DECISION AND ORDER Defendant Christian Silva, charged with three counts of Driving While Intoxicated [VTL 1192(2); 1192(2)(a); 1192(3)] and one count of Driving While Impaired [VTL 1192(1)] moves, by notice of motion dated March 14, 2022, to dismiss the accusatory instrument pursuant to CPL 30.30(1)(b) and CPL 170.30(e). The Court finds that more than 90 chargeable days have elapsed since the commencement of the case, therefore, Defendant’s motion is GRANTED. Background and Procedural History Mr. Silva was arrested on November 23, 2021 associated with an incident occurring on that day where he is accused of driving while in an intoxicated condition. On November 24, 2021, Mr. Silva was arraigned. The case was adjourned for a supporting deposition to January 4, 2022. On January 4, 2022, the People filed and served a supporting deposition and the complaint was deemed an information. The case was adjourned for trial to February 17, 2022. On February 17, 2022, the People were not ready for trial and the case was adjourned for trial to March 15, 2022. On February 22, 2022, off-calendar, via the Electronic Document Delivery Service (EDDS), the People filed with the Court and served on the Defense a certificate of compliance (COC) and certificate of readiness (COR) at 6:28 PM. On February 23, 2022, the Defense filed an omnibus motion off-calendar via EDDS. On March 14, 2022, the Defense filed the instant motion to dismiss off-calendar via EDDS. On March 15, 2022, the Court ordered pretrial hearings, and conducted an inquiry pursuant to CPL 30.30(5) to determine the People’s readiness for trial. The Court then ordered the People to respond to Defendant’s motion to dismiss, and adjourned the case to April 22, 2022 for decision. On April 4, 2022, the People filed their response. On April 8, 2022, the Defense filed their reply to the People’s response. Discussion Mr. Silva 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. Accordingly, the People are required to be ready for trial within 90 days from the commencement of the criminal action, less any excludable time. CPL 30.30(1)(b). Although commencement of a criminal action begins at the arraignment, computation for speedy trial purposes begins on the next day. People v. Stiles, 70 N.Y.2d 765 (1987). Once a defendant has alleged that an excess of the allowable time has elapsed, the burden shifts to the People to demonstrate whether any periods are to be excluded from the calculation, such that the allowable time has not elapsed. People v. Santos, 68 N.Y.2d 859 (1986); People v. Berkowitz, 50 N.Y.2d 333 (1980). Mr. Silva argues that 91 days of includable time have elapsed since the commencement of the action. The People concede that 90 days have elapsed, but argue that they have not exceeded 90 days as a result of their filing of a COR on the 90th day. The People are deemed “ready for trial” when they either 1) communicate their actual readiness in open court or 2) file a certificate of readiness with the court and serve a copy on defense counsel. People v. Kendzia, 64 N.Y.2d 331 (1985).1 The Court of Appeals held that there must be a contemporaneous communication of readiness and that the People must communicate readiness for trial when the People are in fact ready to proceed. Id. at 336-337 [citing, People v. Hamilton, 46 N.Y.2d 932 (1979); People v. Brothers, 50 N.Y.2d 413 (1980)]. Where the People announce readiness for trial on the last day of the statutory time period, such announcement has been deemed timely. See, People v. England, 84 N.Y.2d 1 (1994). However, such statement of readiness must be made within the 90-day time period pursuant to CPL 30.30(1)(b). In this case, the People’s COR, filed via EDDS off-calendar on February 22, 2022 at 6:28 PM, after the close of business, was untimely and did not toll the speedy trial clock. This Court agrees with a recent case that dealt with this exact issue. In People v. Miller, 2022 N.Y. Slip Op. 22085 (Crim. Ct. Kings Co., March 10, 2022), cited by the Defense in his reply, the Court dismissed the accusatory instrument where the People had filed a COR at 7:10 PM on the 90th day, finding that because the COR was filed after the close of business, it was untimely. The Court also noted that when documents are filed with EDDS, they are considered “presented for filing” and that the emailed receipt generated by any EDDS filing contains the following notification: “The sending and/or receipt of any documents through the EDDS does not constitute service upon any other party, nor does it constitute filing of those documents with the court or County Clerk.” The Court notes that prior to its use of EDDS as a method for submission of documents, if the People wished to file a COR with the Court, they would have to bring the COR to the clerk of the court where the case was pending, and obtain a stamp showing the date of the filing. If the People arrived after the close of business, they would not be able to obtain such a stamp because the door to the clerk’s office would be locked. This Court sees no basis to make an exception simply because EDDS is now the accepted method for filing documents, post-pandemic. Accordingly, this Court finds that the People’s filing of their COR after business hours on the 90th day of the statutory time period was not timely. Although the People stated in their response that “[o]n February 22, 2022, the People had done everything required in order to bring the case to a point where it may be tried…turned over discovery, verified the availability of witnesses, and certified compliance and readiness,”2 the People failed to explain or justify why they filed their COR after business hours on that date, at 6:28 PM. As the People bear the burden of demonstrating excludable time periods, they have failed to convince this Court that the 90th day should be excluded from the Court’s calculation. The Court notes that both sides refer to the timing of the Court’s CPL 30.30(5) inquiry as somehow relevant to a determination of the effectiveness of the People’s off-calendar COR. However, where the People file a COR off-calendar, the CPL 30.30(5) inquiry typically does not occur until the next adjourned date, hence, the timing of this inquiry is not “an elemental prerequisite to trial readiness.” See, People v. Boateng, 73 Misc.3d 1238(A) (Crim. Ct. Bx. Co. Jan. 12, 2022).3 Accordingly, the court makes the following speedy trial calculations with respect to each adjournment: November 24, 2021 — January 4, 2022 The case was arraigned and the case was adjourned for supporting deposition. Both sides agree that this time period is chargeable. 41 days are charged. January 4, 2022 — February 17, 2022 The People filed and served a supporting deposition and the complaint was deemed an information. The case was adjourned for trial. Both sides agree that this time period is chargeable. 44 days are charged. February 17, 2022 — March 15, 2022 The People were not ready for trial and the case was adjourned again for trial. The People filed a COC and COR off-calendar via EDDS after the close of business on February 22, 2022, the 90th day, which was untimely and thus did not toll the speedy trial clock. As such, it did not become effectively filed until the 91st day. 6 days are charged.4 March 15, 2022 — April 22, 2022 On March 14, 2022, the Defense filed the instant motion to dismiss off-calendar. On March 15, 2022, the Court granted pre-trial hearings and ordered the People to respond to Defendant’s motion to dismiss. The Court also conducted a CPL 30.30(5) inquiry to determine the People’s readiness for trial, but did not issue any ruling given the fact that the motion to dismiss was pending. The case was adjourned for the Court’s decision to April 22, 2022. On April 4, 2022, the People filed their response. On April 8, 2022, the Defense filed their reply. This time period is excludable motion practice. CPL 30.30(4)(a). By the Court’s calculation, the total includable speedy trial time amounts to 91 days, exceeding the 90-days permitted for a class A misdemeanor. Conclusion For the aforementioned reasons, the Court finds that 91 chargeable days have elapsed since the commencement of the case, and therefore, the People have exceeded their allowable speedy trial time. Accordingly, Mr. Silva’s motion to dismiss pursuant to CPL 30.30(1)(b) and CPL 170.30(e) is GRANTED.5 This opinion constitutes the decision and Order of the Court. Dated: April 22, 2022
