DECISION AND ORDER The defendant is charged with one count of assault in the third degree (Penal Law §120.00[1]). Defendant moves to dismiss on the ground that he has been denied a speedy trial pursuant to CPL 30.30. The defendant alleges that the People have failed to be ready for retrial within 90 days and calculates that at least 165 days to 230 days are chargeable to the People. In response, the People concede 55 days of chargeable time but contend that no time is to be charged from the date the new trial was ordered until it was placed on the criminal court calendar five months later. The Court finds that there are 206 days of chargeable time. Therefore, the defendant’s motion to dismiss pursuant to CPL §30.30 is granted.CPL §30.30[1][b] requires dismissal of an accusatory instrument when the People are not ready for trial within 90 days of the commencement of a criminal action where the charge carries the potential of imprisonment of more than three months.The defendant was arraigned on September 23, 2009. In November 2010, defendant was tried and convicted of one count of assault in the third degree. On January 13, 2011, defendant was sentenced to three years probation which he has completed. Defendant appealed his conviction and on October 12, 2017, the Appellate Division, First Department reversed the conviction and ordered a new trial. People v. Hickman, 154 AD3d 493 (1st Dept 2017). The People did not appeal from this decision. The case was put on the calendar on March 26, 2018.Under CPL §30.30[5][a] “where the defendant is to be tried following…an appeal, the criminal action…must be deemed to have commenced on the date…the order occasioning a retrial becomes final.”As the People did not appeal from the First Department’s reversal of the conviction, the order occasioning the retrial became final on October 12, 2017. (See People v. Ashe, 142 AD3d 887 [2016], lv denied 28 NY3d 1142 [2017], reconsideration denied 29 NY3d 1028 [2017]). The case was on the calendar again on March 26, 2018, five months following the reversal. The People filed a certificate of readiness on May 29, 2018.The Court of Appeals held that “[t]he mere lapse of time, following the date an order occasioning a retrial becomes final does not, in itself constitute a reasonable period of delay resulting from an appeal within the meaning of CPL 30.30(4)(a). People v. Wells, 24 NY3d 971, 973 [2014].On October 12, 2017, a new trial was ordered. The case was calendared in Part C on March 26, 2018. The People argue that the failure to put on the calendar in this case is not due to a clerical error as it was in Wells. Id at 972. The People allege that they reached out to the criminal court Appeals Bureau and others and were informed that the case file was still at the appellate court. [People's response pp 3-4]. The case file was finally returned and re-calendared on March 26, 2018. The Court finds the People’s arguments to be unpersuasive. As the People did not demonstrate a basis to exclude this 165 day period, the entirety of this period is charged to them.On March 26, 2018, a bench warrant was stayed and the case was adjourned to May 15, 2018. This time is excludable.On May 15, 2018, the case was adjourned for hearing and trial to August 14, 2018. The People served and filed a certificate of readiness on May 29, 2018. Although the People concede 14 days, the entire time is excludable following defendant’s return on the warrant.On August 14, 2018, the People were not ready and the case was adjourned for hearing and trial to September 25, 2018. On September 24, 2018, however, defendant filed this speedy trial motion which stopped the speedy trial clock.1 The People concede they are charged with the forty-one days between August 14 and September 24, 2018.On September 25, 2018, the People were not ready as a necessary witness was unavailable. The case was adjourned final for hearing and trial to November 7, 2018. This time is excludable as the speedy trial motion had not yet been decided.On November 7, 2018, the People stated not ready and filed their response to the speedy trial motion. The case was adjourned for decision to December 12, 2018. This time is excludable.Based on the foregoing, this court calculates that two hundred six days are chargeable to the People.Accordingly, defendant’s motion to dismiss the accusatory instrument pursuant to CPL 30.30 is hereby granted.This constitutes the opinion, decision and order of the Court.Dated: December 5, 2018New York, New York
