The defendant, charged with violations of Operating a Motor Vehicle while under the Influence of Alcohol or Drugs (V.T.L. §§1192(1), (2), (3)), along with one count each of Aggravated Unlicensed Operation of a Motor Vehicle (V.T.L. §511(1)(A)) and Unlicensed Operator (V.T.L. §509(1));1 now moves for an order dismissing the information pursuant to C.P.L. §30.30(1)(b). After careful review of the defendant’s motion, the People’s response, the defendant’s reply, and all relevant legal authority, the motion to dismiss is denied. The Court finds that 87 chargeable days have accrued since arraignment. March 31, 2019 — May 8, 2019 On March 31, 2019, the defendant was arraigned on a misdemeanor complaint on which the highest charge was a misdemeanor punishable by a maximum imprisonment term of one year. V.T.L. §1193. Thus, the People had 90 days to be ready to proceed to trial. C.P.L. §30.30(1)(b). The defendant was released on his own recognizance and the case was adjourned to May 8, 2019 for conversion. On May 6, 2019, the People served and filed a statement of readiness along with a superseding information. The V.T.L. §600(1)(A) count remained unconverted. 36 chargeable days. May 8, 2019 — June 5, 2019 On May 8, 2019, the People maintained their readiness on all counts except the one charging V.T.L. §600(1)(A). Prior to January 1, 2020, courts have accepted statements of “partial readiness” by the People. See People v. Dion, 93 NY2d 893 (1999); People v. Brooks, 190 Misc 2d 247 (1st Dept. 2001). The case was adjourned for Discovery by Stipulation to June 5, 2019 as well as conversion of the V.T.L. §600(1)(A) count. Because adjournments for discovery are designated in the statute as “other proceedings concerning the defendant,” this time period is excludable from the 30.30 calculation. See C.P.L. §30.30(4)(a). 0 chargeable days. June 5, 2019 — July 15, 2019 On June 5, 2019, the People served discovery on the defendant and the case was adjourned to July 15, 2019 for hearings and trial and conversion of the V.T.L. §600(1)(A) count.2 Under the rules for calculating speedy trial time as they existed in 2019, this adjournment is excludable pursuant to People v. Reed, 19 AD3d 312 (1st Dept. 2005); People v. Greene, 223 AD2d 474 (1st Dept. 1996). But see People v. Collins, 190 Misc 2d 72 (App. Term 2d Dept. 2001). 0 chargeable days. July 15, 2019 — September 12, 2019 On July 15, 2019, the People were not ready for trial and requested 11 days because the arresting officer was not available. The case was adjourned to September 12, 2019 for hearings and trial. Because the People had previously announced their readiness to proceed, they are not charged for the time period of the adjournment in excess of the time they requested. People v. Nielsen, 306 AD2d 500 (2d Dept. 2003); People v. Williams, 229 AD2d 603 (2d Dept. 1996). 11 chargeable days. September 12, 2019 — October 18, 2019 On September 12, 2019, the People were not ready for trial because the assigned ADA was engaged on another trial, and the People requested 21 days. The case was adjourned for hearings and trial to October 18, 2019. Again, the People are not charged for the period of the adjournment in excess of the time they requested, supra. 21 chargeable days. October 18, 2019 — November 12, 2019 On October 18, 2019, the People were not ready for trial because the arresting officer was not available and the People requested 14 days. The case was adjourned for hearings and trial to November 12, 2019. As stated above, the People are not charged for the period of the adjournment in excess of the time they requested. 14 chargeable days. November 12, 2019 — November 20, 2019 On November 12, 2019, the People announced ready for trial but defense counsel was unavailable. The case was adjourned to November 20, 2019 for hearings and trial. Since the adjournment was granted at the defendant’s request, it is excludable. C.P.L. §30.30(4)(b); see also People v. Barden, 27 NY3d 550 (2016); People v. Worley, 66 NY2d 523 (1985). 0 chargeable days. November 20, 2019 — November 21, 2019 On November 20, 2019, the arresting officer was unavailable and the assigned ADA was engaged on another case. At the People’s request, the case was adjourned one day, and the People were charged for that day. 1 chargeable day. November 21, 2019 — December 16, 2019 On November 21, 2019, the parties appeared before this Court, and preliminary matters were resolved. It was too late in the day to start testimony, and the case was put over one day, at which point this Court presided over the pre-trial suppression hearing, which lasted two days. The case was then adjourned to December 16, 2019 for decision and trial. This period is excludable as a period necessary for the decision of pre-trial motions, namely, the defendant’s motions to suppress. 0 chargeable days. December 16, 2019 — December 20, 2019 On December 16, 2019, this Court issued its decision on the defendant’s suppression motion. The People were not ready to start trial because a necessary witness was unavailable, and the case was adjourned to December 20, 2019 for trial. 4 chargeable days. December 20, 2019 — January 6, 2020 On December 20, 2019, both parties were ready to proceed to trial. However, there were no trial parts available, and the case was adjourned to January 6, 2020 for trial. Because the People were ready and this adjournment was due to court scheduling alone, it is excludable. People v. Watson, 255 AD2d 344 (2d Dept. 1998). 0 chargeable days. January 6, 2020 — January 13, 2020 On January 6, 2020, the People announced ready for trial, and served and filed a Certificate of Compliance pursuant to C.P.L. §245.50(1), which had taken effect on January 1, 2020. However, defense counsel immediately challenged the validity of the People’s Certificate of Compliance because specific items that were required to be disclosed under C.P.L. §245.20(1)(s), including the Intoxilyzer machine operator’s certificate and the gas chromatography records related to the certification of the simulator solution. The case was adjourned one day for the People to satisfy their discovery obligations. On January 7, 2020, the People served and filed a supplemental Certificate of Compliance, which defense counsel again challenged as invalid, because the People at that point had provided incomplete gas chromatography records. The case was again adjourned one day for the People to comply. On January 8, 2020, the case was called and the People were still missing certain gas chromatography records; the case was then adjourned to January 13, 2020. Following the calendar call on January 8, 2020, the People served and filed a new Certificate of Compliance (COC) with a Statement of Readiness. On January 13, 2020, the Court conducted an inquiry of the People pursuant to C.P.L. §30.30(5), and was satisfied that the People had actually been ready on January 8, 2020. The defendant raised no further objections and requested thirty days to comply with his reciprocal discovery obligations under C.P.L. §245.10(2). The case was adjourned to February 24, 2020 for the defendant’s COC and trial. On February 10, 2020, the defendant served and filed this motion to dismiss. This case presents a novel question for the Court’s consideration, which is the effect of the 2020 discovery and speedy trial legislative reforms on the People’s readiness on a pending case. The defendant argues that the time period beginning January 1, 2020, when the legislation took effect, until the People’s statement of readiness and unchallenged COC on January 8, 2020, should be charged to the People, because pursuant to C.P.L. §245.50, “the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper certificate” of compliance certifying that it has exercised due diligence and “has disclosed and made available all known material and information subject to discovery.” C.P.L. §§245.50(3), (1). Legislative amendments that take effect during the pendency of a case apply to subsequent proceedings, see Simonson v. Internat’l Bank, 14 NY 281, 289 (1964), but do not serve to invalidate prior proceedings, see Berkovitz v. Arbib & Houlberg, Inc., 230 NY 261, 270 (1921); Charbonneau v. State, 148 Misc 2d 891 (Ct. Cl. 1990). Therefore, the changes in the law that took effect on January 1, 2020 do not invalidate the People’s statements of readiness on May 8, 2019, November 12, 2019, and December 20, 2019. However, beginning on January 1, 2020, the People reverted to a state of unreadiness and could not be deemed ready until filing a proper certificate of compliance as required by C.P.L. §245.50. The People served and filed a valid certificate of compliance and statement of readiness on January 8, 2020. Therefore, the People were not ready from January 1, 2020 to January 8, 2020. Nonetheless, the Court finds this period excludable from the speedy trial calculation under C.P.L. §30.30(4)(a), which excludes time regardless of the People’s readiness. On January 1, 2020, C.P.L. Article 245 took effect, replacing the former C.P.L. Article 240. The New York State legislature has laudably worked to cure the serious problems that accompanied Article 240′s less expansive discovery process. In 2017, when discovery reform legislation was proposed, the bill’s Sponsor’s Memo observed that the discovery laws then in place made it “often impossible to intelligently investigate the facts, to secure and use exculpatory evidence, to fairly weigh a guilty plea offer, or to develop a trial strategy.” S.B. 6847, 240th Sess. (2017) (Sponsor’s Memo.). Since the current legislation contains many of the same elements as the 2017 proposal, the Court deems this legislative history relevant. Reading the history along with the language of the newly enacted legislation, it appears that, in requiring more complete and more prompt disclosure of information, documents, and physical items, the general purpose of Article 245 is to benefit defendants, so that they can make better informed decisions about how to defend themselves against criminal charges. The statute greatly increases the burden of prosecutorial disclosure to make the criminal justice process more fair. Article 245 sets forth that discovery must be served “as soon as practicable but not later than” 15 days from the beginning of the case, with a possible 30-day extension. C.P.L. §245.10(1)(a). Article 245 also sets forth other, more exacting requirements than Article 240 did, including the scope, specificity and timing of the People’s discovery obligations. As with the introduction of any new, broad statutory mandate, litigants and courts have needed a period of time to adjust; however, other than the lead time between Article 245′s enactment and effective date, the statute does not provide a phase-in period. All provisions apply fully to cases begun before 2020 as well as to cases begun in the new year. When the legislature enacted Article 245, it also made changes to other laws that the new statute affected. Notably, C.P.L. §245.50(3) requires the People to file a certificate of compliance with the mandate of C.P.L. §245.20 before they can be deemed ready for trial. The legislature amended C.P.L. §30.30(5) to include that requirement. Equally notable is that the legislature made no change to C.P.L. §30.30(4)(a), which states that in computing the time in which the People must be ready for trial, the following time period must be excluded: “a reasonable period of delay resulting from other proceedings concerning the defendant, including but not limited to…demand to produce [and] request for a bill or particulars….” Prior to 2020, discovery practice, including production under Article 240, varied from county to county. For example, in New York County, formal motion practice was the norm. Next door, in Kings County, discovery was accomplished “by stipulation,” so that a defendant did not need to file a demand to produce or a request for a bill of particulars. Regardless of the particular norm of a county, though, a “reasonable” period for discovery was excluded from the speedy trial calculation, due to the mandate of C.P.L. §30.30(4)(a). See People v. Dorilas, 19 Misc 3d 75 (App. Term. 2d, 10th & 11th Jud. Dists. 2008). This was so even though the specific length of a “reasonable” period of time for discovery was not defined by any authority. Courts looked to the particular circumstances of the case as well as the body of case law to determine whether the prosecution had exceeded the bounds of what should be excluded under C.P.L. §30.30(4)(a). See, e.g., People v. Trinidad, 8 AD3d 106 (1st Dept. 2004). As of January 1 of this year, discovery under the old norms ceased. Now the process state-wide is mandated in Article 245. However, C.P.L. §30.30(4)(a) has not changed. The logical reason for not changing that statute is that the legislature intended the speedy trial rule to remain as it had been prior to January 1, 2020, and that the period during which the People are required to produce discovery must be excluded from the calculation. Since C.P.L. §245.10(1)(a) mandates the delivery of the People’s discovery within 15 days from the start of the case (with a possible 30-day extension), then the 15-day period must be excluded from the speedy trial calculation in order to comply with C.P.L. §30.30(4)(a).3 In this case, the People served and filed certificates of compliance along with statements of readiness on January 6, 7 and 8. The defendant argues that the People should be charged until the final, valid certificate of compliance was served and filed. The People argue that the first certificate of compliance, because it was made in good faith, stopped the clock. The Court does not need to determine whether the People exercised the required due diligence prior to filing the January 6, 2020 certificate, or whether the need for subsequent disclosures invalidated the January 6, 2020 certificate, because the Court finds the entire time period excludable on other grounds. Article 245 became effective on January 1, 2020, thereby triggering the People’s obligation to comply with its mandate within 15 days. The People delivered the required discovery materials within that period. Therefore, the period from January 1, 2020 through January 8, 2020 is excludable under C.P.L. §30.30(4)(a). The Court makes this ruling notwithstanding the Court’s preliminary ruling that some of those days may have been includable without a valid certificate of compliance and statement of readiness by the People.4 As the Court of Appeals has held, calendar notations “do not comprise a binding determination as to whether in fact the time span covered by a particular adjournment is to be excluded…. That determination is one which must be made following an adversarial proceeding….” People v. Berkowitz, 50 NY2d 333, 349 (1980). See also People v. David, 253 AD2d 642, 644 (1st Dept. 1998) (“[T]he People are not entitled to rely on the court’s erroneous statement at the time [of the adjournment] that the entire period at issue was excludable….”). Here, during the calendar call on January 7, 2020, the Court made a preliminary determination on the record that the time was includable because the People had yet to complete their discovery obligations under C.P.L. §245.20(1). The Court notes that the speedy trial and discovery reforms took effect on January 1, 2020, and so this case was one of the first before this Court to raise the question of whether any of the time needed for the People to comply with their new discovery obligations ought to be excluded from the speedy trial calculation. Having had more time now to reflect on the interplay between the discovery and speedy trial statutes, the Court concludes that, in the typical case, up to 15 days are excludable under C.P.L. §30.30(4)(a). As a result, the Court finds a total of 87 days chargeable to the People, and therefore the People are within their remaining C.P.L. §30.30(1) time. For the foregoing reasons, the defendant’s motion seeking an order of dismissal is denied. The foregoing constitutes the Decision and Order of the court. Dated: February 28, 2020
