Criminal Court of the City of New York, Kings County, April 11, 2022

Brooklyn Defender Services (Christopher Herr of counsel) for defendant.

Eric Gonzalez, District Attorney (Devyn Hebert of counsel), for plaintiff.

Procedural History

On July 12, 2021, defendant was arraigned and charged with assault in the third degree (Penal Law § 120.00), a class A misdemeanor, and related charges.

On October 12, 2021, at about 11:35 p.m., the People filed a superseding information, a supporting deposition, a certificate of compliance (COC), a statement of readiness (SOR), a notice/disclosure form, and an inventory through the Electronic Document Delivery Service (EDDS). They also served it upon defense counsel via email and Microsoft OneDrive.

On or about February 3, 2022, the defendant served and filed the instant motion to dismiss.

On February 25, the People filed a supplemental certificate of compliance together with additional discovery.

The People oppose the motion in its entirety.

A reply was served and filed and was considered by the court.

A surreply was also served and filed. As the surreply addressed an issue raised for the first time in the defendant's reply, the surreply was considered by the court.

For the reasons stated below, the defendant's motion to dismiss is granted.

Parties' Contentions

The defendant argues that where the "the People served their COC and SOR [via EDDS and] on defense counsel at 11:35pm . . . they still failed to meet their filing obligations." (Defendant's mem of law, Point II.) Defendant maintains that since a court clerk could not stamp and actually file the papers until the next day, they were, in fact, not effectively filed on October 12.{**75 Misc 3d at 743}

Further, defendant argues that the COC was illusory as the People have not provided many items of mandated discovery, and that they did not exercise due diligence and good faith or make reasonable inquiry into locating and sharing the missing discovery with defense before certifying that all discovery was complete. (See list of items not turned over, defendant's mot to controvert, ¶¶ 6, 7; defendant's mem of law, Point III, B.)

In his reply, defendant also seeks to add an additional seven days to the People's chargeable time since the People's opposition, originally scheduled by the court to be due on March 18, was not served and filed until March 25.[*2]

The People counter that pursuant to General Construction Law § 25-a, since the 90th day, October 10, fell on a Sunday, and the following day, October 11, was a public holiday, they had until October 12, 2021, to serve and file their SOR. Relying on General Construction Law § 19 which defines a calendar day as "the time from midnight to midnight," they conclude that since "EDDS filing is accepted pro forma," their papers filed through EDDS even after close of business constituted timely filing on October 12. (People's mem of law at 7.)

Regarding the items not turned over to the defense, the People address each item and explain that either that item of discovery was turned over, or it did not exist, or the item did not relate to the subject matter of this case. Regarding police misconduct records, they aver that they adequately provided the defense with "disclosure letters" which "extracted the pending and substantiated allegations" (id. at 29), and that they will "disclose to the defense any underlying records that we already have in our actual possession 30 days before trial." (Id. at 34.)

Finally, in their surreply the People argue that they should not be charged the additional seven days for the late submission of their opposition as they requested the extra week extension by email, and even though they did not hear back from the court, they served their response on the day they had requested. (Affirmation in support of reply to defendant's response at 1, 2.)

Court's Analysis

[1] Pursuant to CPL 30.30 (1) (b), the People have 90 days to be ready for trial. Because of the timing of the 90th day, in this particular matter, the People had a little longer. General Construction Law § 25-a (1) reads, in pertinent part: "When{**75 Misc 3d at 744} any period of time, computed from a certain day, . . . ends on a Saturday, Sunday or a public holiday, such act may be done on the next succeeding business day."

In this case, where the People's last day of speedy trial time, the 90th day, fell on Sunday, October 10, and the next day, Monday, was a public holiday, the People's speedy trial time was extended to Tuesday, October 12. (People v Lewis, 65 Misc 3d 1044 [Crim Ct, Kings County 2019]; People v Powell, 179 Misc 2d 1047 [App Term, 2d Dept 1999], lv denied 93 NY2d 928 [1999].) So in this matter, the People had 92 days to announce their readiness.

For the People to be "ready for trial" pursuant to CPL 30.30, they must meet two requirements: first, they must communicate their readiness either on the record in open court, or by a written notice simultaneously sent to defense counsel and filed with the court and, second, the People must declare their readiness only when they are, in fact, presently ready to proceed to trial. (People v Kendzia, 64 NY2d 331, 337 [1985].)

The question presented here is whether the People stopped the clock by announcing ready for trial after the conclusion of business hours on the final day of their speedy trial time. Only through the recent creation of EDDS did such an announcement of readiness become possible: prior to EDDS, there was no mechanism for filing a statement of readiness with the court when the court was not actually open for business. Rather, in order to be "ready for trial" under CPL 30.30, the People were required to answer ready in open court, when a trial could actually commence, or to file and serve notice of their readiness during business hours, when a trial could actually commence.

Both the letter and the spirit of CPL 30.30 require that the People be capable of actually beginning a trial when they announce readiness. Although the EDDS system provides a mechanism for documents to be electronically filed after business hours, it remains impossible to commence a trial after court has closed for the day. When announcing readiness by filing after [*3]court has closed for the day, the People effectively declare readiness for the following day, as that is the earliest time a trial could be conducted.^[FN1]{**75 Misc 3d at 745}

[2] This court finds, therefore, that a SOR filed after close of business at 5:00 p.m. is deemed filed on the next business day, as that is when a trial could actually commence.

When the People submitted their SOR through EDDS at 11:35 p.m., announcing readiness for the first time a few minutes before midnight on the 92nd day, court had long since closed for the day. This statement of readiness was effective for the next day.

The People are, therefore, charged with 93 days of speedy trial time.^[FN2]

Conclusion

Pursuant to the foregoing, the court finds that the People are charged with 93 days of speedy trial time, and the defendant's motion to dismiss the charges pursuant to CPL 30.30 is granted.