to discourage prosecutorial inaction (see People v. Sinistaj, 67 NY2d 236, 239, 501 N.Y.S.2d 793, 492 N.E.2d 1209 [1986]; People v. Worley, 66 NY2d 523, 527, 498 N.Y.S.2d 116, 488 N.E.2d 1228 [1985])." People v. Price, 14 NY3d 61, 64, 896 N.Y.S.2d 719, 721 (2010) The Court of Appeals has "allowed application of the exclusion only when the People for practical reasons beyond their control cannot proceed with a legally viable prosecution (see e.g. [*6]People v. Washington, 43 NY2d 772, 401 N.Y.S.2d 1007, 372 N.E.2d 795 [1977]; People v. Zirpola, 57 NY2d 706, 708, 454 N.Y.S.2d 702, 440 N.E.2d 787 [1982])." People v. Price, supra. at 64, 896 N.Y.S.2d 719, 721 (2010).

Whether the People's witnesses were unavailable and what the People did to make them available is a question of fact upon which the People bear the burden of proof. People v. Zirpola, 57 NY2d 706, 454 N.Y.S.2d 702 (1982); See also: People v. Martinez, 268 AD2d 354, 701 N.Y.S.2d 425 (1st Dept. 2000) The People must demonstrate that the witnesses were actually unavailable, that their testimony would be materiel and that, with due diligence, they engaged in "credible, vigorous activity" to produce those witnesses. People v. Washington, 43 NY2d 772, 796, 401 N.Y.S.2d 1007 (1977); See also: People v. Figaro, 245 AD2d 300, 667 N.Y.S.2d 372 (2nd Dept. 1997) The People herein, have failed to meet that burden.

The People allege that the witnesses they needed for the hearing scheduled on February 27, 2020 were unavailable to testify at the hearing because "their testimony was needed for [an ongoing trial in this same court.]" (Vota Affirmation 6/16/20, § 50) Completely absent from the People's representation is an explanation as to why the testimony of each of these witnesses was material to the hearing, and, more importantly, why one or both of them could not testify at the hearing, since they were both present in the District Court.

Contrary to the People's representation, both Trooper Mangiapane and Trooper Lawrence were not needed to testify at a trial in this court on February 27, 2020. In fact, Trooper Mangiapane testified on February 28, 2020. While Trooper Lawrence did testify on February 27, 2020, the trial that day also included opening statements and the testimony of the People's expert. There is no reason why Trooper Lawrence could not testify at the hearing when he was not needed at the trial; and, in a worst case scenario, there certainly was no reason why Trooper Mangiapane could not have testified at the hearing on February 27, 2020 and Trooper Lawrence could not have testified at the hearing on February 28, 2020. The People offer no explanation as to the efforts they made to coordinate the witnesses' appearances at the hearing and at the trial when needed. "While the lack of effort may well have been caused by the work load and shortage of personnel, these reasons do not constitute 'exceptional circumstances (citations omitted)." People v. Warren, 85 AD2d 747, 445 N.Y.S.2d 797 (2nd Dept. 1981); see also: cf. People v. Meyers, 114 AD2d 861, 494 N.Y.S.2d 897 (2nd Dept. 1985); People v. Miller, 113 AD3d 885, 978 N.Y.S.2d 412 (3rd Dept. 2014); People v. Zimny, 188 Misc 2d 600, 729 N.Y.S.2d 297 (Sup. Ct. Monroe Co. 2001) This simply was not an "exceptional circumstance," but was your garden variety adjournment due to the People not being ready to call their witnesses.

For the period of February 27, 2020 to March 16, 2020 the People should be charged with eighteen (18) days.

In total, for the period of December 17, 2019 to March 16, 2020, the People should be charged with ninety (90) days.

The only additional time period raised by the parties is March 16, 2020 to March 18, 2020. Pointing to Governor Cuomo's Executive Order No. 202, declaring "a State disaster emergency for the entire State of New York," and Judge St. George's Administrative Order dated March 17, 2020, which closed the District Court effective 5:30 p.m. on March 16, 2020, the People argue that these two days should be excluded due to the exceptional circumstances created by the Covid-19 pandemic. The Defendant argues that there were no exceptional circumstance, erroneously arguing that the District Court did not close until after March 20, 2020.

While CPL § 30.30(4)(g) provides that "periods of delay occasioned by exceptional circumstances," may be excluded from speedy trial calculation, and CPL § 245.50(3) similarly provides that upon "an individualized finding of exceptional circumstances by the court before which the charge is pending," the People may be deemed ready for trial pursuant to CPL § 30.30, even though no certificate of compliance has been filed, and, although the court's closure due to the Covid-19 pandemic may qualify as an exceptional circumstance, See: People v. Aquino, 189 Misc 2d 572, 734 N.Y.S.2d 371 (Crim Ct. NY Co. 2001); People v. Sheehan, 39 Misc 3d 695, 962 N.Y.S.2d 886 (Crim. Ct. NY Co. 2013), this issue, in the context presented, is a red herring.

CPL § 30.30(1)(b) provides, in relevant part:

a motion made pursuant to paragraph (e) of subdivision one of section 170.30 of this chapter must be granted where the people are not ready for trial within: ninety days of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony

The operative word in this section, as it affects the outcome of the Defendant's motion, is "within." Clearly, the People must be ready for trial within ninety (90) days. While they may announce their readiness on the ninetieth (90th) day, see: People v. England, 195 A.D.2d751, 600 N.Y.S.2d 320 (3rd Dept. 1993 aff'd 84 NY2d 1, 613 N.Y.S.2d (1994), herein, "the People had accrued a total of 90 chargeable days and, unless readiness were announced on that 90th day, the time limit would have expired." People v. Bendter, 184 Misc 2d 374, 379, 709 N.Y.S.2d 333, 338 (Crim. Ct. Kings Co. 2000)

Had they filed their certificate of compliance and statement of readiness on March 16, 2020, they would have been ready within ninety (90) days. The People, however, neither filed their certificate of compliance and statement of readiness on March 16, 2020, nor have they provided any explanation for their failure to do so. Having failed to so file, despite the fact that the court was open until 5:30 p.m. on March 16, 2020, the People failed to satisfy the requirements of CPL § 30.30(1)(b); and, pursuant to CPL § 245.50(3) "shall not be deemed ready for trial for purposes of section 30.30 of this chapter[.]" What transpired after March 16, 2020 is irrelevant.

Finally, the charges of operating at an unreasonable and imprudent speed and following too closely are "traffic infraction[s] which trigger[] no statutory speedy trial rights under CPL 30.30 ...." People v. Gonzalez, 168 Misc 2d 136, 645 N.Y.S.2d 978 (App. Term 1st Dept. 1996) lv. den. 88 NY2d 936, 647 N.Y.S.2d 170 (1996); See also: People v. Taylor, 189 Misc 2d 313, 731 N.Y.S.2d 324 (App. Term 2nd Dept. 2001); People v. May, 29 Misc 3d 1, 908 N.Y.S.2d 525 (App. Div. 9th & 10th Jud. Dists. 2010); People v. Polite, 16 Misc 3d 18, 842 N.Y.S.2d 670 (App. Term 1st Dept. 2007) lv. den. 9 NY3d 849, 840 N.Y.S.2d 776 (2007) While these traffic infractions may be subject to dismissal on constitutional speedy trial grounds, as opposed to statutory speedy trial grounds, See: People v. Taranovich, 37 NY2d 442, 373 N.Y.S.2d 79 (1975), the Defendant makes no such application herein.

Accordingly, the Defendant's motion to dismiss is granted to the limited extent of requiring the dismissal of the charges of driving while intoxicated per se and common law driving while intoxicated, and is denied in all other respects; and, it is hereby

ORDERED, that Counts 1 and 2 are dismissed.

This constitutes the decision and order of this court.