Pending before the court is a C.P.L. § 30.30 motion to dismiss. As this case began by charging a felony, the prosecution had six months from commencing it to state ready for trial. (C.P.L. § 30.30[1][a]).^[FN1] "Whether the People have satisfied this obligation 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]).

On September 15, 2023, the prosecution commenced this case by filing a felony complaint. On March 11, 2024, the prosecution filed and served a set of documents off calendar. These documents included a certificate of automatic discovery compliance, a supporting deposition, a statement of readiness, and what they styled as a "Motion to Dismiss One Count and Convert." On April 2, 2024, the next calendar call, the felony count was dismissed, (see C.P.L. § 180.50), and the accusatory instrument was deemed converted to an information, (see C.P.L. § 170.65[1]).

Undoubtedly, the prosecution's statement of readiness was illusory. The prosecution's reliance on People v. Gross, 87 NY2d 792 [1996], is misplaced. While prosecutors may state ready upon filing an indictment before a person is arraigned, (id.), they may not state ready when the accusatory instrument remains a felony complaint.^[FN2] To proceed with such a case in criminal [*2]court, they must first dismiss or reduce the felony counts. (C.P.L. § 180.50). But here, "when the People filed their off-calendar notice of readiness" on March 11, 2024, "the [felony] count[] had not been dismissed." (See People v. Saavedra, 76 Misc 3d 626, 631 [Crim. Ct., Bronx County 2022]). Such a count is not dismissed until the court does so at a court appearance. (C.P.L. § 180.50; see generally People v. Jackson, 74 Misc 3d 1224[A], at *2 [Crim. Ct., NY County 2022] [Svetkey, J.] [reviewing the C.P.L. § 180.50 procedure in detail]). In this case, a court did not dismiss the felony count until April 2, 2024. That is the first date on which the prosecution could state ready.

Nonetheless, the prosecution argues that their "Motion to Dismiss One Count and Convert" should toll their readiness clock under C.P.L. § 30.30[4][a]. Several courts in our department have disagreed, and this court joins them. (People v. Manigat, 82 Misc 3d 1239[A], at *3 n.2 [Crim. Ct., Kings County 2024] [Glick, J.]; People v. Simonelli, 2024 NY Slip Op. 50809[U], at *1-*2 [Crim. Ct., Kings County Mar. 12, 2024] [Hayes Torres, J.], reargument denied, 2024 NY Slip Op. 50810[U] [Crim. Ct., Kings County June 4, 2024] [Hayes Torres, J.]; People v. S.E., 79 Misc 3d 1233[A], at *3 [Crim. Ct., Queens County 2023] [Santacroce, J.]; People v. M.V., 79 Misc 3d 448, 452 [Crim. Ct., Kings County 2023] [Perlmutter, J.]).

The exclusion in C.P.L. § 30.30[4][a] applies to "a reasonable period of delay resulting from other proceedings concerning the defendant, including . . . pre-trial motions . . . and the period during which such matters are under consideration by the court." (emphases added). Because the provision "refers to delays attributable to responding to and deciding motions actually made," (People v. Collins, 82 NY2d 177, 181 [1993]), it is triggered by contested motions for which litigation actually causes delay. Examples include "motions for protective order, motions to modify timelines for discovery disclosures, motions to reargue, motions to amend a count on an indictment, and motions to consolidate an indictment." (E.g., M.V., 79 Misc 3d at 452). These kinds of pretrial litigation "require[] the Court to schedule motion dates; responses to be submitted by the opposing party; and the Court to consider and weigh on the parties' papers to arrive at a decision." (Simonelli, 2024 NY Slip Op. 50810[U], at *2). Such acts take time, and they "result[]" in "delay." (See C.P.L. § 30.30[4][a]).

Unlike contested pretrial motions, however, the prosecution's application to dismiss a [*3]felony count does not cause any delay. Indeed, such an application is not really a "pretrial motion" at all. In a criminal court, "[t]he People may reduce a felony complaint to one charging misdemeanors only pursuant to CPL 180.50." (Jackson, 74 Misc 3d 1224[A], at *2). That statute clearly contemplates that this procedure occur "during a court appearance." (See id.). It describes a court, "upon consent of the district attorney," making "inquiry" of the parties, (C.P.L. § 180.50[1]), "question[ing] any person who it believes may possess information relevant to the matter," and then issuing an order "after such inquiry," (C.P.L. § 180.50[2]). Thus, a prosecutor's "Motion to Dismiss One Count and Convert" is not a "pretrial motion"—it is simply an announcement of their "consent" under C.P.L. § 180.50[1]. Unlike genuine pretrial motions provided by the criminal procedure law, (see, e.g., C.P.L. §§ 170.45; 210.45 ["[a] motion to dismiss . . . must be made in writing and upon reasonable notice to the people"]), this procedure does not contemplate a written motion or adjournments for response and decision.

As a result, the prosecution exhausted their C.P.L. § 30.30 time. Because they waited until the tail end of their readiness deadline to state ready, they should have advanced this case to promptly engage the C.P.L. § 180.50 procedure that the statute contemplates. They should not have waited until yet another court appearance—the fifth court date and one nearly a month beyond their deadline.

All in, the prosecution is responsible for at least 200 days of delay. That is more than the six months they are allowed. (See C.P.L. § 30.30[1][a]). The case must be dismissed.

The foregoing constitutes the order and decision of the court.