Criminal Court of the City of New York, Kings County, January 10, 2023

Brooklyn Defender Services (Marshall Guiboa of counsel) for defendant.

Eric Gonzalez, District Attorney (Charles Margiotta of counsel), for the People.

Defendant, Alexis Matos, is charged with failure to obey a traffic control signal (Vehicle and Traffic Law § 1111 [d] [1]), obstructing governmental administration in the second degree (Penal Law § 195.05), and criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [1]). By motion filed on November 14, 2022, the defendant challenges the facial sufficiency of count two of the information charging Penal Law § 195.05 and moves to dismiss the accusatory instrument pursuant to CPL 30.30.

For the reasons set forth below, the defendant's motion is granted.

In the early morning hours of June 29, 2022, the defendant is alleged to have been driving a blue electric scooter through a steady red light at the intersection of Lexington Avenue and Classon Avenue. When he was stopped by the police, the defendant repeatedly refused to provide the police with a driver's license. These factual allegations are the basis for which the accusatory instrument charges a violation of Vehicle and Traffic Law § 1111 (d) (1) and Penal Law § 195.05.

Approximately 15 minutes later while at the police station located at 298 Classon Avenue, the accusatory instrument alleges that brass knuckles were recovered from the defendant's person, the defendant refused to be fingerprinted, and he refused to provide pedigree information. These factual allegations are the sole basis for which the accusatory instrument charges Penal Law § 265.01 (1).{**78 Misc 3d at 324}

In order to be facially sufficient, an information along with any supporting depositions must contain nonhearsay allegations that provide reasonable cause to believe that the People can prove every element of the crime charged (see CPL 100.40 [1] [a]-[c]; see also People v [*2]Alejandro, 70 NY2d 133 [1987]; People v McDermott, 69 NY2d 889 [1987]; People v Dumas, 68 NY2d 729 [1986]; People v Case, 42 NY2d 98 [1977]). Facial sufficiency does not require the accusatory instrument to state facts that would prove the defendant's guilt beyond a reasonable doubt, but rather that the accusatory instrument contains allegations of fact that "give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense" (People v Casey, 95 NY2d 354, 360 [2000]). In reaching a determination on the facial sufficiency of an accusatory instrument, the court must assume that the factual allegations are true and must consider all reasonable inferences that may be drawn from the allegations (CPL 100.15; Alejandro, 70 NY2d at 135; People v Henderson, 92 NY2d 677 [1999]).

[1] The accusatory instrument charging the defendant with obstructing governmental administration in the second degree (Penal Law § 195.05) alleges, in pertinent part, that the police "asked the defendant to provide the defendant's drivers [sic] license to the [police] and the defendant refused multiple times." Even if true, these facts do not establish reasonable cause to believe that the defendant obstructed governmental administration (see Matter of Davan L., 91 NY2d 88, 92 [1997]; Case). The failure to set forth sufficient facts establishing all of the elements of Penal Law § 195.05 renders the instant accusatory instrument facially insufficient (Alejandro; McDermott; Dumas; Casey).

[2] "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" (CPL 30.30 [5-a] [emphasis added]).{**78 Misc 3d at 325}

The plain language of CPL 30.30 (5-a) mandates that a statement of readiness is only valid when all charges in an accusatory instrument are facially sufficient and those that are not have been dismissed (id.; see generally Matter of New York Civ. Liberties Union v New York City Police Dept., 32 NY3d 556 [2018] [mandatory NY statutory provisions expressly guarantee confidentiality by using the word "shall"]; People v Golo, 26 NY3d 358, 362 [2015] ["shall" is mandatory, "may" is permissive]; Matter of Losurdo v Asbestos Free, 1 NY3d 258, 265 [2003] [the term "shall" signifies a mandatory clause]; Crown Point Iron Co. v Aetna Ins. Co., 127 NY 608, 615 [1891] [the term "shall" is not permissive]; Thomas v Alleyne, 302 AD2d 36, 40 [2d Dept 2002] [shall is a mandatory verb form]; Matter of Lupoli, 275 AD2d 44, 50 [2d Dept 2000] [the term "shall" is not permissive, it is mandatory]).

There is no bill jacket providing the legislative intent behind the passage of CPL 30.30 (5-a) because it occurred as part of the passage of a budget bill. However, guidance can be found in the legislative memorandum of Senate Bill S1738 (Senate Introducer's Mem in Support of 2019 NY Senate Bill S1738). In passing CPL 30.30 (5-a), the Legislature substantially mirrored the language contained in Senate Bill S1738 and its legislative memorandum, which sought to amend CPL 30.30 so that all counts of an accusatory instrument must be converted and facially sufficient before the People could announce ready for trial. It is logical then to conclude that CPL 30.30 (5-a) is also designed to abrogate prior case law permitting partial conversion (William C. Donnino, Supp Prac Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 30.30). Thus, this court holds that it is a prerequisite to a valid statement of readiness that an accusatory instrument is facially sufficient as to all charges not dismissed by [*3]the People (CPL 30.30 [5-a]).^[FN*]{**78 Misc 3d at 326}

Accordingly, since the instant accusatory insufficiently alleges a violation of Penal Law § 195.05, the People's statement of readiness is invalid pursuant to CPL 30.30 (5-a).

The charges in the instant information require the People to be ready within 90 days of arraignment (CPL 30.30 [1] [b]). There is no dispute that the defendant was arraigned on June 29, 2022, and that the instant motion was filed on November 14, 2022. Since the statement of readiness is not valid, 138 chargeable days have accrued since arraignment. Accordingly, the defendant's motion to dismiss pursuant to CPL 30.30 is granted.

The Legislature could have allowed for the survival of a partially converted accusatory instrument by simply changing the term "all counts" to "any count" or "some counts" but instead chose to use a comprehensive term when mandating facial sufficiency as a prerequisite to the People's readiness. Additionally, while CPL 30.30 (5) establishes a good-faith clause for the People's certification of compliance with their discovery requirements (along with the defendant's ability to challenge the good-faith assertion), the Legislature made no such good-faith clause for a statement of readiness in either CPL 30.30 (5) or in CPL 30.30 (5-a). As such, the court is not empowered to make a good-faith exception to the clear statutory language of CPL 30.30 (5-a).