Cates, charged with attempted assault and harassment, among other things, moved to dismiss under Criminal Procedure Law §30.30, which provided prosecutors in the instant matter 90 days to declare ready for trial. Cates was arraigned Dec. 28, 2012, and prosecutors served a statement of readiness on March 26, 2013 asserting readiness on all but one count of attempted assault and one count of harassment claiming the complaining witness for those counts was deployed for military service. The court stated prosecutors could not be ready until they had an information, which they could not have until they filed a supporting deposition from the witness, as any declaration of readiness before that was a nullity. Prosecutors argued the period from March 26 through July 26, when Cates filed this motion, should be excludable as the witness’ unavailability constituted an “exceptional circumstance.” While some courts have held military deployment qualified as an exceptional circumstance, the deployment was not dispositive. The court ruled prosecutors failed to make any showing of due diligence, noting they failed to explain why the witness’ presence was necessary to secure the deposition. Thus, as 132 days were chargeable to prosecutors, the motion was granted.
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