Papers Submitted: Notice of Motion 1 Affirmation in Support 2 Affirmation in Opposition 3 Reply Affirmation 4 DECISION and ORDER On July 17, 2020, the Defendant was arraigned on the charges of driving while intoxicated, refusing to submit to a preliminary breath test and failing to maintain her lane, in violation of VTL §§1192(3), 1194(1)(b) and 1128(a), respectively. The Defendant presently moves to dismiss this matter, pursuant to CPL §170.30(1)(e), alleging “the People have failed to be ready for trial in this matter within ninety (90) days of the commencement of the criminal action.” (Miller Affirmation 1/17/21, 3) The People’s obligation to be ready for trial in accordance with the time limits set out in CPL §30.30(1) “is purely a statutory ‘readiness rule’. It was enacted to serve the narrow purpose of insuring prompt prosecutorial readiness for trial, and its provisions must be interpreted accordingly (see, People v. Anderson, 66 N.Y.2d 529, 535, 498 N.Y.S.2d 119, 488 N.E.2d 1231; People v. Worley, 66 N.Y.2d 523, 527, 498 N.Y.S.2d 116, 488 N.E.2d 1228; Bellacosa, Practice Commentary, McKinney’s Cons. Law of N.Y., Book 11A, CPL 30.30, pp. 148-149; compare CPL 30.20).” People v. Sinistaj, 67 N.Y.2d 236, 239, 510 N.Y.S.2d 793, 794 (1986) Upon bringing this motion, the Defendant has the initial burden of demonstrating that the People have exceeded the speedy trial limits set out in CPL §30.30(1). “Once a defendant sufficiently alleges that the People were not ready within the statutory period, ‘the People [have] the burden of showing their entitlement to a statutory exclusion’ (People v. Luperon, 85 N.Y.2d 71, 81, 623 N.Y.S.2d 735, 647 N.E.2d 1243 [1995]; see People v. Santos, 68 N.Y.2d 859, 861, 508 N.Y.S.2d 411, 501 N.E.2d 19 [1986] ).” People v. Brown, 28 N.Y.3d 392, 403, 45 N.Y.S.3d 320, 326 (2016) Where, as here, the top charge is a misdemeanor punishable by a sentence of imprisonment of more than three months, the People must be ready within ninety (90) days, plus any excludable time. CPL §30.30(1)(b), People v. Young, 46 Misc.3d 142(A), 13 N.Y.S.3d 852 (App. Term 2nd, 11th & 13th Jud. Dists. 2015) The Defendant alleges, without contradiction, that at no time between July 17, 2020, the date of his arraignment, and February 8, 2021, did the People declare themselves ready for trial. Specifically, the Defendant alleges that, “The period of time between October 5, 2020 and January 8, 2021 exceeded the statutory required time constraints.” (Miller Affirmation 1/17/21) With this allegation, the Defendant has met his initial burden of demonstrating that the People have exceeded the ninety (90) days provided by CPL §30.30(1)(b). Given the fact that the Defendant only relies upon the time between October 5, 2020 and January 8, 2021, the Court will only address that period. The People acknowledge that they did not file a Statement of Readiness (“SOR”) until January 8, 2021. They argue, however, “that only zero (0) days are chargeable to the People as the adjournments between October 5, 2020 through January 8, 2021, are excludable as administrative adjournments, because of exceptional circumstances surrounding the Covid-19 Pandemic, and the suspension of CPL 245.” (Bold in original) (Massimino Affirmation 3/8/21, 17) On March 20, 2020, the Governor issued Executive Order Number 202.8, (9 NYCRR 8.202.8), which provided, in pertinent part: WHEREAS, on March 7, 2020, I issued Executive Order Number 202, declaring a State disaster emergency for the entire State of New York; NOW, THEREFORE, I, Andrew M. Cuomo, Governor of the State of New York, by virtue of the authority vested in me by Section 29-a of Article 2-B of the Executive Law…hereby temporarily suspend or modify, for the period from the date of this Executive Order through April 19, 2020 the following: In accordance with the directive of the Chief Judge of the State to limit court operations to essential matters during the pendency of the COVID-19 health crisis, any specific time limit for the…, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law,…is hereby tolled from the date of this executive order until April 19, 2020 It is widely agreed that Executive Order 202.8 (9 NYCRR 8.202.8) tolled the time limits of CPL §30.30, along with other statutory time periods spelled out in the Criminal Procedure Law. See: People v. Hines, 70 Misc.3d 1212(A), 137 N.Y.S.3d 678 (Family Ct. Bronx Co. 2021); People v. Pealo, supra.; People v. Mosely, 70 Misc.3d 1214, 2021 N.Y. Slip Op. 50063(U) (Crim. Ct. Kings Co. 2021); People ex rel. Nevins v. Brann, 67 Misc.3d 638, 122 N.Y.S.3d 874 (Sup. Ct. Queens Co. 2020); People ex re. Hamilton v. Brann, 67 Misc.3d 1205(A), 126 N.Y.S.3d 313 (Sup. Ct. Bronx Co. 2020) It is likewise recognized that, with some modifications not germane to this motion, this tolling was continued by subsequent Executive Orders 202.14, issued on April 7, 2020, through 202.60, issued on September 4, 2020.1 See: People v. Gillson, 69 Misc.3d 1203, 131 N.Y.S.3d 532 (Crim Ct. Kings Co. 2020); People v. Cada, 69 Misc.3d 882, 133 N.Y.S.3d 425 (Crim. Ct. Bronx Co. 2020); People v. Otero, 70 Misc.3d 526, 135 N.Y.S.3d 621 (City Ct. Albany 2020); People v. Davis, 70 Misc.3d 467, 134 N.Y.S.3d 620 (Crim. Ct. Bronx Co. 2020) On October 4, 2020 the Governor issued Executive Order 202.67, (9 NYCRR 8.202.67), which, in pertinent part: continue[d] the suspensions and modifications of law, and any directives not superseded by a subsequent directive contained in Executive Orders 202 up to and including 202.21, and 202.27, 202.28, 202.29, 202.30, 202.38, 202.39, 202.40, 202.48, 202.49, 202.50, 202.55 and 202.55.1, as extended, and Executive Order 202.60 for another thirty days through November 3, 2020, except: The suspension and modification of Section 30.30 of the criminal procedure law, as continued and modified in EO 202.60, is hereby no longer in effect, except for felony charges entered in the counties of New York, Kings, Queens, Bronx, and Richmond, where such suspension and modification continues to be effective through October 19, 2020; thereafter for these named counties the suspension is no longer effective on such date or upon the defendant’s arraignment on an indictment, whichever is later, for indicted felony matters, otherwise for these named counties the suspension and modification of Section 30.30 of the criminal procedure law for all criminal actions proceeding on the basis of a felony complaint shall no longer be effective, irrespective, 90 days from the signing of this Executive order on January 2, 2021. This, by its plain language, has been recognized to end the tolling of the time limits in CPL §30.30 and to re-commence the running of the speedy trial clock. See: People v. Quinlan, 2021 N.Y. Slip Op. 21020, 2021 WL 417125, (Crim. Ct. Bronx Co. 2021); People v. Mosley, supra., People v. Hines, supra., People v. Davis, supra. The People argue that the Governor’s Executive Orders effectuated and continued, to date, a omplete “suspension of CPL 245.” (Massimino Affirmation 3/8/21, 17) Based thereon, the lifting of the toll on CPL §30.30 notwithstanding, the People assert that they have no obligation to provide discovery or to file a Certificate of Compliance (“COC”) and SOR. The court respectfully disagrees. As can be seen, by its clear terms, what Executive Order 202.8 (9 NYCRR 8/202/8) suspended was, inter alia, “any specific time limit for the…, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law…” (Bold added). Notably, Article 245 does not provide a time limit for the filing of a COC, or for the timeliness of the People’s declaration of readiness. Effective January 1, 2020, CPL Article 245 “links the new discovery requirements to CPL §30.30 speedy trial provisions (CPL §245.50[3] and 30.30[5]).” People v. Pealo, 71 Misc.3d 337, 2021 N.Y. Slip Op. 21033; (Justice Ct. Town of Penfield 2020) “The provisions of CPL §245.50 and 30.30 interlace discovery compliance and trial readiness, such that discovery compliance is a condition precedent to a valid announcement of readiness for trial, absent ‘exceptional circumstances’ on a particular case. (CPL §245.50[3]).” People v. Lobato, 66 Misc.3d 1230(A), 122 N.Y.S.3d 492 (Crim. Ct. Kings. Co. 2020); See also: People v. Mishiyach, 70 Misc.3d 456, 135 N.Y.S.3d 610 (Crim Ct. Kings Co. 2020) While intertwined, however, the People’s discovery obligations, pursuant to CPL §§245.10 and 245.20, and their speedy trial readiness requirements pursuant to CPL §30.30 are not the same thing. The People’s initial discovery obligations are found in CPL §245.20. Their initial discovery obligations, with some exceptions, must be fulfilled within the time limits set forth in CPL §245.10(1). Neither section addresses the time within which a COC or SOR is to be filed. In fact, there is no specific statutory time limit for the filing of a COC. The only limitations thereon can be found in CPL §245.50(1) and CPL §30.30(1) and (5). CPL §245.50(1) provides, in pertinent part, “When the prosecution has provided the discovery required by subdivision one of section 245.20 of this article, [with some exception], it shall serve upon defendant and file with the court a certificate of compliance.” This is “[t]he only condition precedent to the prosecutor’s ability to file a COC….” People v. Napolitano, 67 Misc.3d 1241(A), 2020 N.Y. Slip Op. 50802(U) (Crim. Ct. N.Y. Co. 2020) It has also been observed that the “only practical purpose” served by a COC is that, “It is a necessary prerequisite to a valid statement of readiness under C.P.L. §30.30.” People v. Barnett, 68 Misc.3d 1000, 1002, 129 N.Y.S.3d 293, 295 (Sup. Ct. N.Y. Co. 2020); See also: See: People v. Nge, 67 Misc.3d 650, 123 N.Y.S.3d 449 (Crim. Ct. Kings Co. 2020); People v. Lustig, 68 Misc.3d 234, 123 N.Y.S.3d 469 (Sup. Ct. Queens Co. 2020); People v. Haymon, 71 Misc.3d 1203(A), 2021 N.Y. Slip Op. 50267(U) (Co. Ct. Albany Co. 2021) CPL §30.30(5), then links the filing of a COC to the People’s readiness for trial, by providing, in pertinent part, “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….” It is CPL §30.30(1) which sets the ultimate time limit on the filing of a COC. In this case, that limitation is ninety (90) days from the commencement of this prosecution, plus any excludable time. See: CPL §30.30(1)(b); People v. Price, 14 N.Y.3d 61, 896 N.Y.S.2d 719 (2010) Even if the Governor’s Executive Orders tolled the time limit for providing initial discovery as set forth in CPL §245.10(1), the provisions of CPL §§245.50(1) and 30.30(1) and (5) were no longer tolled following the issuance of Executive Order 202.67 (9 NYCRR 8.202.67). While this may have insulated the People from the imposition of sanctions for belated disclosure, pursuant to CPL §245.80, the People fail to file a COC and SOR within ninety (90) days, absent excludable time, at their own peril. The People’s arguments, that they did not request an adjournment before December 2, 2020 and that they should not be charged for “administrative” adjournments are similarly without merit. It is simply irrelevant that the People did not request an adjournment before December 2, 2020. As discussed above, the lone prerequisite to the People being ready is the filing of a COC. Until the People do so, they remain in a “pre-readiness” posture, which will be treated differently than prosecutorial delay after the People’s announcement of ready for purposes of calculating speedy trial time. People v. Anderson, 66 N.Y.2d 529, 498 N.Y.S.2d 119 (1985) “Pre-readiness” delay, unless otherwise excludable, [See: CPL §30.30(4)], will be charged entirely to the People, whether they asked for the entire period of the adjournment or not. In the “pre-readiness” posture, “they cannot take advantage of court congestion so as to ignore their own responsibility of being ready for trial on time (see, People v. Brothers, 50 N.Y.2d 413, 417-418, 429 N.Y.S.2d 558, 407 N.E.2d 405, supra).” People v. Kendziz, supra. 338, 486 N.Y.S.2d 888, 891 (1985); See also: People v. Smith, 82 N.Y.2d 676, 601 N.Y.S.2d 466 (1993) Moreover, the People fail to demonstrate how these adjournments prevented them from serving discovery and filing a timely COC and SOR. The People’s argument, that the time from October 28, 2020 to December 2, 2020 is excludable due to the fact that the Defendant was unrepresented, pursuant to CPL §30.30(4)(b), is factually incorrect. The court’s records are clear that Defendant’s attorney filed a Notice of Appearance in this matter on September 1, 2020. There is no question that the Defendant had counsel during the period here in question. The People’s final argument, “that the Coronavirus Pandemic is an exceptional circumstance[,]” (Massimino Affirmation 3/8/21, 29) which has prevented the People from filing a COC, is not supported by this record. “There is no precise definition of what constitutes an exceptional circumstance under CPL 30.30(4)(g).” People v. Smietana, 98 N.Y.2d 336, 341, 746 N.Y.S.2d 678, 681 (2002); See also: People v. Clarke, 28 N.Y.3d 48, 41 N.Y.S.3d 200 (2016) “It is clear, however, that the range of the term’s application is limited by the dominant legislative intent of informing CPL 30.30, namely, to discourage prosecutorial inaction (see People v. Sinistaj, 67 N.Y.2d 236, 239, 501 N.Y.S.2d 793, 492 N.E.2d 1209 [1986]; People v. Worley, 66 N.Y.2d 523, 527, 498 N.Y.S.2d 116, 488 N.E.2d 1228 [1985]).” People v. Price, 14 N.Y.3d 61, 64, 896 N.Y.S.2d 719, 721 (2010) The Court of Appeals has “allowed application of the exclusion only when the People for practical reasons beyond their control cannot proceed with a legally viable prosecution (see e.g. People v. Washington, 43 N.Y.2d 772, 401 N.Y.S.2d 1007, 372 N.E.2d 795 [1977]; People v. Zirpola, 57 N.Y.2d 706, 708, 454 N.Y.S.2d 702, 440 N.E.2d 787 [1982]).” People v. Price, supra. at 64, 896 N.Y.S.2d 719, 721 (2010) While it may be that at certain times and in certain situations the Covid-19 pandemic may qualify as an exceptional circumstance, See: People v. Rambally, 68 Misc.3d 1212(A), 130 N.Y.S.3d 261 (Dist. Ct. Nassau Co. 2020); cf. People v. Aquino, 189 Misc.2d 572, 734 N.Y.S.2d 371 (Crim Ct. N.Y. Co. 2001); People v. Sheehan, 39 Misc.3d 695, 962 N.Y.S.2d 886 (Crim. Ct. N.Y. Co. 2013), the People need to do more than just mouth the words “coronavirus” and “exceptional circumstance.” As the People themselves note: CPL 30.30(4)(g)(i) states ‘the continuance is granted because of the unavailability of evidence material to the people’s case when the district attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will become available in a reasonable period.’ As noted in People v. Washington, 43 N.Y.2d 772, 774, 401 N.Y.S.2d 1007, 1008 (1977), “The statutory exception,…, if it is to be given reasonable effect and it is to fulfill the legislative purpose, must be limited to instances in which the prosecution’s inability to proceed is justified by the purposes of the investigation and credible, vigorous activity in pursuing it.” See also: People v. Clarke, 28 N.Y.3d 48, 41 N.Y.S.3d 200 (2016); People v. Figaro, 245 A.D.2d 300, 667 N.Y.S.2d 372 (2nd Dept. 1997) The People herein, have failed to meet that burden. Painting with a rather broad brush, the People’s represent that “[b]ecause of the Covid-19 Pandemic, courts, including Nassau County First District Court, have been unable to hear cases in person. Cases have been heard virtually, motions have been served via email, and defendants have not been present for virtual conferences.” (Massimino Affirmation 3/8/21, 30) The People fail to explain how any of this prevented them from serving the Defendant with discovery and filing a COC and SOR. Moreover, the People’s representations are not entirely correct. While the Covid-19 pandemic has affected and continues to affect “normal” court operations to one extent or another, the situation is not as dire as the People represent. As early as April 30, 2020, protocols were put in place to provide for the electronic filing of documents. By April 13, 2020 the court began virtual conferences of “non-essential matter.” Beginning May 4, 2020, parties were permitted to file new motions electronically. On June 12, 2020 courthouse support staff, clerical staff and Court Clerks was increased in the District Court. Effective June 26, 2020 the District Court commenced conducting in person evidentiary hearings and bench trials. At that same time, up to fifty (50 percent ) percent of the District Court courtrooms were open for in person proceedings. By July 10, 2020 evidentiary hearings, bench trials, pleas, sentences and arguments on motions were to presumptively be held in person. On November 6, 2020 parties were permitted to commence new matters and in pending matters resume filing and service as normally permitted by statute and court rule. The People further allege, in similar conclusory fashion, that “[a]s the Coronavirus began to spread more rapidly throughout Nassau County and the positivity rate began to spike, police resources were diverted from discovery compliance.” (Massimino Affirmation 3/8/21, 30) The People fail, however, to explain how these circumstances specifically affected their ability to provide discovery and file a COC and SOR in this particular case. The People do not provide a scintilla of information concerning the “vigorous activity”2 they undertook in this case to obtain and provide discoverable material and to file a COC and SOR. The People fail to tell the court when those efforts were made, who made those efforts, to whom requests were made, what items were receive, what items were provided to the Defendant or what items remained outstanding. See: People v. Bautista, 67 Misc.3d 279, 120 N.Y.S.3d 754 (Crim. Ct. Queens Co. 2020); People v. Adrovic, 69 Misc.3d 563, 130 N.Y.S.3d 614 (Crim Ct. Kings Co. 2020) Covid-19 notwithstanding, even following the issuance of Executive Order 202.8 (9 NYCRR 8.202.8) on March 20, 2020, prosecutors around the State have been providing discovery and filing COCs. See: People v. Ramirez-Correa, 2021 N.Y. Slip Op. 21040; 2021 WL 746208 (Crim. Ct. Queens Co. 2021), People v. Rosario, 70 Misc.3d 753, 139 N.Y.S.3d 498 (County Ct. Albany Co. 2020), People v. Dobrzenski, 69 Misc.3d 333, 130 N.Y.S.3d 238 (City Ct. Oneida Co. 2020), People v. Pealo, 71 Misc.3d 337, 2021 N.Y. Slip Op. 21033; (Justice Ct. Town of Penfield 2020), People v. Davis, 70 Misc.3d 467, 134 N.Y.S.3d 620 (Crim. Ct. Bronx Co. 2020) Likewise, the Nassau County District Attorney’s Office has filed many dozens, if not hundreds, of COCs and SORs during the same period of time; yet, the People, in the matter sub judice, fail to adequately explain why this case is the exception. The suspension of CPL §30.30 having been lifted on October 4, 2020, and the People having failed to file a COC and SOR in accordance with CPL §§30.30(5) and 245.50, until January 8, 2020, the People shall be charged with 93 days. See: People v. Mosley, supra. Accordingly, the Defendant’s motion to dismiss is granted; and, this docket is dismissed in its entirety. This constitutes the decision and order of this court. Dated: April 21, 2021
