DECISION AND ORDER Defendant Darryl Young, charged with one count of Sexual Abuse in the Third Degree [PL 130.55] a class B misdemeanor, moves, by notice of motion dated March 19, 2021, to dismiss the accusatory instrument pursuant to CPL 30.30(1)(c) and CPL 170.30(e). The Court finds that 103 chargeable days have elapsed, therefore, defendant’s motion is GRANTED. Background and Procedural History Mr. Young is charged with one count of Sexual Abuse in the Third Degree, associated with an incident occurring on August 11, 2019, where he is accused of placing his hand on a woman’s vagina over her clothing on the subway without her consent. Mr. Young was arrested on October 5, 2019 and arraigned on a Desk Appearance Ticket on November 21, 2019. The case was adjourned for the People to provide a supporting deposition to January 7, 2020. On December 16, 2019, the People filed a supporting deposition and certificate of readiness (COR) off-calendar. On January 6, 2020, the People served discovery to the defense off-calendar and filed an automatic discovery form (ADF) and certificate of compliance (COC). On January 7, 2020, the case was adjourned for trial to February 26, 2020. On January 9, the People filed a COR. On February 26, 2020, the People were not ready for trial, and the case was adjourned to March 31, 2020. On February 27, 2020, the People filed another COR. On March 16, 2020, as well as on all subsequent appearances until October 28, 2020, the case was administratively adjourned due to the coronavirus pandemic, as only emergency matters were being calendared at that time. On October 28, 2020, the case was calendared for a virtual appearance, and adjourned for trial to December 2, 2020. On December 2, 2020, the People answered ready for trial at a virtual court appearance, but the defense requested an adjournment to February 9, 2021, which the court granted. On February 9, 2021, the People again answered ready for trial at a virtual court appearance. On that date, this court orally invalidated the People’s previously filed COR’s, as lacking a proper certification pursuant to newly-enacted CPL 30.30 (5-a). The defense then requested a motion schedule, and the case was adjourned for decision to March 31, 2021. The defense filed the instant motion to dismiss off-calendar on March 19, 2021. On March 31, 2021, the case was adjourned again for decision to June 8, 2021. On April 7, 2021, the People filed their response off-calendar and on May 28, 2021, the defense filed a reply off-calendar. Discussion Mr. Young is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of not more than three months and none of which is a crime punishable by a sentence of imprisonment of more than three months. Accordingly, the People are required to be ready for trial within 60 days from the commencement of the criminal action, less any excludable time. CPL 30.30(1)(c). Although commencement of a criminal action begins at the arraignment, computation for speedy trial purposes begins on the next day. People v. Stiles, 70 N.Y.2d 765 (1987). Once a defendant has alleged that an excess of the allowable time has elapsed, the burden shifts to the People to demonstrate whether any periods are to be excluded from the calculation, such that the allowable time has not elapsed. People v. Santos, 68 N.Y.2d 859 (1986); People v. Berkowitz, 50 N.Y.2d 333 (1980). Mr. Young argues that more than 60 days of includable time have elapsed since the commencement of the action. The People argue that a maximum of 56 chargeable days have elapsed. The parties agree that the initial adjournment between arraignment and the filing of the People’s supporting deposition and COR on December 16, 2019 is chargeable. The parties also agree that the period between January 1, 2020 until January 7, 2020 is also chargeable. The People argue that the period between January 7, 2020 and February 26, 2020 is excludable because they aver that they stated ready for trial on January 7, 2020 at the court appearance, thereby tolling the speedy trial clock. However, as demonstrated by the January 7, 2020 transcript provided by the People to the court, and as the defense points out in his reply, the case was not on for trial on January 7, 2020, nor did the People state that they were actually ready for trial on January 7, 2020. Rather, a lengthy colloquy at the January 7, 2020 court appearance resulted in the court’s ruling the People’s COR filed on December 16, 2019 valid.1 The case was then adjourned for trial, and subsequently, the People filed a COR off-calendar on January 9, 2020, which this court deems invalid, as explained below. The People filed an additional COR on February 27, 2020, which this court also deems invalid. 2019 Amendments to CPL 30.30 The People are deemed “ready for trial” when they either 1) communicate their actual readiness in open court or 2) file a certificate of readiness with the court and serve a copy on defense counsel. People v. Kendzia, 64 N.Y.2d 331 (1985). However, as of January 1, 2020, any statement of trial readiness must be accompanied or preceded by a certificate of compliance with the discovery disclosure requirements mandated by CPL 245.20. CPL 30.30(5). The legislature also added a new subsection to CPL 30.30 as part of the 2019 amendments to the statute, which provides: “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.” CPL 30.30 (5-a) (emphasis added). This statute imposes on the Court a simple language interpretation and this Court relies on long-standing Court of Appeals precedent that “[t]he governing rule of statutory construction is that courts are obliged to interpret a statute to effectuate the intent of the Legislature, and when the statutory ‘language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of [the] words used.” People v. Finnegan, 85 N.Y.2d 53, 58 (1995); People v. Francis, 30 N.Y.3d 737, 740 (2018); Matter of Walsh v. New York State Comptroller, 34 N.Y.3d 522, 524 (2019); Colon v. Martin, 35 N.Y.3d 75, 78 (2020). The Supplementary Practice Commentary to CPL 30.30 (5-a) by William Donnino notes that this new subsection was added to abrogate the practice of partial conversion, whereby some counts of an accusatory instrument have been deemed converted, while at the same time leaving other existing counts unconverted on the same accusatory instrument. Therefore, the enactment of CPL 30.30 (5-a) was a response to critics of the practice of partial conversion and to provide a bright-line rule as to when the People can answer ready for purposes of speedy trial. See, People v. Brooks, 190 Misc.2d 247, 252 (App. Term 1st Dept. 2001) (concurring opinion, Suarez, J.)2 As such, a CPL 30.30 (5-a) certification requires the People to attest in a “COR”: (1) that all counts of an accusatory instrument are facially sufficient in compliance with CPL 100.15 and 100.40 and (2) that those counts not meeting the requirements for facial sufficiency have been dismissed, before they can “answer ready” and toll the speedy trial clock.3 This requirement does not place an additional burden on the People. Consistent with this Court’s view, several other courts have invalidated “statements of readiness” which do not contain the required certification language, resulting in dismissal. See, People v. Aaron Ross, Decision and Order, Dkt. No. CR-025918-19NY (Crim. Ct. N.Y. Co., Aug. 2020) (Gaffey, J.); People v. Manny Lopez, Decision and Order, Dkt. No. CR-001527-20NY (Crim. Ct. N.Y. Co., Jan. 2021) (Chu, J.); People v. Maria Ramirez-Correa; 2021 Slip Op. 21040 (Crim. Ct. Queens Co., Feb. 2021); People v. Rivera, 2021 WL1585240 (Crim. Ct. N.Y. Co., April 6, 2021, Maldonado-Cruz, J.); People v. Andrew Lavrik, 2021 WL 1604728 (Crim. Ct. N.Y. Co., April 22, 2021, Maldonado-Cruz, J.); People v. Matthew Popko, 2021 WL1585214 (Crim. Ct. Queens Co., April 22, 2021); People v. Keith Pittman, Decision and Order, Dkt. No. CR-033832-19NY (Crim. Ct. N.Y. Co., May 27, 2021) (Maldonado-Cruz, J.). In the case at bar, the People filed two COR’s on January 9, 2020 and February 27, 2020 which state: “Jillian Shartrand, an Assistant District Attorney in the County of New York, hereby certifies that the People are ready for trial in the above-entitled action.” These COR’s do not comport with the additional certifications required by CPL 30.30 (5-a). They do not certify the facial sufficiency of the counts charged, nor do they certify that any unconverted counts have been dismissed, or that no counts have been dismissed. Accordingly, these COR’s did not effectively toll the speedy trial clock. The court notes that had the COR’s contained only a certification by the People as to the facial sufficiency of the sole charge in the information, the court would have considered holding, per People v. Lorgan Prado, (Decision and Order, Dkt. No. CR-008520-20NY (Crim. Ct. N.Y. Co., May 7, 2021) (Gaffey, J.) that a certification regarding dismissed charges was not required where, as here, the accusatory instrument only ever contained one sole count. However, because the COR’s in the instant case contain no CPL 30.30 (5-a) certifications whatsoever, the court must find that, consistent with its prior rulings on this issue, the COR’s are deemed invalid. Accordingly, the court makes the following speedy trial calculations with respect to each adjournment: November 21, 2019 — January 7, 2020 The case was arraigned and adjourned for a supporting deposition. On December 16, 2019, the People filed a supporting deposition and COR off-calendar, which tolled the speedy trial clock. Subsequently, the parties agree that the period from January 1, 2020 until January 7, 2020, when the People complied with their discovery obligations, is chargeable. CPL 30.30(5); CPL 245.50(3). Accordingly, 31 days are charged. January 7, 2020 — February 26, 2020 The case was adjourned for trial to February 26, 2020. On January 9, 2020, the People filed a COR off-calendar, however, lacking the proper certifications, this COR is deemed invalid and did not toll the speedy trial clock. Accordingly, 50 days are charged. February 26, 2020 — March 31, 2020 On February 26, 2020, the People were not ready for trial, and the case was adjourned to March 31, 2020. On February 27, 2020, the People filed a COR off-calendar, however, lacking the proper certifications, this COR is deemed invalid and did not toll the speedy trial clock. On March 20, 2020, Governor Cuomo issued Executive Order 202.8, which suspended CPL 30.30 and tolled all speedy trial calculations from March 20, 2020 until October 4, 2020. Accordingly, during this period, 22 days are charged. March 16, 2020 — October 28, 2020 On March 16, 2020, the case was advanced and administratively adjourned several times due to the coronavirus pandemic, as only emergency matters were being calendared at this time. As per Governor Cuomo’s Executive Order 202.8, CPL 30.30 was temporarily suspended. The case did not appear on the calendar until October 28, 2020.4 0 days are charged. October 28, 2020 — December 2, 2020 On October 28, 2020, the case was calendared for a virtual appearance. This adjournment is excludable as the People were entitled to a reasonable time to prepare the case for trial following the resumption of court appearances, or in the alternative, as delay caused by the exceptional circumstance occasioned by the pandemic. Accord, People v. Tafari Smith, Decision and Order, Dkt. No. CR-021990-19NY (Crim. Ct. N.Y. Co., March 17, 2021) (Davidson, J.); CPL 30.30(4)(g). 0 days are charged. December 2, 2020 — February 9, 2021 On December 2, 2020, the People answered ready for trial, but the defense requested an adjournment to February 9, 2021. Therefore, this adjournment is excludable. CPL 30.30 (4)(b), 0 days are charged. February 9, 2021 — March 31, 2021 On February 9, 2021, the People answered ready for trial. The court issued an oral ruling, deeming the People’s previous COR’s invalid, and the defense requested a motion schedule based upon the court’s ruling. The court set a motion schedule and the case was adjourned to March 31, 2021 for decision. Accordingly, this adjournment is excludable. CPL 30.30 (4)(a). 0 days are charged. March 31, 2021 — June 8, 2021 The court adjourned the case again for decision to June 8, 2021. This adjournment is excludable as a period during which the motions were under consideration by the court. CPL 30.30(4)(a). 0 days are charged. By the court’s calculation, the total includable speedy trial time amounts to 103 days, exceeding the 60-days permitted for a class B misdemeanor. Conclusion For the aforementioned reasons, the court finds that 103 chargeable days have elapsed since the commencement of the case, and therefore, the people have exceeded their allowable speedy trial time. Accordingly, Mr. Young’s motion to dismiss pursuant to CPL 30.30(1)(c) and CPL 170.30(e) is GRANTED. This opinion constitutes the decision and Order of the Court. Dated: June 8, 2021
