The following papers numbered 1 to 3 were read and considered on the defendant’s motion to dismiss 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 3 Filed Papers Exhibits Memorandum of Law DECISION AND ORDER Defendant is charged with Driving While Intoxicated (VTL §1192.3), Driving with .08% or more of Alcohol [VTL §1192.2], Speedy over 55 zone (VTL §1180 [B]) Consumption of Alcohol in Motor Vehicle (VTL §375 [12-a] [b] [2]). By motion filed April 19, 2021, defendant moves to dismiss the accusatory instrument for violating the defendant’s due process rights and for exceeding the speedy trial requirements pursuant to CPL §30.30. CPL §30.30 “[w]as enacted to serve the narrow purpose of insuring prompt prosecutorial readiness for trial, and its provisions must be interpreted accordingly.” People v. Sinistaj, 67 N.Y.2d 236, 239 [1986]. Defendant was arraigned on July 31, 2020. As the highest charge was a misdemeanor punishable by a maximum imprisonment of one year (VTL §1192.3), the People were required to be ready for trial within ninety days from the defendant’s arraignment. (See, People v. Price, 14 N.Y.3d 61, 64 [2010]; People v. Adrovic, 69 Misc.3d 563 [Kings Co. Criminal Ct. 2020]; People v. Mashiyach, 70 Misc.3d 456 [Kings Co. Criminal Ct. 2020]). Defendant now moves to dismiss, alleging that 164 days are chargeable to the People. The defendant must demonstrate that the “prosecution failed to declare readiness within the statutorily prescribed time period…” People v. Luperon, 85 N.Y.2d 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 A.D.3d 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.” Price, 14 N.Y.3d @ 63. The People opposed and argued that the defendant’s motion to dismiss must be summarily denied (CPL §30.30) as the People are within the 90 days. The defendant replied on June 21, 2021 and the matter was marked fully submitted. The relevant chronology is set forth below: July 31, 2020 — September 17, 2020 Time Charged to People — 0 days On July 31, 2020 the defendant was assigned an attorney and arraigned before being released on his own recognizance. The matter was adjourned to September 17, 2020 at the People’s request. At the time, Governor Cuomo’s Executive Orders issued in relation to the COVID-19 pandemic suspended CPL §30.30 deadlines. This time is accordingly excluded from the calculation and not chargeable to the People. (See, Executive Orders 202.14; 202.28; 202.38; 202.48; 202.55; 202.60 and 202.67. September 17, 2020 — October 20, 2020 Time Charged to the People — to be determined The People argue that the time between September 17, 2020 and October 4, 2020 must be excluded as the Governor’s Executive Order continued to suspend CPL §30.30 deadlines until October 4, 2020. The People further alleged that the time from October 5, 2020 through October 20, 2020 is excludable as the adjournment was made at the request of the defendant. CPL §30.30[4] [b]. The defendant argued that the adjournment was at the People’s request and without the defendant’s request or consent and that no CPL §30.30 time was waived. October 20, 2020 — November 19, 2020 Time Charged to the People — to be determined On October 20, 2020 the matter appeared on the courts’ calendar for a virtual conference. The People made an offer and the defendant requested an adjournment. The People argued that the “[d]efendant may not request an adjournment and at the same time disclaim any waiver of delay.” People v. D’Aquino, 163 Misc. 2d 788, 791 [Yonkers City Ct., 1995]; CPL §30.30[4][b]. While the Court’s notations indicate that the defendant requested the adjournment, calendar notations are insufficient to establish excludable periods. People v. Santos, 68 N.Y.2d 859 [1986]. The defendant denied requesting or consenting to an adjournment and no minutes are available. November 19, 2020 — December 21, 2020 Time Charged to the People — minimum of 4 days There is no dispute that the People requested an adjournment from November 19, 2020 through November 23, 2020 and no exception applies. Four (4) days are charged to the People. The People allege that defendant requested an adjournment for a discovery conference on December 21, 2020, and as such, this time is excluded from the CPL 30.30 calculation. CPL §30.30[4][b] provides that the court may exclude any “[p]eriod of delay resulting from a continuance granted by the court at the request of, or with the consent of, the defendant or his [or her] counsel.” CPL §30.30 [4] [b]; People v. Worley, 66 N.Y. 2d 523, 527 [1985]; People v. D’Aquino, 163 Misc. 2d 788, 791 [Yonkers City Ct., 1995]; People v. Percell, 67 Misc. 3d 190 [N.Y. City Crim. Ct., 2020]. The defendant maintains that the adjournment from November 19, 2020 to December 21, 2020 was not made on the consent nor at the request of the defendant. Defendant maintains that further the matter did not appear on the court’s calendar on November 23, 2020 and that as the People were not ready on November 19, 2020, all time is chargeable. December 21, 2020 — February 24, 2021 Time Charged to the People — 65 days The court administratively adjourned the above entitled matter on December 21, 2020 due to the COVID-19 pandemic. However, as Governor Cuomo’s executive order was not amended, and speedy trial time was not tolled by another executive order. Furthermore, as the People did not file their Certificate of Compliance, no exception applies. Accordingly, as no exception applies, sixty-five (65) days are chargeable to the People. February 24, 2021 — March 3, 2021 Time Charged to the People — 8 days The People acknowledged that they requested the adjournment from February 24, 2021 to March 3, 2021 and that no exception applies. Accordingly, these eight (8) days are chargeable to the People. March 3, 2021 — March 5, 2021 Time Charged to the People — 2 days On March 3, 2021 the matter appeared on the court’s calendar for a virtual conference. The defendant rejected the People’s offer and the People requested an adjournment to March 17, 2021 for further discovery. The People provided defendant with discovery on March 4, 2021 and served and filed a Certificate of Compliance and announced their readiness for trial on March 5, 2021. Accordingly, two days are chargeable to the People from March 3, 2021 through March 5, 2021. March 5, 2021 — March 17, 2021 Time Charged to the People — 0 days On March 17, 2021 the matter appeared for a virtual conference. The People reconfirmed their readiness for trial and confirmed that the Certificate of Compliance was received and acknowledged. Defendant requested an adjournment to April 19, 2021 for conference and to file the instant motion to dismiss. No time is chargeable. For an adjournment to be on consent it must be clearly expressed. People v. Liotta, 79 N.Y.2d 841 [1992]. A defendant’s right to a speedy trial is not dependent in any fashion upon his readiness for trial. See, People v. Hall, 213 A.D.2d 558 [1995]. To relieve the People of responsibility and establish that time should be charged to the defendant, his consent must be clearly expressed. See Barden, 27 N.Y.2d 556 [1970]; People v. Smith, 82 N.Y.2d 676, 678 [1993]. There are no minutes of the proceedings on September 17, 2020, October 20, 2020 or November 19, 2020. “It is the People’s burden to ensure that the record of the proceedings is sufficiently clear to enable the court to make an informed decision on a speedy trial motion.” People v. Robbins, 223 A.D.2d 735,737 [2d Dept 1996]. Further, the Court may not rely on calendar notations to establish excludable periods. People v. Berkowitz, 50 N.Y.2d 333 [1980]. The lack of any minutes makes the defendant’s application unreviewable on appeal. People v. Olivio, 52 N.Y.2d 309, 320 [1981]. Based on the Court’s calculations, there are a total of at least seventy-nine (79) days chargeable to the People from the defendant’s July 31, 2020 arraignment through the People’s filing of a Certificate of Compliance on March 5, 2021. Without a record, the Court may not conclude that the adjournments were on consent or at the behest of the defense. When questions of fact are presented, the court is required to conduct a hearing prior to the determination of a motion to dismiss. See, People v. Gruden, 42 N.Y.2d 214 [1977]; CPL 210.45 [6]. Accordingly, on the court’s next appearance on July 19, 2021, a hearing will be scheduled. Finally, that branch of the defendant’s motion which sought to reserve the right to make additional motions is denied with leave to renew. C.P.L. §255.20[3]; People v. Rasoully, 52 Misc.3d 1225[a] [Dist. Ct. Nassau Co. 2016]; People v. Ramirez, 47 Misc. 3d 1211[a] [Crim. Ct. Bronx Co., 2015]; People v. Evans, 41 Misc.3d 1204 [A] [Dist. Ct. Nassau Co. 2013]. The foregoing constitutes the Decision and Order of the Court. Dated and Entered: July 7, 2021
