Rockland County District Attorney (Jacob B. Sher, Renada N. Lewis and Ariel Dahan of counsel), for appellant. Gary E. Eisenberg, for respondent.

Appeal from an order of the Justice Court of the Village of West Haverstraw, Rockland County (Richard S. Pakola, J.), dated January 15, 2021. The order granted the branches of defendant's motion seeking to dismiss the accusatory instruments on statutory speedy trial grounds.

ORDERED that the order is modified, on the law, by providing that so much of the order as granted the branches of defendant's motion seeking to dismiss, on statutory speedy trial grounds, the accusatory instruments charging defendant with unsafe backing and refusal to take a breath test is vacated and those branches of defendant's motion are denied; as so modified, the order is affirmed.

In October 2019, defendant was arraigned on an information charging him with unlawful possession of marihuana in the second degree (Penal Law § 221.05, a violation at the time, but now no longer a cognizable offense following the repeal of article 221 of the Penal Law on March 31, 2021) and on five simplified traffic informations charging him with, respectively, common-law driving while intoxicated (Vehicle and Traffic Law § 1192 [3], an unclassified misdemeanor), driving while ability impaired by drugs (Vehicle and Traffic Law § 1192 [4], an unclassified misdemeanor), driving while ability impaired by the combined influence of drugs or alcohol and any drug or drugs (Vehicle and Traffic Law § 1192 [4-a], an unclassified misdemeanor), refusal to take a breath test, purportedly in violation of Vehicle and Traffic Law § 1194 (1) (b), but which is not a cognizable offense (see People v Malfetano, 64 Misc 3d 135[A], 2019 NY Slip Op 51147[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]), and unsafe backing (Vehicle and Traffic Law § 1211 [a], a traffic infraction).

In the same month, the People submitted a "Supporting Deposition, DWI Bill of Particulars," which indicated, in two places, that a video of the incident existed. Also, in October 2019, defense counsel submitted a demand to produce and a demand for a bill of particulars [*2]which demanded that the People produce, among other things, any tapes or other electronic recordings of the incident. Thereafter, by letter dated October 31, 2019, the People submitted open file discovery which included, among other things, the aforementioned "Supporting Deposition, DWI Bill of Particulars." On February 19, 2020, the People filed a certificate of compliance (CoC), dated February 18, 2020, as well as an annexed "Index Identifying Items Provided Pursuant to CPL § 245.50 (1)," which made no mention of a video. The People filed a statement of readiness (SoR) for trial along with the CoC.

On March 20, 2020, as a result of the COVID-19 pandemic, Governor Cuomo issued Executive Order 202.8 (9 NYCRR 8.202.8), which tolled and suspended criminal statutes of limitations and deadlines. The tolling effect of Executive Order 202.8 was extended numerous times ^[FN1] and, as of October 5, 2020, Executive Order 202.67 (9 NYCRR 8.202.67) lifted the tolling effect of the prior Executive Orders, specifically stating that "The suspension and modification of Section 30.30 of the criminal procedure law, as continued and modified in EO 202.60, is hereby no longer in effect, except for felony charges."

On October 7, 2020, the People filed a supplemental CoC, along with an index which stated that the People were providing the defense with, insofar as is relevant to this appeal, a "Dash Camera video." By notice of motion returnable in November 2020, defendant moved to, among other things, dismiss the accusatory instruments on the ground that his statutory right to a speedy trial had been violated, since more than 90 days of delay were chargeable to the People because their CoC was not accurate, as the People had not provided the defense with the video. In an affirmation in opposition, the People stated, in pertinent part, that the video was apparently not provided in a discovery packet the police had given to the People; that the People were unaware of the missing video until defense counsel informed them on August, 18, 2020 that they had failed to provide the defense with the video; that, on September 25, 2020, the affiant requested the video from the police department which they provided to the defense on October 7th; and that their failure to submit the video in their February 2020 discovery index did not invalidate their February 2020 CoC and SoR. Defendant submitted papers in reply.

By order dated January 15, 2021, the Justice Court granted the branches of defendant's motion seeking to dismiss the accusatory instruments on statutory speedy trial grounds, finding that more than 90 days of delay were chargeable to the People. The court specifically determined, among other things, that the People's February 2020 CoC was "illusory." [*3]Consequently, the court found that the 27-day time period of February 18, 2020 to March 16, 2020 was chargeable to the People because they filed a CoC even though they had not turned over the video. On appeal, the People only dispute the 2020 time periods charged against them and argue, among other things, that they should not have been charged with the aforementioned 27 days.

Prior to the amendment of the speedy trial statute in January 2020, statutory speedy trial time was not applicable to traffic infractions. Even assuming, without deciding, that the January 2020 amendments to the speedy trial statute apply retroactively, following the amendment, CPL 30.30 (1) (d) and (e), would only apply to the accusatory instrument charging defendant with unsafe backing (a traffic infraction) if (1) the accusatory instrument accuses defendant of one or more offenses, (2) one or more of the offenses is a violation, and (3) no offense is a crime. CPL 30.30 (1) (e), enacted in 2020, provides that a traffic infraction is an offense, Vehicle and Traffic Law § 155 provides that a traffic infraction is not a crime, and Penal Law § 10.00 (3) defines a violation as "an offense, other than a 'traffic infraction.' " The Vehicle and Traffic Law neither declares the refusal to take a breath test to be a violation nor a traffic infraction. In view of the foregoing, since, following January 2020, the statutory speedy trial requirements of CPL 30.30 (1) (d) would, in any event, not apply to the accusatory instruments charging unsafe backing and refusal to take a breath test, the Justice Court should have denied these branches of defendant's motion (see People v Lopez, 73 Misc 3d 133[A], 2021 NY Slip Op 51016[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2021]; Malfetano, 2019 NY Slip Op 51147[U]; People v Smith, 53 Misc 3d 136[A], 2021 NY Slip Op 51071[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2021]).

With respect to the accusatory instruments charging defendant with the unclassified misdemeanors of common-law driving while intoxicated, driving while ability impaired by drugs and driving while ability impaired by the combined influence of drugs or alcohol and any drug or drugs, Vehicle and Traffic Law § 1193 (1) (b) provides that violations of these statutes are "punishable by a fine . . . or by imprisonment . . . for not more than a year." Consequently, as to the aforementioned accusatory instruments, the People were required to announce their readiness for trial within 90 days of the commencement of the actions for these unclassified misdemeanors (see CPL 30.30 [1] [b]; see also People v Lomax, 50 NY2d 351, 356 [1980]).

We note that when the actions were commenced in October 2019, the accusatory instrument charging unlawful possession of marihuana in the second degree (Penal Law § 221.05) would have been controlled by the pre-amendment speedy trial statute which required the People to announce their readiness for trial within 30 days (see CPL 30.30 [1] [d]; see also Lomax, 50 NY2d at 356). The Justice Court granted the branch of defendant's motion seeking to dismiss all of the accusatory instruments on speedy trial grounds in January 2021, and Article 221 of the Penal Law was repealed on March 31, 2021.

A review of the record indicates that the People filed their CoC in February 2020 and the relevant documents, certificates and statements filed herein were submitted after the January 2020 amendments to the Criminal Procedure Law. Effective January 2020, CPL 30.30 (5) abrogated case law which allowed the People to declare their readiness for trial even if they had not fulfilled their discovery obligations. CPL 30.30 (5) now provides 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 . . . and the defense shall be afforded an opportunity to [*4]be heard on the record as to whether the disclosure requirements have been met."^[FN2] In addition, after the People "state[] or otherwise provide[] notice that [they] 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" (CPL 30.30 [5] [emphasis added]). CPL 245.50 (1) states that when the People have provided the discovery required by CPL 245.20 (1), "it shall serve upon the defendant and file with the court a certificate of compliance. The certificate of compliance shall state that, after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery, the prosecutor has disclosed and made available all known material and information subject to discovery" (emphasis added). Compliance with the discovery requirements of CPL 245.20 is a prerequisite to a valid statement of readiness absent the showing of "special circumstances" (CPL 245.50 [3]).

The record on appeal indicates that, since, at least, October 31, 2019, the People were in possession of police documents which indicated the existence of the video. Although the People stated that the "video was not provided to our office with the discovery packet the police had sent over," the People provide no information as to what they initially requested of the police, when they requested those items from the police, or when the police sent them the packet. Nor do they provide any explanation as to why they did not check the items sent to them against a list of the requested items, or against the police reports they sent to the defense. The People blame the defense for their failure to procure the video from the police by arguing that defense counsel did not inform them that he had not received the video until August 18, 2020. The People then state that they subsequently attempted to procure the video "as quickly as possible" and that their failure to provide defendant with the video prior to their February 2020 CoC/SoR "was an unintentional oversight." The record indicates that after the People learned of the missing video in August 2020, they waited over a month, until September 25, 2020, to request the video from the police, which video they finally made available to the defense on October 7, 2020. In any [*5]event, it is well settled that office failure does not amount to special circumstances (see e.g. People v Briggs, 38 NY2d 319, 324 [1975]).

In view of the foregoing, we find that the February 2020 CoC was not filed in good faith, as the People failed to exercise due diligence and did not make reasonable inquiries to obtain the video. Since the CoC was invalid and there were no special circumstances presented, the SoR was also invalid (see CPL 30.30 [5]; 245.50 [3]). Consequently, the Justice Court properly granted the branches of defendant's motion seeking to dismiss the accusatory instruments charging defendant with common-law driving while intoxicated, driving while ability impaired by drugs and driving while ability impaired by the combined influence of drugs or alcohol and any drug or drugs, on the ground that his statutory right to a speedy trial had been violated, as more than 90 days of delay were chargeable to the People. Further, the accusatory instrument charging defendant with unlawful possession of marihuana in the second degree was properly dismissed on the ground that over 30 days were chargeable to the People.

Accordingly, the order is modified by providing that so much of the order as granted the branches of defendant's motion seeking to dismiss, on statutory speedy trial grounds, the accusatory instruments charging defendant with unsafe backing and refusal to take a breath is vacated and those branches of the motion are denied.

GARGUILO, P.J., DRISCOLL and VOUTSINAS, JJ., concur.