Recitation pursuant to CPLR 2219[a] of the papers considered in review of this motion Papers Numbered Notice of Motion and Affidavits Annexed 1 Affirmation in Opposition 2 Reply 3 Memo of Law 4 Filed 5 Exhibits 6-7 DECISION AND ORDER On October 30, 2020, Defendant was charged and arraigned on one count of Driving While Ability Impaired by Drugs (VTL §1192[4]), one count of Unlawful Possession of Marijuana (PL §221.05) and three equipment violations under VTL §375. Defendant entered a plea of not guilty and was released on his own recognizance. The matter was successively adjourned at the People’s request until December 7, 2020. On December 7, 2020, the Court held a virtual conference. The People and defense counsel appeared. The People requested an adjournment to December 18, 2020. The case was adjourned to January 19, 2021. There is no dispute that no record of the conference was made. On January 19, 2021, no discovery was provided, and the People were not ready. The People requested an adjournment to February 1, 2021. On February 1, 2021, a virtual conference was held, and the People filed a certificate of compliance and statement of readiness (“COC”) and announced their readiness for trial. Defendant acknowledged receipt of the COC and objected to same. The Court granted Defendnat leave to submit a motion. Defendant now moves, in part, to dismiss, alleging that the People’s delay of more than ninety days violated Defendant’s right to a speedy trial pursuant to CPL §30.30. The People concede that seventy-five days are chargeable from the Defendant’s arraignment, alleging that the period between December 18, 2020 and January 6, 2021 was on consent of Defendant. Defendant adamantly denied these allegations. The Court (Shako, J.) found, by Decision and Order dated May 26, 2021 that no less than seventy-five days were chargeable to the People and withheld decision on the disputed time pending a hearing on the issue. (see, People v. Davis, 184 A.D. 2d 575, 184 A.D.2d 575, 584 N.Y.S.2d 638 [2d Dept. 1992].) At the hearing on June 30, 2021, James Bavero, Esq. former Deputy Chief for the Yonkers City Court Bureau of the Westchester County District Attorney’s Office testified. He related that at the conference on December 7, 2020, the People requested an adjournment until December 18, 2020 and defense counsel consented to the adjournment until January 6, 2021. The People admitted a copy of their file jacket into evidence in support. The notation for December 7, 2020 indicates that the People requested an adjournment to December 18, 2020 and the Defendant consented to January 6, 2021. The People also submitted a copy of the court’s file jacket into evidence as People’s Exhibit 1. Notably, no notations appear on the court’s file jacket for December 7, 2020. Adjacent to the January 6, 2021 line was a handwritten note “Time to P till 12-18″. Defense counsel denied consenting to the adjournment and admitted a copy of his file notations as a business record. Counsel acknowledged that while the People did in fact, request an adjournment to December 18, 2020, the Court adjourned the case until January 6, 2021. Counsel further argued that at the time of the adjournment, no discovery was received, and no certificate of compliance was filed. Counsel posits that the adjournment was the effect of the court’s limited calendar in the last two weeks of December due to holiday recess observance. Calendar or file jacket notations, standing alone, do not constitute unquestionable documentary proof for purposes of establishing excludable periods. People v. Jackson, 225 A.D. 2d 794, 639 N.Y.S.2d 941 [2d Dept. 1996]. Such notations are not binding upon the judge, deciding a speedy trial motion, (see, People v. Berkowitz, 50 N.Y. 2d 333, 406 N.E.2d 783,428 N.Y.S.2d 927 [1980].) However, calendar notations combined with testimony may be sufficient to satisfy the People’s burden of proof regarding contested adjournment periods, even in the absence of minutes of such adjournments. (see. People v. Carter, 115 A.D.2d 551, 496 N.Y.S.2d 74 [2d Dept. 1985]). Under the provisions of CPL §30.30, “the applicable speedy trial time is determined based on the highest charge in the accusatory instrument.” People v. Brito, 61 Misc. 3d 1208(A), 110 N.Y.S.3d 793, 2018 WL 4837645, 2018 N.Y. Slip Op. 51405(U) [Crim. Ct, Kings County, 2018]. Where, as here, the highest charge is a misdemeanor, the People are required to declare their readiness within ninety days from the filing of the accusatory instrument. CPL §30.30[1][b]; People v. Stirrup, 91 N.Y.2d 434, 438, 694 N.E.2d 434, 671 N.Y.S.2d 433, 1998 N.Y. Slip Op. 03244 [1998]. “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 N.Y. 3d 61, 63, 923 N.E.2d 1107, 896 N.Y.S.2d719, 2010 N.Y. Slip Op. 01013 [2010]. In computing the time chargeable pursuant to CPL §30.30, the court must calculate the time between the filing of the accusatory instrument and the People’s statement of readiness and then subtract any statutorily excludable time. CPL §30.30; People v. Cortes, 80 N.Y. 2d 201, 208,604 N.E.2d 71, 590 N.Y.S.2d 9 [1992]. 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 N.Y.2d 71, 647 N.E.2d 1243, 623 N.Y.S.2d 735 [1995]. The burden generally rests upon the People to demonstrate their entitlement to exclude pre-readiness delays. People v. Robinson, 67 A.D.3d 1042, 1044 [2009], lv denied 13 N.Y. 3d 910, 895 N.Y.S.2d 324, 922 N.E. 2d 913 [2009]; see, People v. Miller, 113 A.D.3d 885, 887, 978 N.Y.S.2d 412 [2014]; People v. Pope, 96 A.D.3d 1231,1232, 947 N.Y.S.2d 634 [2012], lv denied 20 N.Y.3d 1064, 962 N.Y.S.2d 615, 985 N.E.2d 925 [2013], People v. Barden, 27 N.Y.3d at 556, 36 N.Y.S.3d 80, 55 N.E.3d 1053 [2016]. CPL 30.30[4] “recognizes that certain delays are inherent in any criminal justice system and must be tolerated, and that other delays re caused by the defendant and should not prejudice the People’s right to bring him to trial.” People v. Dean, 45 N.Y.2d 651, 656-57, 412 N.Y.S.2d 353, 355-56, 384 N.E. 2d 1277[1978]. The Court may exclude any “period of delay resulting from a continuance granted by the court at the request of, or with the consent of, the defendant or his counsel.” Barden, supra at 556. It is well settled that “consent to an adjournment must be clearly expressed by the defendant or defense counsel to relieve the People of the responsibility for that portion of the delay.” People v. Liotta, 79 N.Y. 2d 841, 588 N.E.2d 82, 580 N.Y.S.2d 184 [1993], A defendant’s “right to a speedy trial is not dependent in any way on whether the defendant has expressed his readiness for trial.” People v. Hamilton, 46 N.Y. 2d 932, 933-934, 388 N.E.2d 345, 415 N.Y.S.2d 208 [1979]. Consent must be clearly expressed to relieve the People of responsibility and establish the time should be chargeable to Defendant. see, People v. Smith, 82 N.Y. 2d 676, 678, 619 N.E.2d 403, 601 N.Y.S.2d 466 [1993]. In addition to the testimony offered at the hearing, the People submitted an affirmation from the Assistant District Attorney with file notes from the appearance asserting that defense counsel consented to the adjournment on December 7, 2020. The People’s argument is that defendant’s consent to the adjournment reduced the delay to less than ninety days and that the Defendant’s speedy trial rights were not violated. The People concede that seventy-five days, representing the time from October 30, 2020 through December 18, 2020 and January 6, 2021 through February 1, 2021 are chargeable to the People. The Court now finds, after reading and considering the testimony and evidence offered at the hearing, the papers submitted by the parties and the arguments contained therein and considering the relevant law, that the time from December 18, 2020 through January 6, 2021 was a pre-readiness delay which is also chargeable to the People. “As to periods of delay that occur following the People’s statement of readiness, any period of an adjournment in excess of that actually requested by the People is excluded.” People v. Boumoussa, 104 A.D.3d 863, 961 N.Y.S.2d 297, 2013 N.Y. Slip Op. 01841 [2d Dept. 2013]. However, pre-readiness delays arising from court congestion or scheduling are chargeable to the People as court delays do not prevent the People from being ready nor declaring their readiness in an off-calendar statement. (see, People v. Chavis, 91 N.Y.2d 500, 504, 695 N.E.2d 1110, 673 N.Y.S.2d 29, 1998 N.Y. Slip Op. 04311 [1998]; People v. Smith, 82 N.Y.2d 676, 678, 619 N.E.2d 403, 601 N.Y.S.2d 466 [1993]; People v. Kendzia, 64 N.Y.2d 331, 337-338, 476 N.E.2d 287, 486 N.Y.S.2d 888 [1985]; People v. Brothers, 50 N.Y.2d 413, 417, 407 N.E.2d 405, 429 N.Y.S.2d 558 [1980].) There is no dispute that discovery was not provided nor were the People ready on December 7, 2020. As such, the nineteen days between December 18, 2020 through January 6, 2021 is chargeable to the People. The Court finds that ninety-four days have elapsed since Defendant’s arraignment and Defendant’s statutory right to a speedy trial has been violated. Accordingly, Defendant’s motion is granted pursuant to CPL §30.30 and the: accusatory is dismissed. The Court need not reach Defendant’s: remaining contentions. The foregoing constitutes the Decision and Order of the Court. Dated and Entered: September 3, 2021
