DECISION AND ORDER On August 30, 2019, Defendant moved to dismiss the accusatory instrument pursuant to CPL §30.30(1). At the following court appearance on September 3, 2019, the Court set forth a motion schedule, which ordered the People to file a response by September 20, 2019. However, a response was not filed by the People until October 11, 2019. At Defense counsel’s request, Defendant filed a reply on October 23, 2019. Defendant is charged with Assault in the Third Degree (PL §120[1]); Menacing in the Second Degree (PL §120.14); Criminal Possession of a Weapon in the Fourth Degree (PL §265.01[2]); Attempted Assault in the Third Degree (PL §110/120.00[1]); Menacing in the Third Degree (PL §120.15); and Harassment in the Second Degree (PL §240.26[1]). The accusatory instrument alleges that on January 9, 2019, Defendant struck the complaining witness in the face with a bottle. Pursuant to CPL §30.30(1), the applicable speedy trial period is determined by the highest charge in the accusatory instrument. Where the highest charge is a class A misdemeanor, the People are required to state their readiness for trial within ninety (90) days of the commencement of the criminal action (See CPL §30.30[1][b]). Defendant has the initial burden under CPL §30.30 to demonstrate by sworn allegations of fact that there has been an inexcusable delay beyond the time set forth in the statute (See People v. Santos, 68 NY2d 859, 861 [1986]). Once the Defendant has alleged that more than the statutorily prescribed time has elapsed without a declaration of readiness by the prosecution, the prosecution bears the burden of establishing sufficient excludable delay (See Id.; People v. Berkowitz, 50 N.Y.2d 333, 348-349 [1980]). The burden is on the People to ensure “in the first instance” that the record of the proceedings is sufficiently clear to enable the court deciding the 30.30 motion to make an informed decision as to whether the People should be charged (See People v. Cortes, 80 NY2d 201, 215-216 [1992]). Defendant contends that this matter should be dismissed on speedy trial grounds. She contends that the People have failed to meet their CPL §30.30 obligation as a minimum of 158 days are chargeable to the People. The People oppose the motion to dismiss and assert they should be charged with 81 days of non-excludable time. Based on review of the court file and the submissions of the parties, the Court finds as follows: January 9, 2019-February 26, 2019 The record establishes that on January 9, 2019, Defendant was arraigned at which time the People announced not ready and the matter was adjourned to February 26, 2019. Accordingly, the People are charged with 48 days. February 26, 2019-April 11, 2019 On February 26, 2019, the People announced not ready and the matter was adjourned to April 11, 2019. On March 15, 2019, the People filed and served a supporting deposition and an off-calendar statement of readiness. Accordingly, the People are charged with 17 days. April 11, 2019-May 15, 2019 On April 11, 2019, the People announced ready and the matter was adjourned to May 15, 2019 for discovery. An adjournment for discovery by stipulation is excludable as a period of delay for the purposes of CPL 30.30 (See CPL 30.30[4][a]; People v. Dorilas, 19 Misc.3d 75 [App Term, 2d Dept, 11th Jud Dist 2008]). May 15, 2019-June 17, 2019 On May 15, 2019, the parties appeared in Court and the People did not produce discovery as they were ordered to do. The matter was adjourned to June 17, 2019 for hearing and trial. The People were directed to serve discovery by May 31, 2019. It is undisputed that the People did not serve discovery on or before May 31, 2019 as ordered on May 15, 2019. Discovery was served at the rail at the June 17, 2019 appearance. Defendant contends that time between May 31, 2019 and June 17, 2019 should be charged to the People because the People failed to timely exchange discovery as ordered by the Court. Defendant fails to include any caselaw or legal analysis to support their position that the People should be charged. The People assert that they should not be charged for the delay in discovery as there is no legal basis to charge the People absent a judicial order that they would be charged. Despite the People’s delay in providing discovery, which the Court does not condone, the People are not charged for the time between May 31, 2019 and June 17, 2019 because this matter was adjourned to June 17, 2019 for hearing and trial, which is excludable pursuant to CPL §30.30(4)(a) (See People v. Green, 90 A.D.2d 705 [1d Dept 1982]). June 17, 2019-June 24, 2019 On June 17, 2019, the People exchanged discovery, announced not ready and requested an adjournment of seven days. “[I]f a prosecutor requests that a case be adjourned after announcing readiness, the prosecution is only charged with the actual number of days that it requested” (People v. Hodges, 12 A.D.3d 527 [2004]). Accordingly, the People are charged with 7 days. June 24, 2019-July 1, 2019 On June 24, 2019, the People announced not ready and requested an adjournment of seven days. The matter was adjourned the matter to July 1, 2019 for hearing and trial. As discussed above, the prosecution is only charged with the actual number of days that they requested (See People v. Hodges, 12 A.D.3d 527 [2004]). Accordingly, the People are charged with 7 days. July 1, 2019- August 5, 2019 On July 1, 2019, the People announced not ready for trial. The Court instructed that the People were going to be charged until they filed another statement of readiness and adjourned the matter to August 5, 2019. It is undisputed that on July 3, 2019, the People served an off-calendar statement of readiness. Defendant asserts that the People should be charged the entire period from July 1, 2019 to August 15, 2019 because their July 3, 2019 statement of readiness was illusory as on the subsequent court date, August 5, 2019, the People were not ready and offered no explanation. The People assert that their statement of readiness was valid at the time it was made and explain that they were not ready on August 5, 2019 because the assigned ADA was reassigned to Grand Jury on July 25, 2019. Contrary to Defendant’s assertions, the statement of readiness filed on July 3, 2019 was “not illusory as it accurately reflected the People’s position at the time it was filed” (People v. Young, 46 Misc. 142(A) [App Term, 2d Dept, 2015]). An off-calendar statement of readiness is presumed truthful and accurate and a Defendant who challenges is must determine that it is illusory (See People v. Brown, 28 NY3d 392 [2016]). In this instance, Defendant failed to demonstrate that the statement of readiness was illusory. Accordingly, the People are charged with 2 days. August 5, 2019-September 3, 2019 On August 5, 2019, a new ADA appeared on this matter, announced not ready for trial and requested a six-day adjournment. The Court indicated that they were going to charge the People until they filed an off-calendar statement of readiness and adjourned this matter to September 3, 2019. It is undisputed that on August 7, 2019, the People filed another off-calendar statement of readiness. Defendant contends that the statement of readiness served on August 7, 2019 should be deemed illusory because it conflicts with the People’s position articulated only two days earlier that they required at least six days until they would be ready for trial. Defendant asserts that it would be impossible for the People to be ready for trial only two days later based on their earlier request for six days. The People explain that their statement of readiness was valid despite being served only two days after the last court appearance because the ADA adjusted his schedule and had learned that the arresting police officer had sooner availability. As discussed above, an off-calendar statement of readiness is presumed truthful and Defendant must establish that it is illusory (See People v. Brown, 28 NY3d 392 [2016]). In this instance, Defendant failed to do so. Accordingly, the People are charged with 2 days. September 3, 2019-October 25, 2019 On September 3, 2019, the People announced ready and Defendant filed the instant motion to dismiss. The Court set forth a motion schedule, which ordered the People to file a response by September 20, 2019. Pursuant to CPL §30.30(4)(a), time for motion practice is excludable. However, the People did not file a response to the instant motion until October 11, 2019, which was 21 days after the court ordered deadline. Defendant asserts in her reply that the People should be charged the 21-day delay. This Court agrees with Defendant that the People must be charged for the period of delay in filing their response to the motion (See People v. Delosanto, 307 AD2d 298 [2d Dept 2003]). The delay from September 20, 2019, the date the response was due, to October 11, 2019, the date the People filed their response, “constitutes a period of unreasonable delay in excess of the appropriate deadline to respond which was previously set by the court” (People v. Gonzalez, 266 AD2d 562 [2d Dept 1999]). The People are charged with 21 days. Accordingly, a total of 104 days are chargeable to the People. Conclusion Defendant’s motion to dismiss is granted. The foregoing constitutes the Decision and Order of the court. Dated: Kings County, New York October 25, 2019
