DECISION AND ORDER The defendant moves for an order invalidating the People’s February 9, 2021 certificate of compliance and statement of readiness. The defendant also moves for an order dismissing the accusatory instrument pursuant to Criminal Procedure Law (CPL) §30.30. The People oppose the motion. Defendant is charged with one count of Assault in the Third Degree (Penal Law §120.00 (1)), Attempted Assault in the Third Degree (Penal Law §110/120.00 (1)), Menacing in the Third Degree (Penal Law §120.15) and Harassment in the Second Degree (Penal Law §240.26 (1)). Defendant was arraigned on these charges on November 19, 2020 in Part APAR3. After careful review of the submissions of the parties and all relevant legal authority, the defendant’s motion is granted. The Court finds that 101 chargeable days have accrued since the defendant’s arraignment. November 19, 2020 — December 16, 2020 On November 19, 2020, the defendant was arraigned on a misdemeanor complaint in which the highest count charged is a class A misdemeanor (Penal Law §120.00). Thus, the People are required to announce their readiness for trial within ninety (90) days of the commencement of the criminal action (see CPL 30.30[1][b]). The day on which the accusatory instrument is filed is excluded from the calculation of speedy trial time (see People v. Stiles, 70 NY2d 765 [1987]). The defendant was released with the condition that she comply with supervised release. The case was adjourned to December 16, 2020 in Part AP3C. [26 days charged] December 16, 2020 — February 1, 2021 On December 16, the People were not ready for the trial. The case remained unconverted and was adjourned to February 1, 2021. Off-calendar on December 28, the People served initial discovery and a Notice and Disclosure Form (NDF) via Microsoft OneDrive. The People did not file a certificate of compliance. [47 days charged] February 1, 2021 — March 1, 2021 On February 1, the parties conferenced the case with the court. During this conference, it was discovered that the supporting depositions served and filed by the prosecution were not signed. The People state that the supporting depositions were signed digitally, but due to an upload error, the signatures were not visible. The case was adjourned to March 1 for supporting depositions and a certificate of compliance. Later that same day, the People served and filed the executed supporting depositions. On February 9, the People served additional discovery upon defense counsel. Thereafter, the prosecution served and filed a certificate of compliance containing a statement of readiness. The defendant raises several challenges to the People’s statement of readiness and certificate of compliance. The People maintain that both were filed in good faith and all required discovery has been turned over to the defense. Pursuant to CPL 245.50(4), challenges to a certificate of compliance must be addressed by motion. On the next court date, defense counsel requested a motion schedule, thereby stopping the speedy trial clock. The period from March 1 to date is excludable pursuant to CPL 30.30(4)(a) as a reasonable time for pre-trial motion practice. Because the People had not properly certified the sufficiency of the accusatory instrument prior to the running of the speedy trial clock, the February 9 statement of readiness must be deemed invalid for the reasons stated below. Statements of Readiness In addition to challenging the validity of the People’s certificate of compliance, the defendant asserts that the People’s February 9 statement of readiness is insufficient, and thus, did not stop the speedy trial clock. Specifically, the defendant argues that the People did not certify the sufficiency of the accusatory instrument pursuant to CPL 30.30(5-a), and therefore, they cannot legally state their readiness for trial. In response, the People contend that this certification is not required to be made prior to or at the same time as their statement of readiness. Prior to the enactment of CPL 30.30(5)1 and (5-a), a prosecutor’s statement of readiness was “presumed truthful and accurate,” and the burden was on the defendant to demonstrate that the People were not, in fact, ready for trial at the time of the statement (see People v. Brown, 28 NY3d 392, 399-400 [2016]). Under CPL 30.30(5) and (5-a), this presumption no longer exists. Criminal Procedure Law section 30.30(5-a) states: Upon a local criminal court accusatory instrument, a statement of readiness shall not be valid unless the prosecuting attorney certifies that all counts charged in the accusatory instrument meet the requirements of sections 100.15 and 100.40 of this chapter and those counts not meeting the requirements of sections 100.15 and 100.40 of this chapter have been dismissed. The People are now required to certify that the accusatory instrument is facially sufficient. Without this certification, the People cannot validly declare their readiness for trial. Put another way, this certification is a precondition to a valid statement of readiness. The People’s February 9 certificate of compliance/statement of readiness addresses only compliance with CPL 245.20 and contains the following statement as to readiness: “The prosecution is ready for trial pursuant to CPL §§30.30(5) & 245.50(1).” The certification is silent as to the facial sufficiency of the accusatory instrument. It does not include even a reference to CPL 30.30(5-a). This Court finds that the February 9 certificate fails to comply with the mandates of CPL 30.30(5-a); as such, it was not valid and did not toll the speedy trial clock. The prosecution did not certify the sufficiency of the accusatory instrument until March 1, 2021 when it filed another certificate of compliance/statement of readiness. The relevant portion of this certification states: “The People certify that all counts in the accusatory instrument filed in the above action meet the requirements of CPL §§100.15 and 100.40. Those counts not meeting the requirements of those sections have been dismissed. The prosecution is ready for trial pursuant to CPL §§30.30(5) & 245.50(1).” The People reason that the CPL 30.30(5-a) certification should relate back to the February 9 certificate of compliance/statement of readiness. The People argue that the certification can be made at any time, drawing a distinction between the language used in CPL 30.30(5), which concerns the filing of a statement of readiness in connection with a certificate of compliance. This subsection states that “[a]ny statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with [CPL 245.20]” (CPL 30.30[5] [emphasis added]). By contrast, CPL 30.30(5-a) does not contain such explicit language as to when the certification must be filed in relation to a statement of readiness. This argument is unpersuasive. The plain language of the statute states that “a statement of readiness shall not be valid unless the prosecuting attorney certifies” the facial sufficiency of all counts charged in the accusatory instrument (CPL 30.30[5-a] [emphasis added]). The Court declines to ignore the vast body of case law holding that the validity of a statement of readiness is to be judged by the People’s readiness at the time the statement was filed. The prosecutor must make a statement of readiness when s/he/they are, in fact, ready to proceed to trial (People v. Kendzia, 64 NY2d 331, 337 [1985]). The speedy trial statute does not contemplate a prediction or expectation of future readiness; it contemplates present readiness (id.). For that reason, this Court will not retroactively apply the March 1 certification to deem the People ready for trial as of February 9. [28 days charged] Based on the foregoing, this Court finds a total of 101 days chargeable to the People. Consequently, Defendant’s motion seeking an order of dismissal pursuant to CPL 30.30 is granted. Certificate of Compliance Challenge Because the Court has granted the defendant’s motion to dismiss pursuant to CPL 30.30, it declines to reach the merits of Defendant’s remaining contention that the People’s certificate of compliance is invalid, because the People failed to comply with their obligations under CPL 245.20. The foregoing constitutes the Decision and Order of the Court. Dated: May 5, 2021
