Criminal Court of the City of New York, Queens County, February 25, 2021

Queens Defenders, Forest Hills (Anna M. Gee of counsel), for defendant.

Melinda Katz, District Attorney, Queens (Yong Kim of counsel), for plaintiff.

The defendant moves to dismiss pursuant to CPL 170.30 (1) (e) on the ground that the defendant has been denied their right to a speedy trial (CPL 30.30). The defendant is charged with assault in the third degree (Penal Law § 120.00 [1]), endangering the welfare of a child (Penal Law § 260.10 [1]) and harassment in the second degree (Penal Law § 240.26 [1]). Since the top count is a class A misdemeanor, the People have 90 days from the commencement of the criminal action to be ready for trial (CPL 30.30 [1] [b]; People v Cooper, 98 NY2d 541, 543 [2002]).

The defendant's moving papers show that there has been unexcused delay in excess of the statutory maximum and therefore the defendant has met their initial burden (see People v Santos, 68 NY2d 859 [1986]).

Since the defendant has met this burden, the burden shifts to the People to show that specific periods of delay should be excluded (People v Allard, 28 NY3d 41, 45 [2016]; People v Luperon, 85 NY2d 71, 78 [1995]; People v Santos, 68 NY2d 859 [1986]). In other words, the People must controvert the factual basis for the motion (CPL 170.45, 210.45 [4]; People v Lomax, 50 NY2d 351, 357 [1980]; People v Berkowitz, 50 NY2d 333, 349 [1980]; People v Gruden, 42 NY2d 214, 217-218 [1977]). "It is the People's burden to ensure that the record of the proceedings is sufficiently clear to enable the court to make an informed decision on a speedy trial motion" (People v Clark, 152 AD3d 618, 619 [2d Dept 2017], lv denied 30 NY3d 979 [2017], quoting People v Robbins, 223 AD2d 735, 737 [2d Dept 1996], lv denied 88 NY2d 940 [1996]; People v Collins, 82 NY2d 177, 182 [1993]).

On October 20, 2020, the People filed the first accusatory instrument; this commenced [*2]the criminal action and started the speedy trial clock (CPL 1.20 [17]; 100.05; People v Cooper, 98 NY2d at 543; People v Abdullah, 133 AD3d 925 [3d Dept 2015], lv denied 27 NY3d 990 [2016]).

Except for periods of excludable delay (see CPL 30.30 [4]), the prescribed period continues to run until the People state their present readiness for trial (People v Price, 14 NY3d 61 [2010]; People v Cortes, 80 NY2d 201, 208 [1992]; People v Kendzia, 64 NY2d 331 [1985]).{**71 Misc 3d at 572}

Time between the filing of the first accusatory instrument and the People's declaration of readiness is included in speedy trial calculations, minus any periods of delay excluded pursuant to CPL 30.30 (4) (People v Cortes, 80 NY2d at 208).

On December 7, 2020, the People filed a supporting deposition, a certificate of discovery compliance and a statement of readiness.

Defense counsel notified the People that the disclosed documents did not include medical records or the photos mentioned in the intake report. Defense counsel stated that until this is provided, the requirements of initial discovery have not been met under CPL 245.20.

On February 11, 2021, the defendant filed the instant motion. The defendant argues that all time from the filing of the misdemeanor complaint on October 20, 2020, to the filing of the instant speedy trial motion on February 11, 2021—which exceeds 90 days—should be included in speedy trial calculations.

The People argue that only the first 48 days—from the filing of the misdemeanor complaint on October 20, 2020, to the statement of readiness on December 7, 2020—should be included in speedy trial calculations.

In order for the People to be ready for trial and stop the speedy trial clock they must: (1) file a certificate of good faith discovery compliance; (2) file a valid statement of readiness; and (3) certify the facial sufficiency of the accusatory instrument.

On January 1, 2020, New York's approach to discovery changed. As a result of this new law (see L 2019, ch 59, § 1, part LLL, § 1), CPL article 240 was replaced by CPL article 245. Notably, CPL 245.50 (3) requires the People to file a certificate of compliance when they have provided the automatic discovery (CPL 245.20 [1]). Until the People file such a certificate, they cannot be deemed ready for trial.

Under the new law, a statement of readiness now requires not only a statement by the People but also an inquiry by the court and participation by defense counsel (see People v Johnson, 70 Misc 3d 1205[A], 2021 NY Slip Op 50004[U] [Albany County Ct 2021]; People v [*3]Berkowitz, 68 Misc 3d 1222[A], 2020 NY Slip Op 51044[U], *2 [Crim Ct, Kings County 2020]). The burden is now on the People to prove readiness.{**71 Misc 3d at 573}

CPL 30.30 (5) states:

"Whenever pursuant to this section a prosecutor states or otherwise provides notice that the people are ready for trial, the court shall make inquiry on the record as to their actual readiness. If, after conducting its inquiry, the court determines that the people are not ready to proceed to trial, the prosecutor's statement or notice of readiness shall not be valid for purposes of this section. 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."

Therefore, in order for the People to announce their readiness for trial, they must file a certificate of discovery compliance. This certificate must show good faith compliance with their requirements to disclose under CPL 245.20. Once that is done, the court is required to inquire. During this inquiry, defense counsel must be given an opportunity to be heard. Once that is completed the court will make a determination as to whether the People have met their requirement (see People v Berkowitz, 68 Misc 3d 1222[A], 2020 NY Slip Op 51044[U] [Crim Ct, Kings County 2020]; People v Lobato, 66 Misc 3d 1230[A], 2020 NY Slip Op 50322[U] [Crim Ct, Kings County 2020]). Accordingly, the People's compliance with the CPL 245.20 discovery obligations is a precondition to a valid statement of readiness (id.).

In order for the People to announce their readiness for trial pursuant to CPL 30.30, there must be (1) a communication of readiness by the People and (2) an indication of present readiness made at a time when the People are actually ready for trial (see e.g. People v Chavis, 91 NY2d 500, 505 [1998]; People v England, 84 NY2d 1, 4 [1994]).

Prior to the enactment of CPL 30.30 (5) and (5-a), a People's off-calendar statement of readiness was "presumed truthful and accurate" (People v Brown, 28 NY3d 392, 399, 405 [2016]; see e.g. People v Carter, 91 NY2d 795, 799 [1998]; People v Larkins, 62 Misc 3d 147[A], 2019 NY Slip Op 50218[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019], lv denied 33 NY3d 978 [2019]; People v Lamendola, 57 Misc 3d 153[A], 2017 {**71 Misc 3d at 574}NY Slip Op 51598[U], *3 [App Term, 2d Dept, 9th & 10th Jud Dists 2017]). However, this statement entailed "more than a mere empty assertion of readiness" (People v Stirrup, 91 NY2d 434, 440 [1998]). The statement of readiness required "a good faith, affirmative representation on the record of present and actual readiness" (People v Guirola, 51 Misc 3d 13, 16 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; People v Kendzia, 64 NY2d at 337). This statement of readiness not only declares that the People are ready to proceed to trial, but also stops the speedy trial clock (see People v Stirrup, 91 NY2d at 440).

Under CPL 30.30 (5) and (5-a), this presumption no longer exists (see People v Hines, 70 Misc 3d 1212[A], 2021 NY Slip Op 50050[U], *4-5 [Crim Ct, Bronx County 2021]). Now the People must certify their readiness for trial by showing a good faith compliance with the CPL 245.20 disclosure requirements in order for the court to make the required inquiry, and before the court determines whether the People are ready under CPL 30.30 (5).

Also, as a part of L 2019, ch 59, § 1, part KKK, § 1, the speedy trial statute was amended to clarify what was required to be ready for trial (CPL 30.30 [5], [5-a]).

CPL 30.30 (5-a) states:

"Upon a local criminal court accusatory instrument, a statement of readiness shall not be valid unless the prosecuting attorney certifies that all counts charged in the accusatory instrument meet the requirements of sections 100.15 and 100.40 of this chapter and those counts not meeting the requirements of sections 100.15 and 100.40 of this chapter have been dismissed."

Therefore, under this third set of requirements, the People are required to certify that the accusatory instrument is facially sufficient. Without this certification, the People cannot validly announce their readiness for trial and thereby stop the speedy trial clock (see People v Ross, Crim Ct, NY County, Aug. 11, 2020, Gaffey, J., docket No. CR-025918-19NY; People v Lopez, Crim Ct, NY County, Jan. 25, 2021, Chu, J., docket No. CR-001527-19NY).

This certification by the People represents a dramatic shift on how facial sufficiency is viewed. Prior to January 1, 2020, it{**71 Misc 3d at 575} was up to defense counsel to challenge the facial sufficiency of an accusatory instrument through a motion to dismiss (CPL 170.30 [1] [a]). Now, under CPL 30.30 (5-a), it is the burden of the People to prove the sufficiency of each count of the information.

The crux of the defendant's argument is that speedy trial time has run because the certificate of discovery compliance, filed by the People, is not sufficient because the People have not certified the sufficiency of the accusatory instrument and therefore cannot legally state their readiness for trial.

The statement of readiness filed in the instant case states: "[The People] have filed a Certificate of Compliance and Support Deposition . . . on December 7, 2020 and that the People are presently ready for trial."

The problem with this statement of readiness is that it fails to mention anything pertaining to the facial sufficiency of the accusatory instrument. This is not just a minor oversight. The statute requires the People's certification state in some form and substance that they are ready for trial and that they have an information where each count provides reasonable cause to believe that the [*5]defendant committed each count charged (CPL 100.40 [1] [b]), that there are facts of an evidentiary character that support each count (CPL 100.40 [1] [a]; 100.15 [3]), and that the nonhearsay facts, taken as true, support every element of each offense (CPL 100.40 [1] [c]; 100.15 [3]). Any statement of readiness without such a certification "shall not be valid" (CPL 30.30 [5-a]; see People v Johnson, 70 Misc 3d 1205[A], 2021 NY Slip Op 50004[U] [Albany County Ct 2021]; People v Berkowitz, 2020 NY Slip Op 51044[U], *2). The People have failed to meet their burden of showing the required certification.

In this case, the People have simply failed to certify in any way the facial sufficiency of the accusatory instrument as required by CPL 30.30 (5-a) and as a precondition to declaring their readiness for trial.

Whether the People have complied with discovery is an issue this court need not address because there is no compliance with CPL 30.30 (5-a); therefore, the People have never been ready for trial.

Accordingly, the defendant's motion to dismiss pursuant to CPL 30.30 is granted.