By notice of motion submitted by defense counsel, the defendant moves for this court to deem the reduction of the felony complaint invalid pursuant to CPL 180.50. Additionally, the defendant moves to dismiss the accusatory instrument pursuant to CPL 30.30 on the ground that his speedy trial rights have been violated. Specifically, Defendant argues that the Statement of Readiness is illusory because the felony complaint reduction was improper and ineffective pursuant to CPL 1.20 and 180.50.

By an affirmation in opposition submitted by the prosecutor, the People oppose Defendant's motion and maintain that the Statement of Readiness dated January 6, 2023, is valid.

The People must be ready for trial within six months of the commencement of a criminal action when the defendant is accused of one or more offenses, at least one of which is a felony. (CPL 30.30[1][a]). In the instant matter, the defendant was arraigned on a felony complaint on July 10, 2022, and was charged with strangulation in the second degree (Penal Law § 121.22), aggravated criminal contempt (Penal Law § 215.52[1]), criminal contempt in the first degree (Penal Law § 215.51[b]), assault in the third degree (Penal Law § 120.00[1]), and harassment in the second degree (Penal Law § 240.26[1]). The court adjourned the case to July 27, 2022, October 14, 2022, December 8, 2022, and February 1, 2023, for grand jury action.

On January 6, 2023, the People filed several documents off-calendar, including: a domestic incident report; a Certificate of Compliance (hereinafter "COC"); a Statement of Readiness (hereinafter "SOR"); and a motion to reduce, add, dismiss and convert (requesting dismissal of the felony counts of strangulation in the second degree (Penal Law § 121.22), aggravated criminal contempt (Penal Law § 215.52[1]), criminal contempt in the first degree (Penal Law § 215.51[b]), and assault in the third degree (Penal Law § 120.00[1]), and requesting [*2]to add one count of criminal contempt in the second degree (Penal Law § 215.50[3]), criminal obstruction of breathing (Penal Law § 121.11[a]), and attempted assault in the third degree (Penal Law § 110/120.00[3])). The motion to reduce also requested that the court deem the accusatory instrument an information because the People submitted a domestic incident report (DIR). If granted, the top charge in the accusatory instrument would have been a Class A misdemeanor. Notably, the People did not request a motion schedule or seek an advancement to dismiss the felony counts prior to the 30.30 date. Additionally, the People did not file a new misdemeanor complaint to achieve this purpose.

The parties appeared on the next adjourn date of February 1, 2023. On that date, the felony charges were dismissed from the accusatory instrument, the above-mentioned misdemeanor counts were added, and the case was reduced. The court deemed the misdemeanor charges to be converted. Defendant challenged the People's readiness arguing that the SOR was invalid. Specifically, Defendant argued that the purported motion to reduce was filed off-calendar on January 6, 2023, and that the speedy trial period continued to run because the misdemeanor complaint was never properly reduced until the next adjournment date (before a Criminal Court Judge).^[FN1] Further, the defendant argued that the People's SOR was illusory because the defendant was never arraigned on the newly reduced misdemeanor information. Consequently, the court held the People's readiness in abeyance and a motion schedule was set. The case was adjourned for decision.

CPL 30.30(7)(c) enumerates the applicable speedy trial period for the instant case. At bar, this case began with the filing of a felony complaint and there was a subsequent motion to reduce, add, dismiss, and convert the felony complaint to a misdemeanor information in the same criminal action. "Where a criminal action is commenced by the filing of a felony complaint, and thereafter, in the course of the same criminal action either the felony complaint is replaced with or converted to an information the period applicable for the purposes of subdivision one must be the period applicable to the charges in the new accusatory instrument, calculated from the date of the filing of such new accusatory instrument; provided, however, that when the aggregate of such period and the period of time, excluding the periods provided in subdivision four, already elapsed from the date of the filing of the felony complaint to the date of the filing of the new accusatory instrument exceeds six months, the period applicable to the charges in the felony complaint must remain applicable and continue as if the new accusatory instrument had not been filed." (CPL 30.30(7)(c); People v Cooper, 98 NY2d 541[2002]).

In the instant matter, 206 days of purported chargeable time has elapsed since the filing of the felony complaint until it was reduced and replaced by an information on February 1, 2023. The most serious charge added to the new accusatory information is criminal contempt in the second degree, a class A misdemeanor. Thus, the applicable speedy trial limitation associated with this charge is 90 days. Since the aggregate of the two periods, although in dispute, exceeds six months, the applicable speedy trial limitation period remains six months or 184 days measured from the filing of the new accusatory instrument. The six-month time period is measured in calendar months (People v Cortes, 80 NY2d 201 [1992]). Accordingly, the People must be ready within the six-month statutory time limit.

"The failure to declare readiness within the statutory time limit will result in dismissal of [*3]the prosecution, unless the People can demonstrate that certain time periods should be excluded." (People v Price, 14 NY3d 61, 63 [2012]). Once the defendant has alleged a delay of more than this allowable time, the People have the burden of demonstrating sufficient excludable time in order to withstand a motion to dismiss. (People v Santos, 68 NY2d 850 [1986]; People v Berkowitz, 50 NY2d 333 [1980]).

Defendant argues that there are no periods of excludable time from the defendant's arraignment on July 10, 2022, until the case was reduced in court on February 1, 2023. Therefore, the Defendant argues that reduction was ineffective and the SOR is invalid. Accordingly, the Defendant contends that the People must be charged the entire time period totaling 206 days. Thus, the People's readiness is in question. The People refute this argument claiming that their motion to reduce, add and dismiss the felony counts, filed on January 6, 2023, stopped the speedy trial clock as a pre-trial motion until February 1, 2023, the next adjournment date. According to the People, this purported "motion practice" under the People's interpretation of CPL 30.30(4)(a) would bring the total number of excludable days to 26 and result in only 180 days charged to the People.

"[S]pecific periods of delay precipitated by pre-trial motions are not chargeable to the People" (quoting People v M.V., 79 Misc 3d 448, 452 [Crim. Ct, Kings County 2023]). CPL 30.30(4)(a) excludes from speedy trial calculations "a reasonable period of delay resulting from other proceedings concerning the defendant, including but not limited to ... pre-trial motions ... and the period during which such matters are under consideration by the court." There are numerous examples where courts have "carved out excludable time for the People's pre-trial motion practice, such as motions for protective orders, motions to modify timelines for discovery disclosures, motions to reargue, motions to amend a count on an indictment, and motions to consolidate an indictment." (Id.) "These contested motions, however, are fundamentally different from a purely summary motion to reduce, add and dismiss counts on a complaint." Id.

The purported motion to reduce in the present case does not fall within the exceptions enumerated under CPL 30.30(4)(a). See People v Collins, 82 NY2d 177, 181 [1993] (holding that the carveout for pre-trial motions under CPL 30.30(4)(a) "generally refers to delays attributable to responding to and deciding motions actually made"); People v Thomas, 59 Misc 3d 64 [Supp Ct, App Term, 1st Dept 2018] (determining that a motion to dismiss felony counts is not a "pretrial motion" under CPL 30.30(4)(a) and charging the People for time accordingly); People v M.V., 79 Misc 3d 448, 452 [Crim. Ct, Kings County 2023]) (holding that the 17-day period between time the People filed motion to dismiss and time when the felony counts were dismissed in court was chargeable to the People); see also People v Saavedra, 76 Misc 3d 626, 172 N.Y.S.3d 903 [Crim. Ct, Bronx County 2022].

Here, the People's purported motion did not necessitate any response from the defense—unlike a motion for protective order, to reargue, to amend an indictment, or to consolidate an indictment.^[FN2] See Collins, 82 NY2d at 181; Thomas, 59 Misc 3d at 66. The court did not set a motion schedule regarding this issue (prior to the February court date), as the matter did not require any deliberation whatsoever. The court only set a motion schedule to address claims raised by the defendant regarding the People's readiness.

Although the case was reduced to a misdemeanor and deemed converted to an [*4]information, the court acknowledged that the People's purported motion and statement of readiness still needed to be decided on the issue of speedy trial. (See People's Exhibit 2 at pg. 4: 18-21). The presiding judge on February 1, 2023, stated " I do find that they are converted. However, this does not mean that there may not be a 30.30 issue depending on what the 30.30 time was." (Id.). The court considered whether the case was reduced on January 6, 2023, or February 1, 2023. Upon hearing the arguments of the parties, the court held the People's readiness in abeyance and set a motion schedule to address this issue. This court finds that the People's purported motion filed on January 6, 2023, did not stop the speedy trial clock. Therefore, the case was reduced on February 1, 2023—the next in-court adjournment.

The People had several available options to reduce and add charges in this matter, prior to the expiration of speedy trial time. For example, the People could have filed an ex parte application pursuant to CPL 180.40 or 180.50. See Thomas, 59 Misc 3d at 66. Further, the People could have mitigated any undue delay by requesting that the matter be advanced for the dismissal of the felony counts. There is no record before this Court as to whether the People made any attempts to do so. Therefore, the People's filing of their motion to reduce, add and dismiss the felony counts did not stop the speedy trial clock.

This court disagrees with the People's interpretation of CPL 30.30(4)(a) in this matter. The 26-day period after the filing of the motion to reduce the felony counts must be charged to the People—bringing the total number of chargeable days (from the date of arraignment, July 10, 2022, to February 1, 2023) to 206 days.

Accordingly, the total amount of time chargeable to the People is 206 days which exceeds the six-month speedy trial time limitation. Thus, the defendant's motion to dismiss, pursuant to CPL § 30.30, is granted.

The foregoing constitutes the decision and order of the court.