DECISION AND ORDER Defendant is charged with Assault in the Third Degree, Penal Law §120.00(2), Leaving the Scene of an Incident without Reporting, VTL §600(2)(a), Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree, VTL §511(1)(a), Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree, VTL §511(2)(a)(iv), and Unlicensed Operator, VTL §509(1). Defendant moves, by notice of motion, for an order pursuant to CPL §§30.30, 170.30 and 170.35 to dismiss the accusatory instrument, or in the alternative, a hearing on these issues and for such other and further relief as this Court may deem just and proper. The People oppose this application. Pursuant to CPL §30.30(1), the applicable speedy trial time is determined based on the highest charge in the accusatory instrument.” People v. Brito, 61 Misc 3d 1208 (Crim Ct, Kings County 2018). Where the highest charge against a defendant is a class A misdemeanor, as here, the People are required to state their readiness for trial within 90 days of commencing the criminal action. CPL §30.30(1)(b). Defendant has the initial burden of demonstrating a delay of more than 90 days. See People v. Santos, 68 NY2d 859 (1986). Once defendant has made that showing, the burden shifts to the People to demonstrate that certain periods within that time should be excluded. Id. Prior to January 1, 2020, to be ready for trial pursuant CPL §30.30, the People had to satisfy two requirements. First, they had to communicate their readiness on the trial court’s record. This could be done either by stating that they were ready for trial in open court on a record transcribed by a stenographer or by a statement of readiness (hereinafter “SOR”) filed with the Court and served upon defense counsel. See People v. Kendzia, 64 NY2d 331 (1985). Second, the People had to in fact be ready to proceed. “The statute contemplates an indication of present readiness, not a prediction or expectation of future readiness.” Id. at 337. On January 1, 2020, new legislation took effect imposing additional discovery requirements on the People before they could be deemed ready for trial pursuant to CPL §30.30. In addition to the previous two requirements, the People must certify their good faith compliance with the discovery obligations of the newly enacted CPL §245 by filing a certificate of compliance (hereinafter COC). See CPL §30.30(5); CPL §245.50. The January 1, 2020 legislation specified that the People’s COC must be served within 15 calendar days after the defendant’s arraignment with a possible 30-day extension. See CPL §245.10(1). On May 3, 2020 legislative amendments to CPL §245 took effect which extended the timeline for the People to serve their COC to no later than 35 calendar days after the defendant’s arraignment, when the defendant is not in custody during the pendency of the criminal case. See CPL §245.10(1)(a)(ii). Here, discovery was conducted prior to the May 3, 2020 legislative amendments, hence the 15 day standard applies. “While the new standards are equally applicable to all cases that have been pending since 2019 or before, the effect of the application of these new standards upon the chargeability or excludability of adjournments from 2019 into 2020 will depend upon the particular circumstances and posture of the individual case.” People v. Berkowitz, 68 Misc 3d 1222 (Crim Ct, Kings County 2020). Nevertheless, the People cannot be ready for trial until they have converted a misdemeanor complaint to an information. See People v. Caussade, 162 AD2d 4 (2d Dept, 1990). On December 4, 2019, the defendant was arraigned, the People answered “not ready,” and the matter was adjourned to January 6, 2020 for conversion. On December 12, 2019, the People served and filed an off-calendar SOR with defendant’s certified driving abstract. In opposition to the motion, the People contend that the filing of an SOR with defendant’s certified driving abstract were sufficient to convert the charges of Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree, VTL §511(1)(a), Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree, VTL §511(2)(a)(iv), and Unlicensed Operator, VTL §509(1). However, the filing of an SOR with the driving abstract were insufficient to convert the charges, wherein, the deponent did not observe the defendant operating a motor vehicle at the time of the incident. The accusatory instrument contains two hearsay statements as to the defendant’s operation of a motor vehicle. Each statement is attributed by the deponent to a different informant, and the People failed to submit a supporting deposition of either informant. Consequently, the complaint remained unconverted as to all charges. The People cannot be ready for trial until they have converted a misdemeanor complaint to an information. See People v. Caussade, 162 AD 2d 4 (2d Dept, 1990). The People further contend that the period from January 1, 2020 to January 15, 2020 is excludable as a reasonable period of delay for the People to comply with their new discovery obligations under CPL §245. The People’s reliance upon People v. Roland, 67 Misc 3d 330 (Crim Ct, Kings County 2020), to support this proposition is misplaced. The Roland court stated their opinion on the present matter in footnote 3, stating, Of course, if some other provision of law makes this period includable, such as the failure to convert a misdemeanor complaint to an information, then the period would still be included in the speedy trial calculation. See, e.g. People v. Caussade, 162 A.D.2d 4, 8, 560 N.Y.S.2d 648 (2d Dept. 1990) (People need valid accusatory instrument before they can proceed); People v. Desouza, 30 Misc. 3d 1227(A), 926 N.Y.S.2d 345 (Crim. Ct. Kings Co. 2011) (time during which misdemeanor complaint remains unconverted is chargeable to the People). In the instant matter, the People had not answered ready nor converted any of the charges during this period. Therefore, the People are charged the entire period between December 4, 2019 and January 6, 2020, 33 days. On January 6, 2020, the People answered “not ready” and stated on the record “we need a supporting deposition, so we are not converted at this time.” Motion, Exhibit C, January 6, 2020 Minutes, p 2, In 5-8. The matter was adjourned to January 29, 2020 for a supporting deposition, COC and SOR. As the complaint remained unconverted, the People are charged the entire period from January 6, 2020 to January 29, 2020, 23 days. On January 29, 2020, the People answered “not ready” and the matter was adjourned to March 6, 2020 for a supporting deposition. The People served and filed an off-calendar COC on February 14, 2020. The Court notes that although the COC states that a Supporting Deposition of Camela Capaldo was made available to defense counsel, this Supporting Deposition was not filed with the Court at that time. Therefore, the complaint remained unconverted and the People are charged the entire period from January 29, 2020 to March 6, 2020, 37 days. On March 6, 2020, the People answered “ready” and served and filed a copy of a photograph of the supporting deposition of Camela Capaldo. A briefing schedule for the instant motion was set and the matter was adjourned to April 8, 2020 for decision and possible disposition. Since the period of delay resulting from pre-trial motions is excluded, this period of time is not charged to the People. See CPL §30.30(4)(a). On March 20, 2020, pursuant to Executive Order 202.8 and subsequent executive orders, court operations were limited to essential matters during the pendency of the Covid-19 health crisis, including tolling the time limit for service and filing of the instant papers. Furthermore, Executive Order 202.60, issued September 4, 2020 and effective until October 4, 2020, extended the suspension of CPL 30.30 “in a jurisdiction until such time as petit criminal juries are reconvened in that jurisdiction.” Petit criminal juries have not yet reconvened in this jurisdiction. Therefore, this entire period is excluded. Accordingly, this Court finds that the People are charged with 93 days and defendant’s motion to dismiss pursuant to CPL §§30.30, 170.30 and 170.35 is granted. The foregoing constitutes the decision and order of this Court. Dated: September 30, 2020
