People v. Fuentes

Defendant ANGEL FUENTES is charged by Indictment Number 70248-21 with one count of Criminal Possession of a Weapon in the Second Degree pursuant to Penal Law [PL] §265.03 (3) [Count One], one count of Criminal Possession of a Firearm pursuant to PL §265.01-b (1) [Count Two], and one count of Criminal Possession of a Weapon in the Fourth Degree pursuant to PL §265.01 (1) [Count Three]. The charges pertain to Defendant’s alleged possession of a loaded .38 caliber revolver inside of a vehicle in the vicinity of 1 Bogopa Plaza, in the City of Mount Vernon, at approximately 6:00 p.m. on September 17, 2020. On November 29, 2021, Defendant was arraigned by the Honorable David S. Zuckerman on the charges contained in Indictment Number 70248-21, he entered a plea of not guilty to said charges, and an omnibus motion schedule was set. Attached to the indictment is the People’s Demand for a Notice of Alibi pursuant to CPL §250.20 and two (2) Criminal Procedure Law [CPL] §710.30(1)(a) Notices regarding the People’s intent to offer evidence of statements that were allegedly made by the defendant to members of the Mount Vernon Police Department. On December 20, 2021, the People filed a Certificate of Compliance pursuant to CPL §245.50 (1), which includes a “Statement of Readiness,” wherein “[t]he People confirm and announce their readiness for trial on all counts charged.” Attached to the Certificate of Compliance is a copy of the People’s Discovery Disclosure Index pursuant to CPL §§245.20 and 245.50. Defendant filed a Notice of Motion, an Affirmation and a Memorandum of Law on December 20, 2021, seeking to dismiss the indictment on the ground that the defendant’s right to a speedy trial has been violated pursuant to CPL §§210.20 and 30.30. The People filed an Affirmation in Opposition dated February 18, 2022, a Memorandum of Law and “Exhibit 1,”¹ disputing Defendant’s speedy trial claims. On February 18, 2022, Defendant filed a Reply to the People’s Affirmation in Opposition. On March 1, 2022, Defendant filed a Notice of Motion, Affirmation and Memorandum of Law, seeking omnibus relief.² Thereafter, the People filed an Affirmation in Opposition dated March 17, 2022, and a Memorandum of Law in response to Defendant’s motion for omnibus relief. The Court was also provided with an unredacted certified copy of the stenographic transcript of the November 16, 2021 Grand Jury proceeding, along with copies of the Grand Jury Exhibits. On April 4, 2022, the People filed a letter with attachments thereto, supplementing their previously filed opposition papers to Defendant’s speedy trial motion. On April 19, 2022, the People filed a Supplemental Certificate of Compliance pursuant to CPL §§245.50 (1) and 245.60, wherein the People again confirmed and announced their readiness for trial “on all counts charged in this matter.” Attached to the Supplemental Certificate of Compliance is a copy of the People’s Discovery Disclosure Index pursuant to CPL §§245.20 and 245.50, which includes, but is not limited to, a disclosure pertaining to Grand Jury testimony. After consideration of the above referenced submissions and the unredacted certified stenographic transcript of the November 16, 2021 Grand Jury proceeding, the Court decides Defendant’s Motion as follows: DEFENDANT’S MOTION TO DISMISS THE INDICTMENT ON SPEEDY TRIAL GROUNDS IS GRANTED. Pursuant to “Article 210.20 and Article 30.30 of the Criminal Procedure Law, the Sixth Amendment of the United States Constitution, and the Constitution of the State of New York,” Defendant moves to “dismiss [I]ndictment 70248-21 as it unconstitutionally deprived the defendant of his right to a speedy trial.” Defendant contends that the following time periods, amounting to 187 days, are chargeable to the People: October 5, 2020 to December 19, 2020 [86 days]; August 3, 2021 to August 25, 2021 [23 days]; and September 13, 2021 to November 29, 2021 [78 days]. In response, the People contend that Defendant’s right to a speedy trial has not been denied as “substantial portions of the time period from when the felony complaint was filed until the arraignment on the indictment [when] the current motion schedule was set are excludable and thereby not chargeable to the People.” Specifically, the People contend that, at most, the following time periods, amounting to 168 days, are chargeable to them: October 5, 2020 to October 6, 2020 [2 days]; October 13, 2020 to December 29, 2020 [78 days]; August 2, 2021 to August 25, 2021 [23 days]; September 13, 2021, to September 30, 2021 [17 days]; and October 12, 2021 to November 29, 2021 [48 days]. “CPL §30.30 ‘was enacted to serve the narrow purpose of insuring prompt prosecutorial readiness for trial, and its provisions must be interpreted accordingly’” (People v. Brown, 28 NY3d 392, 403 [2016], quoting People v. Sinistaj, 67 NY2d 236, 239 [1986]; see People v. Cooper, 98 NY2d 541, 547 [2002]). “Pursuant to CPL §30.30 (1) (a), the People must be ready for trial within six months of the commencement of a criminal action accusing a defendant of a felony offense” (People v. Clarke, 28 NY3d 48. 52 [2016], quoting People v. Carter, 91 NY2d 795, 798 [1998]; see People v. Price, 14 NY3d 61, 63 [2010]: People v. Bowman, 197 AD3d 714, 714 [2d Dept 2021]; People v. Stiebritz, 192 AD3d 705. 705 [2d Dept 2021], lv. denied 37 NY3d 960 [2021]; People v. Connell, 185 AD3d 1048, 1049 [2d Dept 2020]; People v. Huger, 167 AD3d 1042, 1042 [2d Dept 2018], lv. denied 33 NY3d 949 [2019]), “not including excludable periods” (People v. Clinkscales, 171 AD3d 1086, 1087 [2d Dept 2019]; see People v. Barden, 27 NY3d 550. 553 [2016]; People v. Huger, 167 AD3d at 1042; People v. Cox, 161 AD3d 1100, 1100 [2d Dept 2018]; CPL §30.30 (4)). “The failure to declare readiness within the statutory time limit will result in dismissal of the prosecution, unless the People can demonstrate that certain time periods should be excluded” (People v. Brown, 28 NY3d 392, 403 [2016], quoting People v. Price, 14 NY3d 61, 63 [2010]; see People v. Chavis, 91 NY2d 500, 504-505 [1998]; People v. Blacks, 153 AD3d 720, 723 [2d Dept 2017]). A criminal action is commenced by the filing of an accusatory instrument against a defendant in a criminal court (see CPL §1.20 (17)), which includes a felony complaint (see CPL §1.20 (1); People v. Huger, 167 AD3d at 1042; People v. Cox, 161 AD3d at 1100; People v. Sant, 120 AD3d 517, 518 [2d Dept 2014]). “Once a defendant sufficiently alleges that the People were not ready within the statutory period, ‘the People have the burden of showing their entitlement to a statutory exclusion’” (People v. Brown, 28 NY3d at 403, quoting People v. Luperon, 85 NY2d 71, 81 [1995]; see People v. Santos, 68 NY2d 859, 861 [1986]; People v. Berkowitz, 50 NY2d 333, 349 [1980]). “Whether the People have satisfied [their] obligation is generally determined by computing the time elapsed between the [commencement of the criminal action] and the People’s declaration of readiness, subtracting any periods of delay that are excludable under the terms of the statute and then adding to the result any postreadiness periods of delay that are actually attributable to the People and are ineligible for an exclusion” (People v. Cortes, 80 NY2d 201, 208 [1992]; see People v. Carter, 91 NY2d at 799; People v. Clinkscales, 171 AD3d at 1087; People v. Huger, 167 AD3d at 1042; People v. Lynch. 103 AD3d 919. 920 [2d Dept 2013], lv. denied 21 NY3d 1017 [2013]; People v. Headley, 100 AD3d 775, 776 [2d Dept 2012]). September 18, 2020 to October 7, 2020 On March 20, 2020, due to the COVID-19 health crisis, former New York State Governor Andrew Cuomo issued Executive Order 202.8, which, inter alia, limited court operations to essential matters, suspended CPL §30.30 and tolled its speedy trial calculations. The suspension of CPL §30.30 and the tolling of its speedy trial calculations remained in effect through a series of Executive Order extensions until October 4, 2020, when they were lifted with the Governor’s issuance of Executive Order 202.67. On September 18, 2020, while Executive Order 202.8 was in effect, a felony complaint was filed against the defendant and he was virtually arraigned thereon by a Justice of the Mount Vernon City Court in the presence of his counsel on that same date. Accordingly, the criminal action against Defendant commenced on September 18, 2020, and, absent excludable delay, the People were required to be ready for trial within 182 days thereafter.³ After Defendant was arraigned on the felony complaint, the matter was adjourned “for all purposes” to September 23, 2020, with the consent of Defendant’s counsel. On September 23, 2020, Defendant appeared virtually in the Mount Vernon City Court in the presence of his counsel and the matter was adjourned “for all purposes” to October 7, 2020, at the request of his counsel. The Court finds that the fifteen (15) day period of delay from September 18, 2020 to October 4, 2020, is excludable pursuant to Executive Order 202.8 and, thus, is not charged to the People.⁴ Recognizing that Executive Order 202.8 was no longer in effect on October 5 and 6, 2020, because that two (2) day period of delay was the result of a continuance granted by the court at the request of Defendant’s counsel on September 23, 2020, it is excludable and not charged to the People (see CPL §30.30 (4) (b)). October 7, 2020 to October 13, 2020 On October 7, 2020, Defendant appeared virtually in the Mount Vernon City Court in the presence of his counsel and joined in the request of a co-defendant’s counsel for an adjournment to October 13, 2020, for a CPL §180.80 hearing. As this six (6) day period of delay was the result of a continuance granted by the court at the request of Defendant’s counsel, it is excludable and not charged to the People (see CPL §30.30 (4) (b)). October 13, 2020 to November 18, 2020 On October 13, 2020, Defendant appeared virtually in the Mount Vernon City Court in the presence of his counsel, the People announced that they were “not ready to proceed with the [felony] hearing today,” and the matter was adjourned to November 18, 2020, “for a felony hearing.” As the adjournment to November 18, 2020, was due to the People’s failure to be ready to proceed with the felony hearing on October 13, 2020, this thirty-six (36) day period of delay is not excludable and is properly charged to the People. November 18, 2020 to December 17, 2020 On November 18, 2020, Defendant appeared in the Mount Vernon City Court⁵ in the presence of his counsel and the People announced that they were “still reviewing the matter [and were] going to take the time chargeable to the People until [December 17, 2020].” As the People requested the adjournment from November 18, 2020 to December 17, 2020, this twenty-nine (29) day period of delay is not excludable and is properly charged to the People. December 17, 2020 to January 25, 2021 On December 17, 2020, Defendant appeared virtually in the Mount Vernon City Court in the presence of his counsel and the People announced that they were “going to have the matter put into the Grand Jury and [were] taking the time chargeable to the District Attorney to January 25th of 2021.” As the People requested the adjournment from December 17, 2020 to January 25, 2021, this thirty-nine (39) day period of delay is not excludable and is properly charged to the People unless they can demonstrate that certain time periods should be excluded. On December 30, 2020, Executive Order 202.87 suspended CPL §§30.30 and 190.80 “to the extent necessary to toll any time periods contained therein for the period during which the criminal action is proceeding on the basis of a felony complaint through arraignment on the indictment or on a superior court information and thereafter shall not be tolled” (emphasis added). This suspension remained in effect until May 23, 2021, when it was rescinded by the issuance of Executive Order 202.106. Relying solely upon the language of Executive Order 202.87, the People argue that “only the time [from December 17, 2020] until December 30, 2020 is chargeable to the People.” Additionally, the People filed a supplemental letter stating that” [s]ubsequent to the filing of the People’s opposition to defendant’s speedy trial and omnibus motions, three decisions and orders were issued by courts of persuasive authority regarding the showing required by the People in order to avail themselves of the 30.30 tolling under executive orders during the COVID-19 health crisis, [and that] [o]f note, the courts held that the People are not required to make a particularized showing as to why they could not present a particular case to the grand jury during the time period excluded by the executive orders.”⁶ “[T]he governing rule of statutory construction is that courts are obliged to interpret a statute to effectuate the intent of the Legislature, and when the statutory language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of the words used” (People v. Williams, 19 NY3d 100, 103 [2012], quoting People v. Finnegan, 85 NY2d 53, 58 [1995]; see People v. Badji, 36 NY3d 393, 399 [2021]; People v. Middlebrooks, 25 NY3d 516, 523 [2015]; People v. Brown, 25 NY3d 247, 250 [2015]: Moore v. City of New York, 197 AD3d 93, 95 [2d Dept 2021]). In interpreting the language of Executive Order 202.87, it is clear that the use of the phrase “to the extent necessary” is qualifying language that must be narrowly construed, as it is language that was not included in Executive Order 202.8, which initially tolled CPL §30.30. Here, the People have not provided the Court with any information as to why it was “necessary” for the time period of December 31, 2020 to January 25, 2021 to be tolled, nor have they demonstrated why this case could not have been presented to a Grand Jury during that time period (see People v. Taback, 74 Misc 3d 303 [Crim. Ct., Orange County, 2021]; People v. Pierna, 74 Misc 3d 1072 [Crim. Ct., Bronx County, 2022]; People v. Demonia, 74 Misc 3d 752 [Crim. Ct., Ulster County, 2022]; People v. Williams, 73 Misc 3d 1205(A). 2021 NY Slip Op 50924 (U), [City Court, Mount Vernon, 2021]). In support of this position, this Court takes notice of the fact that there were Westchester County Grand Jury panels impaneled for presentations during December of 2020 and January of 2021, and, significantly, that matters were actually presented during the time period at issue.⁷ Accordingly, as the People have failed to show that any “necessary” excludable time periods were present, they are charged with the entire thirty-nine (39) day period of delay from December 17, 2020 to January 25, 2021, which includes the twenty-five (25) day period of delay from December 31, 2020 to January 25, 2021. January 25, 2021 to March 10, 2021 On January 25, 2021, Defendant appeared virtually in the Mount Vernon City Court in the presence of his counsel and the matter was adjourned “for all purposes” to March 10, 2021, at the request of his counsel. As this forty-four (44) day period of delay was the result of a continuance granted by the court at the request of Defendant’s counsel, it is excludable and not charged to the People (see CPL §30.30 (4) (b)). March 10, 2021 to April 27, 2021 On March 10, 2021, Defendant appeared virtually in the Mount Vernon City Court in the presence of his counsel and the matter was “adjourn[ed] all purpose” to April 27, 2021, with the consent of Defendant’s counsel. As this forty-eight (48) day period of delay was the result of a continuance granted by the court with the consent of Defendant’s counsel, it is excludable and not charged to the People (see CPL §30.30 (4) (b)). April 27, 2021 to May 24, 2021 On April 27, 2021, Defendant appeared virtually in the Mount Vernon City Court in the presence of his counsel and “an all purpose adjournment” to May 24, 2021 was granted with the consent of Defendant’s counsel. As this twenty-seven (27) day period of delay was the result of a continuance granted by the court with the consent of Defendant’s counsel, it is excludable and not charged to the People (see CPL §30.30 (4) (b)). May 24, 2021 to June 14, 2021 On May 24, 2021, Defendant appeared virtually in the Mount Vernon City Court in the presence of his counsel and “an adjournment to [June 14, 2021] to get paperwork signed” was granted at the request of Defendant’s counsel. As this twenty-one (21) day period of delay was the result of a continuance granted by the court at the request of Defendant’s counsel, it is excludable and not charged to the People (see CPL §30.30 (4) (b)). June 14, 2021 to July 12, 2021 On June 14, 2021, Defendant appeared virtually in the Mount Vernon City Court in the presence of his counsel and the matter was adjourned to July 12, 2021, with the consent of Defendant’s counsel, to determine if Defendant and his co-defendants were eligible for the “emerging adult justice part.” As this twenty-eight (28) day period of delay was the result of a continuance granted by the court with the consent of Defendant’s counsel, it is excludable and not charged to the People (see CPL §30.30 (4) (b)). July 12, 2021 to August 2, 2021 On July 12, 2021, Defendant appeared virtually in the Mount Vernon City Court in the presence of his counsel and the matter was adjourned to August 2, 2021, with the consent of Defendant’s counsel, for an in-person appearance to determine if one of the accused would “be accepting accountability for the firearm in county court on the SCI.” As this twenty-one (21) day period of delay was the result of a continuance granted by the court with the consent of Defendant’s counsel, it is excludable and not charged to the People (see CPL §30.30 (4) (b)). August 2, 2021 to September 13, 2021 On August 2, 2021, Defendant appeared in the Mount Vernon City Court in the presence of his counsel and the matter was adjourned to September 13, 2021, when Defendant’s counsel joined in the request of a co-defendant’s counsel for a “felony hearing.” While “the People request[ed] August 25th,” the matter was adjourned to September 13, 2021, when the attorney who initially requested the felony hearing stated that he would “be out of town at that point until after Labor Day.” The People consented to being charged with the time period of August 2, 2021 to August 25, 2021, and Defendant’s counsel consented to being charged with the time period of August 25, 2021 to September 13, 2021. Accordingly, on consent of the People and Defendant’s counsel, the twenty-three (23) day period of delay from August 2, 2021 to August 25, 2021 is charged to the People and the nineteen (19) day period of delay from August 25, 2021 to September 13, 2021 is excludable and not charged to the People (see CPL §30.30 (4) (b)). September 13, 2021 to September 22, 2021 On September 13, 2021, Defendant appeared in the Mount Vernon City Court in the presence of his counsel and the matter was adjourned to September 22, 2021, when the People stated that they were “not ready” for the scheduled felony hearing and requested an adjournment to September 22, 2021. As the adjournment to September 22, 2021, was due to the People’s failure to be ready to proceed with the felony hearing on September 13, 2021, this nine (9) day period of delay is not excludable and is properly charged to the People. September 22, 2021 to October 4, 2021 On September 22, 2021, Defendant appeared in the Mount Vernon City Court in the presence of his counsel and the matter was adjourned to October 4, 2021, when the People again indicated that they were not ready for the scheduled felony hearing and requested an adjournment to October 4, 2021. As there is no question that the time period from September 22, 2021 to September 30, 2021 was due to the People’s failure to be ready to proceed with the felony hearing on September 22, 2021, this eight (8) day period of delay is not excludable and is properly charged to the People. As to the time period of September 30, 2021 to October 4, 2021, because it was included in the People’s adjournment request, this four (4) day period of delay is likewise properly charged to the People unless they can demonstrate that it should be excluded. This issue is addressed in the body of this Court’s Decision and Order regarding the October 4, 2021 to October 25, 2021 time period, infra. October 4, 2021 to October 25, 2021 On October 4, 2021, Defendant appeared in the Mount Vernon City Court in the presence of his counsel and the matter was adjourned to October 25, 2021, when the People were again not ready to proceed with the scheduled felony hearing. Despite their contention that they “had every intention of presenting [the case] to the Grand Jury [but] the cop had Covid and mandatory quarantine,” the People unequivocally stated that they were “asking for a new date October the 25th at the People’s request.” After Defendant’s counsel stated that they were “persisting in [their] felony hearing demand,” the Mount Vernon City Court Justice stated “10/25 time chargeable to the People. The People are not ready. Time chargeable to the People.” As the People requested the adjournment from October 4, 2021 to October 25, 2021, this twenty-one (21) day period of delay is not excludable and is properly charged to the People unless they can demonstrate that certain periods of time therein should be excluded. As to the time period of September 30, 2021 to October 12, 2021, the People claim that, while they had scheduled Defendant’s case to be presented to the Grand Jury on September 30, 2021, “a necessary police witness had tested positive for Covid the day prior and was unavailable” and that “[d]ue to mandatory quarantine requirements imposed by the governor the witness was not available again until October 12, 2021.”⁸ The People further aver that “there were rules in place that banned the officer from the courthouse building and the grand jury, which is situated in the courthouse, thus, despite due diligence to proceed, the People were faced with ‘exceptional circumstances’ that prevented it.” Thus, the People contend that “[t]he period the necessary witness was subject to a mandatory quarantine should be excluded” pursuant to CPL §30.30 (4) (g). Defendant submits that despite the People’s contention that a key police witness was not available to testify on September 30, 2021, due to COVID-19, “there were other police officers involved in this incident who could have testified” and that “[t]he People did not explain how this Police Officer was a ‘Key’ nor necessary witness.” Defendant further argues that “[t]he People did not rush to indict this case once the mandatory quarantine was over for the Police Officer,” but instead “waited over a month to present the case to the Grand Jury” on November 16, 2021.⁹ Therefore, Defendant contends that the time from September 30, 2021 to October 12, 2021 should be charged to the People. Although ‘”there is no precise definition of what constitutes an exceptional circumstance under CPL §30.30 (4) (g),’ since it is impossible to ‘anticipate every situation that might warrant tolling of the speedy trial time period,’ application of the [exceptional circumstance] exclusion [is only allowed] when the People for practical reasons beyond their control cannot proceed with a legally viable prosecution” (emphasis added) (People v. Price, 14 NY3d at 64, quoting People v. Sinistaj, 67 NY2d at 239; see People v. Smietana, 98 NY2d 336, 341 [2002]; People v. Blacks, 153 AD3d at 723). While this Court recognizes that the unavailability of a necessary witness for medical reasons may be a sufficient exceptional circumstance to warrant exclusion of the period of delay (see People v. Goodman, 41 NY2d 888, 889 [1977]; People v. Brown, 150 AD3d 871, 872 [2d Dept 2017], lv. denied 29 NY3d 1124 [2017]; People v. Lindsey, 52 AD3d 527, 530 [2d Dept 2008], lv. denied 11 NY3d 738 [2008]; People v. Alcequier, 15 AD3d 162, 163 [1st Dept 2005], lv. denied 4 NY3d 851 [2005]; People v. Moore, 234 AD2d 567, 568 [2d Dept 1996], lv. denied 89 NY2d 987 [1997]; People v. Brown, 232 AD2d 575, 575-576 [2d Dept 1996], lv. denied 89 NY2d 920 [1996]; People v. Celestino, 201 AD2d 91, 95 [1st Dept 1994]; People v. Johnson, 191 AD2d 709, 710 [2d Dept 1993]), there has been no information provided as to why the police officer at issue was a necessary witness to the purportedly scheduled Grand Jury proceeding on September 30, 2021.¹⁰ Accordingly, as the People have contended that a necessary witness contracted COVID-19 and was therefore unavailable to testify in the Grand Jury from September 30, 2021 to October 12, 2021, and because, if true, such could constitute an exceptional circumstance pursuant to CPL §30.30 (4) (g), a hearing will be conducted to allow the People an opportunity to prove the necessity of said witness unless this Court concludes that the period of delay already exceeds the statutorily permissible one hundred eighty-two (182) days without such a determination. Notwithstanding the above, as the People have indicated in their Affirmation in Opposition that the witness’ mandatory quarantine requirements ended on October 12, 2021, the thirteen (13) day period of delay from October 12, 2021 to October 25, 2021, that was included in the People’s request for an adjournment, is not excludable and is properly charged to the People. October 25, 2021 to November 15, 2021 On October 25, 2021, Defendant appeared in the Mount Vernon City Court in the presence of his counsel and the matter was adjourned to November 15, 2021, after the People requested “two weeks” because they were “not ready in this matter.” When the Mount Vernon City Court Justice suggested November 15, 2021, the People thanked the Court and stated “that would be fine.” As the adjournment to November 15, 2021, was due to the People’s failure to be ready to proceed with the felony hearing on October 25, 2021, this twenty-one (21) day period of delay is not excludable and is properly charged to the People. November 15, 2021 to November 17, 2021 On November 15, 2021, Defendant appeared in the Mount Vernon City Court in the presence of his counsel and the matter was adjourned to November 17, 2021, after the People stated that “[t]he case is being present[ed] to the Grand Jury on November 16th, 2021,” and requested “November 17th for this matter.” On November 16, 2021, the matter was presented to the Grand Jury and twenty-two (22) grand jurors deliberated and voted to indict Defendant on the three counts contained in Indictment Number 70248-21. As per Defendant, “[o]n November 17th, the People filed a Certificate of Indictment in Mount Vernon City Court and the case was marked off the Mount Vernon City Court Calendar.” As the adjournment to November 17, 2021, was due to the People’s request for such on November 15, 2021, the two (2) day period of delay thereof is not excludable and is properly charged to the People. November 17, 2021 to November 29, 2021 On November 29, 2021, Defendant was arraigned by the Honorable David S. Zuckerman on the charges contained in Indictment Number 70248-21 and, inter alia, an omnibus motion schedule was set. While the twelve (12) days from November 17, 2021 to November 29, 2021 are chargeable to the People, the period of delay resulting from proceedings concerning the defendant, including pretrial motions and the period during which such matters are under consideration by the court, must be excluded (CPL §30.30 (4) (a); see People v. Brown, 99 NY2d 488, 491-492 [2003]; People v. Bowman, 197 AD3d at 714; People v. Murray, 154 AD3d 881, 882 [2d Dept 2017]). Accordingly, as a motion schedule was set on November 29, 2021, and the issues raised by Defendant in his speedy trial and omnibus motions are currently under consideration by the Court, the period of delay from November 29, 2021 to present is excludable and not charged to the People. Conclusion By computing the time elapsed between the commencement of the criminal action on September 18, 2020 and the setting of the motion schedule on November 29, 2021, and subtracting any periods of delay that are excludable under the terms of the statute and Executive Order 202.8, this Court has determined that 192 days are properly charged to the People in contravention of the 182 days permitted by CPL §30.30 in this case. As a result thereof, Defendant’s motion to dismiss Indictment 70248-21 on the ground that he has been denied of his right to a speedy trial is granted. In light of this finding, the Court need not conduct a hearing regarding the twelve (12) day time period of September 30, 2021 to October 12, 2021, and the issues raised in Defendant’s omnibus motion are now moot. The foregoing constitutes the Decision and Order of this Court. Dated: May 20, 2022