The following papers numbered 1 were read and considered on the Defendant’s motion for an order dismissing the complaint pursuant to CPL §170.30 (1), §30.30(1) (b), §245.20, §245.50 and §245.80 for allegedly violating Defendant’s due process rights and his rights to a speedy trial Papers Numbered Notice of Motion and Affidavits Annexed 1 Order to Show Cause and Affidavits Annexed Affirmation/Affidavits in Opposition Summons and Complaint Replying Affidavits Filed Papers Exhibits Memorandum of Law DECISION AND ORDER On April 26, 2021, the People filed an Accusatory Instrument charging Defendant with Endangering the Welfare of a Child (PL §260.10). Defendant now moves to dismiss pursuant to CPL §30.30 [1] [b], CPL §170.30 [1], CPL §245.50 and CPL §245.80 for allegedly violating defendant’s due process rights and his rights to a speedy trial under the United States Constitution and the New York State Constitution. 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.2d 719, 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 then shifts to the People to establish that a period should be excluded in computing the time within which they were required to be prepared for trial.” People v. Sibblies, 22 N.Y. 3d 1174, 1177, 8 N.E.3d 852, 985 N.Y.S.2d 474 [2014] Defendant, the movant on this CPL §30.30 speedy trial motion, has met his initial burden of demonstrating the People were not ready within 90 days of the commencement of the above criminal action. Specifically, Defendant has alleged that 97 days are chargeable to the People from the commencement of the action on April 26, 2021. The burden then shifted to the People to establish the exclusion of certain time periods from this calculation. The People failed to do so and accordingly, that branch of Defendant’s motion which sought to dismiss the information on speedy trial grounds is granted and the remainder of Defendant’s motion is denied as moot. It is accordingly, ORDERED, Defendant’s motion is GRANTED without opposition; and it is further ORDERED, the above matter is DISMISSED. Dated and Entered: September 30, 2021
