Supreme Court, New York County, April 14, 2021

Janet E. Sabel, The Legal Aid Society (Arthur J. Mendola and Mitchell E. Schwartz of counsel), for defendant.

Cyrus R. Vance, Jr., District Attorney (Elizabeth D'Antonio of counsel), for plaintiff.

Effective January 1, 2020, the legislature enacted substantial changes to the criminal discovery laws (see L 2019, ch 59, § 1, part LLL, § 2), converting New York from a jurisdiction where trial-by-ambush had been the norm to an "open-file" discovery state. In order to incentivize compliance, the legislature additionally amended the statutory speedy trial law to provide that the People could not validly answer ready for trial without first fulfilling their discovery obligations (see CPL 30.30 [5]; see also 245.50 [3] [prosecution "shall not be deemed ready for trial" until it has filed a proper certificate of compliance with discovery]). The novel question presented by this speedy trial motion involves the effect of these reforms on a declaration of readiness announced prior to the statutory amendments.

Charged with attempted assault in the first degree (see Penal Law §§ 110.00, 120.10 [1]) and assault in the second degree (see Penal Law § 120.05 [2]), defendant moves to dismiss on the ground that his statutory right to a speedy trial has been violated. When a defendant is accused of one or more offenses, at least one of which is a felony, the People must be ready for trial within six months of the commencement of the criminal action (see CPL 30.30 [1] [a]), minus any excludable periods (see CPL 30.30 [4]; People v Cortes, 80 NY2d 201, 208 [1992]).^[FN1] Here, [*2]where the criminal action commenced on October 24, 2018, the applicable six-month period is 182 days.{**71 Misc 3d at 1112}

As the People concede, the 35-day period from defendant's October 24, 2018 arraignment on the felony complaint until his November 28 arraignment on the indictment is chargeable to the People (see People v Correa, 77 NY2d 930 [1991]).

On November 28, 2018, a motion schedule was set and the case was adjourned to January 30, 2019, for the court's decision. By omnibus motion papers (see CPL 255.20 [2]), defendant moved, among other things, for suppression of physical evidence and statements and to controvert the search warrant. This adjournment for pretrial motions is excludable (see CPL 30.30 [4] [a]).

Following receipt of the People's response, the court was able to decide the bulk of defendant's motions as scheduled on January 30, but was unable to decide the motion to controvert the search warrant because the People had neglected to address it in their response papers. Accordingly, in addition to ordering that evidentiary hearings be held on defendant's motions to suppress (see Mapp v Ohio, 367 US 643 [1961]; People v Huntley, 15 NY2d 72 [1965]; Dunaway v New York, 442 US 200 [1979])—normally resulting in an excludable adjournment since the exclusion for pretrial motions includes "the period during which such matters are under consideration by the court" (CPL 30.30 [4] [a]; see also People v Sinisgalli, 24 Misc 3d 135[A], 2009 NY Slip Op 51489[U] [App Term, 1st Dept 2009]; People v Taylor, 16 Misc 3d 339 [Crim Ct, NY County 2007])—the motion court directed that the People would be charged for purposes of CPL 30.30 until they filed with the court and served on defense counsel their response to defendant's outstanding motion to controvert (see People v Delosanto, 307 AD2d 298 [2d Dept 2003] [People charged with additional adjournment necessitated by People's failure to timely file response to defense motions]; see also CPL 710.40 [3] [when a suppression motion is made before trial, the trial may not be commenced until determination of the motion]). The case was adjourned to March 20, 2019, for hearings and trial. On February 7, the People filed their response off-calendar, along with a statement certifying their readiness for trial. As the People concede, the eight-day period from January 30 to February 7 is chargeable to the People.

On March 20, the People were not ready for hearings and trial and the motion to controvert the search warrant was denied. The case was adjourned to May 29, again for hearings and trial. On April 2, 2019, the People filed and served another{**71 Misc 3d at 1113} certificate of readiness.^[FN2] Accordingly, only the 13 days from March 20 to April 2 are chargeable to the People (see People v Brown, 28 NY3d 392, 404 [2016]; People v Stirrup, 91 NY2d 434, 440 [1998]).

On May 29, the People answered ready for hearings and trial but new defense counsel appeared and requested an adjournment. The case was adjourned to July 11. This adjournment is excludable (see CPL 30.30 [4] [b]; People v Kopciowski, 68 NY2d 615, 617 [1986]).

On July 11, the People were ready but defense counsel was actually engaged in another matter and again requested an adjournment. The case was adjourned to August 2. This adjournment is excludable (see CPL 30.30 [4] [b]; Kopciowski, 68 NY2d at 617).

As defendant concedes, the adjournments from August 2 to September 17, and from September 17 to October 29, are excludable, since defense counsel consented to these adjournments in an effort to reach a possible disposition (see CPL 30.30 [4] [b]; People v Liotta, 79 NY2d 841, 843 [1992]).

On October 29, 2019, the People answered ready for hearings and trial but the case was adjourned to November 20, at defense counsel's request, for a new attorney to appear and as a "control" date on which to then set a trial date. (Accordingly, the parties were not directed or expected to be ready to proceed to trial on November 20.) This adjournment is excludable (see CPL 30.30 [4] [b], [f]; Kopciowski, 68 NY2d at 617).

On November 20, new defense counsel appeared and the case was adjourned, at defense counsel's request, to January 21, 2020.^[FN3] Defendant concedes that at least the portion of this adjournment from November 20 to January 1 is excludable (see CPL 30.30 [4] [b]; Kopciowski, 68 NY2d at 617), but argues{**71 Misc 3d at 1114} that the period from January 1 to January 21 should be charged.

Defendant contends that when CPL 30.30 (5) came into effect on January 1, the otherwise-tolled speedy trial clock immediately began to run, irrespective of what had occurred before. But although certain amendments were made to CPL 30.30 as of that date—including the enactment of CPL 30.30 (5), providing that a valid statement of readiness cannot be made until automatic discovery required by CPL 245.20 has been completed—most of section 30.30 was left unchanged. Most significantly, the various exclusions set forth in CPL 30.30 (4) remained in effect. Further, since the changes to the speedy trial law were made effective only as of the date of implementation (see L 2019, ch 59, § 1, part KKK, § 2 [establishing effective date of Jan. 1, 2020]), the legislative amendments had no impact on the calculation of speedy-trial time for periods prior to January 1, 2020 (cf. People v Duggins, 192 AD3d 191 [3d Dept 2021] [CPL 30.30 (6) not retroactive]). Thus, statements of readiness validly made under the old law did not become retroactively vitiated or illusory, even though the requirements of CPL 245.20 had not then been complied with and, indeed, did not yet exist (see People v Percell, 67 Misc 3d 190, 194 [Crim Ct, NY County 2020]).

Accordingly, any excludable adjournment granted before the 2020 reforms remains excludable. Here, the adjournment ordered on November 20 was an excludable one, made at the request of defense counsel. Since the period of delay resulting from counsel's request—as scheduled at the time it was granted—ran until January 21, that is the excludable period (see CPL 30.30 [4] [b] [period of delay "resulting from" a continuance granted by the court at the request of defense counsel "must be excluded"]; People v Cada, 69 Misc 3d 882, 886 [Crim Ct, Queens County 2020] ["the (last 2019) adjournment was validly excludable and remained so throughout the entire adjournment period"]). Had the case been adjourned for pretrial motions from November 20 until January 21, that entire period would plainly be excludable despite the [*4]intervening change to the discovery laws and CPL 30.30 (5) on January 1 (see CPL 30.30 [4] [a]). The result is no different when the ground for excludability is an adjournment request by defense counsel under CPL 30.30 (4) (b), rather than pretrial motion practice under CPL 30.30 (4) (a). Accordingly, the entire period from November 20, 2019, to January 21, 2020, is excludable.{**71 Misc 3d at 1115}

On January 21, 2020, the People were not ready because they had not yet complied with their new discovery obligations—now a precondition to readiness under CPL 30.30 (5). The People requested a continuance to February 4 but the case was adjourned to February 13. Defendant concedes that he later agreed to waive the time from January 24 to January 28 in order to pursue plea negotiations. That four-day period is therefore excludable.

Apart from those four excludable days, not in dispute, the People argue that they should be charged only with the delay from January 21 through February 4, the date they requested, and not through February 13, because, their having previously and validly answered ready in 2019, the case remained in a "post-readiness state."

As a general matter, when a case is adjourned for trial but the People have never answered ready, the entire adjournment, even if made lengthier as a result of court congestion than the People would otherwise have sought, is chargeable to them (see People v Barden, 27 NY3d 550, 556 [2016]; People v Chavis, 91 NY2d 500, 505 [1998]; People v Smith, 82 NY2d 676, 678 [1993]; People v Brothers, 50 NY2d 413, 417 [1980]). This rule "is premised on the idea that such delays do not inhibit the People from declaring readiness in writing, through an off-calendar statement" (Barden, 27 NY3d at 556 [citation omitted]).

"Nor does it do to point out that, in the face of known court congestion, it makes little practical sense to require the District Attorney to expend the effort (largely useless for any other purpose) just to enable him conscientiously to report to the court that he is ready for trial. Any futility on that account stems from the form in which the statute was enacted—expressing a command that the People must be ready for trial rather than that the defendant must be granted a trial within the prescribed period" (Brothers, 50 NY2d at 417-418).

In any event, the People can stop the prereadiness clock at any time, simply by declaring their actual readiness (see Barden, 27 NY3d at 556).^[FN4]

Once the People have answered ready, by contrast, they are charged only with delays "actually attributable" to them (Cortes{**71 Misc 3d at 1116}, 80 NY2d at 208). Additional postreadiness delay necessitated by court congestion is excluded (see Brown, 28 NY3d at 404; Stirrup, 91 NY2d at [*5]440; People v Goss, 87 NY2d 792, 797 [1996]), and postreadiness requests for adjournment are charged only until the date the People request (see People v Bruno, 300 AD2d 93, 95 [1st Dept 2002]; People v Bailey, 221 AD2d 296, 296 [1st Dept 1995]; People v Urraea, 214 AD2d 378, 378 [1st Dept 1995]; People ex rel. Sykes v Mitchell, 184 AD2d 466, 468 [1st Dept 1992]).

In arguing that only a portion of the post-January 2020 delay ineligible for an exclusion should be charged to them, the People confuse two principles. To be sure, and as discussed above, the change in the law on January 1 did not serve to invalidate any previous statements of readiness or render inapplicable any preexisting CPL 30.30 (4) exclusions. But that does not mean that the reform had no impact on future readiness or, as the People characterize it, that the validity of pre-2020 readiness statements leaves the People forever after in a "post-readiness state."

Central to its 2020 discovery reform, the legislature provided that the People cannot validly answer ready until they first file "a certification of good faith compliance with the disclosure requirements of" CPL 245.20 (CPL 30.30 [5]; see also 245.50 [3] [prosecution "shall not be deemed ready for trial" until it has filed a proper certificate of compliance with discovery]). The People concede that they did not file this mandatory certification until July 28, 2020. Under the plain terms of the statute, they simply could not be ready until they did so. Nevertheless, they contend that they were ready, since they had been ready in former times when this current bar to their ability to answer ready did not exist. The People's claim that their pre-2020 statements of readiness, not retroactively invalidated, mean that they remain forevermore in a postreadiness state, with no{**71 Misc 3d at 1117} obligation to answer ready in a manner compliant with the new statutory prerequisite, turns the legislative intent on its head. The legislature specifically wished to ensure, going forward after January 1, 2020, that (except when specific exclusions applied) the speedy-trial clock would not toll absent discovery compliance. But under the People's reading, the clock would not run despite discovery non-compliance.

After January 1, 2020, the People could not be ready, and could not be found to be ready (see CPL 30.30 [5] [whenever a prosecutor provides notice that the People are ready for trial, the court must make inquiry on the record as to their actual readiness]), until they filed a certificate of compliance with discovery. Any previous statement of readiness, while not invalid under the old law, could not be held valid under the new (see CPL 245.50 [3] [prosecution "shall not be deemed ready for trial" until it has filed a proper certificate of compliance]). In this sense, the case reverted to prereadiness status as of January 1 (although the period from January 1 to January 21 remained subject to a preexisting exclusion). Thus, the People were obligated to answer ready—and only became able validly to do so—once a certificate of compliance was filed. In failing to file a certificate of readiness, the People failed to stop the clock (see People v Price, 14 NY3d 61, 64 [2010] ["the dominant legislative intent informing CPL 30.30 (is) to discourage prosecutorial inaction"]).

Accordingly, except for the four consented-to days, the entire period from January 21 through February 13 is chargeable to the People—19 chargeable days.

On February 13, and again on March 11, the case was adjourned for possible disposition on consent of defense counsel. As defendant concedes, these adjournments are excludable (see CPL 30.30 [4] [b]; Liotta, 79 NY2d at 843).

At the March 11 appearance, when the case was adjourned to March 17, the court, in agreeing to the parties' request for a continuance, noted that "this is an old case, it's got to either be resolved or tried," and therefore ordered that "we're going to put this over as a final date, as a [*6]final date for possible disposition on consent . . . that's going to be our last date for possible disposition on consent" (see CPL 30.30 [4] [b] [the court may grant a continuance at the request or with the consent of defendant or defense counsel "only if it is satisfied that postponement is in the interest of justice, taking into account the public interest in the prompt dispositions of criminal charges"]).

{**71 Misc 3d at 1118}On March 17, in the absence of the parties, the COVID-19 pandemic forced an administrative adjournment to April 28. Meanwhile, on March 20, 2020, CPL 30.30 was tolled by executive order of the governor (see Executive Order [A. Cuomo] No. 202.8 [9 NYCRR 8.202.8]). This CPL 30.30 suspension remained in effect through a series of extensions (see Executive Order [A. Cuomo] Nos. 202.14 [9 NYCRR 8.202.14], 202.28 [9 NYCRR 8.202.28], 202.38 [9 NYCRR 8.202.38], 202.48 [9 NYCRR 8.202.48], 202.60 [9 NYCRR 8.202.60]) until it was lifted on October 19, 2020 (see Executive Order [A. Cuomo] No. 202.67 [9 NYCRR 8.202.67]). Throughout that time, the case continued to be administratively adjourned. Defendant concedes that the three-day period from March 17 to March 20, when the executive order went into effect, is excludable as occasioned by exceptional circumstances arising from the pandemic (see CPL 30.30 [4] [g]).

The People contend that the entire period from March 17, 2020, until today is excludable, on three separate grounds. First, they argue that since the adjournment until March 17 was consented to by defense counsel, the adjournments from March 17 must also be excluded as continuances on consent. On March 11, however, the court stated expressly, and more than once, that the subsequent adjournment to March 17 would be the "final" one granted on consent (see CPL 30.30 [4] [b] [the court may grant a continuance at the request or with the consent of defendant or defense counsel "only if it is satisfied that postponement is in the interest of justice, taking into account the public interest in the prompt dispositions of criminal charges"]; People v Rivas, 78 AD3d 739 [2d Dept 2010] [court may deny parties' request for consent adjournment; resulting time properly charged to the People]; see also Matter of Hynes v George, 76 NY2d 500 [1990] [court may deny People's request for an adjournment and order case to trial]). Moreover, "[a]djournments consented to by the defense must be clearly expressed to relieve the People of the responsibility for that portion of the delay" (Smith, 82 NY2d at 678; accord Barden, 27 NY3d at 556). Since the record clearly establishes only that defense counsel consented to the period from March 11 to March 17, the People have failed to meet their burden of establishing that any additional delay was also on consent (see Luperon, 85 NY2d at 81; Berkowitz, 50 NY2d at 349).

Second, the People argue that since the case was administratively adjourned during the pandemic, they were relieved of{**71 Misc 3d at 1119} their obligation to answer ready. As discussed, however, their statutory inability to answer ready without having met the condition precedent of discovery compliance had the effect of reverting the case to a prereadiness posture. And the People are generally charged with prereadiness delays caused by court congestion, because "such delays do not inhibit the People from declaring readiness in writing, through an off-calendar statement" (Barden, 27 NY3d at 556).

The executive order suspending CPL 30.30 relieved the People of their obligation to be ready; the lifting of that suspension reimposed it, despite the continued administrative adjournments of the case as a means of alleviating court congestion and, indeed, despite the inability of the court to commence the actual trial. After all,

"[a]lthough the words 'speedy trial' appear in the title to CPL 30.30 and the section is often referred to as expressing a statutory right [*7]to a speedy trial, in both form and intention it articulates only the right of a defendant to a dismissal 'where the people are not ready for trial' " (Brothers, 50 NY2d at 417).

"The statute does not address problems involving speedy trial rights or due process in a constitutional sense. Rather, it is purely a statutory 'readiness rule'. It was enacted to serve the narrow purpose of insuring prompt prosecutorial readiness for trial, and its provisions must be interpreted accordingly" (People v Sinistaj, 67 NY2d 236, 239 [1986]; see also William C. Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 30.30 [CPL 30.30 "is better characterized as a 'readiness rule' rather than a 'speedy trial' rule"]).

Irrespective of the limitations imposed by the pandemic, it has always been true that when the People are not ready for trial, they will be charged with the resulting adjournment, even if there would have been no parts available to conduct the trial had the People in fact been ready (see Brothers, 50 NY2d at 417 ["While court congestion may prevent a trial, in no sense does it operate to prevent the District Attorney from being ready for trial"]; People ex rel. Franklin v Warden, Brooklyn House of Detention for Men, 31 NY2d 498, 501 [1973] [declining to read CPL 30.30 "as demanding not only that prosecutor be ready but that court facilities also be available"]). Here, too, administrative adjournments ordered to relieve court congestion or as a convenience to avoid calendaring the case on a{**71 Misc 3d at 1120} date when the trial would not actually have commenced did not relieve the People of their statutory obligation to be ready within the time allotted to them by CPL 30.30 (cf. Smith, 82 NY2d at 678 ["The People can avoid being charged with prereadiness delay occasioned by court scheduling by filing a certificate of readiness"]; Chavis, 91 NY2d at 506 [same]). Were it otherwise, the executive order would have served no non-superfluous purpose, since under the People's theory, their CPL 30.30 obligations were essentially suspended by the court's adoption of an administrative-adjournment model both before and after the governor's suspension was lifted.

Third, the People argue, as already discussed, that their 2019 declarations of readiness maintained them in a continuing postreadiness state, without further obligation, including once the governor's suspension became no longer effective. In the People's view, and despite having answered not ready on January 21, they automatically became ready upon the filing of their certificate of discovery compliance on July 28, without their having said so. Again, the reversion to prereadiness necessarily brought on by the 2020 legislative amendments and concomitant inability to answer, or be, ready before providing discovery deprived the earlier readiness statements of further effect after 2020. Moreover, even if a statement made under the old law could be relied on under the new, the fact remains that the People never answered ready or filed a certificate of readiness at any time after October 29, 2019. To be sure, once the People have declared their readiness, "they are under no obligation to continually repeat that declaration upon each subsequent appearance in court" (People v Reed, 19 AD3d 312, 313 [1st Dept 2005]), but they must restate readiness if there is "a substantial break in the proceedings" (id. at 314; accord Cortes, 80 NY2d at 214). Plainly the pandemic and resulting suspension of CPL 30.30 constituted such a substantial break, as did the July 28 certificate of compliance, which, under the express terms of the statute, prompted an obligation to answer ready upon or following its filing (see CPL 30.30 [5] ["Any statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of" CPL 245.20]).

Simply put, "the People could have filed an off-calendar statement of readiness at any time to stop the speedy trial clock, but they never did so" (Barden, 27 NY3d at 556). In the absence of such a statement, the clock began to run once the executive{**71 Misc 3d at 1121} order suspension was [*8]lifted. Accordingly, the 161-day period from October 19, 2020, through March 29, 2021, is chargeable to the People.

On March 29, defendant filed the instant motion, which has, since that time, been under consideration by the court.^[FN5] (The People filed their response on April 5; defendant filed a reply on April 8; the People filed a surreply on April 12; and defendant filed a sur-surreply, also on April 12.)^[FN6] This period is excludable (see CPL 30.30 [4] [a]; People v Shannon, 143 AD2d 572, 573 [1st Dept 1988]; People v Bruno, 300 AD2d 93, 95 [1st Dept 2002]).

Accordingly, since 236 chargeable days have elapsed, defendant's motion to dismiss must be granted.

"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 any postreadiness periods of delay that are actually attributable to the People and are ineligible for an exclusion" (Cortes, 80 NY2d at 208).

"First, there must be a communication of readiness by the People which appears on the trial court's record. This requires either a statement of readiness by the prosecutor in open court, transcribed by a stenographer . . . or recorded by the clerk[,] or a written notice of readiness sent by the prosecutor to both defense counsel and the appropriate court clerk, to be placed in the original record" (People v Kendzia, 64 NY2d 331, 337 [1985] [footnote omitted]).

Neither an unconsummated, good faith intention to file a statement of readiness, nor an informal, off-the-record, oral statement, will suffice. Second, the People must in fact be ready to proceed at the time they declare readiness; an expectation of future readiness is inadequate (see id.). To be actually ready, 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]).