Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, December 22, 2023

Eric Gonzalez, District Attorney (Leonard Joblove and Julian Joiris of counsel), for appellant.

New York City Legal Aid Society (Simon Greenberg of counsel) for respondent.

Ordered that the order is reversed, on the law, defendant's motion to dismiss the accusatory instrument on statutory speedy trial grounds is denied, the accusatory instrument is reinstated, and the matter is remitted to the Criminal Court for all further proceedings.

Insofar as is relevant to this appeal, in May 2022, defendant was arraigned on an accusatory instrument charging him with various offenses, the highest charge being a class A misdemeanor. On August 1, 2022, at 5:03 p.m., the People submitted a certificate of compliance, a statement of readiness (SoR) and other documents to the Criminal Court through the Electronic Document Delivery System (EDDS). On the same day, the People also served these documents on defense counsel. On August 2, 2022, the People received an EDDS notification of filing by which they were informed that the court had marked their documents as "FILED" on August 1st (see Uniform Rules for Trial Cts [22 NYCRR] § 202.5-c [c] [3] [setting forth the requirements for a document to be deemed "filed" through EDDS]). Thereafter, defendant moved to dismiss the accusatory instrument on the ground that his statutory right to a speedy trial had been violated in that 91 days of delay were chargeable to the People because their SoR was submitted after business hours on August 1. The People opposed the motion,{**82 Misc 3d at 20} to which defendant replied. All [*2]parties concede that, as of August 1st, 90 days of delay were chargeable to the People. By order dated September 30, 2022, the Criminal Court granted defendant's motion, finding that the People were chargeable with 91 days of delay, even though their SoR was filed on August 1, 2022, because "[w]hen announcing readiness by filing after 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." The instant appeal by the People ensued.

As the highest charge against defendant was a class A misdemeanor, the People had 90 days within which to announce their readiness for trial (see CPL 30.30 [1] [b]). It is well settled that being "ready for trial" comprises two elements (see People v Chavis, 91 NY2d 500, 505 [1998]; People v Kendzia, 64 NY2d 331, 337 [1985]). First, the People must communicate their readiness on the record by "fil[ing] a certificate of readiness or mak[ing] a statement of readiness in open court" (People v Smith, 82 NY2d 676, 678 [1993]; see People v Brown, 28 NY3d 392, 403 [2016]; Chavis, 91 NY2d at 505; Kendzia, 64 NY2d at 337). Second, CPL 30.30 "contemplates an indication of present readiness, not a prediction or expectation of future readiness" (Kendzia, 64 NY2d at 337; see Brown, 28 NY3d at 403; People v Wilson, 86 NY2d 753, 754 [1995]). Here, the Criminal Court held that, as the People had filed their SoR after business hours, a trial could not have been commenced at the time of the filing and, therefore, the People could not have been ready for trial on that day. However, the People's readiness for trial and the court's ability to commence a trial are separate issues. CPL 30.30 only requires that the People be ready for trial within a specified time period, here 90 days; the statute does not require that a trial be held within this time period. The court's inability to commence a trial does not excuse the People from timely declaring their readiness for trial (see e.g. People v Barden, 27 NY3d 550, 553 [2016]; Chavis, 91 NY2d at 505; Smith, 82 NY2d at 678).

CPL 30.30 does not provide that the People must announce their readiness for trial during the court's business hours, e.g., 9:00 a.m. to 5:00 p.m. Rather, CPL 30.30 (1) (b) states that the People must be ready for trial within 90 "days." Pursuant to General Construction Law § 19, a "calendar day includes the time from midnight to midnight," and the General Construction Law should be read into every statute subsequently{**82 Misc 3d at 21} enacted, unless the wording of a later statute plainly expresses a contrary intent (see 97 NY Jur 2d, Statutes § 100; People v Powell, 179 Misc 2d 1047, 1048 [App Term, 2d Dept, 2d & 11th Jud Dists 1999]). As CPL 30.30 does not express a contrary intent (see Powell, 179 Misc 2d at 1048), the speedy trial time period is to be calculated by "days," not by any specific hour within the day. If the legislature had intended CPL 30.30 time calculations to be based on something other than "days," it would have specified the hours during which the act must take place (see e.g. CPL 180.80; Vehicle and Traffic Law § 415-a). We recognize that, historically, an SoR could only be filed with the court clerk during the court's business hours; however, since the implementation of the EDDS, documents can now be submitted throughout the day and later be "deemed filed" by the clerk (see Uniform Rules for Trial Cts [22 NYCRR] § 202.5-c [c] [3]). Thus, as the People's SoR here was "deemed filed" pursuant to Uniform Rules for Trial Courts (22 NYCRR) § 202.5-c (c) (3) on August 1, 2022, the speedy trial clock stopped on that day.

We pass on no other issue and note that any issue raised for the first time in reply papers was not properly before the motion court, and we need not consider such issue on appeal (see People v Mullings, 146 AD3d 816, 817 [2d Dept 2017]). [*3]

In view of the foregoing, and as the record does not otherwise indicate that the People were not ready for trial when they filed their SoR on August 1, 2022, only 90 days of delay were chargeable to the People.

Accordingly, defendant's motion to dismiss the accusatory instrument on statutory speedy trial grounds is denied.

Toussaint, P.J., Buggs and Ottley, JJ., concur.