DECISION AND ORDER Decision summary: Motion to dismiss is denied. Defendant is charged with, inter alia, two counts of Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs as a class E felony (Vehicle and Traffic Law §§1192 [2], [3]) and Aggravated Unlicensed Operation of a Motor Vehicle in the First Degree (Vehicle and Traffic Law §511 [3] [a] [1]), also a class E felony. Defendant had originally been arraigned on a misdemeanor information, which instrument charged, inter alia, two counts of Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs (Vehicle and Traffic Law §§1192 [2], [3]) as an unclassified misdemeanor. The People replaced the misdemeanor accusatory instrument with a felony complaint more than ninety days after the commencement of the criminal action. Defendant now moves, pursuant to CPL 170.30 (1) (e), to dismiss the accusatory instrument on the ground that he has been denied his right to a speedy trial under CPL 30.30 (1) (b).1 Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs (Vehicle and Traffic Law §§1192 [2], [3]), as charged in the instant matter, constitutes a class E felony. The People, therefore, must announce their readiness for trial within six months of the commencement of the criminal action, not including any excludable periods of time (see CPL 30.30 [1] [a]; [4]). Defendant contends that the People are not entitled to the six-month speedy trial clock under CPL 30.30 (1) (a), because the People allowed the formerly applicable ninety-day clock under CPL 30.30 (1) (b) to elapse without validly certifying their readiness for trial and before serving and filing the superseding complaint charging a felony (the instrument under which defendant presently stands charged). The People assert that the relevant speedy trial period is six months under CPL 30.30 (1) (a), that they have not exceeded the statutory time allotted to bring defendant to trial, and that defendant’s motion should be denied in its entirety. As the People correctly point out, “the original accusatory instrument may be replaced or superseded during the course of [a criminal] action” (People v. Lomax, 50 NY2d 351, 356 [1980]). “The determinative factor [for the People's time to be ready] is not the initial charge but the level of crime with which the defendant is ultimately ‘accused’ and for which he is prosecuted” (People v. Cooper, 90 NY2d 292, 294 [1997] [internal quotation marks omitted] [emphasis added]). Here, when the People “filed a felony instrument superseding the misdemeanor complaint, defendant was ‘accused of…a felony’ and the People were then entitled to the full six-month period…to prepare for the felony trial,” with said period being measured from the commencement of the criminal action on February 19, 2022 (id.; see CPL 1.20 [16], [17]). Even where the Criminal Court has dismissed an accusatory instrument on speedy trial grounds, the Grand Jury retains jurisdiction to indict the defendant for crimes encompassed in the dismissed instrument (see Matter of Chang v. Rotker, 155 AD2d 49, 58-59 [2d Dept 1990] ["There is simply no constitutional or statutory provision, clear or otherwise, which prohibits the Grand Jury, as an arm of the court, from indicting a person for crimes with which he had previously been charged in an accusatory instrument which, correctly or incorrectly, had been dismissed by a local criminal court pursuant to CPL 170.30 (1) (e)" (internal citations omitted).]. Accordingly, defendant’s contention that the applicable speedy trial clock is ninety days, pursuant to CPL 30.30 (1) (b), is without merit. February 19, 2022 to April 14, 2022 On February 19, 2022, defendant was arraigned on a misdemeanor information and the court adjourned the case to April 14, 2022, Part AP1-V, for discovery compliance. The period from February 19, 2022, to April 14, 2022, is charged, “except that defendant’s arraignment date, the commencement date for this matter, is excluded” (People v. Pagan, 75 Misc 3d 11, 13 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; see General Construction Law §20; People v. Stiles, 70 NY2d 765 [1987]). (54 days charged; 54 days total) April 14, 2022 to June 15, 2022 On April 14, 2022, the People required a certificate of compliance with discovery (hereinafter “COC”) and, therefore, were not ready for trial (see CPL 30.30 [5]; 245.50 [1]). The court adjourned the case to June 15, 2022, Part AP1-V, for the People to serve and file a COC. On May 31, 2022, off calendar, the People served Grand Jury notice upon defendant (see CPL 190.50) related to the incident for which defendant, at the time, was facing misdemeanor charges under the instant docket number. On June 2, 2022, defendant waived speedy trial time between June 2, 2022, and June 15, 2022. On June 13, 2022, off calendar, the People served upon defense counsel and filed with the court a superseding felony complaint, which accusatory instrument included top count charges of, inter alia, Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs as a class E felony (Vehicle and Traffic Law §§1192 [2], [3]). Accordingly, while the period where defendant waived speedy trial time from June 2, 2022, to June 15, 2022, is excluded, the period from April 14, 2022, to June 1, 2022, is charged. (48 days charged; 102 days total) June 15, 2022 to June 29, 2022 On June 15, 2022, the People answered not ready for trial, as there had not yet been any grand jury action and the People were still complying with their discovery obligations. Defendant indicated his intention to testify before the grand jury and the court adjourned the case to June 29, 2022, Part AP6-V, for grand jury action. On June 28, 2022, off calendar, defendant served upon the People and filed with the court the instant motion to dismiss. While the period from June 15, 2022, to and including June 27, 2022, is charged, the period from June 28, 2022, to June 29, 2022, is excluded for motion practice (see CPL 30.30 [4] [a]). (13 days charged; 115 days total) June 29, 2022 to August 17, 2022 On June 29, 2022, at defendant’s request, the court set a motion schedule to decide defendant’s instant motion to dismiss and adjourned the case to August 17, 2022, Part AP6-V, for the court’s decision on the motion. This adjournment period for motion practice is excluded (id.). (0 days charged; 115 days total) Conclusion In total, the People are charged with 115 days of delay which does not exceed the six-month time frame allowed under CPL 30.30 (1) (a). Accordingly, defendant’s motion to dismiss is denied. This constitutes the decision and order of the Court. Dated: August 4, 2022
