DECISION AND ORDER The defendant is charged by superseding misdemeanor information with five counts of Assault in the Third Degree (PL §120.00(1)), one count of Criminal Possession of a Weapon in the Fourth Degree (PL §265.01(2)), one count of Menacing in the Second Degree (PL §120.14), one count of Criminal Obstruction of Breathing or Blood Circulation (PL §121.11(a)), and five counts of Harassment in the Second Degree (PL §240.26(1)). Defendant moves to dismiss the accusatory instrument pursuant to CPL §30.30 on speedy trial grounds. Defendant contends in his motion papers that the People had six months to be ready for trial, however, the People took 277 days to file the superseding accusatory instrument and state their readiness for trial. The initial felony complaint was filed on September 11, 2020, however, a felony hearing was never held, defendant was never indicted and the People did not file the superseding misdemeanor information and announce their readiness in this matter until July 8, 2021. Specifically, defendant asserts that the period of time from November 23, 2020 until the People filed the superseding information on July 8, 2021 is chargeable to the People. Defendant contends that the People did not cite to any unusual circumstances for the delay in prosecuting the instant matter nor did they cite to any inability to proceed to the grand jury due to the COVID-19 pandemic. Defendant further notes that from November 2019 to the present the People have maintained and utilized a fully functional grand jury system and have presented hundreds of felonies during that period of time. Moreover, defendant asserts that on two adjourn dates in April 2021 the People indicated on the record that they would be presenting the case “directly” to the grand jury and indict the matter. Defendant further contends that the time should be chargeable to the People despite any “Executive Order” since the suspension of CPL §30.30 pursuant to Executive Order 202.87 was not reasonably related to the COVID-19 pandemic in Westchester County. It is the defendant’s position that the People have violated defendant’s speedy trial rights. In opposition, the People acknowledge that since the defendant was initially charged with a felony they were required to be ready within six months of defendant’s arraignment on the felony complaint, which is 181 days in the instant matter. The People further contend that defendant was arraigned on the felony complaint on September 11, 2020 after which defendant requested an adjournment until October 21, 2020, waiving his rights under CPL §§30.30 and 180.80. Similarly, on October 21, 2020 the defendant again requested an adjournment until November 23, 2020, waiving his rights under CPL §§30.30 and 180.80. Accordingly, the People assert, the period of time from September 11, 2020 through November 23, 2020, a total of 73 days, is excludable. The People acknowledge that on November 23, 2020 they were not ready and requested an adjournment to December 22, 2020 and concede that the 29 days between adjourn dates is chargeable. The People further acknowledge that on December 22, 2020 they were once again not ready and requested an adjournment to January 28, 2021. The People contend, however, that only the period of time from December 22, 2020 until December 30, 2020, a total of 9 days, is chargeable since on December 30, 2020, Executive Order 202.87 tolled CPL §30.30 for unindicted felonies for the period of time in which the criminal action is proceeding upon a felony complaint through arraignment on the indictment or on a superior court information. Said directive was extended by subsequent Executive Orders, until Executive Order 202.106 which rescinded the suspensions and modifications of CPL §§30.30 and 180.80 effective after May 23, 2021. As such, the People contend, all of the time from December 30, 2020 through May 23, 2021 cannot be charged to the People. The People concede, however, that the time from May 23, 2021 through July 8, 2021, a total of 46 days, is chargeable to them. Accordingly, the People assert, only 84 days of time can be charged to the People and therefore, they are well within the statutory speedy trial time frame for both felonies and misdemeanors. Notably, the People fail to address the defendant’s assertions that the People stated on the record on two adjourn dates that they were “directly” going to present the case at bar to the grand jury or that throughout the pendency of this matter grand juries have been convened, cases presented and indictments voted on other felony matters pending in Westchester County. The point of commencement of an action for speedy trial purposes is the filing of the first accusatory instrument. People v. Lomax, 50 NY2d 351 (1980); see also, People v. Stirrup, 91 NY2d 434 (1998). The actual date of filing is not includable in the calculation. People v. Stiles, 70 NY2d 765 (1987). The burden is on the People to prove their entitlement to statutory speedy trial exclusions for pre-readiness delays. People v. Luperon, 85 NY2d 71 (1995). Pursuant to CPL §30.30(7)(c), when a criminal action is commenced by the filing of a felony complaint that is later replaced by a misdemeanor information, the period applicable for determining the amount of time in which the People must be ready for trial is the period applicable to the new charges, calculated from the date of the filing of such new accusatory instrument, or six months from the filing of the felony complaint, whichever is shorter.1 In other words, where the aggregate of the period of time applicable to the new charges and the period of chargeable time already elapsed from the date of the filing of the felony complaint to the date of the filing of the new accusatory instrument exceeds six months, excluding the periods provided in CPL §30.30(4), the applicable period is six months from the filing of the felony complaint. People v. Cooper, 98 NY2d 541 (2002); People v. Spector, 181 Misc.2d 522 (Crim Ct. NY County 1999); People v. Hashim, 48 Misc.3d 532 (Sup. Ct. Kings Cty 2015) (explaining that where charges are reduced from a felony to a misdemeanor the applicable time period is the lesser of the remainder of the original six month period or the applicable period of the charge as reduced). As an initial matter the Court must determine how many days were chargeable to the People prior to the filing of the superseding misdemeanor information in order to determine the applicable CPL §30.30 time period. In the case at bar, the People filed the original accusatory instrument, that being the felony complaint, with the Court on September 11, 2020 and as such, that is the date of the commencement of the action. See People v. Smietana, 98 NY2d 336 (2002); People v. Hauben, 12 Misc. 3d 1172A (Dist Ct Nassau 2006); People v. Griffen, 141 Misc. 2d 627 (Crim Ct. Queens Cty 1988). Defendant was arraigned on September 11, 2020 and the matter was adjourned at the defendant’s request to October 21, 2020. On October 21, 2020 the matter was again adjourned at defendant’s request to November 23, 2020. As such, the period of time from September 11, 2020 through November 23, 2020 is excluded. The People concede that they were not ready to proceed on November 23, 2020 and requested an adjournment to December 22, 2020, and as such, the 29 days during this period is chargeable to the People. On December 22, 2020 the People were again not ready to proceed and requested an adjournment until January 28, 2021. The matter was then repeatedly adjourned on January 28, 2021, February 18, 2021, March 4, 2021, March 18, 2021, April 1, 2021, April 19, 2021, May 6, 2021, May 19, 2021, June 7, 2021 and June 30, 2021 at the People’s request since they were not ready for the felony hearing nor had the defendant been indicted. On July, 8, 2021 the People filed the superseding complaint, filed their Certificate of Compliance and stated ready on the misdemeanor charges. Due to the extraordinary circumstances of the COVID-19 pandemic and its ensuing complications upon the functioning of the criminal justice system, NYS Governor Andrew Cuomo issued numerous executive orders that tolled speedy trial time pursuant to CPL §30.30. Initially, Executive Order 202.8, issued on March 20, 2020, prescribed a blanket tolled of CPL §30.30 speedy trial time. Executive Order 202.8 stated in pertinent part: In accordance with the directive of the Chief Judge of the State of New York to limit court operations to essential matters during the pendency of the COVID-19 health crisis, any specific time limit for the commencement, filing, or service of any legal action, notice, motion or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedural law…or by any other statute, local law, ordinance, order, rule or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020. The blanket toll of speedy trial time pursuant to CPL §30.30 was consistent with the limit on court operations to essential criminal matters at this stage of the pandemic (CAJ Marks AO/78/20, issued March 20, 2020). Thereafter, the blanket toll was extended without modification by Executive Orders 202.14, 202.28 and 202.38. On July 6, 2020, the toll of CPL §30.30 speedy trial time was modified by Executive Order 202.48 which stated that “Section 30.30 of the Criminal Procedure Law, is hereby modified to require that speedy trial limitations remained suspended until such time as petit criminal juries are reconvened or thirty days, whichever is later.” Executive Order 202.55 extended Executive Order 202.48, without amendment to the CPL §30.30 tolling through September 4, 2020. On September 4, 2020, Executive Order 202.60 further modified the toll of speedy trial time to require that speedy trial time limitations continued to be tolled in jurisdictions until such time as petit criminal juries are reconvened in said particular jurisdiction. Thereafter, on October 4, 2020 Executive Order 202.67 lifted the toll of CPL §30.30 speedy trial time except with respect to felony charges in the five New York City counties. Specifically, the speedy trial toll continued for all felony charges in those counties through October 19, 2020 and thereafter the toll would no longer be in effect in those counties on said date or upon defendant’s arraignment on an indictment, whichever was later for indicted felony matters, however, for unindicted felonies the toll would no longer be in effect regardless ninety (90) days from the date of the order. Subsequently, on December 30, 2020, Executive Order 202.87 again modified the CPL §30.30 speedy trial toll stating in pertinent part: “Section 30.30 and Section 190.80 of the criminal procedure law are suspended to the extent necessary to toll any periods contained herein for the period during which the criminal action is proceeding on the basis of a felony complaint through arraignment on the indictment or superior court information and thereafter shall not be tolled” (emphasis added). The limited speedy trial time toll as prescribed in Executive Order 202.87 remained in effect until rescinded as of May 23, 2021 by Executive Order 202.106, which rescinded all CPL §30.30 speedy trial tolls. As with interpretation of statutes, the long standing precedent of the Court of Appeals applies to executive orders, when the statutory language is clear and unambiguous, its should be construed so as to give effect to the plain meaning of the words used. See People v. Finnegan, 85 NY2d 53, 58 (1995); People v. Frances, 30 NY3d 737,740 (2018); Matter of Walsh v. New York State Comptroller, 34 NY3d 522, 524; Colon v. Martin, 35 NY3d 75 (2020). A review of the numerous Executive Orders clearly indicates that while the initial toll of CPL §30.30 was a blanket toll of speedy trial time given the extreme circumstances during the height of the COVID-19 pandemic and its detrimental effects upon the functioning of the criminal justice system as the court system adapted to the challenges presented by COVID-19, over time the Executive Orders gradually narrowed the parameters of the CPL §30.30 speedy trial time toll. Giving effect to the plain meaning of the words used, Executive Order 202.87 included the final modification of the toll to CPL §30.30 speedy trial time “to the extent necessary” for unindicted felonies through arraignment on the indictment. Clearly, the CPL §30.30 speedy trial time toll prescribed in Executive Order 202.87 was narrowly tailored to encompass those situations where it was actually necessary for the time to be tolled by virtue of extraordinary circumstances, i.e. a grand jury forced to quarantined due to COVID-19 exposure thereby preventing an indictment from being voted, and for no period thereafter. The People do not dispute that, but for any tolling under Executive Order 202.87, the time from November 23, 2020 until July 8, 2021 is chargeable to the People. The People have the burden of demonstrating any periods that are to be excluded from the CPL §30.30 calculation. People v. Santos, 68 NY2d 859 (1986); People v. Berkowitz, 50 NY2d 333 (1980). In the case at bar, the People have failed to establish facts to show that it was necessary for CPL §30.30 speedy trial time to be tolled in the instant matter from November 23, 2020 until July 8, 2021. The People also failed to refute the defendant’s assertions that twice on the record the People indicated that they were going to “directly” present the matter to the grand jury. Moreover, the Court takes judicial notice that throughout the period from November 2020 through to July 2021 grand juries were empaneled in the 9th Judicial District and thus the People had the opportunity to move forward with the prosecution of this matter against the defendant. Based upon the foregoing, the People are charged with the time from November 23, 2020 through to July 8, 2021, in total, 227 days. Pursuant to CPL §30.30(7)(c), the People had six months, which in the present case is 181 days, from September 11, 2020, the date of the filing of the original accusatory instrument, to be ready for trial. As such, the People have exceeded the six months afforded by CPL §30.30(1)(b) and (7)(c). Accordingly, the defendant’s motion to dismiss the superseding information pursuant to CPL §30.30 is granted. This constitutes the Decision and Order of this Court. Dated: September 30, 2021
