Recitation, as required by CPLR §2219 (a), of the papers considered on review of the defendant’s motion Papers Numbered Notice of Motion and Affidavits Annexed 1 Order to Show Cause and Affidavits Annexed Affirmation in Opposition 2 Summons and Complaint Replying Affidavits Filed Papers Exhibits Memorandum of Law DECISION AND ORDER Defendant was charged by a Superseding Misdemeanor Information on September 9, 2019 with Assault in the Third Degree (PL§ 120.00[1])., Petit Larceny (PL §155.25) and Harassment in the Second Degree (PL §240.26)1. The defendant was arraigned on these charges and the People announced their readiness for trial. The factual portion of the information alleged that on May 7, 2019 at approximately 8:57 P.M. the defendant Paige Sinon, aiding and abetting and acting in concert with Tracey Keebler, repeatedly kicked and punched the complaining witness about her face and body causing multiple fractures to the complaining witnesses jaw, nose, left eye orbital and left-ring finger, causing substantial pain and requiring emergency medical attention; and while aiding, abetting and acting in concert with each other stole an Apple Watch from the complaining witness’ wrist. Defendant moves to dismiss for violating defendant’s due process rights and for exceeding the speedy trial requirements, the sixth Amendment of the United States Constitution, CPL §30.20 and the New York State Constitution. Defendant alleged that the People failed to comply with discovery and failed to file a certificate of compliance within ninety days. The People opposed the motion, arguing ninety days are chargeable under CPL §30.30. 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 certain periods within that time should be excluded. People v. Amrhein, 128 AD3d 1412 [4th Dept., 2015]. “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 NY3d 61, 63 [2010]. On September 19, 2019, the defendant was arraigned on a misdemeanor complaint on which the highest charge was a misdemeanor punishable by a maximum imprisonment term of one year. See, People v. Adrovic, 69 Misc. 3d 563 [Kings Co. Criminal Ct. 2020]. Hence, the People were required to be ready for trial within “ninety days of the commencement [arraignment] of [the] [] criminal action” (CPL §30.30[a][b]), less any excludable time. See, People v. Mashiyach, 70 Misc. 3d 456 [Kings Co. Criminal Ct. 2020]. Prior to answering ready for trial, the People must have “done all that is required of them to bring the case to a point where it may be tried” People v. England, 84 NY2d 1, 4 [1994]. To be “ready” for trial, two elements must be satisfied by the People. First, there must be a “statement of readiness by the [People] [] in open court [on the record] [] or recorded by the clerk or a written notice of readiness sent by the prosecutor to [] defense counsel [] [and the court]. People v. Brown, 28 NY3d 392, 403 [2016]. Second, “the People must in fact be ready to proceed at the time they declare readiness.” Id., quoting People v. Carter, 91 NY2d 795, 798 [1998]. Once the People have filed a statement of readiness, adjournments are only charged to the People when the adjournment is exclusively their fault, and the time cannot be excluded under CPL §30.30[4]; see People v. Brown, 28 NY3d 392 [2016]. Indeed, “[i]n the post readiness context, the People bear the burden of ensuring that the record explains the cause of adjournments sufficiently for the court to determine which party should properly be charged with any delay.” Id., quoting People v. Stirrup, 91 NY2d 434, 440 [1998]. As of January 1, 2020, new legislation went into effect which imposed new discovery requirements upon the People. While the changes did not invalidate the People’s previous declaration of readiness, on January 1, 2020 the People reverted to a state of unreadiness until they filed a certificate of compliance pursuant to CPL §245.50. Accordingly, unless the People can show “their entitlement to a statutory exclusion”, the Court must charge the People with pre-readiness delays from January 1, 2020 through the filing of the Certificate on December 23, 2020. The relevant chronology is set forth below. September 19, 2019 — December 31, 2019 Time charged to the People — 0 days Here, the People announced ready for trial on the defendant’s arraignment, September 19, 2019. This was sufficient for speedy trial purposes under the law as it existed at that time. Accordingly, unless a delay constituted a “post readiness delay” that was “attributable to [the People's] inaction and directly implicates their ability to proceed to trial” (People v. Carter, 91 NY2d 795, 799 [1998] citing People v. McKenna, 76 NY2d 63-64; People v. Anderson, 66 NY2d 539, 534, 536), the time is excluded. No such contentions are made by the defendant pertaining to the time from September 19, 2019 through December 31, 2019. Accordingly, no time is chargeable to the People. January 1, 2020 — February 2, 2020 Time charged to the People — 0 days The defendant argued that thirty-three days are chargeable to the People between January 1, 2020 and February 2, 2020. Counsel for the defendant alleged that he did not waive speedy trial and discovery. He maintains that speedy trial time commenced against the prosecution on January 1, 2020. The People opposed and argued that this time must be excluded as the defendant, on November 26, 2019, requested the adjournment. “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 Dept 200]; People v. Matthews, 227 AD2d 313 [1st Dept 1996]. The People argued in the alternative, the Court should find, as the court did in Roland, that as the legislature amended portions of CPL §30.30 and chose not to amend CPL §30.30(a)(4), the pre-existing law should apply and the first fifteen days of 2020 should be excluded from the People’s time. People v. Roland, 67 Misc. 3d 330, 334-337 [NY City Crim Ct. 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 as same are misplaced. 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. In the present matter the defendant requested the adjournment. “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, 291 [Yonkers City Ct. 1995]. This time is excluded. February 3, 2020 — March 9, 2020 Time charged to the People — 0 days There is no dispute that on February 3, 2020, the defendant consented to the People’s request for an adjournment for jury trial on March 9, 2020. Accordingly, this time is excluded. March 9, 2020 — March 23, 2020 Time charged to the People — 11 days The People do not dispute that they requested an adjournment from March 9, 2020 to March 23, 2020. The People argued that as speedy trial time was tolled by Governor Cuomo’s Executive Order as of March 20, 2020, the additional three days are not chargeable to the People and are excludable from the CPL §30.30 calculation. A state of emergency was declared by Governor Andrew Cuomo in response to the effects of the COVID-19 pandemic on March 7, 2020. On March 20, 2020, Governor Cuomo enacted executive Order 202.8 tolling “any specific time limit for the commencement, filing or serve of any legal action, notice, motion or other process or proceeding, as prescribed by…the criminal procedure law…until April 19, 2020.” The Court finds that 11 days are chargeable to the People. March 20, 2020 to October 4, 2020 Time charged to the People — 0 days There is no dispute that Executive Order 202.8 which 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 No. 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 or about September 4, 2020, Executive Order No. 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 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. October 4, 2020 to December 23, 2020 Time charged to the People — 79 days On consent, and without any noted exception, the Court finds that seventy-nine days are chargeable to the People. December 23, 2020 Time charged to the People — 0 days The People filed a Certificate of Compliance on December 23, 2020 and declared ready for trial. The People contend that this stopped the speedy trial clock under CPL §30.30. The Certificate of Compliance located in the court’s file is in fact stamped December 23, 2020. No time is chargeable to the People. 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 denied pursuant to CPL §30.30. The Court finds that 90 chargeable days have accrued since the defendant’s arraignment. As the People declared their readiness for trial on the ninetieth day which is within the ninety day period provided in CPL §30.30 [1][b]; People v. England, 195 A.D.2d 751 [3d Dept 1993] [finding the People must be ready for trial within ninety days and may announce ready on the ninetieth day]; People v. Bendter, 184 Misc.2d 374 [Kings Co. Crim. Ct, 2000] [holding that the announcement of readiness on the last day of a statutory speedy-trial time limit is timely for speedy trial purposes]. As the People complied with the ninety-day period provided in CPL 30.30[1] [b], defendant’s motion to dismiss on CPL §30.30 grounds is denied. That branch of the defendant’s motion which sought to dismiss based on constitutional speedy trial grounds is denied. The defendant did not address the issue in either his affirmation or memorandum of law and failed to demonstrate undue prejudice as it relates to the defendant’s constitutional right to a speedy trial. Finally, defendant argued that CPL §245.80 mandates dismissal of the charges for the People’s failure to comply with discovery. Defendant contends that important and relevant discovery caused the defendant to be severely prejudiced in the preparation of a defense. Counsel alleged that because of the delay, witnesses, and information favorable to the defense may no longer be available. There is no dispute that on February 17, 2021, defense counsel was notified that Officer Francis McDonald of the Yonkers Police Department, while investigating the location of the alleged crime, viewed a video recording involving the defendant. Defense counsel averred that what was shown on the video is presently unknown. The video allegedly depicted the defendant at the location of the incident on the date of the incident and was subsequently lost and no longer available for viewing. Defense counsel contends that as the defense was never advised of the existence of this video recording, counsel was unable to investigate or speak with the individual that made the recording. Counsel contends that his client has always maintained that co-defendant Tracey Keebler engaged in the actual physical altercation with the complaining witness and that any video recording would prove the defendant’s innocence. The People, in a footnote, argued that the defendant conflates his motion pursuant to CPL §30.30 with claims of prejudice pursuant to CPL §245.80 and alleged that argument has no bearing on the determination of the present motion to dismiss. The basis for this branch of the defendant’s motion is the People’s alleged failure to comply with discovery pursuant to CPL §245. 80 which requires the People to disclose “all items and information that relate to the subject matter of the case and are in the possession, custody or control of the prosecution or persons under the prosecution’s direction or control including…tapes or other electronic recordings.” CPL §245.20 [1] [g]. This is not a case where the evidence was lost or destroyed. Rather the police never preserved the recording. As such the evidence was not in the possession of the People and was not discoverable under Article 245. “The police do not have a duty to preserve all material that might be of conceivable evidentiary significance, especially when the exculpatory value of the evidence is purely speculative, as it is here.” People v. Taylor, 169 AD 2d 791 [2d Dept. 1991]. There is no dispute that the contents of the recording are unknown other than the allegation that the recording depicted the defendant at her place of employment on the date of the alleged incident. Discovery sanctions, including dismissal of some or all the charges, are available for the belated disclosure of discovery. CPL §245.80. However, this information, which was never in the possession of the People or the Yonkers Police Department, was not subject to the disclosure rules provided in Article 245. Accordingly, sanctions are not warranted and this branch of the defendant’s motion to dismiss is denied. Dated and Entered: June 3, 2021
