DECISION AND ORDER Defendant Douglas Boateng moves for dismissal of the charges against him on statutory speedy trial grounds. The People oppose. After a careful consideration of the defendant’s motion, the People’s response, documents contained in the court file, and the transcripts from the proceedings, the Court finds that a total of 90 days are chargeable to the People and DENIES the defendant’s motion. DISCUSSION The defendant is charged with Criminal Possession of a Controlled Substance in the Seventh Degree (PL §220.03), which is a class A misdemeanor. Accordingly, the People must be ready for trial within ninety days from the commencement of the criminal action (CPL §30.30 [1] [b]). In this case, the defendant asserts that at least ninety-one [91] days of includable time have elapsed. Under CPL §30.30, the People satisfy their obligation once they declare their readiness for trial (People v Giordano, 56 NY2d 524 [1982]). The People are “ready” for trial when they serve “either a statement of readiness by the prosecutor in open court, transcribed by a stenographer, or recorded by the clerk or a written notice of readiness sent by the prosecutor to both defense counsel and the appropriate court clerk” (People v Chavis, 91 NY2d 500, 505 [1998]). The People must “in fact be ready to proceed at the time they declare readiness” (id.). From January 1, 2020 forward, whenever the People state ready, the court must inquire on the record as to their “actual readiness” (see CPL §30.30 [5]). In a motion to dismiss pursuant to CPL §30.30, the initial burden rests on the defendant to allege that his right to speedy trial has been violated (see People v Luperon, 85 NY2d 71, 77-78 [1995]). Then, the burden shifts to the People to identify “the exclusions on which they intend to rely” (id. at 78). If the defendant disagrees, he “must identify any legal or factual impediments to the use of these exclusions” (id.). The following constitutes the Court’s analysis of periods that are chargeable to the People: March 11, 2021 — July 2, 2021: The defendant was arrested on March 10, 2021 and arraigned in criminal court the following day. The People stated not ready as they needed to file and serve both laboratory results for the alleged controlled substance and a Certificate of Compliance (COC). The case was adjourned to May 4, 2021 for these purposes. On May 4, 2021, the case was adjourned to June 1, 2021, once again for laboratory results and COC. On June 1, 2021, the case was adjourned to July 2, 2021, once again for laboratory results and COC. On June 9, 2021, at 4:50 p.m., the People filed and served by email1 the laboratory report, a COC, and a statement of readiness. The People concede that 90 days, from March 11, 2021 to June 9, 2021, are chargeable. The issue before this Court, then, is whether the statement of readiness made on June 9, 2021 tolled the 30.30 clock on June 9, 2021 — day 90 — or whether the clock continued to run until the following day, June 10, 2021 — day 91. CPL §30.30 [1] [b] provides, in pertinent 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 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” The operative word is “within,” which permits the People to answer ready on the 90th day (see e.g. People v Bendter, 184 Misc 2d 374, 379 [Crim Ct, Kings County 2000], citing People v England, 195 AD2d 751 [3d Dept 1993] affirmed 84 N.Y.2d 1 (1994) and People v Powell, 179 Misc2d 1047 [App Term, 2d Dept 1999]). As both parties discuss, trial readiness requires both “a communication of readiness by the People which appears on the trial court’s record,” made “when the People are in fact ready to proceed” (People v Kendzia, 64 NY2d 331, 338 [1985]). As such, a statement of readiness must be practical rather than theoretical. The existence of a practical impediment to bringing the case to trial will render a statement of readiness meaningless (see People v England, 84 NY2d 1, 5 [1994]). Defense argues that “there was no way Mr. Boateng could have been brought before the court before the 91st day” because the People emailed their statement of readiness when “the court was about to close (or may already have closed)” (affirmation of defense at 11). Therefore, an inquiry pursuant to CPL §30.30 [5] was not possible until the 91st day (id. at 12). As this inquiry is a prerequisite to trial, the argument continues, the clock continued to run until day 91 (id. at 12-13). This Court disagrees. First, the defense argument fundamentally misapprehends the People’s responsibilities. The defendant’s position that “[h]e has a right to be brought to trial…within the statutory period of 90 days,” (id. at 12), is directly at odds with the Court of Appeals’ characterization of the speedy trial statute as one that “express[es] a command that the People must be ready for trial rather than that the defendant must be granted a trial within the prescribed period” (People v Brothers, 50 NY2d 413, 418 [1980] (emphasis added)). The People can always stop the 30.30 clock by “declaring readiness in writing, through an off-calendar statement,” even though the defendant may have no immediate knowledge of the filing, and therefore obviously cannot proceed directly to trial at that time (see People v Barden, 27 NY3d 550, 556 [2016]). Similarly, the fact that the People might have filed a statement of readiness late in the business day, when it might not be feasible to start a trial, is of little import. Second, the statement of readiness was made within business hours on the 90th day, in contrast with the case relied on by defense. In Brijmohan, the People filed their statement of readiness, along with a supporting deposition, at 11:36 p.m. on the 90th day (see People v Brijmohan, Crim Ct, Bronx County, July 27, 2021, Beller, J., docket No. CR-000408-21BX). There, the parties agreed this was “after the close of business,” meaning “it was impossible” to secure the defendant’s attendance for arraignment on the information until the following day (see id.). Here, there existed no such practical impossibility. As the Court notes in Brijmohan, this makes a difference (see id. at n). Two years after England, the Court of Appeals clarified this point in People v Goss, 87 NY2d 792, 794 [1996], summarizing it thusly — “Can the People validly declare readiness for trial pursuant to CPL 30.30 prior to the defendant’s arraignment? In People v. England…we deemed a prearraignment statement of readiness ineffective where, solely because of the People’s own conduct, it was impossible to arraign the defendant within the statutory period. England, however, does not hold that the People can never be ready to proceed to trial prior to arraignment. Thus, where it was possible for the defendant to be arraigned — and the trial to proceed — within the six-month period, a prearraignment statement of readiness was valid.” In this case, conducting the inquiry was possible where the statement of readiness was filed within business hours. Further, an outstanding CPL §30.30 [5] inquiry is not the type of impediment that would render the statement of readiness meaningless. Both Brijmoham and England concern a failure by the People to ensure that a defendant could be arraigned prior to the expiration of the speedy trial period (see England, 84 NY2d at 4-5; Brijmoham, supra). In England, the Court of Appeals found that the “Defendant could not have been brought to trial before arraignment, the process by which the court acquires jurisdiction over a defendant (CPL 1.20[9]). That is an elemental prerequisite to trial readiness” (England, 84 NY2d at 4-5). It was the impossibility of this “elemental prerequisite,” solely caused by prosecutorial delay, that rendered the statement of readiness “meaningless” (see id. at 5). CPL §30.30 [5] does not create a such an “elemental prerequisite to trial readiness” (see id.). This section is part of the major discovery reforms that went into effect on January 1, 2020 and reads, in pertinent part — “Whenever pursuant to this section a prosecutor states or otherwise provides notice that the people are ready for trial, the court shall make inquiry on the record as to their actual readiness. If, after conducting its inquiry, the court determines that the people are not ready to proceed to trial, the prosecutor’s statement or notice of readiness shall not be valid for purposes of this section” CPL §30.30 [5]. Cleary, the inquiry is meant to occur after the People state ready. Indeed, there’s no reason that the inquiry couldn’t be conducted the next day or even the following week. That a statement of readiness might later be found to be invalid under the inquiry does not create some statement of readiness purgatory. Accordingly, this inquiry is not an impediment to the People stating ready in the first instance and so not an “elemental prerequisite to trial readiness” (see England, 84 NY2d at 4-5). The statement of readiness was filed before the close of business on the 90th day, meaning a CPL §30.30 [5] inquiry was at least possible. Regardless, the inquiry itself is not an elemental prerequisite to trial readiness. Therefore, this statement of readiness tolled the 30.30 clock the day it was filed, June 9, 2021, the 90th day. Based on the foregoing reasons, the Courts finds that a total of ninety [90] days of includable time has lapsed. Accordingly, the defendant’s motion to dismiss pursuant to CPL §30.30 (1) (b) is denied. This constitutes the decision and order of this Court. Dated: January 6, 2022
