The People of the State of New York, Plaintiff v. R.G.1, Defendant DECISION AND ORDER Opinion of the Court On February 14, 2021, the Defendant was arraigned on a misdemeanor complaint which charged him with Assault in the Third Degree (Penal Law §120.00 [1]) and Harassment in the Second Degree (Penal Law §240.26 [1]). At arraignment, the Defendant was released on his own recognizance and the matter was adjourned to April 21, 2021 for conversion. On April 21, 2021, the case was administratively adjourned to July 16, 2021 due to the COVID-19 public health crisis. On July 16, 2021, the case was heard in Part AP5-V on the record for the first time since the Defendant’s arraignment. Defense counsel requested the instant motion schedule, and the case was adjourned to September 3, 2021 for decision. The People were to file their response by July 30, 2021. On September 3, 2021, the matter was heard in Part AP5-V, and the Court had not received the People’s response. The People stated they responded on July 21, 2021. The case was again adjourned for decision to October 25, 2021. Defendant filed a motion to dismiss this case pursuant to Criminal Procedure Law §30.30 claiming the People have exceeded their Criminal Procedure Law §30.30 time. The People, while not having served a statement of readiness in this case, argue that their time to prosecute this case pursuant to Criminal Procedure Law §30.30 has not expired because they were in off-calendar plea negotiations with defense counsel and those plea negotiations served to toll the speedy trial time. The issue squarely before the Court is whether off-calendar plea negotiations, which do not delay court proceedings, result in excludable speedy trial time for the People absent an explicit Criminal Procedure Law §30.30 waiver by the defense. The top count the Defendant is now charged with is an A misdemeanor; therefore, the People have 90 days from the commencement of the criminal action to be ready for trial (CPL 30.30 [1] [b]; People v. Cooper, 98 NY2d 541, 543 [2002]). Criminal Procedure Law §30.30 [1] [b] states in relevant part “a motion made pursuant to paragraph (e) of subdivision one of section 170.30…of this chapter must be granted where the people are not ready for trial within:…(b) ninety days of the commencement of a criminal action wherein a defendant 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.” “[O]nce a defendant has shown the existence of an unexcused delay greater than 90 days, the burden of showing that time should be excluded falls upon the People” (People v. Barden, 27 NY3d 550 [2016] quoting People v. Santos, 68 NY2d 859, 861 [1986]; see People v. Santana, 80 NY2d 92, 105 [1992]). “Generally, the burden is on the People to establish their entitlement to exclude any pre-readiness delays from the calculation under a Criminal Procedure Law §30.30 motion and the burden is on a defendant to prove that any post-readiness delays that directly implicate the People’s ability to proceed with trial are chargeable to the People, unless the People failed to satisfy their burden to ensure that the record is sufficiently clear as to who is chargeable for an adjournment” (People v. Cortes, 80 NY2d 201, 210, 215-216 [1992]). Here, the People contend that because they had off-calendar email exchanges with defense counsel on May 4, 2021, where they made an offer and defense counsel replied expressing interest in the offer, that the time subsequent to defense counsel’s reply should be excludable due to defense counsel’s delay in advancing the case to be calendared for disposition (People’s Affirmation, at 3). The People maintain that the time during which plea negotiations are pending is excludable so long as the defendant consents to the delay in the proceeding. The People cite to numerous cases that they assert stand for this principle (People v. Crogan, 237 AD2d 745 [3d Dept 1997], appeal denied 90 NY2d 857 [1997]; People v. Henderson, 248 AD2d 485 [2d Dept 1998], appeal denied 92 NY2d 853 [1998]; People v. Otero, 70 Misc 3d 526 [Cohoe City Ct 2020]; People v. Zhu, 245 AD2d 296 [2d Dept 1997]; People v. Ali, 195 AD2d 368 [1st Dept 1993], lv denied 82 NY2d 804 [1993]; People v. Green, 174 AD2d 1036 [1991], appeal denied 78 NY2d 966 [1991]). However, contrary to the instant matter, in each of the cases the People cite, defense counsel either consented on the record, in open court, to an adjournment for the purpose of considering an offer or caused an actual delay in the proceedings. The People assert that the holding in Otero stands for the proposition that the time upon which defendant is considering an offer from the People is excludable speedy trial time under Criminal Procedure Law §30.30 [4] [b] despite lack of discovery production (People’s Affirmation, at 3). The Court in Otero excluded a one-week adjournment where defendant requested said adjournment, in open court, to consider a plea offer. When computing the time in which the People must be ready for trial Criminal Procedure Law §30.30 [4] [b] excludes “the 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. The Court may grant such continuance only if it is satisfied that postponement is in the interest of justice, taking into account the public interest in the prompt disposition of criminal charges….” Moreover, “under CPL 30.30 (4) (b) a defendant may consent to the exclusion of time that would otherwise be chargeable to the People. If the People rely on consent under subsection (4) (b) they must establish that such consent was ‘clearly expressed by defendant or defense counsel’ (People v. Liotta, 9 NY2d 841, 843 [1992]; see also People v. Dickinson, 18 NY3d 835 [2011])” (People v. Lewins, 151 AD3d 575, 576 [1st Dept 2017], lv denied 30 NY3d 981 [2017]). In the instant matter, the People’s reliance on Criminal Procedure Law §30.30 [4] [b] is misplaced as there were no proceedings which were delayed as a result of the off-calendar plea negotiations, nor were there any continuances granted by the Court. This matter, subsequent to its inception at the arraignment on February 14, 2021, was first heard on the record on July 16, 2021. Throughout this period, as is typical in a criminal case, off-calendar plea negotiations between the parties, which caused no delay in the court proceedings, occurred. There is no indication that these off-calendar plea negotiations resulted in a request from the People to have defense counsel waive any Criminal Procedure Law §30.30 time during the plea bargaining process or that the defense acquiesced to a waiver of any speedy trial time. To hold that these off-calendar plea negotiations between the parties would toll the speedy trial time for the People would serve to discourage communication between the parties and thus to discourage plea bargaining, which “is an essential component of the administration of justice” (Santobello v. New York, 404 US 257 [1971]). Such a holding would make any defense attorney reluctant to engage in off-calendar conversations or plea negotiations with the People as such could be construed as an implicit waiver of their client’s Criminal Procedure Law §30.30 rights. The People here have made no showing that defense counsel expressly waived Criminal Procedure Law §30.30 time, in writing or otherwise, to consider the plea offer (see People’s Affirmation, exhibit A). Absent the defendant’s express waiver of Criminal Procedure Law §30.30, the accrual of speedy trial time is not tolled by off calendar plea negotiations (People v. Dickenson, 18 NY3d 835 [2011], citing People v. Waldron, 6 NY3d 463 [2006]). Where the People have an expectation that off calendar plea negotiations, that result in no delay in the proceedings, are to result in excludable Criminal Procedure Law §30.30 time “they would be well advised to obtain unambiguous written waivers” (Waldron at 468). Accordingly, given this Court has found that there was no waiver in place, it will analyze the CPL 30.30 calculation commencing from Defendant’s arraignment. The following is the Court’s period-by-period analysis: February 14, 2021 to July 16, 2021 (152 days included). The People did not file a Certificate of Compliance, Supporting Deposition or Statement of Readiness. Accordingly, there are 152 days chargeable to the People. Therefore, the Defendant’s motion to dismiss is granted. Sealing is stayed 30 days. This constitutes the Decision and Order of the Court. Dated: October 18, 2021
