It is called an “off-calendar certificate of readiness.” The document is filed regularly by the prosecution in a criminal case and purports to indicate that the prosecutor is “ready for trial.”

But no trial will take place on that day. That is what the “off-calendar” designation signals. The prosecution waits for a day that is not scheduled for trial, and on that day it attests that it is “ready for trial.” The impersonal filing saves the prosecutor from facing a judge's questions as to his or her actual readiness.

The purpose of the maneuver is to stop the speedy-trial “clock” of §30.30 of the Criminal Procedure Law, which can be stopped by the mere declaration of the prosecution that it is “ready for trial.” The stopping of the clock in this manner—claiming to be “ready for trial” when the case is not scheduled and often “not ready” when the scheduled date for trial arrives—can keep accused persons in jail for extra months and years. Likewise, stopping the clock can prolong the life of a criminal case to the point where even persons not confined plead guilty in order to put an end to the ordeal of constant court appearances at which nothing happens.

Unfortunately, New York's highest court has allowed the state's “speedy-trial” law to be undermined in this manner. In People v. James Brown, 28 N.Y.3d 392 (2016), the Court of Appeals addressed the issue. The majority opinion that resulted further institutionalized the oxymoronic “off-calendar” assertion of “ready for trial.”

An earlier decision, People v. Sibblies, 22 N.Y.3d 174 (2014), had at least required an explanation from the prosecution when it followed an “off-calendar” ready claim with a “not ready” admission at the next court date. In Brown, however, the majority opinion diminished even that small explanatory duty. The prosecution need only show—usually many months later—that it was ready on the day the off-calendar statement was filed. The majority put the ultimate burden on the defense to prove the negative that the prosecution was not ready on that day.

But no case is “ready for trial” when the off-calendar claim is put forth on a day no trial can take place. The judge and defense lawyers are absent. Yet the legal fiction that the case is ready for trial because the prosecution files the declaration can render the 30.30 clock inoperative during an already granted adjournment that might cover months. The process is often repeated throughout a case.

Judge Jenny Rivera in dissent understood the inadequacy of a standard that judges actual readiness only at the moment declared. “The law requires more,” she stated, “than an ephemeral declaration of readiness susceptible to being rendered meaningless during the course of a defendant's prosecution.” 28 N.Y.3d at 410. Allowing the “off-calendar” maneuver can prolong the “course of a defendant's prosecution” to be a matter of years, rather than the months the legislature intended in enacting CPL §30.30.

A Legislative Fix

The off-calendar certificate of readiness exists nowhere in CPL §30.30. The device persists as a prosecution's means to stop the 30.30 clock because the Judiciary has allowed it to be so used. By the same token, the legislature has the power to regulate, or simply rule out, “off-calendar” claims of “ready for trial.”

The legislature could fashion a requirement for judicial permission before any off-calendar readiness filing. Permission may sometimes be warranted if, for example, an unexpected event prevents readiness before the 30.30 clock expires. But a judicial permission requirement would cut the rampant abuse that characterizes the current system, where “off-calendar” readiness claims made early and throughout the life of a case thwart the working of CPL §30.30. Unresolved cases clog the system, and accused people too poor to pay bail languish in jail before trial.

As an instructive comparison, the requirement of judicial permission for prosecutorial actions that may result in abuse has long been a feature of grand jury practice. In particular, the practice of some prosecutors of repeated submissions to successive grand juries in hopes of securing an indictment had been an abusive practice before the CPL was passed in 1970.

CPL §190.75(3) was enacted to counteract this abuse. It requires that, when one grand jury had dismissed a charge, the accusation cannot be submitted to another grand jury “unless the court in its discretion authorizes or directs the people to resubmit such charge to the same or another grand jury.” Resubmissions can occur, but the requirement of judicial permission effectively ended the abuse. See Peter Preiser, Practice Commentary to CPL §190.75.

Correcting flaws in a statute by legislative amendment is the rule; judicial innovation, such as allowing “off-calendar” filings where the statute is silent, is the exception. The Court of Appeals has often declined to effectively amend a law and instead referred the matter to the legislature. It has explicitly done so in the face of challenges to the bail system, for example, stating that such reform “is more properly within the province of the Legislature.” People ex rel. Gonzalez v. Warden, 21 N.Y.2d 18, 24 (1967).

The result in People v. Brown illustrates why the Judiciary's resolution of a policy matter should have been deferred to the legislature. The majority opinion expresses a customary preoccupation with making a ruling that was consistent with the court's own precedents. It never addressed whether allowing the off-calendar practice was even a defensible idea.

Kalief's Law

Corrective legislation on this point is very much “within the province of the Legislature,” which can fix a loophole in a law instead of perpetuating a counter-productive practice. In fact, amending CPL §30.30 is already on the current legislature's agenda. In February 2017, the Assembly unanimously passed Kalief's Law (A 3055), sponsored by Assemblyman Jeffrion Aubry. It was so named in recognition of Kalief Browder, the state's most prominent victim of the failure of the current law to spare accused persons from years of confinement awaiting trial. (Kalief Browder was an adolescent jailed pretrial for three years, often in solitary confinement, while he insisted upon his innocence. His case was ultimately dismissed with no trial ever occurring.) The Senate version of Kalief's Law (S. 3398) was never given a vote.

The most important feature of Kalief's Law would correct another unfortunate judicial foray into the operation of the “ready rule.” In 1985, in People v. Anderson, 66 N.Y.2d 529, the Court of Appeals allowed the prosecution to declare “ready for trial” before it had complied with its statutory discovery obligations. Another legal fiction. The defense, of course, cannot be “ready for trial” while the prosecution deprives it of the discovery documents that only the prosecution possesses. The result of this decision was an increase in discovery delays and premature “ready for trial” claims that stopped the 30.30 clock and helped make chronic delay a feature of the criminal justice system. Kalief's Law would require that, to be valid, a declaration of readiness must be accompanied by a certification by the prosecution that it had complied with its statutory discovery obligations.

Another key reform would discontinue the current practice of excluding “court congestion” time from the CPL §30.30(b)(2) calculus that provides for release of a detainee after 90 days of includable time. The prosecution, in the “post-readiness” period, regularly requests an unrealistically short adjournment of a few days, knowing that an adjournment of many weeks or months will be ordered, which time is ruled excludable because of case law that categorizes the extra time as due to “court congestion.” This particular legal maneuver kept Kalief Browder in jail for years without a trial, and continues to do so for countless other pretrial detainees.

The “court congestion” exclusion is nowhere in the statute; it too is a product of case law. Like requiring judicial permission for filing an “off-calendar” certificate of readiness, these amendments would ground the law in the reality of criminal litigation and remove the legal fictions that disable its proper functioning. Eliminating the dysfunctional practices that evade CPL §30.30 would free the law to be used to reduce the long-term population of Rikers Island and help make its closing a reality instead of an aspiration.

Thomas M. O'Brien is an attorney with the Special Litigation Unit of the Criminal Practice of The Legal Aid Society.