Defendant Robert Mendoza, charged with two counts of Assault in the Third Degree [PL §§120.00 (1) and (2)], one count of Attempted Assault in the Third Degree [PL §110/120.00(1)], one count of Aggravated Harassment in the Second Degree [PL §240.30(4)] and one count of Harassment in the Second Degree [PL §240.26(1)] moves, by notice of motion dated June 24, 2021, to dismiss the accusatory instrument pursuant to CPL 30.30(1) (b) and CPL 170.30(e). The Court finds that only 54 chargeable days have elapsed since the commencement of the case. For reasons that follow, defendant’s motion is DENIED. Background and Procedural History Mr. Mendoza, the defendant, is charged with Assault in the Third Degree and related charges, associated with an incident occurring on July 28, 2020, where he is accused of striking the complainant in her face with a closed fist, causing a laceration inside her mouth and substantial pain. Mr. Mendoza was arrested on July 28, 2020 and was given a Desk Appearance Ticket (hereinafter, “DAT”) with a return date of October 26, 2020. On October 26, 2020, Mr. Mendoza reported to the DAT courtroom, however he was ill and left the courtroom before being arraigned. An attorney from the Legal Aid Society had spoken to him briefly, and when his case was called into the record, informed the Court that Mr. Mendoza had been in the courtroom but had to leave because he was ill. At that point, Defense counsel requested that the Court refrain from issuing a warrant and adjourn his case for arraignment. The Court granted the request and adjourned the case for arraignment and to join Mr. Mendoza’s two open matters to an all-purpose part for November 25, 2020. On November 25, 2020, Mr. Mendoza had not appeared for his three cases at the time they were called into the record. However, during the calendar call, the Court stated that it had just received word from court staff that Mr. Mendoza had just arrived at the courthouse. The Court then marked Mr. Mendoza as present and the matter was, once again, adjourned for arraignment on the accusatory instrument1 to January 19, 2021. On January 19, 2021, Mr. Mendoza effectively appeared with counsel and was finally arraigned on the information. He was released under supervision and the case was adjourned for trial to February 26, 2021. On February 26, 2021, Mr. Mendoza appeared with counsel. The record is silent as to the People’s readiness. The case was adjourned to March 17, 2021 for the People to comply with their discovery obligations. On March 17, 2021, the People answered ready for trial. The Court acknowledged receipt of the People’s certificate of compliance (COC) and certificate of readiness (COR) filed off-calendar on March 15, 2021. With no available trial parts, the case was adjourned for trial to May 10, 2021. On May 10, 2021, the People again answered ready for trial, but with no available trial parts, the case was adjourned for trial to June 7, 2021. On June 7, 2021, the People remained ready for trial. However, the defense requested a motion schedule, and the case was adjourned for the Court’s decision to August 13, 2021. On June 24, 2021, Mr. Mendoza filed the instant motion to dismiss for speedy trial off-calendar and on July 7, 2021, the People filed their response off-calendar. On July 14, 2021, Mr. Mendoza filed a reply off-calendar to the People’s response. On August 13, 2021, the case was adjourned for the Court’s decision on the motion to dismiss to August 26, 2021. Discussion Mr. Mendoza is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony. Accordingly, the People are required to be ready for trial within 90 days from the commencement of the criminal action, less any excludable time. CPL 30.30(1)(b). Although commencement of a criminal action begins with the filing of an accusatory instrument, followed by the defendant’s arraignment thereon, computation for speedy trial purposes begins on the next day after arraignment. People v. Stiles, 70 NY2d 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 NY2d 859 (1986); People v. Berkowitz, 50 NY2d 333 (1980). CPL 30.30 was enacted to insure prompt prosecutorial readiness and to guard against prosecutorial inaction and is commonly characterized as a “readiness rule” as opposed to a rule guaranteeing a speedy trial. See, People v. Sinistaj, 67 NY2d 236 (1986); William C. Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 30.30. The defense alleges that “at least 157 days” of chargeable time has elapsed since the commencement of the case. The People counter that only 55 chargeable days have elapsed. For the reasons explained herein, the Court finds that 54 chargeable days have elapsed, therefore, the motion to dismiss is denied. The parties agree that the time periods between January 19, 2021 and March 15, 2021 are chargeable, amounting to 54 days.2 However, the parties dispute the time between the October 26, 2020 — November 25, 2020 and November 25, 2020 — January 19, 2021 adjournments. The Court is presented with two questions, one of which appears to have not been considered by decisional law since the 2019 amendments to CPL 30.30 took effect. The first question presented is whether both appearances made by the defendant in response to his DAT qualify as effective appearances triggering the speedy trial clock within the meaning of CPL 30.30(7)(b). The second, and more novel question, is whether the People can validly state their readiness for trial prior to the defendant’s criminal court arraignment, in light of the new discovery laws enacted in January 2020. The Court will address these questions in the context of each of the two dispositive time periods. APPEARANCES AND COMMENCEMENT OF AN ACTIO October 26, 2020 — November 25, 2020 Mr. Mendoza was required to appear in response to a DAT, which instructed him to report to 100 Centre Street on October 26, 2020, at 9:00 A.M. On that date, according to his Legal Aid attorney, he arrived at the courthouse “after lunch,”3 but had to leave shortly thereafter, because he was feeling ill. The Court responded: “Showed up and then left?” and “I don’t know how much credit we give for somebody touching base.”4 Defense counsel then stated: “I am asking you not issue [sic] a warrant and adjourn this case for the arraignment.” The Court records reflect that although the presiding Judge was inclined to stay a warrant out of the DAT part, upon learning of defendant’s two pending open matters, adjourned the unarraigned DAT matter to the all-purpose part to join them and for arraignment on the same date. The defense argues that this time period is chargeable to the People because Mr. Mendoza physically appeared in response to his DAT, and although not arraigned, the People did not state ready for trial during the ensuing adjournment. The People counter that because Mr. Mendoza did not make an “actual physical appearance,” he did not effectively appear on October 26, 2020, and that consequently, his case had not commenced for speedy trial purposes. A criminal action is commenced by the filing of an accusatory instrument against a defendant in a criminal court. CPL 1.20(17). However, where a defendant has been served with an appearance ticket or “DAT,” the criminal action is deemed to have commenced on the date the defendant first appears in the local criminal court in response to the ticket. CPL 30.30(7)(b); People v. Parris, 79 NY2d 69 (1992); People v. Stirrup, 91 NY2d 434 (1998) (emphasis added). Merriam-Webster defines the “legal definition of appear” as: “to present oneself before a person or body having authority.”5 The Court of Appeals noted in Stirrup that the Legislature intended for the speedy trial clock to begin running upon the defendant’s “actual physical appearance in court in response to the ticket” and that the action is deemed commenced when he has appeared in the criminal court “in compliance with the instructions contained in the DAT.” Id. at 439. Once an accusatory instrument has been filed in criminal court, including, as here, a misdemeanor complaint, “the defendant must be arraigned thereon. The defendant must appear personally at such arraignment, except under the following circumstances In any case in which the defendant’s appearance is required by summons or an appearance ticket, the court in its discretion may, for good cause shown, permit the defendant to appear by counsel instead of in person.” CPL 170.10(1); (1)(b). “Arraignment” is defined as, “the occasion upon which a defendant against whom an accusatory instrument has been filed appears before the court in which the criminal action is pending for the purpose of having such court acquire and exercise control over his person with respect to such accusatory instrument and of setting the course of further proceedings in the action.” CPL 1.20(9). Additionally, upon arraignment, the court “must, as provided in subdivision one of section 530.20, issue a securing order either releasing the defendant on his own recognizance or fixing bail for his future appearance in the action.” CPL 170.10. In the instant case, the Court finds that Mr. Mendoza did not meaningfully appear in court for arraignment in accordance with the instructions on his DAT, sufficient for the Court to exercise personal jurisdiction over him. The record reflects that he did not appear at 9:00 A.M. as directed, but rather after the lunch hour, and that he left after a short time without presenting himself before the Court for arraignment. The record also reflects that the presiding Judge acknowledged his lack of appearance and was inclined to adjourn the matter to the “W” part, a part designed for those who had not appeared but were spared the issuance of a warrant. Additionally, pursuant to CPL 170.10(1)(b), the defense did not request nor did the Court grant permission, for the defendant to appear by counsel instead of in person. In short, although an accusatory instrument had been filed, conferring subject matter jurisdiction, the Court had not yet exercised personal jurisdiction over the defendant. Therefore, the Court finds that the defendant’s appearance was fleeting and not meaningful within the meaning of CPL 30.30(7)(b) to commence the criminal action. This period is therefore excludable. Further, the defense formally requested that the Court not issue a warrant and requested that the case be adjourned for arraignment, and the Court granted the request. Accordingly, as an alternative holding, this adjournment is also excludable pursuant to CPL 30.30(4)(b) as a “period 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,”6 and the fact that such delay was not occasioned by the People’s inaction. The Court also notes that the case could not proceed without an arraignment, and that the defendant’s alleged illness was the sole cause of the Court’s inability to arraign him after the People, as required, had filed an accusatory instrument, to commence the case. November 25, 2020 — January 19, 2021 The record reflects that on November 25, 2020, Defense counsel waited for Mr. Mendoza in the in-person part for some time and after he failed to appear, she proceeded with the virtual appearance without him. The Court proceeded without Mr. Mendoza’s appearance for this case as well as the two open matters, acknowledging the People’s filing of supporting depositions, and deeming the still-unarraigned matter an information. Towards the end of the court appearance, the Court stated: “Counsel, I just received word from the court staff that your client just came into the courthouse and so I will mark him as present and then we will send word back to him of the next court date and then you can follow up with him.”7 The case was then adjourned to January 19, 2021 “only for arraignment and further proceedings.”8 The Court is also in receipt of an email sent by the clerk of the in-person all-purpose part to Defense counsel at approximately 4:00 pm on November 25, 2020 stating that Mr. Mendoza had appeared there and was given his next court date, which had been scheduled during his missed virtual appearance.9 While this Court would have issued a warrant under these factual circumstances, the Court will defer to the presiding Judge, who marked Mr. Mendoza present for his appearance on November 25, 2020. However, it was his failure to subject himself to the Court’s jurisdiction for the second time to be arraigned that caused the continued delay in the case. As with the previous adjournment, the delay was not engendered by the People’s inaction, thus, the Court cannot find any rationale upon which to charge them with this time period. Accordingly, this time period, although not fitting neatly into a CPL 30.30 (4) exclusion, is not chargeable to the People. READINESS The defense argues that the People could have answered ready for trial prior to Mr. Mendoza’s criminal court arraignment and that their failure to do so between October 26, 2020 and January 19, 2021 should result in chargeable time in the case. They rely on People v. Correa, 77 NY2d 930 (1991) and People v. Goss, 87 NY2d 792 (1996)10 for this proposition. However, the defense’s argument is fatally flawed because they fail to consider the effect of the amended CPL 30.30 statute, in connection with the enactment of CPL 245 upon the People’s ability to validly state ready for trial in a post-January 1, 2020 world. The analysis of the instant matter therefore turns to the novel question: Can the People validly state ready for trial prior to a defendant’s criminal court arraignment considering the 2020 amendments to the discovery and speedy trial statutes? Prior to 2020, pre-readiness delay such as, delay caused by the Court or delay in arraignment or other court congestion has not excused the People from declaring their readiness for trial, and thus such delay is normally chargeable to the People. People v. Smith, 82 NY2d 676, 678 (1993); People v. Collins, 82 NY2d 177(1998). 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 NY2d 331 (1985). However, as of January 1, 2020, “[a]ny statement of trial readiness must be accompanied or preceded by a certificate of good faith compliance with the disclosure requirements of section 245.20 of this chapter. CPL 30.30(5). The People “shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper certificate pursuant to subdivision one of this section.” CPL 245.50(3). Therefore, the People’s readiness for trial is now preconditioned on their compliance with discovery and subsequent filing of a certificate of compliance. See, People v. Villamar, 69 Misc 3d 842, 847 (Crim. Ct. NY Co., Sept. 23, 2020, Moyne, J.); People v. Jacquez, 71 Misc 3d 1110, 1115 (Sup. Ct. NY Co., April 21, 2021, Mandelbaum, J.). Newly-enacted Article 245 mandates earlier and more extensive discovery disclosures to be made by the People upon the defense than the previous Article 240 required. CPL 245.20 states that the “prosecution shall disclose to the defendant, and permit the defendant to discover, inspect, copy, photograph and test, 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 but not limited to” a whole host of materials and information. CPL 245.20(1). CPL 245.10 governs the timing of discovery, and states, in pertinent part, that “the prosecution shall perform its initial discovery obligations under subdivision one of section 245.20 of this article as soon as practicable but not later than the time periods specified in subparagraphs (i) and (ii) of this paragraph, as applicable.” CPL 245.10(1)(a). The statute further states: “(ii) When the defendant is not in custody during the pendency of the criminal case, the prosecution shall perform its initial discovery obligations within thirty-five calendar days after the defendant’s arraignment on an indictment, superior court information, prosecutor’s information, information, simplified information, misdemeanor complaint or felony complaint.” CPL 245.10(1)(a)(ii) (emphasis added). It is clear from this statute that the People’s discovery obligations are not triggered until after arraignment. Thus, if the arraignment has not yet occurred, it follows that post-January 2020, the People cannot validly answer ready for trial prior to the defendant’s arraignment on a misdemeanor complaint followed by their filing of a certificate of compliance with discovery. Prior to this initial arraignment, the People are now unable to “have done all that is required of them to bring the case to a point where it may be tried” within the meaning of CPL 30.30(5) and CPL 245.50(3).11 In the instant matter, the People were essentially under no obligation to be ready for trial in this case until the defendant subjected himself to this Court’s jurisdiction by way of an arraignment, which did not occur until January 19, 2021. When the People filed their COC and COR off-calendar on March 15, 2021, they were still well within 90 chargeable days of the commencement of the case. Interestingly, the defense never argues that the People failed to comply with their automatic discovery obligations prior to Mr. Mendoza’s eventual arraignment on January 19, 2021; yet they do contend that the People could have and should have answered ready for trial. Of note, had the People filed only a COR prior to arraignment, the Court would have deemed such filing invalid without an accompanying or preceding COC, pursuant to CPL 245.50. The Court cannot expect the People to go above and beyond their statutory obligation and provide discovery as well as state ready for trial prior to the time they became legally obligated to do so, particularly in a case where the defendant has not effectively complied with court process by appearing for his arraignment.12 On the contrary, since the period of delay resulted from defendant’s failure to subject himself to arraignment directly and statutorily affected the People’s ability to validly answer ready for trial in accordance with CPL 30.30(5) and CPL 245.50(3), the People cannot fairly be charged with any pre-readiness delay until the defendant was finally arraigned on the accusatory instrument. Accordingly, the Court makes the following calculations with respect to each adjournment: October 26, 2020 — November 25, 2020 Defendant did not effectively appear for his scheduled DAT arraignment and the case was adjourned for arraignment at the request of Defense counsel. For the reasons explained above, and pursuant to CPL 30.30(4)(b), 0 days are charged. November 25, 2020 — January 19, 2021 Although marked present by the presiding Judge, Mr. Mendoza was still not arraigned, resulting in further delay of the proceedings through no fault of the People. For the reasons explained above, 0 days are charged. January 19, 2021 — February 26, 2021 The Court was finally able to assert jurisdiction over Mr. Mendoza by way of an arraignment. The case was adjourned for trial. The People did not file a COC or COR during this adjournment, therefore, 38 days are charged. February 26, 2021 — March 17, 2021 The People were not ready for trial, nor were they in compliance with discovery requirements. However, on March 15, 2021, the People filed off-calendar a COC and COR, which tolled the speedy trial clock. Accordingly, 16 days are charged. March 17, 2021 — May 10, 2021 The People answered ready for trial, tolling the speedy trial clock, but due to the unavailability of trial parts occasioned by the coronavirus pandemic, the case was adjourned again for trial. 0 days are charged. May 10, 2021 — June 7, 2021 The People answered ready for trial, tolling the speedy trial clock, but due to the unavailability of trial parts occasioned by the coronavirus pandemic, the case was adjourned again for trial. 0 days are charged. June 7, 2021 — August 13, 2021 The People answered ready for trial. However, the defense requested a motion schedule, which the Court granted, and the case was adjourned for decision to August 13, 2021. This adjournment is excludable. CPL 30.30(4)(a). 0 days are charged. August 13, 2021 — August 26, 2021 The motion to dismiss was still under consideration by the Court, and the case was adjourned again for decision. This adjournment is excludable. CPL 30.30(4)(a). 0 days are charged. Conclusion The court finds that only 54 days of includable time has elapsed, which does not exceed the allowable time of 90 days for this accusatory instrument, therefore, Mr. Mendoza’s motion to dismiss pursuant to CPL 30.30(1)(b) and CPL 170.30(e) is DENIED. This opinion constitutes the decision and Order of the Court. DATED: August 23, 2021
