The defendant was charged with the following offenses on the date specified therein: Docket No.:CR-06113-19. On or about August 4, 2019 the defendant was charged with the following offenses: 1. Harassment in the 2nd Degree in violation of Penal Law §240.26(1) 2. Criminal Mischief in violation of Penal Law §145.00(1) 3. Criminal Obstruction of Breathing in violation of Penal Law §121.11(A) Docket No.:CR-06554-19 On or about August 15, 2019 the defendant was charged with the following offense: 1. Criminal Mischief in violation of Penal Law §145.00 (1) Docket No.:CR-09080-19 On or about December 1, 2019 the defendant was charged with the following offense: 1. Criminal Contempt 2nd in violation of Penal Law §215.50(3) On June 15, 2020 the defendant filed a “Notice of Motion” along with an attorney affirmation seeking the following relief: 1. Dismissal of the charges based upon the Defendant being denied the right to speedy trial pursuant to CPL 30.30(b) and CPL 170.30(1)(e); 2. Such other and further relief as the court may deem appropriate. Arguments by the Parties The defendant argues pursuant to CPL §30.30 and §170.30(1)(e) the People were not ready for trial on the underlying charges within the prescribed statutory time period and as such, all of the criminal offenses should be dismissed. Specifically, the defendant sets forth that prior to the enactment of CPL §245.50[3] the People were required to communicate and declare their readiness for trial with such intent being made part of the court’s record. The Court notes, the defendant does not dispute the People announced their readiness prior to January 1, 2020, as it pertains to the underlying charges, and such time frames are accounted for in the calculations set forth herein. The defendant further asserts that upon enactment and implementation of CPL §245.50[3] the People have an affirmative obligation to file a certificate of compliance and until such filing occurs the People shall be “charged time” for the purposes of speedy trial calculations. Specifically, the defendant relies upon the following calculations in support of a speedy trial violation: Docket: CR-06113-19 Summary: Days Charged 31 Time period between filing of the accusatory instrument and arraignment (August 5, 2019 to September 6, 2019) 19 Time period between arraignment and adjourned date (September 6, 2019 to September 25, 2019) 6 Time period between appearance date and Notice of Trial Readiness filed (September 25, 2019 to October 1, 2019) 51 Time period between enactment of new statute CPL §245.50[3] and appearance for Sandoval / Ventimiglia Hearing which was adjourned due to conflict declared by Public Defender’s Office (January 1, 2020 through February 21, 2020) 82 Time period from last court appearance and when the Certificate of Compliance was filed by the People (February 21, 2020 through May 13, 2020) Total: 189 Days Charged to the People Docket: CR-06554-19 Summary: Days Charged 21 Time period between filing of the accusatory instrument and date of arraignment (August 17, 2019 to September 6, 2019) 19 Time period between arraignment and adjourned date (September 6, 2019 to September 25, 2019) 6 Time period between appearance date and Notice of Trial Readiness filed (September 25, 2019 to October 1, 2019) 51 Time period between enactment of new statute CPL §245.50[3] and appearance for Sandoval / Ventimiglia Hearing which was adjourned due to conflict declared by Public Defender’s Office (January 1, 2020 through February 21, 2020) 82 Time period from last court appearance and when the Certificate of Compliance was filed by the People (February 21, 2020 through May 13, 2020) Total charged to the People: 179 days Docket: CR-09080-19 Summary: Days Charged 14 Time period between filing of the accusatory instrument and date of arraignment at which time People announce readiness (December 5, 2019 to December 18, 2019) 51 Time period between enactment of new statute CPL §245.50[3] and appearance for Sandoval / Ventimiglia Hearing which was adjourned due to conflict declared by Public Defender’s Office (January 1, 2020 through February 21, 2020) 88 Time period from last court appearance and when Certificate of Compliance was filed by the People (February 21, 2020 through May 19, 2020) Total Charged to the People: 153 days On July 15, 2020, the People filed an affirmation opposing the relief being requested, arguing they have complied with all requirements pursuant to CPL §240, prior to January 1, 2020, and fulfilled all discovery obligations subsequent to the enactment of §245 of the Criminal Procedure Law. Specifically, the People cite to their readiness as having been announced on the record along with filings of “Notice of Readiness” and the defendant having acknowledged compliance with all discovery obligations as evidenced in the defendant’s prior motion filed on March 16, 2020. The People further assert there are extensive periods of time since the commencement of the action which should not be charged to the People, including delays due to the assignment of new counsel, adjournment of trial dates and those as a result of limited court operations due to the COVID-19 pandemic. The Court notes, the specific exclusions as it relates to these arguments are not articulated in the responding papers submitted. The People do, however, offer the following calculations for speedy trial purposes: Docket: CR-06113-19 Summary: Days Charged: 21 Time period from date of arraignment (September 6, 2019) through date when readiness was declared (September 27, 2019). Subsequent dates when readiness was declared — November 6, 2019, December 18, 2019, January 28, 2020, March 16, 2020, May 13, 2020. Docket: CR-06554-19 Summary: Days Charged: 21 Time period from date of arraignment (September 6, 2019) through date of readiness declared (September 27, 2019); Subsequent dates when readiness was declared — November 6, 2019, December 18, 2019, March 16, 2020, May 13, 2020. Docket: CR-09080-19 Summary: Days Charged: 14 Time period from date of arraignment (December 4, 2019) through date of readiness declared (December 18, 2019); Subsequent dates when readiness was declared — March 16, 2020, May 19, 2020. Standard of Law and Findings by the Court As it pertains to a speedy trial motion, the initial burden rests upon the defendant and is met “by alleging only that the prosecution failed to declare readiness within the statutorily prescribed time period” (People v. Luperon, 85 NY2d 71 [1995]). The burden then shifts to the People to identify the exclusions, upon which the People rely, to the statutory time frame.(People v. Amrhein, 128 AD3d 1412 [4th Dept 2015]) In addition, pursuant to CPL 30.30(1), the applicable speedy trial period is determined by the highest charge in the accusatory instrument and in the matters pending before the court a “Class A Misdemeanor” is the highest charge made part of each docket, thus, requiring the People to set forth their readiness within ninety days of commencement of the action. It is noted, although a criminal action commences with the filing of the accusatory instrument, counting for speedy trial purposes commences the following day. (People v. Stiles, 70 NY2d 765 [1987]) Thus, the Court finds based upon the filing of the accusatory instruments on August 5, 2019, August 17, 2019 and December 5, 2019 the People had to announce ready for trial by November 3, 2019, November 15, 2019 and March 4, 2020 respectively, unless the People can show excludable time warranting otherwise. (People v. Cortes, 80 NY2d 201 [1992]) In light of the distinction which needs to be drawn between declarations of readiness announced prior to and subsequently to January 1, 2020, the Court must undertake an examination of the various time periods. Prior to January 1, 2020, in order for the People to announce their readiness for trial, they must have either communicated such readiness to defense counsel while before the court or in the alternative served a written notice on the defendant along with filing same with the court clerk. (People v. Kendzia, 64 NY2d 331 [1985]) As such, the Court will first determine the amount of days charged to the People, for purposes of speedy trial, from the commencement of the criminal proceedings through December 31, 2019. Unlike an appearance ticket, the time between the issuance of a summons by the Court, and the time the defendant is directed to appear for arraignment, in not excludable, contrary to the calculation submitted by the People. (CPL §30.30(5)(b); People v. Hauben, 12 Misc.3d 1172(A) [Nassau Dist. Ct. 2006]). As such, the time period for the each docket in the year 2019 is as follows: Docket:CR-06113-19, 56 days (August 6, 2019 through October 1, 2019 date when Notice of Readiness was filed); CR-06554-19, 46 days (August 16, 2019 through October 1, 2019 date when Notice of Readiness was filed); CR-09080-19, 14 days (December 5, 2019 through December 18, 2019 date of announcement of readiness). While the People assert readiness was declared before the Court on September 26, 2020, as it relates to Dockets CR-06113-19 and CR-06554-19, such appearance did not occur and the matters were re-calendared to November 6, 2019. The parties agree to the number of days accrued in 2019 for docket CR-09080-19. This Court must undertake further analysis for the period of time commencing January 1, 2020. As this Court has previously found, upon enactment of CPL §245.50(3), a statement of readiness alone is insufficient to announce “Ready for Trial” and now the People must file a certificate of compliance for speedy trial purposes. However, any announcements of readiness, prior to January 1, 2020 are not nullified nor should they be deemed to be “illusory” by the enactment of the new law as the statute states: “Trial readiness. Notwithstanding the provisions of any other law, absent an individualized finding of exceptional circumstances by the court before which the charge is pending, 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 pursuant to subdivision one of this section.” Limited case law exists in this area given the recent enactment of the legislation. Upon review of relevant holdings since such time, the Court agrees with the findings of People v. Demilio, in that a statement of readiness for trial which was communicated to the defendant, prior to the enactment of Article 245, does not impair the validity of such notice. (People v. Demilio, 66 Misc. 3d 759 [Dutchess County Ct, 2020]) It has further been held that “CPL §245.50(3) requires the People to file a certificate of compliance with the mandate of CPL §245.20 before they can be deemed ready for trial” (People v. Roland, 67 Misc 3d 330 [NY City Crim. Ct. 2020]) The Court finds this to be the appropriate standard as it has subsequently been held, for matters which readiness was declared prior to January 1, 2020, upon the new legislation being enacted “the People reverted to a state of unreadiness and could not be deemed ready until filing of the proper certificate of compliance as required by CPL 245.50″ (People v. Nge, 123 NYS3d 449 [NY City Crim. Ct. 2020]) As previously noted in the “Memorandum Decision” executed by this Court on May 18, 2020, the People were not ready for trial on January 1, 2020, as the appropriate certificates were not filed until May 13th (CR-06113-19 & CR-06554-19) and May 19th (CR-09080-19) respectively. However, the People must not be automatically charged this period of time as there are exclusions pursuant to statute which must be accounted for and credited. Based upon the language of CPL §245.50 and time periods prescribed by statute requiring compliance of certain discovery obligations, various interpretations exist as to the exclusion of the first fifteen days subsequent to enactment of the new law. Courts have held the People are to have filed a certificate of compliance on or before January 1, 2020 and if such filing did not occur, they will be charged time from the effective date of the statute until a certificate is filed. (People v. Laboto, 66 Misc.3d 1230 (A) [NY City Crim. Ct., 2020]) In the alternative, courts have found the first fifteen days from January 1, 2020 should be excluded for the purposes of speedy trial calculations. (People v. Roland, 67 Misc 3d 330 [NY City Crim. Ct., 2020]). The Court finds a rational conclusion to this quandary. The first fifteen days from the effective date of the reforms are excludable for speedy trial purposes. The purpose of the initial fifteen day period is to afford the People an opportunity to comply with their discovery obligations as the statute states “The prosecution shall perform its initial discovery obligations under subdivision one of section 245.20 of this article as soon as practicable but not later than fifteen calendar days after the defendant’s arraignment…..” (CPL §245.10) To require compliance prior to January 1, 2020 would be premature and would not afford the People fifteen days to adhere to the new provision. This would prejudice the prosecution. Thus, if a certificate of compliance is not filed by January 15, 2020, the speedy trial calculation shall commence the day thereafter. This Court notes, that effective May 3, 2020, the legislature amended CPL §245.10 and this affords the prosecution additional time to provide discovery to the defendant and for the filing of the compliance certificate. These amendments delineate six separate time frames which discovery must be provided, specifically not later than thirty-five days after arraignment if the defendant is at liberty. (CPL §245.10(1)(a)(ii)) The Court finds that the time frames enacted on January 1, 2020 control here. The arraignment occurred prior to January 1, 2020 thus, requiring compliance under the parameters as set by statute at that time. While neither party specifically addresses and sets forth particular excludable dates, the Court prefers to address the exclusions contained within Criminal Procedure Law §30.30 (4)(a). This provision still exists and has not amended nor repealed upon enactment of the provision of §245. In addition, it has been held that CPL §30.30(4)(a) “still lists circumstances under which an adjournment is excludable and there is no basis upon which to conclude that CPL §245 nullified the vast body of speedy trial case law in New York.” (People v. Erby, 2020 WL 2563683 [Sup. Ct, Bronx County, May 17, 2020]). As such, the Court finds the extensive amount of case law, as it pertains to exclusions in favor of both the defendant and the People, must be preserved and applied to matters after the enactment of Criminal Procedure Law §245. Upon examination of the record, the defendant’s prior counsel submitted correspondence on February 21, 2020 advising of a conflict of interest in the continued representation of the defendant, as having represented a complaining witness in one of the underlying criminal matters. The parties appeared and on the same date, and the Court granted the application for new counsel and assigned defendant’s current attorney in court and the matter was adjourned until March 20, 2020. Upon inquiry as to time needed to become acquainted with the file, defendant’s new attorney requested a thirty day adjournment. An analysis of whether an exclusion should apply for the time period subsequent to February 21, 2020 is warranted and relevant portions of CPL §30.30 (4)(b) must be reviewed as the statute sets forth excludable periods for speedy trial purposes: “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 or her counsel. The court may grant such a continuance only if it satisfied that postponement is in the interest of justice, taking into account the public interest in the prompt dispositions of criminal charges.” It has long been held that upon a court determining time frames, for the purposes of a speedy trial calculation, the prosecution should not be charged time resulting from defense counsel’s request for an adjournment. (People v. Worley, 66 NY2d 523 [1985]; People v. Warwick, 239 AD2d 124 [1st Dept 1997]) The court in People v. Whitley, 68 AD3d 790 [2nd Dept 2009] specifically found that upon appointment of new counsel “the People should not have been charged with the 27-day period of delay between September 6, 2007 and October 3, 2007 since newly appointed defense counsel requested an adjournment over that period to familiarize himself with the case.” Thus, an exclusion of time, for the purposes of speedy trial, shall be applied for the time period subsequent to February 21, 2020 as the basis for the adjournment granted was upon defense counsel’s need “to review the file” and ensure compliance with discovery obligations. Further, in the event readiness is not properly declared by the People, such shall not have an impact upon the calculation. (People v. D’Aquino, 163 Misc 2d 788 [Yonkers City Ct, 1995]). The court in D’Aquino found that a “Defendant may not request an adjournment and at the same time disclaim any waiver of delay” Thus, the defendant can not request an adjournment on February 21, 2020 and subsequently claim the period of time thereafter should be charged against the People due to readiness having not been properly declared. The Court notes, the appearance scheduled for March 20, 2020 was not conducted in light of the Executive Order which was enacted in response to the COVID-19 emergency disaster thereby, limiting court operations along with enacting tolling provisions of the Criminal Procedure Law as it relates to speedy trial time periods. Such tolling provisions were extended through August 6, 2020 by Executive Order 202.49 however, are not applicable in light of the determination made herein. Thus, the court finds the following calculations with respect to each docket: Docket: CR-06113-19: Days Charged 56 Time period between filing of the accusatory instrument and filing of the Notice of Trial Readiness (August 6, 2019 to October 1, 2019) 36 Time period between enactment of new statute CPL §245.50[3] and appearance for Sandoval / Ventimiglia Hearing (January 16, 2020 through February 21, 2020) 0 Time period from February 21, 2020 through May 13, 2020 when the Certificate of Compliance was filed by the People. All time after February 21, 2020 is excluded due to conflict declared by Public Defender’s Office and adjournment request made by the defendant. Total: 92 Days Charged to the People Docket: CR-06554-19: Days Charged 45 Time period between filing of the accusatory instrument and filing of the Notice of Readiness (August 17, 2019 to October 1, 2019) 36 Time period between enactment of new statute CPL §245.50[3] and appearance for Sandoval /Ventimiglia Hearing (January 16, 2020 through February 21, 2020) 0 Time period from February 21, 2020 through May 13, 2020 when the Certificate of Compliance was filed by the People. All time after February 21, 2020 is excluded due to conflict declared by Public Defender’s Office and adjournment request made by the defendant. Total charged to the People: 81 days Docket: CR-09080-19: Days Charged 14 Time period between filing of the accusatory instrument and date of arraignment at which time People announce readiness (December 5, 2019 to December 18, 2019) 36 Time period between enactment of new statute CPL §245.50[3] and appearance for Sandoval /Ventimiglia Hearing (January 16, 2020 through February 21, 2020) 0 Time period from February 21, 2020 through May 13, 2020 when the Certificate of Compliance was filed by the People. All time after February 21, 2020 is excluded due to conflict declared by Public Defender’s Office and adjournment request made by the defendant. Total Charged to the People: 50 days Therefore the defendant’s motion to dismiss the charges of Harassment in the 2nd Degree in violation of Penal Law §240.26(1), Criminal Mischief in violation of Penal Law §145.00(1) and Criminal Obstruction of Breathing in violation of Penal Law §121.11(A) filed under Docket CR-06113-19, on the basis of a speedy trial violation is hereby GRANTED. Additionally, the motions to dismiss relative to Dockets CR-06554-19 and CR-09080-19 are hereby, DENIED. The matter will come before this Court for an attorney conference, via Skype, on August 6, 2020 at 1:00 PM on the remaining charges. This constitutes the Decision and Order of the Court. Dated: July 30, 2020
