The following papers numbered 1 to 2 were read and considered on the defendant’s motion for an order dismissing the complaint pursuant to CPL §170.30(1), §30.30(1) (b), §245.50 and §245.80 for violating the defendant’s due process rights and her rights to a speedy trial under both the United States Constitution and the New York State Constitution or in the alternative, for an Order directing the People to comply with all discovery mandated by CPL §245.20 and CPL §245.50; deeming the People’s Certificate of Compliance filed on December 2, 2020 invalid; and nullifying the People’s declaration of readiness pursuant to CPL §245.50. Papers Numbered Notice of Motion and Affidavits Annexed 1 Order to Show Cause and Affidavits Annexed Affirmation/Affidavits in Opposition 2 Summons and Complaint Replying Affidavits Filed Papers Exhibits Memorandum of Law DECISION AND ORDER The defendant was arrested and charged with Driving While Ability Impaired by Alcohol (VTL §1192 [1]), Operating While Registration Suspended (VTL §512), Consumption of Alcohol in a Motor Vehicle (VTL §1227[1]) and Failed to Use a Designated Lane (VTL §1128[c]). The defendant appeared, was assigned an attorney, and released on her own recognizance. By motion dated January 6, 2021, the defendant moved for an order dismissing the complaint pursuant to CPL §170.30(1), §30.30(1) (b), §245.50 and §245.80 for violating the defendant’s due process rights and her rights to a speedy trial under both the United States Constitution and the New York State Constitution. In the alternative, counsel for defendant sought an Order directing the People to comply with all discovery mandated by CPL §245.20 and CPL §245.50; deem the People’s Certificate of Compliance filed on December 2, 2020 invalid; and to nullify the Prosecution’s declaration of readiness pursuant to CPL §245.50. The People opposed. After reading and considering the papers submitted by the parties and the arguments contained therein and after reviewing and considering the relevant law, the defendant’s motion is granted pursuant to CPL §30.30. The Court finds that 92 chargeable days have accrued since the defendant’s arraignment. CPL §30.30 “was enacted to serve the narrow purpose of insuring prompt prosecutorial readiness for trial, and its provisions must be ‘interpreted accordingly. People v. Sinistaj, 67 NY 2d 236, 239 [1986] citing People v. Anderson, People v. Anderson, 66 NY2d 529, 535; People v. Worley, 66 NY2d 523, 527; Bellacosa, Practice Commentary, McKinney’s Cons Law of NY, Book 11A, CPL 30.30, pp 148-149; compare CPL 30.20). Under the provisions of CPL §30.30, “the applicable speedy trial time is determined based on the highest charge in the accusatory instrument.” People v. Brito, 61 Misc. 3d 1208(A) [N.Y. City Crim. Ct, Kings County, 2018] citing People v. Walton, 165 Misc.2d 672, 674 [Crim Ct, Richmond Co. 1995]. Where, as here, the highest charge is a misdemeanor, the People are required to declare their readiness within 90 days from the filing of the accusatory instrument. CPL §30.30(1)(b); People v. Stirrup, 91 NY2d 434, 438 [1998]. The defendant bears the initial burden on a motion to dismiss on speedy trial grounds to demonstrate that the “prosecution failed to declare readiness within the statutorily prescribed time period.” People v. Luperon, 85 NY2d 71, 77-78 (1995). “The burden then shifts to the People to establish that a period should be excluded in computing the time within which they were required to be prepared for trial. Time may be excluded for numerous reasons, including, for example, delays resulting from appeals, delays at the request of the defendant, or where the defendant has absconded.” People v. Sibblies, 22 NY3d 1174, 1177 (2014) citing People v. Santos, 68 NY2d 859, 861 [1986]), (CPL 30.30 [4]). “The 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. Prince, 14 NY 3d 61, 63 [2010]. The definition of “readiness” changed with the legislature’s passing of discovery and speedy trial amendments to the Criminal Procedure Law which took effect January 1, 2020. “Article 245 now delineates the People’s expanded discovery obligation and sets out a statutory time frame for its completion. [C.P.L. §245.20, C.P.L. §245.10].” People v. Mashiyach, 70 Misc. 3d 456, 458 (2020). Under this new legislation, unless the defense explicitly waives discovery, the People must comply without any demand from the defense. Id. The People are further required to automatically disclose all items in its custody or possession within fifteen days from the defendant’s arraignment. C.P.L. §245.10(1) (a). To declare “ready”, the People must, after disclosure, file a certificate of compliance on the defense and the court. C.P.L. §245.50; see also C.P.L. §30.30(5). The defendant argued that the Court must dismiss the charges pursuant to CPL §30.30 as there are a total of 118 days are chargeable to the People. The defendant further moved pursuant to C.P.L. §170.30(1) (e) and §30.30 (1) (b), §30.30(5), §245.20 and §245.10 for dismissal of the complaint due to a denial of the defendant’s right to a speedy trial. The defendant alleged that the People asserted in discovery disclosures dated February 13, 2020 and March 10, 2020 that there was no impeachment material on witnesses, no judgments of convictions for witnesses, and no response to pending case against civilian witnesses. (Westchester County District Attorney’s Office Discovery Disclosure Index Pursuant to C.P.L. §245.20 and C.P.L. §245.50 par. K, P. Q). However, defendant argued, the People then represented on December 1, 2020 that the material does exist, was previously sent and/or that the People consented to inspection. Defendant contends that the People were mandated to turn over impeachment evidence pursuant to C.P.L. §245.20(1)(k) and that the People failed to comply. Rather, defendant avers, the People “consent” to the defendant’s inspection of same. Defendant maintains that this is not in compliance with the statute. Finally, the defendant argued that the People failed to comply with CPL §245.20(1)(m) in that they failed to provide a list of all tangible objects obtained from or allegedly possessed by the defendant. The defendant again objected to the People’s “consent” to the defendant’s inspection of same, arguing that this form reply simply is not in compliance with the substance of the law. The defendant seeks a determination that the certificate of compliance filed on December 2, 2020 was facially invalid and requests the court strike the certificate of compliance and declaration of readiness, compel full compliance with CPL §245.20 and deem the prosecution not ready for trial. C.P.L. §245.20(1)(k), C.P.L. §245.20 (1)(m). The People opposed the motion and contend that the People have used eighty-two (82) days of chargeable time. At the outset, the People acknowledged that an adjournment was requested from the defendant’s arraignment on January 3, 2020 through January 13, 2020, however, the People argue, this adjournment should be excluded from the CPL §30.30 calculation because it is a reasonable period, of delay resulting from a proceeding concerning the defendant under CPL §30.30(4)(a). The People further alleged that the time from January 13, 2020 to January 21, 2020 is excludable time as same was made at the defendant’s request or with the defendant’s consent. CPL §30.30[4] [b]; See, People v. Worley, 66 NY 2d 523, 527 [1985]; People v. D’Aquino, 163 Misc. 2d 788,791 [Yonkers City Ct, 1995]; People v. Percell, 62 Misc.3d 190 [Crim Ct., NY Co., 2020]. The People also argued that as the speedy trial time was tolled by executive order between March 20, 2020 and October 4, 2020, this time is also excludable. Finally, the People alleged that the adjournment from September 21, 2020 through October 30, 2020 is excludable under CPL 30.30(4)(f) as same was made due to the unavailability of defense counsel. The People further contend that the defendant, while alleging constitutional speedy trial grounds, failed to raise this issue in his affirmation. The People argued that in determining whether a prosecutorial delay has abridged a defendant’s rights, the court must consider (1) the extent of the delay; (2) the reasons for the delay; (3) the nature and seriousness of the charges; (4) whether there has been an extended period of pretrial incarceration and (5) the degree of actual prejudice caused by the delay. People v. Vernance, 278 AD2d 169 (1st Dept. 2001); People v. Taranovich, 37 N.Y. 2d 442, 445 (1975); People v. Jones, 267 A.D. 2d 250 (2d Dept., 1999); People v. Brown, 262 A.D. 2d 419 (2d Dept., 1999). The People alleged that several months of the delay in this matter were due to the court’s administrative adjournment in connection with the COVID-19 pandemic. The People maintain that the charges are significant, and the defendant failed to allege prejudice caused by the delay. The People also opposed that branch of the motion which sought a court order directing the People to comply discovery, alleging that the relief is misplaced as the defendant failed to demonstrate any prejudice. CPL §245.80(1)(a). While the People concede that they were not in “perfect” compliance with CPL §240.20 as they failed to notify the defendant of their intent to offer physical evidence possessed by the defendant, they claim this error was honest and they claim they exercised due diligence in conducting discovery. (People’s Affirmation in Opposition at p.12). The People assert that striking the certificate of compliance is a drastic and unjust remedy under the circumstances and they request an opportunity to supply an amended copy. Finally, with respect to the defendant’s contentions regarding impeachment material, the People deny the defendant’s allegations and alleged that they provided same on December 1, 2020. The People further alleged that they go beyond their statutory duty in consenting to inspection as they “[p]rovide material for all prospective witnesses but not every single officer mentioned in the CAD/blotter.” (People’s Affirmation in Opposition, p. 13). January 3, 2020 — January 31, 2020 The defendant was arraigned on January 3, 2020 and the case was adjourned on the People’s request until January 13, 2020. The People argued that this adjournment was a reasonable period of delay resulting from a proceeding concerning the defendant. C.P.L. §30.30[4] [a]. In support, the People cited several cases and argued that the courts are split on whether to exclude the first fifteen days of 2020. See, People v. Adrovic, 69 Misc. 3d 563, 568 [Crim. Ct, Kings Co., 2020] [first 15 days excludable under C.P.L. §30.30(4) (a) for the people to comply with discovery]; People v. Dobrenski, 69 Misc. 3d 333 [Utica City Ct., 2020] [holding the first 15 days are excludable under CPL §30.30(4)(a)]; People v. Roland, 67 Misc. 3d 330 (NY City Crim. Ct. 2020]; but see People v. Gillson, 69 Misc. 3d 1203[A] [Crim. Ct., NY Co. 2020 ] [holding that the time should be charged to the People because the accusatory was not converted to a complaint or an information]; People v. Mashiyach, 2020 NY Slip Op 20288 [Crim. Ct., Kings Co., 2020] [no time excludable under new discovery law]; People v. Rambally, 68 Misc. 1212 [A] [District Court Nassau County, 1st Distr., 2020] [same]; People v. Villamar, 69 Misc. 3d 842 [Crim. Ct., NY Co., 2020]. The People argued the Court should find, as the court did in Roland, that as the legislature amended portions of C.P.L. §30.30 and chose not to amend CPL §30.30(a) (4), the pre-existing law should apply, and the time should be excluded. People v. Roland, 67 Misc. 3d 330, 334-337 [Crim. Ct., Kings Co., 2020]. The defendant did not submit a reply. The Court declines to follow Roland and the line of cases cited by the People in support. In Roland, unlike here, discovery was complete under the prior legislation, all hearings were concluded and the parties both announced ready. The Roland court made an exception and excluded the first fifteen days as the matter was adjourned to 2020 due to court congestion. The adjournment imposed additional discovery obligations on the People which impeded the trial. Similarly, in the other matters cited by the People in support, unlike here, the People declared ready prior to the new legislation. In the present matter, the People did not declare ready until December 2, 2020, approximately one year after the defendant’s arraignment. The People alleged that the period from January 13, 2020 to January 31, 2020 must be excluded as this additional adjournment was at the request of the defendant. “Generally, when defense counsel actively participates in selecting an adjourn date beyond the People’s request, the defense is deemed to have consented to the adjournment and any time beyond the requested date is excludable from the speedy trial clock.” People v. Lobato, 66 Misc. 3d 1230(A) (Crim. Ct. Kings Co., 2020) citing People v. Liotta, 79 NY 2d 841 [1982]; People v. Robinson, 269 AD2d 410, [2nd Dep't 2000]; People v. Matthews, 227 AD2d 313 [1st Dep't 1996]. “The defendant may not request an adjournment and at the same time disclaim any waiver of delay.” People v. D’Aquino, 163 Misc.2d 788, 804[City Ct, City of Yonkers, 1995]. As the defendant consented to the adjournment between January 13, 2020 and January 31, 2020, this time must be excluded from the calculation. Accordingly, the People will be charged with ten days from January 3, 2020 to January 13, 2020. January 31, 2020 to March 20, 2020 On January 31, 2020, the matter appeared on the court’s calendar for discovery. Discovery was not received nor was any certificate of compliance filed and the People requested an adjournment to February 14, 2020. The matter appeared on the Court’s calendar for discovery on February 14, 2020. The People were not ready and requested February 24, 2020. The matter again appeared on the Court’s calendar for discovery on February 24, 2020. The People were not ready and requested an adjournment to March 10, 2020. On March 10, 2020 the People were not ready and discovery was not received, and the People requested March 17, 2020. On March 17, 2020, the People were not ready, and the case was adjourned to August 10, 2020 due to the COVID-19 pandemic. On March 20, by New York State Governor Andrew M. Cuomo Executive Cuomo enacted Executive Order 202.8 suspending “any specific time limit for the commencement, filing, or service of any legal action, notice, motion or other process or proceeding, as prescribed by…the criminal procedure law…until April 19, 2020.” Executive Order [Cuomo] No. 202.8 [9 NCRR 8.202.8]). (3 days). There is no dispute that the People requested the foregoing adjournments and no exceptions apply. Accordingly, the People will be charged with forty-nine days from March 3, 2020 through March 20, 2020. The 49 days are chargeable to the People. March 20, 2020 to October 30, 2020 As aforementioned, Executive Order 202.8 suspended “any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by…the criminal procedure law…until April 19, 2020.” Executive Order [Cuomo] No. 202.8 [9 NCRR.8.202.8]). The suspension was reaffirmed and modified by subsequent Executive Orders until July 6, 2020. (Executive Order No. 202.14 [9 NYCRR 8.202.14]; Executive Order 202.38 [9 NYCRR 8.202.38]). On July 6, 2020, the executive order was modified and continued until August 5, 2020, providing in pertinent part “Section §30.30 of the Criminal Procedure Law, is hereby modified to require that speedy trial time limitations remain suspended until such time as petit criminal juries are reconvened or thirty days, whichever is later.” Id. On August 10, 2020 a court conference was held, and the case adjourned to September 21, 2020 for disposition in person. On or about September 4, 2020, Executive Order 202.8 was extended to October 4, 2020 and modified such “that speedy trial time limitations remain suspended in a jurisdiction until such time as petit criminal juries are reconvened in that jurisdiction.” (Executive Order No. 202.55.1 [9 NYCRR 8.202.60]). On September 21, 2020, the defendant was present, but her attorney was unable to appear due to car trouble. The Court adjourned the case until the next date the defendant’s counsel was scheduled to be present, October 30, 2020. On or about October 4, 2020, the Executive Order was modified as it pertained to speedy trial time, effectively reinstating the requirements under CPL §30.30 for Westchester County. (Executive Order NO. 202.55.1 [9 NYCRR 8.202.67]. As CPL §30.30 was suspended by the foregoing Executive Orders the period from March 20, 2020 through October 30, 2020 is excluded. There is a dispute as to whether the time from October 4, 2020 through October 31, 2020 is excludable. “[T]he People’s lack of readiness is irrelevant to the determination that when defense counsel has failed to appear for a scheduled court appearance, the delay is nonetheless excludable.” People v. Mannino, 306 AD2d 157, 158 (1st Dep’t, 2003) citing People v. David, 253 AD2d 642, 644 [1998], lv denied 92 NY2d 948 [1998]; People v. Cambridge, 230 AD2d 649, 650 [1996]). This time is excludable. Accordingly, the People will be charged with zero days from March 20, 2020 through October 30, 2020. October 30, 2020 — November 13, 2020 The matter appeared on the Court’s calendar for disposition. The defendant and her attorney were present, and the People requested an adjournment to November 13, 2020. Accordingly, the People will be charged with fourteen days from October 30, 2020 through November 13, 2020. November 13, 2020 — November 20, 2020 The matter appeared on the Court’s calendar for control and conference. The People requested an adjournment until November 20, 2020. Accordingly, the People will be charged with seven days from November 13, 2020 through November 20, 2020. November 20, 2020 — December 2, 2020 A virtual conference was held, and the People requested an adjournment until December 2, 2020. Accordingly, the People will be charged with twelve days from November 20, 2020 through December 2, 2020. December 2, 2020 A discovery conference was held. The People served and filed a certificate of compliance and announced readiness for trial. The defendant objected and requested a motion schedule. Based on the foregoing the Court finds a total of 92 days chargeable to the People. The defendant’s motion pursuant to C.P.L. §30.30(1) (b) is granted and the charges dismissed. The Court accordingly does not reach the defendant’s remaining contentions. The foregoing constitutes the Decision and Order of the Court. Dated and Entered: April 19, 2021
