The following papers numbered 1 to 3 were read and considered on the defendant’s motion to dismiss the accusatory instrument for allegedly violating the defendant’s due process rights and for exceeding the speedy trial requirements pursuant to CPL §30.30, §30.20 and the Sixth and Fourteenth Amendments to the Constitution. Papers Numbered Notice of Motion and Affidavits Annexed 1 Affirmation/Affidavits in Opposition 2 Replying Affidavits 3 DECISION AND ORDER The defendant is charged by superseding misdemeanor information with one count of Criminal Possession of a Controlled Substance in the Seventh Degree (PL §220.03), Driving While Ability Impaired by Drugs (VTL §1192(4)) and various vehicle and traffic violations. The defendant moves to dismiss the accusatory instrument pursuant to CPL §30.30, CPL §30.20 and the Sixth and Fourteenth Amendments to the Constitution. Defendant contends that 237 days are chargeable from the inception of the misdemeanor complaint. The People opposed the motion, arguing only 84 days are chargeable. The People acknowledged that as the defendant was initially charged with a felony, they were required to be ready within six months of the defendant’s arraignment. The People contend that the felony arraignment was on September 1, 2019 after which the defendant requested an adjournment to September 26, 2019. As an adjournment made at the defendant’s request, this interval of time is excluded from CPL 30.30 calculations even when the People are not ready for trial. (see CPL §30.30[4][b]); People v. Worley, 66 N.Y.2d 523, 527 [1985]. The People acknowledge requesting an adjournment from September 26, 2019 to October 21, 2019 charging the People with 25 days. The defendant does not deny that he requested adjournments from October 21, 2019 through January 13, 2020. “Defendant may not request an adjournment and at the same time disclaim any waiver of delay.” People v. D’Aquino, 163 Misc.2d 788, 791 [Yonkers City Ct 1995]; see also, People v. Percell, 62 Misc. 3d 190 [NY City Crim Ct 2020]. The People acknowledge they requested adjournments of 17 days from January 13, 2020 through January 30, 2020. On January 30, 2020, the Superseding Misdemeanor Information was filed. CPL §30.30 [7] [c] provides that when a criminal action is commenced by the filing of a felony complaint which is later superseded by a misdemeanor information, the determination of the amount of time in which the People must be ready or trial is the period applicable to the new charges, calculated from the shorter of six months from the filing of the felony complaint or the date of the filing of the new accusatory instrument. When the chargeable time from the date of the filing of the felony complaint to the accusatory instrument exceeds six months, excluding those periods provided in CPL §30.30(4), the applicable period is six months from the filing of the felony complaint. People v. Cooper, 98 N.Y.2d 541 (2002). A total of 42 days were chargeable to the People prior to the filing of the Superseding Misdemeanor Information. Therefore, a 90-day period for speedy trial purposes begins on January 30, 2020 for the instant case. The People acknowledge that they requested an adjournment of 19 days from January 30, 2020 through February 18, 2020. The defendant failed to appear on February 18, 2020, and the matter was adjourned at defense counsel’s request to produce on March 17, 2020. This time is excludable pursuant to CPL §30.30 [4] [c] [i]. On March 7, 2020, former New York Governor Andrew Cuomo declared a state of emergency because of the effects of the COVID-19 pandemic on the State of New York. (Executive Order [Cuomo] No. 202 [9 NYCRR 8.202]. On March 17, 2020 the matter was administratively adjourned by the Court. On March 20, 2020, Governor Cuomo enacted Executive Order 202.8, tolling “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 criminal procedure law…until April 19, 2020.” Executive Order 202.8 [9 NYCRR 8.202.8]. The Executive Order as it pertained to speedy trial time was continued on April 7, 2020 to May 7, 2020 (Executive Order [Cuomo] No. 202.14 [9 NYCRR 8.202.14]), June 6, 2020 (Executive Order [Cuomo] No. 202.28 [9 NYCRR 8.202.28]), and July 6, 2020 Executive Order [Cuomo] No. 202.38 [9 NYCRR 8.202.38]). On July 6, 2020 the executive order was continued until August 5, 2020, providing in pertinent part, “Section CPL 30.30 of the Criminal Procedure Law, is hereby modified to require that speedy trial time limitations remain suspended until such time as petit criminal juries are reconvened or thirty days, whichever is later.” Executive Order [Cuomo] No. 202.48 [9 NYCRR 8.202.48]. On or about August 5, 2020, the executive order was continued until September 4, 2020. Executive Order [Cuomo] No. 202.55.1 [9 NYCRR 8.202.55.1]). On September 4, 2020, the Executive Order was extended to October 4, 2020 and modified such “that speedy trial time limitations remain suspended in a jurisdiction until such time as petit criminal juries are reconvened in that jurisdiction.” Executive Order [Cuomo] No. 202.55.1 [9 NYCRR 8.202.55.1]). The period between March 17, 2020 through October 4, 2020 is excluded from the speedy trial time calculation as Governor Cuomo’s Executive Orders issued in relation to the COVID-19 pandemic suspended CPL §30.30 deadlines. (See, Executive Orders 202.14; 202.28; 202.38; 202.48; 202.55; 202.60 and 202.67. Further, as the defendant failed to appear on September 11, 2020, the matter was adjourned until October 26, 2020. This time is also excludable. The People contend that following the defendant’s rejection of the People’s offer on October 26, 2020 the People requested an adjournment to November 6, 2020 for a discovery conference and the successive adjournment through November 20, 2020. As such, an additional 24 days are chargeable to the People. The defendant does not deny that the adjournment on November 20, 2020 was on consent. Adjournments made at the request of the defendant are excluded under CPL §30.30. As such, no time is chargeable through January 21, 2021. The People acknowledge requesting the adjournment from January 21, 2021 to February 2, 2021 and that no exception applies. On February 2, 2021, the Court was closed for inclement weather and the case administratively adjourned to March 2, 2021. The People are also charged with this time as the proceeding time was chargeable with no applicable exception. Accordingly, 40 days are chargeable to the People. The People filed the Certificate of Compliance on the clerk and defense counsel on March 2, 2021. Defense counsel argued that the People did not establish that they declared their readiness for trial on the record as required until March 11, 2021. See, People v. Ramirez-Correra, 71 Misc.3d 570 (City Ct, Queens Co., 2021). Accordingly, counsel argued that the 9 days between March 2, 2021 and March 11, 2021 are chargeable to the People. The People satisfy their CPL §30.30 obligation once they declare their readiness fort trial. People v. Giordano, 56 N.Y.2d 524 [1982]. The People are “ready” 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 N.Y.2d 500, 505 [1998]. Whenever the People state ready, the court must inquire on the record as to their “actual readiness”. CPL §30.30 [5]. “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.” People v. Boateng, 73 Misc.3d 1238 [A] [Crim. Ct. Bronx Co., 2022] citing People v. Barden, 27 N.Y.3d 550, 556 [2016]. CPL §30.30 [5] provides, 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.” The discovery reforms that went into effect on January 1, 2020 did not restrict the People to declare readiness on the record nor is the inquiry a prerequisite to trial readiness. Rather, the only “condition precedent to the prosecutor’s ability to file a Certificate of Compliance is the discovery of all material considered [a]utomatic [d] iscovery.” People v. Napolitano, 67 Misc. 3d 1241 [A] [Crim. Ct, New York County, 202]. Accordingly, these 9 days are excluded. The initial burden is upon the defendant to demonstrate that the People were not ready for trial within the 90 days proscribed by CPL §30.30. The burden then shifts to the People to establish that time should be excluded. The defendant has not met his burden of establishing that the People were not ready within 90 days. As set forth above, the Court’s calculations, after considering the time excluded totals 84 days chargeable to the People from the defendant’s January 30, 2020 arraignment through the People’s filing of a Certificate of Compliance and declaration of readiness on March 11, 2021. Accordingly, it is now ORDERED, that defendant’s motion to dismiss is DENIED. Dated: April 4, 2022
