Criminal Procedure Law § 30.30 places strict limits on the delay that the prosecution may cause in a criminal case. In this case, that limit is ninety days. (See C.P.L. § 30.30[1][b]). The defense has filed a motion arguing that the prosecution exhausted this limit. Upon review of the papers and the record, the motion is granted.

Whether the prosecution has exhausted their C.P.L. § 30.30 limit "is generally determined by computing the time elapsed between the filing of the first accusatory instrument and the People's declaration of readiness, subtracting any periods of delay that are excludable under the terms of the statute and then adding to the result any postreadiness periods of delay that are actually attributable to the People and are ineligible for an exclusion." (People v. Cortes, 80 NY2d 201, 208 [1992]). Here, the prosecution filed their first accusatory instrument on April 30, 2023, and they first declared ready for trial on July 28, 2023. Thus, at the outset, the prosecution is responsible for eighty-nine days of delay. The question then turns to the prosecution's postreadiness delay.

As the defense here "sufficiently alleges that the People were not ready within the statutory period, the People have the burden of showing their entitlement to a statutory exclusion." (People v. Labate, 42 NY3d 184, 190 [2024] [internal quotation marks omitted]; id. at *5 ["In the postreadiness context, the People bear the burden of ensuring that the record explains the cause of adjournments sufficiently for the court to determine which party should be properly charged with any delay."] [internal quotation marks omitted]; id. at 194 ["[W]here, as here, the court grants adjournments after the People have announced the indictment ready for trial, the burden rests on the People to clarify . . . the basis of the adjournment so that on a subsequent CPL 30.30 motion the court can determine to whom the adjournment should be charged."] [internal quotation marks omitted]).

In assessing postreadiness delay, the court cannot simply implement calendar-call determinations. (See generally People v. Berkowitz, 50 NY2d 333, 349 [1980]; see also People v. Rodriguez, 190 AD3d 429, 430 [1st Dep't 2021] [motions court correctly "did not deem binding the determination of excludability made at the . . . calendar call"]; People v. A.B., 53 Misc 3d 609, 612 [Crim. Ct. Kings County 2016] ["[C]alendar call . . . preliminary rulings as to whether . . . adjournments should be charged . . . are not binding."] [Farber, J.]). Calendar calls [*2]"do not comprise a binding determinations as to whether in fact the time span covered by a particular adjournment is to be excluded . . . [t]hat determination is one which must be made" where each party "has an adequate opportunity" to advance their arguments. (See, e.g., Berkowitz, 50 NY2d at 349). The prosecution may, after all, show their entitlement to an exclusion "contemporaneously in open court" at the calendar call or "in response to a defendant's motion under CPL 30.30." (Labate, 42 NY3d at 193). This rule makes sense, as the brief nature of criminal court calendar calls—which often last mere minutes—rarely constitute a "full and fair" opportunity for each party to make their arguments. (See generally People v. Valera, 58 Misc 3d 369, 379-80 [Crim. Ct., Bronx County 2017]; see also People v. Portorreal, 28 Misc 3d 388, n.3 [Crim. Ct., Queens County 2010] ["Since this is the first time that the issue has been addressed in a written motion, with notice and opportunity for a response, the matter cannot be said to have been fully and fairly litigated before now."]).

"In a postreadiness context, . . . when the People request an adjournment to a specific date, the requested time is ordinarily charged to the People." (Labate, 42 NY3d at 190). That rule includes when, on a date scheduled for pre-trial suppression hearings, "the People are not ready for [the] hearings." (People v. Taylor, 16 Misc 3d 339, 344 [Crim. Ct., NY County 2007] [Mandelbaum, J]). "For at that point the People, by their non-readiness, will have prevented the court from rendering its decision on the defendant's motion to suppress, thereby impeding the case from proceeding to trial." (Id.).

At issue here are two dates on which the prosecution failed to state ready: first, on January 10, 2024, for pre-trial suppression hearings; and second, on July 11, 2024, for trial. On both dates, the prosecution states that they could not be ready because various police officers were not available to testify. Under C.P.L. § 30.30[4][g], the prosecution is excused from delay that is

occasioned by exceptional circumstances, including . . . the period of delay resulting from a continuance granted at the request of a district attorney if (i) the continuance is granted because of the unavailability of evidence material to the people's case, when the district attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will become available in a reasonable period.

Thus, the unavailability of a prosecution witness may be a sufficient justification for excludable delay so long as:

(1) The witness was a "material witness," (People v. Womack, 229 AD2d 304, 304 [1st Dep't 1996]); and

(2) The prosecution "attempted with due diligence to make the witness available," (People v. Zirpola, 57 NY2d 706, 709 [1982]); and

(3) The "reason for the witness's unavailability" justifies excluding the time as an exceptional circumstance, (People v. Harrison, 171 AD3d 1481, 1483 [4th Dep't 2019]).

With respect to the January 10, 2024, hearing date, the prosecution fails to meet this burden, because they do not substantively explain why the unavailable officers were relevant to the pre-trial suppression hearing. Neither the prosecution's response nor their in-court record [*3]explains the relevance of "Police Officer Matthew Portoles," like what he allegedly observed, or why his testimony would be material to the hearing's issues. On the record provided, the court has no idea why his testimony would be relevant. The prosecution likewise provides no substantive indication of what information Officer Deshawn Fogah would testify to. While the prosecution describes this "alternate witness," (Pr. Resp. at 5), as the "arresting officer," (id. at 4), the court cannot assume that whomever the police call an "arresting officer" is necessarily material to a pre-trial suppression hearing. Despite what the term may suggest to a layperson, "arresting officer" is an administrative police designation that may not refer to the officer who, in fact, conducted the arrest. (See, e.g., People v. Saquijxol, 81 Misc 3d 1212[A] [Crim. Ct., Queens County 2023]; People v. Lanier, 8 Misc 3d 1017[A] [Sup. Ct., Bronx County 2005] [Farber, J.] ["He was the 'arresting officer' in name only."]; People v. Bramble, 158 Misc 2d 411, 415 [Sup. Ct., Kings County 1993] ["[T]hough designated 'arresting officers,' [they] may not have been the officers that actually apprehended defendants."]; see also People v. Lyons, 81 NY2d 753, 754 [1992] [upholding the denial of a missing-witness instruction for the "designated 'arresting officer'" because "[t]he designated 'arresting officer' . . . was not in a position to have knowledge of material issues or to have observed anything that would make his testimony relevant to any material issue in the case"]). "[W]ho gets designated the 'arresting officer' is a matter of police procedure," but what matters at a suppression hearing "is what the officers who actually apprehended defendant knew at the time of the apprehension." (Lanier, 8 Misc 3d 1017[A], at *2). This disjunction happens frequently enough that the court cannot reasonably assume that an officer whom the prosecution calls an "arresting officer" is necessarily material to a pre-trial suppression hearing without any further explanation. What matters is substance, not labels.

The court cannot fill in the blanks with supposition. "A review of the record . . . indicates that the People failed to show that the arresting officer's . . . testimony would be . . . material." (People v. Morena, 53 Misc 3d 131[A], at *2 [App. Term, 2d Dep't 2016]; see also People v. Jenkins, 58 Misc 3d 150[A], at *1 [App. Term, 2d Dep't 2018] [while the prosecution was not ready "because the arresting officer had been out sick," they "failed to show" that the arresting officer's testimony would be material]).

The prosecution also fails to meet their burden with respect to the July 11, 2024, trial date, because they fail to establish that the officer was actually unavailable for testimony. In determining that prong, "courts generally have held that the delay" is justifiable where a witness is "unavailable because of medical reasons or military deployment." (Harrison, 171 AD3d at 1483). This includes when an officer is "actually unavailable" because of maternity leave. (See Womack, 229 AD2d at 304). Here, the prosecution reports that on July 11, 2024, they were "aware that one of their witnesses, Police Officer Brittany Delaney of the 115th Precinct, was on maternity leave." (Pr. Resp. at 5). The prosecutor emailed the NYPD's medical division, which responded: "PO Delaney is returned from sick full duty 7/14/2024 at 0750hrs. She can go to court." (Id. at 13). The prosecutor then called Officer Delaney on the telephone, and according to the prosecutor, she "represented that a separate agreement, one which was not memorialized in any writing, existed between her and her command whereby she would only be allowed to return to work at the beginning of August." (Id. at 6). On that basis, the prosecution requested an adjournment to August 7, 2024.

Under these circumstances, the prosecution fails to establish that Officer Delaney was actually unavailable due to an exceptional circumstance all the way until August 7, 2024. (See [*4]C.P.L. § 30.30[4][g]). While the officer here appears to have had some kind of arrangement with her command allowing her to return to duty later in August, that arrangement does not render her actually unavailable for testimony. (See Harrison, 171 AD3d at 1483 [noting that an officer's time off is not necessarily an exceptional circumstance; rather, it must be due to medical conditions or military deployment]). The NYPD's "medical division" explicitly reported that Officer Delaney "can go to court" on July 14, 2024. (Cf. People v. Silverstri, 48 Misc 3d 810, 814 [Crim. Ct. NY County 2015] ["Here, the NYPD's letter, sufficiently shows medical unavailability by certifying that, based on NYPD records, Officer Wierzchowska indeed was on childcare leave from April 8, 2014 to August 5, 2014."]). Thus, the prosecution can only be excused from its responsibility to be ready between July 11, 2024, and July 14, 2024.

The question then turns to the C.P.L. § 30.30 calculation. As noted previously, "[i]n a postreadiness context, . . . when the People request an adjournment to a specific date, the requested time is ordinarily charged to the People, and time beyond that is presumptively not charged to the People, because it assumed to result from court congestion or some other factor beyond the People's control." (Labate, 42 NY3d at 190). The prosecution requested a delay from January 10, 2024, to January 17, 2024, and then from July 11, 2024, to August 7, 2024. Excluding three days from July 11, 2024, to July 14, 2024, leaves the prosecution at 120 days, exceeding their allowance. (See C.P.L. § 30.30[1][b]).

The court is therefore required to dismiss the case.

The foregoing constitutes the order and decision of the court.