DECISION AND ORDER The defendants in this case are charged with the possession of marijuana and an imitation pistol seized by the police during the execution of a search warrant. The lengthy delays in this case, and the accompanying protracted procedural history, were caused mostly by the People’s delayed submission of the search warrant and related materials for an in-camera inspection. This delay forms the basis of the instant motions by the defendants to dismiss the charges on the grounds that their right to speedy trial under CPL §30.30 was violated. The defendants’ motion turns on their position that the People should be charged for the delays attendant to the tardy submission of the search warrant materials. The People oppose, contending that they have made good-faith and diligent efforts to obtain the search warrant materials for their submission to the court. Having carefully considered both sides of the argument, the Court concludes that that the delay must be includable for the speedy trial calculation under the principle established in People v. McKenna (76 NY2d 59 [1990]). Accordingly, the defendants’ motions to dismiss are GRANTED and the cases are DISMISSED.DISCUSSIONIn a motion to dismiss pursuant to CPL §30.30, the initial burden rests on the defendant to allege that his right to speedy trial has been violated (People v. Luperon, 85 NY2d 71, 77-78 [1995]). The burden then shifts to the People to identify “the exclusions on which they intend to rely.” (id. at 78) If the defendant disagrees, he “must identify any legal or factual impediments to the use of these exclusions.” (id.) The defendant bears the burden of demonstrating that a statement of readiness is illusory. (id.)A criminal action commences with the filing of an accusatory instrument with the court (CPL §§1.20 [17]; 100.15). When a criminal action is commenced by the filing of a felony complaint and the felony charges are dismissed or reduced in the same proceeding, as in this case, the applicable speedy trial time is determined by CPL §30.30 (5) (c). This statute provides that when a felony accusatory instrument is “replaced with or converted to an information, prosecutor’s information or misdemeanor complaint,” the applicable speedy trial clock is “the period applicable to the charges in the new accusatory instrument, calculated from the date of the filing of such new accusatory instrument” so long as the aggregate of chargeable time does not exceed six months from the filing of the felony complaint (CPL §30.30 [5] [c]; see also People v. Cooper, 98 NY2d 541, 544 [2002]). The instant cases were commenced by the filing of a felony complaint on June 17, 2017. All of the felony charges were dismissed on August 28, 2017. As the reduction of the charges occurred early in the prosecution, the applicable speedy trial time frame is ninety (90) days pursuant to CPL §30.30 (1) (b) for the remaining misdemeanor charges.The defendants assert that more than ninety (90) days of includable time has passed. The thrust of their argument is that the nearly two-year lifespan of the cases — and approximately sixteen adjournments during that lifespan — were caused not by the defendants, but by the People’s failure to turn over the search warrant and related documents to the court for its determination on the pre-trial motions. The People, however, contend that they acted in good-faith in trying to obtain the search warrant materials, but that the court reporter did not timely comply with their request for the transcript of the search warrant application. For that reason, the People concede only sixty-six (66) of those days.The defendants were arrested together on June 17, 2017. They were charged with felony charges of Criminal Possession of Marijuana in the Second Degree (PL §221.25) and Criminal Possession of Marijuana in the Third Degree (PL §221.20) along with related misdemeanor charges. The felony charges were dismissed on August 28, 2017, leaving only the misdemeanor charges. The cases were then adjourned for response and decision. The defendants submitted their omnibus motions on August 30, 2017 (E.R.), September 14, 2017 (S.M.), and November 6, 2017 (J.C.C.). All of the defendants moved to controvert the search warrant and requested disclosure of the search warrant and related materials.The first of the People’s responses was filed in Defendant E.R.’s case on September 15, 2017. In their opposition to the defendant’s motion to controvert, the People asserted that they had “requested a copy of the search warrant minutes and will respond to defendant’s motion, and will seek a protective order for said materials, upon receipt of the search warrant minutes from the court reporter” (People’s Response, 4 [Sep 15, 2017]). On the following court date on October 17, 2017, the People stated that they were not in receipt of the search warrant minutes and requested two weeks to submit them to the judge for an in-camera inspection.The People filed their response in Defendant S.M.’s case on December 11, 2017. In this response, the People stated that they had “requested the search warrant proceeding’s transcription minutes twice from the court reporter L.A. in August and October 2017, and the People have received no response” (People’s Response, 3-4 [Dec. 11, 2017]). The People further claimed that “[d]espite numerous phone calls and approximately five voice messages requesting the minutes from this proceeding from both the reporter and the court reporter’s supervisor, the People have not received any update or answer with regard to this search warrant proceeding.” (id.)The People assert that they contacted the court reporter again on December 11, 2017 and requested the minutes (People’s Response, 3 [Feb 4, 2019]). On the defendants’ next court date, December 12, 2017, the People stated on the record that they were waiting for the search warrant minutes. On January 29 and March 21, 2018, again, the People claimed on the record that they were still not in receipt of the search warrant transcript. The People assert that they spoke to the court reporter’s supervisor on March 20th to follow up about the missing minutes, but to no avail (People’s Response, 3 [Feb 4, 2019]).On March 21, 2018, the Court rendered a decision on the defendants’ motion without having a copy of the transcript from the search warrant application and adjourned the cases for hearings and trial. However, it came to the Court’s attention six months later that these cases were still in the pre-hearing stage, that the People had never answered ready during this period, and that the People still had not obtained the search warrant materials. In light of this discovery, the Court issued a written decision on October 15, 2018, holding that it would decide the defendant’s motion to controvert, which had previously been deferred to the hearing court, and that the People would be charged speedy trial time from the date of the decision to the actual submission of the search warrant materials to the Court.Approximately two weeks after the Court’s written decision, on October 26, 2018, the People submitted the transcript from the search warrant application to the Court. The People claim that they discovered on October 12, 2018, that the reason for the delay was “an apparent error in recording which reporter took the said [sic] minutes, and that the true reporter had changed jobs to Queens County” ((People’s Response, 3 [Feb 4, 2019]). The Court rendered a decision on the defendants’ motion to controvert on November 27, 2018, and the cases were adjourned for hearings and trial to January 3, 2019. Defendants then filed the instant motions to dismiss shortly after the January 3rd court date. The People timely filed their response on February 4, 2019.The Court conducted a factfinding hearing on May 8, 2019 to determine (1) what caused the People’s delay in obtaining the transcript and (2) what steps were taken by the People to obtain it. At the hearing, the People explained that the ADA who had applied for the search warrant in this case wrote down the wrong court reporter’s name on their office’s internal recordkeeping form. The prosecutor who was later assigned to the case — ADA Tock — could not have known of this error. He further explained that because of this error, his efforts to obtain the search warrant transcript were in vain as he was consistently contacting the wrong reporter. More specifically, he stated:MR. TOCK: When the — when a search warrant is taken, after the warrant is signed by the judge, there’s a record made by the People about what judge, the time that it’s signed, which courtroom it’s in and which reporter took it.THE COURT: So you guys have like a form that you fill out?MR. TOCK: Yes, essentially, it’s a form, yes. Those forms are then kept on file and then when a different assigned District Attorney is given a search warrant case, they refer to that search form about all the details to get the minutes. The assigned assistant who actually did the warrant either didn’t know or was mistaken as to the identity of the court reporter and wrote the wrong reporter’s name on that form.THE COURT: So L.A. was, in fact, not the reporter?MR. TOCK: She was, in fact, not the correct reporter.THE COURT: But whoever the DA was who participated in that search warrant application wrote — wrote down her name in error on the folder?MR. TOCK: That’s correct, yes. That error did not become apparent, I — for almost a year, basically, after that. My efforts to obtain the transcript were in vain because I was pursuing a reporter who did not take those minutes and also did not find fit to ever return a voicemail at all, basically, and let me know the reason that she was ignoring my calls was because she was not the person who did that work to begin with.(tr. at 4 line 10 — tr. 5 line 14). The assigned ADA further averred that around October 12, 2018, “I spoke to the supervisor again and she told me she had found out, I’m not sure how exactly she discovered this, but she discovered the error that L.A. was not the reporter and the actual reporter was a reporter by the name of Mary Slavic and she no longer works in The Bronx court system” (tr. at 6 line 22-tr. at 7 line 2). The People spoke to Ms. Slavic that same day and confirmed that she was the one who had taken the transcript at the search warrant proceeding. They obtained the transcript on October 26, 2018, from Ms. Slavic.1Both sides agree that People v. McKenna (76 NY2d 59) provides the appropriate framework under which to examine the delay in this case. In McKenna, the defendant moved for dismissal of the charges based on the People’s delay in providing Grand Jury minutes to the court. The minutes were necessary to decide the defendant’s motion to dismiss or reduce the indictment (CPL §210.30). The trial court denied the defendant’s motion, and the Appellate Division affirmed that decision. The Court of Appeals reversed, noting that “the minutes in question had been transcribed and delivered to the District Attorney’s file room on June 25, 1985, but were not retrieved until December 2, 1985 and were not actually delivered to the court until a full month later.” (id. at 62) The Court called this delay “without justification or excuse” (id. at 61) and a “negligent failure” (id. at 65; but see People v. Harris, 82 NY2d 409, 412 [1993] ["A specific finding of the People's negligence, however, was unnecessary in McKenna and is unnecessary in this case. It is sufficient that the People's inaction resulted in a delay in the court's disposition of the motion"]). The Court held that the prosecutor’s “dilatory conduct in failing to provide the minutes necessary to that decision was a direct, and virtually insurmountable, impediment to the trial’s very commencement” and that “the People can hardly claim to be ‘ready’ when they have not done all that is required of them to bring the case to a point where it may be tried.” (id. at 64)The People contend that the instant cases fall outside of the ambit of McKenna. Initially, they argue that in McKenna, the Grand Jury minutes were delivered to the People in a timely fashion. As such, the minutes were within the People’s possession during the entire period of the delay in question. Here, the minutes from the search warrant application were held by the reporter and not in the People’s custody or control. The People further argue that they were actively and diligently trying to obtain the transcript. On the other hand, the defendants argue that the People could have, and should have, done more. For instance, they assert that the People could have asked for a judicial subpoena for the minutes or found out the name of the correct court reporter by reviewing the court reporters’ assignment schedule.Under the facts presented here, the Court concludes that the People must be charged for the delay in obtaining the minutes in question. The fact that the assigned ADA made numerous and good-faith efforts to obtain the minutes is undeniable. However, the District Attorney’s Office as a whole must be held accountable for the negligent failure to accurately record the name of the court reporter. The distinction the People would have the Court draw with the facts in McKenna — that the minutes in that case were actually in the possession of the DA’s office, whereas here they were not — is one without a difference. The reason the minutes were not in the possession of the DA’s office was due directly to the negligence of the DA’s office in incorrectly recording the name of the court reporter, and all of the subsequent delays flowed from that mistake.Moreover, when the transcript was not obtained in a timely fashion, it was incumbent upon the People to investigate the cause for the delay and remedy it. Exercise of due diligence entails more than making phone calls and leaving voice messages (see e.g. People v. Billups, 105 AD2d 795, 795 [2d Dept 1984] [in a case involving the People's claim of "due diligence" exception under CPL §30.30 [4] [e] for their delay in producing the defendant who was incarcerated in another jurisdiction, the court held that the lodging of the detainer and subsequent telephonic requests for the defendant’s production were insufficient to show due diligence]; see also People v. Delacruz, 184 Misc2d 653, 657 [Sup Ct, NY County 2000] ["Thus, where the People fail to utilize the statutory procedures set forth in the Criminal Procedure Law for securing the attendance of incarcerated defendants, courts have held the delay to be includable"]).Therefore, although the period following the defendant’s filing of a pre-trial motion would generally be excludable, the failure by the People to take further action for a year — to the detriment to the defendants’ right to speedy trial — makes this period chargeable (see People v. Reid, 245 AD2d 44, 44 [1st Dept 1997] ["While time periods during which such motions are 'under consideration by the court' are normally excludable in that these time periods directly result from action taken by the defendant, we find that the People's abject dilatoriness in responding to the motion, preparing for the hearing thereon, and producing defendants as needed for the hearing, which delayed resolution of the motion for many months, justified charging the People for certain post-motion delays"]; People v. Ramseur, 36 Misc3d 1239 [A], at *7 [Sup Ct, Bronx County 2012] [charging the People time "[a]s no good cause was provided for filing this response more than ten days after the extended time which had been granted to the People”]).In accordance with this ruling, the Court finds that the period from January 29, 2018, until October 26, 2018, is chargeable. The Court chooses January 29, 2018, as the date when the speedy trial clock began to run because it was the third time that these cases had to be adjourned based on the People’s inability to obtain the minutes. As noted before, the first pre-trial motion was filed by E.R. on August 30, 2017, and the People’s response was filed on September 15, 2017. The People were aware of the need for the search warrant minutes as early as September of 2017. However, on three subsequent court dates, October 17, 2017, December 12, 2017, and January 29, 2018, the cases had to be adjourned because the People could not obtain the search warrant minutes. Under these circumstances, the People’s request for more time was unreasonable as of January 29, 2018 (People v. Winfrey, 20 N.Y.2d 138 [1967]; People v. Gonzalez, 266 AD2d 562, 563 [2d Dept 1999] [charging 20 days to the People for "a period of unreasonable delay in excess of the appropriate deadline to respond which was previously set by the court"] [emphasis added]).Moreover, the cases were adjourned numerous times for hearings and trial after March 21, 2018. While the People would normally be charged only for the amount of time that they requested in post-readiness stage, the People’s failure had a “direct bearing” on the People’s readiness by preventing the Court from ruling on the defendants’ pre-trial motions (MeKenna, at 64). As the Court of Appeals held in McKenna, “the People can hardly claim to be ‘ready’ when they have not done all that is required of them to bring the case to the point where it may be tried.” (id.) As such, the entire period is charged as the Court determines that the People have failed in their “obligation of advancing [the prosecution]” (Winfrey, at 144).Based on the foregoing calculations, the Court finds that a total of [270] days are chargeable to the People. Accordingly, the defendants’ motion to dismiss pursuant to CPL §30.30 is granted.This constitutes the decision and order of this Court.Dated: May 29, 2019Bronx, New York
