DECISION Appearances of Counsel1 By Notice of Motion to Dismiss, filed on September 30, 2020, Defendant moves to dismiss the complaint herein pursuant to Criminal Procedure Law (hereinafter “CPL”) §§30.30(1)(b) and 170.30(1)(e). Having reviewed the Defendant’s moving papers, the People’s Affirmation in Opposition, and the relevant documents in the official court file, this Court grants the Defendant’s Motion to Dismiss the accusatory instrument herein. ARREST The accusatory instrument, sworn to by PO PEDLY JEANPIERRE of 47 PCT, shield# 19984, states that on or about August 31, 2019 at approximately 4:05 AM at Southeast corner of East 223rd Street and White Plains Road, County of the Bronx, State of New York: At the above time and place, he observed defendant operating a tan 2006 Nissan (NY License Plate No. #JER7821), in that he observed defendant seated behind the steering wheel, keys in the ignition, engine running, headlights on, and moving along a public roadway. Deponent further states that he observed the aforementioned vehicle drive through a steady red light. Deponent further states that he observed defendant to have a bloodshot watery eyes, flushed face, to be unsteady on his feet, slurred speech, and to have a strong odor of an alcoholic beverage emanating from defendant’s breath. Deponent further states that defendant stated in sum and substance, I HAD MY GIIRLFRIEND IN THE CAR EARLIER AND SHE WAS DRINKING. I WAS COMING FROM A PARTY. I HAD TWO BEERS OF GUINNESS AND ONE SHOT OF HENNESSY. Deponent further states that he was present at the administration of a chemical test analysis of defendant’s breath and that the defendant’s blood alcohol content as displayed on the breath analysis machine was.069 of one percentum by weight. Defendant was charged by criminal complaint and arraigned on August 31, 2019, with, Operating a Motor Vehicle While Under the Influence of Alcohol or Drug in violation of Vehicle and Traffic Law (hereinafter “VTL”) §§1192(3) and 1192(1). The Defendant, by Affirmation dated September 30, 2020, moves to dismiss the accusatory charges herein pursuant to CPL §§30.30(1)(b) and 170.30(1)(e) because the People have exceeded the statutory maximum period of 90 days to bring the matter to trial. The People, by Affirmation in Opposition, dated October 27, 2020, oppose Defendant’s motion. RELEVANT STATUTES CPL §§30.30(1)(b) and 30.30(5). Speedy trial. Time limitations. (1) Except as otherwise provided in subdivision three, a motion made under paragraph (e) of subdivision one of §170.30 or paragraph (g) of subdivision one of section 210.20 must be granted where the people are not ready for trial within: (b) ninety days of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony. (5) Whenever pursuant to this section a prosecutor states or otherwise provides notice that the people are ready for trial, the court shall make inquiry on the record as to their actual readiness. If, after conducting its inquiry, the court determines that the people are not ready to proceed to trial, the prosecutor’s statement or notice of readiness shall not be valid for purposes of this section. Any statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of section 245.20 of this chapter and the defense shall be afforded an opportunity to be heard on the record as to whether the disclosure requirements have been met. This subdivision shall not apply to cases where the defense has waived disclosure requirements. CPL §170.30(1)(e). Motion to dismiss information, simplified information, prosecutor’s information or misdemeanor complaint. (1) After arraignment upon an information, a simplified information, a prosecutor’s information or a misdemeanor complaint, the local criminal court may, upon motion of the defendant, dismiss such instrument or any count thereof upon the ground that: (e) The defendant has been denied the right to a speedy trial. CPL §245.10(1)(a)(ii). Timing of discovery. (1)(a) Subject to subparagraph (iv) of this paragraph, 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 the time periods specified in subparagraphs (i) and (ii) of this paragraph, as applicable. Portions of materials claimed to be nondiscoverable may be withheld pending a determination and ruling of the court under section 245.70 of this article; but the defendant shall be notified in writing that information has not been disclosed under a particular subdivision of such section, and the discoverable portions of such materials shall be disclosed to the extent practicable. When the discoverable materials, including video footage from body-worn cameras, surveillance cameras, or dashboard cameras, are exceptionally voluminous or, despite diligent, good faith efforts, are otherwise not in the actual possession of the prosecution, the time period in this paragraph may be stayed by up to an additional thirty calendar days without need for a motion pursuant to subdivision two of section 245.70 of this article. (ii) When the defendant is not in custody during the pendency of the criminal case, the prosecution shall perform its initial discovery obligations within thirty-five calendar days after the defendant’s arraignment on an indictment, superior court information, prosecutor’s information, information, simplified information, misdemeanor complaint or felony complaint. CPL §245.50(1). Certificates of compliance; readiness for trial. (1) By the prosecution. When the prosecution has provided the discovery required by subdivision one of section 245.20 of this article, except for discovery that is lost or destroyed as provided by paragraph (b) of subdivision one of section 245.80 of this article and except for any items or information that are the subject of an order pursuant to section 245.70 of this article, it shall serve upon the defendant and file with the court a certificate of compliance. The certificate of compliance shall state that, after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery, the prosecutor has disclosed and made available all known material and information subject to discovery. It shall also identify the items provided. If additional discovery is subsequently provided prior to trial pursuant to section 245.60 of this article, a supplemental certificate shall be served upon the defendant and filed with the court identifying the additional material and information provided. No adverse consequence to the prosecution or the prosecutor shall result from the filing of a certificate of compliance in good faith and reasonable under the circumstances; but the court may grant a remedy or sanction for a discovery violation as provided in section 245.80 of this article. VTL §§1192(1), (2) and (3). Operating a motor vehicle while under the influence of alcohol or drugs. (1) Driving while ability impaired. No person shall operate a motor vehicle while the person’s ability to operate such motor vehicle is impaired by the consumption of alcohol. (3) Driving while intoxicated. No person shall operate a motor vehicle while in an intoxicated condition. CALCULATION OF TIME August 31, 2019 — October 29, 2019 (0 days chargeable) On August 31, 2019, Defendant was arraigned in Bronx Criminal Court in Part AR3. He was represented by Sungso Lee, Esq. The People were ready. A motion schedule was set. The Defendant was released on his own recognizance and the matter was adjourned to AP4 on October 29, 2019 for response and decision. On September 27, 2019, the Defendant filed an Omnibus Motion. October 29, 2019 — December 3, 2019 (0 days chargeable) On October 29, 2019, the matter was calendared in Part AP4. The Court ordered an Ingle/Johnson/Mapp/Huntley/Dunaway/Atkins/Odum hearing. The matter was adjourned to Part AP4 on December 3, 2019 for hearing and trial. December 3, 2019 — January 9, 2020 (31 days chargeable) On December 3, 2019, the matter was calendared in AP4. The People were not ready and requested December 26, 2019. The matter was adjourned to Part AP4 on January 9, 2020 for hearings and trial. January 9, 2020 — February 6, 2020 (28 days chargeable) On January 9, 2020, the matter was calendared in AP4. The People were not ready. The matter was adjourned to Part AP4 on February 6, 2020 for hearings and trial. On January 15, 2020, The People filed an Automatic Disclosure Form. February 6, 2020 — March 5, 2020 (28 days chargeable) On February 6, 2020, the matter was calendared in AP4. The People were not ready. The matter was adjourned to Part AP4 on March 5, 2020 for hearing and trial. On February 18, 2020, The People filed a Certificate of Compliance (hereinafter “COC”) and Statement of Readiness (hereinafter “SOR”). March 5, 2020 — April 8, 2020 (14 days chargeable) On March 5, 2020, the matter was calendared in AP4. The People were not ready. The matter was adjourned to Part AP4 on April 8, 2020. On March 20, 2020, pursuant to Executive Order 202.8 issued by New York State Governor Andrew Cuomo, CPL §30.30 was suspended and continued to be suspended by subsequent executive orders. April 8, 2020 — July 9, 2020 (0 days chargeable) On April 8, 2020, the matter was calendared in AP4. The matter was administratively adjourned to July 9, 2020, due to the public health crisis of COVID-19. July 9, 2020 — October 8, 2020 (0 days chargeable) On July 9, 2020, the matter was calendared in AP4. The matter was administratively adjourned to October 8, 2020, due to the public health crisis of COVID-19. On September 30, 2020, the Defendant filed a Motion to Dismiss this matter. On October 4, 2020, pursuant to Executive Order 202.67 issued by Governor Andrew Cuomo, the suspension of CPL §30.30 was ended. October 8, 2020 — November 30, 2020 (0 days chargeable) On October 8, 2020, the matter was calendared in AP4. The People were not ready. The Court ordered the People to respond to the Defendant’s Motion to Dismiss by October 19, 2020. The matter was adjourned to Part AP4 on November 30, 2020 for this Court’s decision. The People filed their Affirmation in Opposition on October 27, 20202. ANALYSIS The issue at hand is three-fold i) whether the People should be charged from December 3, 2019 through their requested adjourn date of December 26, 2019 or January 1, 2020, ii) whether the People should be charged from January 1, 2020 through January 15, 2020 and ii) whether the People should be charged for any time after March 20, 2020 when New York State Governor Andrew Cuomo issued Executive Order 202.8 which tolled the speedy trial clock. The Defendant contends that the People exceeded their speedy trial time, as they have yet to file a valid COC and remain not ready. The Defendant believes the People should be charged from December 3, 2019 through September 30, 2020, thus incurring three hundred-and-two days total. Although the People stated ready one time in this matter — at arraignments, on August 31, 2019, they argue that they have not exceeded their speedy trial time and should only be charged eighty-six days. Their most relevant assertion is that they should not be charged the entire time between December 26, 2019 and January 15, 2020 because a) under a post-readiness analysis they can only be charged up until the date certain they requested, December 26th, and b) the period beginning January 1, 2020 until January 15, 2020 is prescribed as excludable time for them to comply with the new discovery directives. The top count of the accusatory instrument is an unclassified misdemeanor requiring that the People be ready for trial within ninety days of commencement of the criminal action. CPL §30.30(1)(b). Successful motions under CPL §30.30 must demonstrate the existence of an unexcused delay in excess of the statutory maximum. see People v. Santos, 68 NY2d 859 (1986). The People are considered ready for trial when there is no legal impediment to trying their case and the People communicate their actual readiness in open court or serve written notice of readiness to the court and defense counsel. see People v. Brown, 28 NY3d 392 (2016); see also People v. Kendzia, 64 NY2d 331 (1995). When the People are in a post-readiness posture, the People are only charged with the time requested for an adjournment. see People v. Cortes, 80 NY2d 201 (1992); People v. Pierre, 8 AD3d 201 (1st Dept 1992). The People’s “failure to declare readiness within the statutory time limit will result in dismissal of the prosecution unless the People can demonstrate that certain time periods should be excluded.” People v. Price, 14 NY3d 61, 63 (2010). Prior to January 1, 2020 there was a presumption that a statement of readiness was truthful and accurate. see People v. Sibblies, 22 NY3d 1174 (2014). Post January 1, 2020, no such presumption exists under the new discovery scheme. In fact, pursuant to CPL §245.50(1), the People are now required to file a certificate confirming their exercise of due diligence in fulfillment of their discovery obligations as a condition precedent to being deemed ready for trial. Concomitant is the Court’s obligation to make record inquiry of the People’s readiness. CPL §30.30(5). I) The People will only be charged from December 3, 2019 through December 26, 2019. On December 3, 2019, the People stated not ready and requested an adjournment until December 26, 2019 due to a conflict with the arresting officer’s regular day off (People’s Opposition, pg. 4). The Defendant contends the People should be charged from December 3, 2019 through January 1, 2020 as they were not ready. The People contend they should only be charged through their requested adjourn date of December 26, 2019 due to their post-readiness status. This Court finds the People’s analysis correct, as the People were in post-readiness status since the arraignment of this matter. see People v. Cortes, 80 NY2d 201 (1992); see also People v. Pierre, 8 AD3d 201 (1st Dept 1992). II) The People shall be charged from January 1, 2020 through January 15, 2020. The People argue CPL §245.10(1)3 grants them fifteen days to comply with their discovery obligations and thus should not be charged from January 1, 2020 through January 15, 2020. The Defendant contends, albeit in a meager fashion, that the People should be charged this entire period for failing to be ready on January 9, 2020 and February 6, 2020. The trial courts are unsettled at present. Some lower courts have found the first fifteen days are excludable for speedy trial purposes. see People v. Dobrzenksi, 69 Misc3d 333 (Utica City Court 2020); People v. Nge, 67 Misc3d 650 (Crim Ct Kings County 2020); People v. Roland, 67 Misc3d 330 (Crim Ct Kings County 2020); People v. Berkowitz, 68 Misc 3d 12222(A) (Crim Ct Kings County 2020). This Court, along with other courts, has held that the new discovery provisions require untolling of the speedy trial clock on January 1, 2020 in a post-readiness analysis. see People v. Freeman, 67 Misc 3d 1205(a) (Crim Ct Bronx County 2020); see also People v. Lobato, 66 Misc 3d 1212(A) (Crim Ct Kings County 2020); People v. Akramov, 67 Misc 3d 558 (Crim Ct Kings County 2020); People v. Rambally, 68 Misc 3d 1212(A) (District Ct, Nassau County 2020); People v. Mashiyach, 2020 Slip NY Slip Op 20288, 2020 WL 6495563 (Crim Ct Kings County 2020); People v. Villamar, 2020 NY Slip Op 20236, 2020 WL 5667173 (Crim Ct New York County 2020); People v. Gillson, 69 Misc 3d 1203(A) (Crim Ct Kings County 2020). This court finds the legislative mandate in CPL §245 does not allow for such exclusion. Therefore, the People are charged the fifteen days between January 1, 2020 through January 15, 2020. III) The People shall not be charged after the Executive Order on March 20, 2020. On March 5, 2020, the People stated not ready and requested an adjournment to file a supplemental certificate. The Defendant argues that the People should be charged following March 5, 2020 as there was no filing of COC, and the People were not ready. The People conceded the time from March 5, 2020 through March 20, 2020 but assert the Executive Order suspended the speedy trial clock after that date. The Court agrees with the People and finds that Governor Cuomo’s Executive Order No. 202.8, dated March 20, 2020, tolled the speedy trial clock due to the COVID-19 pandemic and subsequent orders continued that suspension until the filing of this motion. Accordingly, the People exceeded their statutory time limitation by eleven days as of September 30, 2020 and the case against Mr. Hines must be dismissed. CONCLUSION In view of the foregoing, this Court finds a total of one hundred and one days (101) days chargeable to the People. Consequently, Defendant’s Motion to Dismiss under CPL §§30.30(1)(b) and 170.30(e) is granted. This constitutes the Decision and Order of the Court. Dated: January 6, 2021
