Defendant, Christopher Garavito, charged by information with one count of criminal possession of a weapon in the fourth degree (Penal Law §265.01 [1]) and one count of aggravated unlicensed operation of a motor vehicle in the second degree (Vehicle and Traffic Law §511 [2] [a] [iv]) moves to dismiss on statutory speedy trial grounds (Criminal Procedure Law §30.30 [1] [b]) and on state and federal constitutional speedy trial grounds. Defendant’s motion to dismiss is granted pursuant to CPL 30.30.1 As defendant’s motion is resolved on statutory grounds, the court declines to address the defendant’s constitutional arguments. I. Statutory Speedy Trial (CPL 30.30)As defendant is accused of one or more offenses, at least one of which is amisdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony, the People are required to be ready for trial within ninety days from the commencement of the criminal action, less any excludable time (CPL 30.30 [1] [b]). Trial readiness under CPL 30.30 has two requirements: (1) the People must communicate their readiness by a statement on the record in open court or by serving on defense counsel and filing with the court a certificate of readiness; and (2) the People must, in fact, be ready to proceed at the time they declare readiness (People v. Kendzia, 64 NY2d 331 [1985]). “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 properly be charged with any delay” (People v. Brown, 28 NY3d 392, 404 [2016] [internal quotation marks omitted]). Further, “a statement of readiness is presumed valid, and a defendant who challenges such a statement must demonstrate that it is illusory by showing that the People were not actually ready at the time they filed it” (Id. at 407).II. Procedural HistoryFebruary 21, 2017 — March 28, 2017:On February 21, 2017, the defendant made his first appearance on the instant charges and was arraigned by the court. The court deemed the complaint an information, granted a Mapp/Dunaway pre-trial suppression hearing on defendant’s oral motion to suppress certain evidence and adjourned the case, for hearings and trial, to March 28, 2017. As “a reasonable period of delay resulting from…pre-trial motions,” must be excluded from computing the time in which the People must be ready (CPL 30.30 [4] [a]), this 35-day delay is excluded for speedy trial purposes.March 28, 2017 — May 16, 2017:On March 28, 2017, the People stated not ready for trial, and the parties made a joint request for a consent adjournment for a possible disposition. After hearing from the parties on the grounds for their request, the court (J. Cesare) permitted “a one-time-only waiver,” warning the parties, “if you don’t resolve your case with a disposition, you have to be ready for hearings and trial at the next court date” (tr at 3, lines 19-21). The court adjourned the case, for hearings and trial, to May 16, 2017. In computing the time within which the people must be ready for trial, “the period of delay resulting from a continuance granted by the court at the request of, or with the consent of, the defendant or his counsel” must be excluded (CPL 30.30 [4] [b]). On this basis, this 49-day delay is excluded for speedy trial purposes.May 16, 2017 — June 26, 2017:On May 16, 2017, the People answered not ready (tr at 2, line 8) and the court adjourned the case, for hearings and trial, to June 26, 2017.The People argue that only 11 days of this 41-day delay should be charged to the People, as defense counsel did subsequently communicate by email an agreement to waive time from May 27, 2017 to June 26, 2017. Defense counsel concedes that on May 27, 2017 he emailed the People and agreed to waive time until the next date. The People assert that this “continuance” from May 27, 2017 to June 26, 2017 was “certainly in the interest of justice,” (affirmation of People at 3) and, therefore, this court should now find that the delay from May 27, 2017 to June 26, 2017, is excluded from speedy trial time. In support, the People rely on CPL 30.30 (4) (b) and People v. Frazier, 161 Misc 2d 695 (Crim Court, NY County 1994).The court disagrees. On March 28, 2017, after hearing from both parties, the court permitted a “one time only” consent adjournment to May 16, 2017 (tr at 3, lines 15-21). Subsequently, despite the court’s admonishment that the court was only approving one consent adjournment, the parties made a subsequent private agreement, memorialized in a May 27, 2017 email correspondence, that the time from May 27, 2017 to June 16, 2017 should be deemed a consent adjournment. Neither party notified the court nor did either party seek court approval for such a consent adjournment.“(A)djournments at the defense’s request or with his consent may be granted only with the court’s permission and may be limited by it to a reasonable period of time” (People v. Worley, 66 NY2d 523, 528 [1985]). “[T]he parties may not, by agreement, bind the [court] in determining whether an adjournment is chargeable or excludable” (People v. Rivas, 78 AD3d 739, 740 [2d Dept 2010], lv denied, 17 NY3d 799 [2011]). The prosecution and the defense are well advised to observe that private agreements to waive speedy trial time are not binding on the court for speedy trial purposes (see e.g. Frazier at 696 — 697).The court declines, now, to retroactively approve the consent adjournment contemplated by the parties’ private email agreement. CPL 30.30 (4) (b) clearly states that “[t]he court must grant [a consent] continuance only if it is satisfied that postponement is in the interest of justice, taking into account the public interest in the prompt dispositions of criminal charges” (emphasis added). Based upon a review of the full record before the court and the submissions of the parties, this court is not satisfied that the proposed consent continuance from May 27, 2017 to June 26, 2017 was in the interest of justice. The court, therefore, finds that the entire 41-day delay from May 16, 2017 to June 26, 2017 is chargeable to the People (CPL 30.30 [1] [b]).June 26, 2017 — September 7, 2017:On June 26, 2017, the People answered not ready. The court granted a consent adjournment and adjourned the case, for hearings and trial, to September 7, 2017. This 73-day delay is excluded for speedy trial purposes (CPL 30.30 [4] [b]).September 7, 2017 — October 18, 2017:On September 7, 2017, the People answered not ready. The court granted a consent adjournment and adjourned the case, for hearings and trial, to October 18, 2017. This 41-day delay is excluded for speedy trial purposes (CPL 30.30 [4] [b]).October 18, 2017 — November 29, 2017:On October 18, 2017, defendant failed to appear, and the court ordered a bench warrant. Defendant returned to court on November 29, 2017. This 42-day delay is excluded for speedy trial purposes (CPL 30.30 [4] [c] [ii]).November 29, 2017 — December 11, 2017:On November 29, 2017, the court vacated the bench warrant and adjourned the case to December 11, 2017, for hearings and trial. As the People are entitled to a reasonable time to prepare for hearings and trial upon defendant’s return on a warrant, this 12-day delay is excluded for speedy trial purposes (CPL 30.30 [4] [a]; People v. Muhanimac, 181 AD2d 464 [1st Dept 1992], lv denied 79 NY2d 1052 [1992]).December 11, 2017 — January 23, 2018:On December 11, 2017, the People answered not ready and requested December 13, 2017. The court adjourned the case, for hearings and trial, to January 23, 2018. As “adjournments for more than the period requested by the People are not chargeable to them in post-readiness cases” (People v. Rivera, 223 AD2d 476 [1st Dept 1996], lv denied 88 NY2d 852 [1996]), only two days of this 43-day delay are charged to the People.January 23, 2018 — March 7, 2018:On January 23, 2018, the People answered not ready and the court adjourned the case, for hearings and trial, to March 7, 2018. This 43-day delay is charged to the People (CPL 30.30 [1] [b]).March 7, 2018 — March 21, 2018:On March 7, 2018, the People answered not ready and requested March 8, 2018. The court adjourned the case, for hearings and trial, to March 21, 2018. Of this 14-day delay, the People are charged with one day (Rivera at 476).March 21, 2018 — May 7, 2018:On March 21, 2018, the People answered not ready and the court adjourned the case, for hearings and trial, to May 7, 2018. On April 4, 2018, the People filed and served a certificate of readiness (“COR”). As a notice of readiness will toll speedy trial time for the remainder of the adjournment (People v. Stirrup, 91 NY2d 434, 440 [1998]), the People are only charged with 14 days of delay.May 7, 2018 — June 15, 2018:On May 7, 2018, the People answered not ready and the court adjourned the case, for hearings and trial, to June 15, 2018. On May 8, 2018, the People filed and served a COR. As a notice of readiness will toll speedy trial time for the remainder of the adjournment (id.), the People are only charged with only one day of delay.June 15, 2018 — June 22, 2018:On June 15, 2018, the People answered not ready and requested June 18, 2018. The court adjourned the case, for hearings and trial, to June 22, 2018. Of this seven-day delay, the People are charged with three days (Rivera at 476).June 22, 2018 — August 14, 2018:On June 22, 2018, the court set a motion schedule for defendant’s CPL 30.30 motion and adjourned the case to August 14, 2018. This 53-day delay is excluded from speedy trial time (CPL 30.30 [4] [a]).August 14, 2018 — September 7, 2018:On August 14, 2018, the court extended the motion schedule and adjourned the case to September 7, 2018. This 24-day delay is excluded for speedy trial purposes (CPL 30.30 [4] [a]).III. ConclusionFor the foregoing reasons, the Court finds that a total of 105 days of delay are chargeable to the People. As this delay exceeds the delay permissible under CPL 30.30 (1) (b), defendant’s motion to dismiss the instant information is granted.This constitutes the decision and order of the court.September 7, 2018New York, New York
