DECISION AND ORDER Procedural History: On November 10, 2021, defendant was arraigned and charged with Forcible Touching, Penal Law (PL) §130.52(1), a class A misdemeanor, and related charges. On January 5, 2022, a superseding information (SSI) and a supporting deposition (SD) were served on defense counsel. On February 3, 2022, the People served on defendant and filed a Certificate of Compliance (COC) and a Statement of Readiness (SOR) through the Electronic Document Delivery Service (EDDS). At the following court appearance on February 15, defense counsel raised the fact that the SSI and the SD were not filed with the court.1 The court also did not find those documents in the court file. The People also searched their file but could not find a confirmatory EDDS email that the documents had been properly filed. On February 15, the People filed the SSI and the SD via EDDS. On March 29, the defendant served and filed the instant motion to dismiss. The People oppose the motion in its entirety. For the reasons stated below, the defendant’s motion to dismiss is denied. Parties’ Contentions: The defendant argues that when the court arraigned the defendant on February 15 “more than 90 days had passed since arraignment”. Defendant’s Motion, 8. However, since no proper SSI and SD had been filed with the court prior to the service and filing on COC and SOR on February 3, the COC and SOR were illusory, “and the People did not stop the speedy trial clock until the filing of the Superseding Information with the Court on February 15″. Id. at 15. Defendant concludes that “the People have accrued at least 97 days of chargeable time…and therefore the matter must be dismissed”. Id. at 17. The People concede that “there is a factual issue in this case that can’t truly be resolved- whether the People inadvertently failed to file the SSI/SUD at the time of serving it, or whether the People properly attempted to do so and encountered an error in EDDS”. People’s Memorandum of Law, pg. 4. Either way, the People concede that they should have remedied the error upon timely confirming that they did not receive a confirmation of filing on February 3. The People argue first that the 12 days between February 3 and February 15 should be excluded pursuant to CPL 30.30(4)(g), as an exceptional circumstance, especially if the error was due to an EDDS system failure. They next aver that they filed the SSI and SD as soon as they were made aware of the oversight, and that “dismissal of the case is not the proper remedy when the COC/SOR was filed in good faith.” Id. at pg. 5. The People asks that the court apply the same statutory and case law analysis as the courts have relied upon when assessing the validity of a COC filed when the People had failed to disclose some item(s) of discovery and maintains that “an inadvertent oversight…does not demonstrate that the People acted in bad faith”. Id. at pg. 7 (internal cite omitted). Finally, the People point out that the defendant was properly served with all of the papers, and that the defendant has not been prejudiced by the short delay in filing those papers with the court. Court’s Analysis: Pursuant to CPL 30.30(1)(b), the People have 90 days to be ready for trial in the instant matter. It is well known and widely accepted that to be “ready for trial” pursuant to CPL 30.30 the People must must meet two requirements: first, they must communicate their readiness either on the record in open court, or by a written notice simultaneously sent to defense counsel and filed with the court and, second, the People must declare their readiness when they are, in fact, presently ready to proceed to trial. People v. Kendzia, 64 NY2d 331, 337 [1985]. The question presented here is whether the People stopped the clock by announcing ready for trial when the SSI and the SD had been served upon defense counsel but had not yet been properly filed with the court. The People maintain that they believed, in good faith, that the SSI and the SD had been timely filed with the court contemporaneous with the service upon defense counsel, and indeed, CPL §245.50(1), states that “[n]o adverse consequence to the prosecutor shall result from the filing of a certificate of compliance in good faith and reasonable under the circumstances”. Further, CPL 30.30(4)(g) may apply to this matter. In People v. Campusano, 72 Misc3d 137(A), *1 (Sup. Ct., App. Term, 2nd Dept. 2021), the court excluded the adjournment period on exceptional circumstance grounds where the People the People did not state ready for trial as the defense counsel asked to be relieved, and the People had expected the defendant to take a plea at that adjournment. The court held that “[t]here is no precise definition of what constitutes an exceptional circumstance under CPL 30.30 (4) (g)…It is clear, however, that the range of the term’s application is limited by the dominant legislative intent informing CPL 30.30, namely, to discourage prosecutorial inaction“. (emphasis in original) Citing, People v. Price, 14 NY3d 61, 65 (2010). Clearly, the People did not use this oversight as a means of prolonging or enlarging the time frame or to gain any benefit. This court (cannot) (will not countenance) dismissing these egregious charges based on a de minimus human error/oversight which caused no harm or prejudice whatsoever to the defendant, and certainly afforded no benefit to the prosecution. While this appears to be a case of first impression, it is similar in some respects to cases where the prosecution would mail the statement of readiness to counsel who had either been replaced or had moved. In People v. Clark, 31 Misc3d 152(A), *1 (Sup. Ct., App. Term, 2nd Dept., 2011), the People has sent the SOR to an incorrect address for counsel though they did have notice of the change of address. The court found that there was “no basis to determine that the…statement of readiness did not accurately reflect the People’s position, or that the People acted in bad faith”. The court there reversed the dismissal of the accusatory instrument. The People are, therefore, charged with 85 days of speedy trial time. Conclusion Pursuant to the foregoing, the defendant’s motion to dismiss the charges pursuant to CPL §30.30 is denied. Dated: May 16, 2022
