Upon the following papers read on these motions for dismissal: Notice of Motion/xxxxxxxxxxxxxxx and supporting papers X ; Notice of Cross Motion and supporting papers ; Answering Affidavits and supporting papers X; Replying Affidavits and supporting papers X ; Filed papers ; Other Exhibits X; (and after hearing counsel in support of and opposed to the motion) it is, ORDERED that this third motion by the defendant to dismiss is decided as follows: The defendant’s motion to dismiss the information and strike the CoC based upon an alleged violation of his statutory speedy trial rights is GRANTED. On August 20, 2019, the defendant was charged with one count of Driving While Intoxicated in violation of New York’s Vehicle & Traffic Law ["VTL"] §1192.3, an unclassified misdemeanor, and one count of Aggravated Driving While Intoxicated in violation of VTL §1192.2-a(a), an unclassified misdemeanor, along with four traffic infractions. She was arraigned on August 21, 2019. The People filed their initial Certificate of Compliance ["CoC"] and Statement of Readiness ["SoR"] on November 24, 2020, and a supplemental CoC on January 29, 2021. The defendant now moves this Court to dismiss the accusatory instrument and strike the CoC pursuant to CPL §170.30 and §30.30. A. Prior Motions to Dismiss On November 14, 2019, the defendant filed his first motion to dismiss on the ground that the accusatory instrument was facially insufficiency, which was denied by Judge Jennifer A. Henry on June 1, 2020. On November 24, 2020, the People filed a CoC and SoR off-calendar. On June 4, 2021, the defendant filed a second motion to dismiss, this time on the ground that the defendant’s speedy trial rights had been violated because the CoC failed to certify as to the facial sufficiency of the accusatory instruments. In a decision dated October 5, 2021, this Court denied the defendant’s motion to dismiss and held that the People’s supplemental CoC, filed on January 29, 2021, which contained a certification as to the facial sufficiency of the CoC, and was retroactive to November 24, 2020. In denying the defendant’s motion, the Court found that a total of 77 days were chargeable to the People. (People’s Aff. in Opp. at _ 1). In so holding, this Court made the following speedy trial calculation: Pursuant to §CPL 30.30(1)(b), the People were required to make an effective statement of their readiness for trial within 90 days of the commencement date of the within criminal actions, taking into account all excludable time periods. The criminal action was commenced on August 21, 2019. The defendant filed a motion to dismiss on November 14, 2019, which motion was decided on June 1, 2020. In addition, from March 20, 2020 until September 8, 2020, there were covid-related court closures set forth in Executive Order 202.8. The People filed their initial CoC in this case on November 24, 2020. On January 25, 2021, the People filed a motion for a protective order relating to discovery, which motion was pending until January 29, 2021, when the People were ordered to make disclosures by March 1, 2021. On March 10, 2021, the People filed a motion to reargue, which was pending until on or about June 2, 2021. On June 4, 2021, the defendant filed a second motion to dismiss, which was decided on October 5, 2021. In his second motion to dismiss, the defendant contended that the time periods from June 1, 2020 through November 24, 2020 (176 days) and November 24, 2020 through March 10, 2021 (106 days) were excludable. In its decision dated October 5, 2021, this Court concluded that the time between the commencement of the action in August 2019 and March 20, 2020 was excludable, as the matter was in motion status during that period. The Court further held that the time from March 20, 2020 until September 8, 2020 was excludable because of the pandemic-related Executive Order 202.8 was in place during that time. The Court concluded that the People were chargeable only with the 77-day period from the expiration of Executive Order 202.8 on September 8, 2020 until the date the People filed their CoC on November 24, 2020. Finally, this Court found that the 176-day period from November 25, 2020 through March 10, 2021 did not count towards the speedy trial calculation because the People’s CoC, filed on November 24, 2020, was valid once corrected in January 2021. In any event, the People were not chargeable with any post-readiness delay. B. Calendar Appearances Following Defendant’s Second Motion to Dismiss Following the Court’s October 5, 2021 order, there have been several court appearances. During the November 23, 2021 court appearance, the People informed this Court that the arresting officer, Officer Anthony Parenti, was unavailable to testify, as he had been injured in the line of duty. (People’s Aff. in Opp. at _ 2; Def’s Aff. at _ 2). The Court noted that this adjournment was on consent and the time was excludable. (People’s Aff. in Opp. at _ 2). The matter was adjourned until December 8, 2021. (Id.) On December 8, 2021, the People stated that the officer would be back on duty as early as December 13, 2021, and announced that they were “ready” for trial. (People’s Aff. in Opp. at _ 3). The matter was adjourned until December 13, 2021. (Id.) On December 13, 2021, the People informed the Court that the officer was still unavailable, and stated that they were “ready” for trial, despite the witness’ unavailability. (People’s Aff. in Opp. at _ 3; Def’s Aff. at _ 4). The matter was adjourned until January 18, 2022. (Id.) As described below, the 56-day period from November 23, 2021 through January 18, 2022 is now at issue. C. Instant (Third) Motion to Dismiss By motion dated January 14, 2022, the defendant again moved to dismiss on the grounds that his statutory speedy trial rights have been violated. Specifically, the defendant argues that the People are chargeable with the 56-day period from November 23, 2021 through January 18, 2022 because that period is not excludable under CPL §30.30(4). (See Def.’s Aff. at _ 22-24). In opposition, the People argue that the time is excludable under both CPL §30.30(4)(b), as one adjournment was made with the defendant’s consent, and under CPL §30.30(4)(g), as an exceptional circumstance. (See People’s Mem. in Opp. at Point I.A, p. 7/71). This Court finds that the defendant has met his initial burden on a CPL 30.30 motion by alleging that the prosecution failed to declare readiness within the statutorily-prescribed time period. (See People v. Goode, 87 NY2d 1045 [1996]). The ultimate burden of proving that certain time periods should be excluded falls upon the People. (See People v. Berkowitz, 50 NY2d 333 [1980]). CPL _ 30.30(4)(g) expressly provides that “continuance[s]…[made] at the request of, or with the consent of, the defendant or his or her counsel” must be excluded from the speedy trial calculation. CPL _ 30.30(4)(b) ["In computing the time within which the people must be ready for trial pursuant to subdivisions one and two of this section, the following periods must be excluded: (b) 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"]). It is well-established law that, pursuant to this section, adjournments made with the consent of the defendant’s counsel are excludable. See, e.g., People v. Testamark, 173 AD3d 523, 524, 103 AD3d 523 [1st Dep't 2019] and People v. Goodwin, 209 AD2d 228, 618 NYS2d 633 [1st Dep't 1994]. Here, the record demonstrates that the defendant consented to the 15-day adjournment from November 23 and December 8, 2021. (People’s Aff. at _ 2, Ex. A, 11/23/21 Tr. at p.2, 11. 1-22). While the adjournment was made at the People’s request, the defendant’s counsel participated in selecting the next court date. (See id.) See also People v. Davis, 80 AD3d 494, 915 NYS2d 250 [1st Dep't 2011] [time excludable pursuant to 30.30(4)(b) where defendant's counsel actively participated in setting the date]. Moreover, during the November 23 hearing, this Court expressly stated “[s]o this is on consent, time will be excludable,” and the defendant’s counsel did not object. (Id. at 11. 19-20). Thus, the Court finds that the 15-day period from November 23 to December 8, 2021 is excludable pursuant to CPL _ 30.30(4)(b). However, beginning on December 8, 2021, the defendant’s counsel objected to adjournments based on injury to the officer. (Def.’s Aff. at _ 3, People’s Ex. B, 12/8/21 Tr. at p.4, 11. 8-12). Thus, the period from December 8, 2021 through January 18, 2022 is not excludable on consent. CPL _ 30.30(4)(g) expressly excludes from the speedy trial calculation, “other periods of delay occasioned by exceptional circumstances, including, but not limited to, the period of delay resulting from a continuance granted at the request of the district attorney if (i) continuance is granted because of the unavailability of evidence material to the people’s case, when the district attorney has exercised due diligence to obtain such evidence and there are not reasonable grounds to believe that such evidence will become available in a reasonable period of time….” CPL _ 30.30(4)(g). Courts have held that the People have the burden of establishing that a witness is “unavailable” within the meaning of CPL _ 30.30(4)(g). People v. Martinez, 268 AD2d 354, 354, 701 NYS2d 425 [2d Dep't 2000]. Here, the People contend that the time period from November 23, 2011 through January 18, 2022 is excludable as an exceptional circumstance because Officer Parenti was on leave from the Suffolk County Police Department on November 11, 2021 through December 20, 2021 due to a torn posterior cruciate ligament (“PCL”), and was thus unavailable to testify within the meaning of CPL _ 30.30(4)(g). (People’s Mem. of Law at Point I.A, p. 7/71). In support of their contention, the People have submitted approximately 38 pages of medical records which establish that the arresting officer suffered a torn PCL. (People’s Mem. of Law, Ex. E). The defendant does not dispute that the officer sustained an injury, but contends that such injury did not prevent him from being able to testify. (Def.’s Reply at Point C, _ 12-14). Specifically, the defendant contends that the medical records submitted by the People reveal that the officer sustained a knee injury while sliding into first base during a recreational softball game. (Def.’s Reply at Point C, _ 13). The officer was treated at Stony Brook University Hospital on November 29, 2021, and at that time the officer was “ambulating in a knee sleeve.” (Id.) The officer was again treated by a doctor for a follow-up appointment on December 20, 2021, when the officer reported “ambulating independently and that he plans to return to work tomorrow.” (Id. at _ 14). The defendant contends that there is no evidence the officer’s injury was severe enough to prevent him from testifying from November 23, until December 20, 2021. (Id. at _ 12-14). At a minimum, the defendant argues that the officer was available to testify on December 21, 2021, and thus, the People should be charged with the time period from December 21, 2021 through January 14, 2022 (23 days). (Id. at _ 14). It is the opinion of this Court that the People have not met their burden that the witness was “unavailable” within the meaning of CPL _ 30.30(4)(g) from the period November 23, 2021 until January 18, 2022. It is undisputed that the officer suffered an injury to his knee that resulted in him missing work; however, there is no medical evidence in the record to support the People’s contention that the officer was not able to come to court. Cf., People v. Luperon, 196 Misc2d 154, 156, 761 NYS2d 813, 815 [Sup Ct NY Cnty 2003] [officer unavailable where medical records submitted by the People established that officer had knee injury and was taking pain medication between four and six times a day an the medication made him feel intoxicated for at least one hour after each dose] and People v. McLeod, 281 AD2d 325, 327, 722 NYS2d 507 [1st Dep't 2001] [broken wrist that required large, complicated, and cumbersome cast was "sufficiently restricting injury" that rendered the officer medically unavailable to testify]. To the contrary, the record here reveals that the officer was able to ambulate in a “knee sleeve” or “knee brace” on November 29, 2021, and then “independently” on December 20, 2021. (People’s Aff. at Ex. E, pp. 43/71 and 69/71). While the record does contain a letter from Officer Parenti’s direct supervisor, Sergeant Gregory Turzer, stating that the officer was not able to testify, the author is not a medical professional and consequently the letter provided no medical analysis or opinion. (People’s Aff. at Ex. D). No medical professional opined that the officer was unable to testify as a result of his injury from November 23, 2021 until January 18, 2022. Consequently, this Court finds that the 56-day time period from November 23, 2021 until January 18, 2022 is not excludable under CPL _ 30.30(4)(g). However, as noted above, the defendant consented to the 15-day exclusion from November 23, 2021 until December 8, 2021. Thus, the People are only chargeable with the 41-day time period from December 8, 2021 through January 18, 2022. Even assuming, arguendo, that the officer was “unavailable” from November 23, 2021 until December 20, 2021, this Court finds in addition that the People have failed to establish that the officer was “unavailable” from December 21, 2021 until January 18, 2022. It is undisputed that the officer returned to work on December 21, 2021. While the next court date in the case was previously scheduled for January 18, 2022, nothing prevented the People from alerting the Court and the defendant’s counsel to the officer’s recent availability. Thus, even if the entire 41-day time period were not chargeable to the People as described above, this Court finds that, at a minimum, People would be charged with the 23-day period from December 21, 2021 until January 18, 2022. In sum, the People are chargeable with the period from September 8, 2020 until November 24, 2020 (77 days) as well as the 41-day time period from December 8, 2021 through January 18, 2022 (41 days). Thus, the People are chargeable with a total of 118 days, which is in excess of the statutorily-required 90 days. In light of the Court’s determination that the defendant’s statutory speedy trial rights have been violated, this Court need not reach the defendant’s remaining arguments. By reason of the foregoing, the motion by the defendant to dismiss the information and strike the CoC based upon an alleged violation of his statutory speedy trial rights is GRANTED. Dated: May 11, 2022
