Criminal Court of the City of New York, Kings County, September 7, 2023

Brooklyn Defender Services, Brooklyn (Owen Senders of counsel), for defendant.

Eric Gonzalez, District Attorney, Brooklyn (Joshua Harris of counsel), for the People.

Defendant Messiah Norvil moves this court for leave to reargue defendant's prior motion to dismiss, which this court denied by decision and order, dated July 21, 2023 (the decision).

For the reasons set forth herein, defendant's motion is denied.

By notice of motion dated July 5, 2023, defendant sought dismissal of the accusatory instrument in this matter on the grounds that the People failed to announce readiness for trial within the 90 days permitted by CPL 30.30 (1) (b). Defendant's position was grounded solely in the argument that the filing of the People's certificate of compliance (COC) and statement of readiness (SOR) after close of business at 5:34 p.m. on June 13, 2023 (the 90th chargeable day), was equivalent to announcing ready on the 91st day.

Applying General Construction Law § 19, this court held that filing via the Electronic Document Delivery System (EDDS) on the 90th day even after 5 p.m. was timely under CPL 30.30. This court rejected defendant's argument that a filing via the EDDS after 5 p.m. automatically adds an additional day to the CPL 30.30 speedy trial calculation, and therefore denied defendant's motion.

Defendant now moves to reargue the prior motion to dismiss. A motion to reargue "shall be based upon matters of fact or law{**81 Misc 3d at 352} allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion" (CPLR 2221 [d] [2]). "It is well settled that a motion to reargue 'is not an appropriate vehicle for raising new questions . . . which were not previously advanced.' Necessarily, where a new argument is presented on the motion, that argument could not have been 'overlooked or misapprehended' " (People v D'Alessandro, 13 NY3d 216, 219 [2009], quoting People v Bachert, 69 NY2d 593, 597 [1987]).

Defendant's motion to reargue contends that the court overlooked: (1) 22 NYCRR 202.5-c (c) (3), which codified Administrative Order of the Chief [*2]Administrative Judge of the Courts AO/331/21; and (2) General Construction Law § 25-a. However, defendant did not advance any arguments regarding this administrative order or these statutes in defendant's original motion. Accordingly, these new arguments are improper grounds for a motion to reargue (D'Alessandro, 13 NY3d at 219; People v Illis, 184 AD3d 859, 862-863 [2d Dept 2020]). Defendant's motion may be denied on this basis alone.

Even if this court were to reach the substance of the instant motion to reargue, defendant's arguments would not change this court's prior decision. Defendant now argues that the filing date of a court document should be the actual date that the clerk reviews the document for sufficiency. Defendant bases this argument first on 22 NYCRR 202.5-c (c) (3), which states that a document filed via EDDS

"shall not be deemed filed until the clerk of such court or his or her designee shall have reviewed the documents and determined (i) that they are complete, (ii) that any fee that is required before the documents may be filed has been paid, (iii) that the documents include proof of service upon the other party or parties to the action or proceeding when proof of service is required by law, and (iv) that all other filing requirements have been satisfied."

Defendant also references the EDDS manual, which explains that, once a document is filed via EDDS, the EDDS system will send a confirmation email that the document was submitted, and then a second email once the document was accepted for{**81 Misc 3d at 353} filing.^[FN1] Defendant argues that any document filed via EDDS shall be deemed filed as of the date and time of the transmission of this second email by EDDS, following the clerk's review.

Here, the People filed their COC with an SOR and notice of disclosure form via EDDS after 5:00 p.m. on June 13, 2023. The EDDS system sent a subsequent email, dated June 14, 2023, at 9:28 a.m., that reads "Notification of Filing 6/13/2023" and "[o]n 6/13/2023, the court has marked the document(s) listed below as FILED" (defendant's exhibit I). Therefore, as stated by the clerk, the documents were filed on June 13, 2023, the 90th day, and were timely in accordance with CPL 30.30.

Moreover, neither 22 NYCRR 202.5-c (c) (3) nor the EDDS manual bars a clerk from deeming a document filed on the day it was submitted to the court via EDDS, assuming the document meets the four criteria listed in section 202.5-c (c) (3). Were this court to hold otherwise, as defendant proposes, the date that the People declare ready would be either: (1) the date and time the clerk actually determined the sufficiency of the court filings; or (2) the date and time the clerk sends an email notifying counsel that the documents have been filed with the court. In either possibility, the actions of the clerk determine whether a criminal action is dismissed or not, regardless of the sufficiency of the filing. A court clerk is not vested with such authority and could not be expected to be aware of such consequences.^[FN2]

Defendant also argues that the Court of Appeals decision in People v Kendzia (64 NY2d 331 [1985]) requires the People to file a statement of readiness that appears on the trial court's record by midnight on the 90th day. The Court of Appeals made no such holding in Kendzia. Nevertheless, this court recognizes the importance of returning to our legal foundations, in cases like Kendzia, to ensure that innovations, like electronic filing, do not violate the Sixth Amendment's right to a speedy trial.

The United States Supreme Court articulated the purpose for the Sixth Amendment's right to a speedy trial as "an {**81 Misc 3d at 354}important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself" (United States v Ewell, 383 US 116, 120 [1966]). Simply put, the use of the EDDS system to declare readiness after 5:00 p.m. on the 90th day does not violate any of these objectives.

Finally, defendant argues that the court's application of General Construction Law § 19 contravenes the intent of General Construction Law § 25-a. General Construction Law § 19 states, in relevant part, that "[a] calendar day includes the time from midnight to midnight." General Construction Law § 25-a (1) states, in relevant part, "[w]hen any period of time, computed from a certain day, within which or after which or before which an act is authorized or required to be done, ends on a Saturday, Sunday or a public holiday, such act may be done on the next succeeding business day . . . ." The purpose of General Construction Law § 25-a is to alleviate performance of any act on a day that is not generally considered a workday. Wholly different, the purpose of General Construction Law § 19 is to define the beginning and ending of any day itself. Allowing the People or defendant to file a court document via EDDS on a workday, in accordance with General Construction Law § 19, does not violate General Construction Law § 25-a or render it superfluous.

Accordingly, it is hereby ordered that defendant's motion to reargue is denied.