DECISION AND ORDER By motion filed May 9, 2022, Defendant moves for dismissal of the instant matter pursuant to CPL §30.30 for the People’s failure to timely comply with their discovery and trial readiness obligations under CPL §30.30 and article 245. The People oppose the motion and claim that with certain time periods excludable under CPL §30.30 [4], they were ready for trial within the ninety day-period required by §30.30 [1][b]. The Court finds that the motion can be decided based on the papers, the court file, and minutes of prior court proceedings in this matter. (People v. Lomax, 50 NY2d 351 [1980]; People v. Varela, 164 AD2d 924 [2d Dep't 1990]). Background Defendant was arrested on November 28, 2021. Pursuant to a desk appearance ticket, he appeared for arraignment on the misdemeanor complaint on December 18, 2021. The case was adjourned to part AP-3 on February 16, 2022, for conversion to an information and arraignment thereon pursuant to CPL §170.10 [1]]a]. On February 16, 2022, the People filed a supporting deposition and the court deemed the complaint an information. Defendant failed to appear, and defense counsel indicated that she had been unable to contact him that morning. Counsel expressly requested the adjournment of proceedings due to her client’s non-appearance: “…for some reason, my calls are not going through today…I would ask the Court to consider excusing my client for today.” (Transcript, February 16, 2022, p. 2 ll 10-19). Although Defendant needed to be arraigned on the newly converted accusatory instrument, the court excused Defendant’s appearance upon this request. Upon the prosecutor’s query as to the status of the arraignment, the following colloquy occurred: MR. DAL LAGO: Just to clarify, Judge, I understand you deemed this complaint an information, but obviously the defendant was not arraigned today, correct? THE COURT:…yes, he was arraigned. I entered a plea of not guilty and I…did not require the defendant’s appearance, which is…at counsel’s request. Counsel, I assume you [consent] to that ? MS. LEE: Yes, Judge…I would ask the Court to adjourn it for a COC… (Id., p. 3, ll 10-15). After this in absentia arraignment, the presiding judge adjourned the case for the COC filing to March 24, 2022, on which date Defendant again failed to appear, and the court again excused his appearance at counsel’s request. On March 30, 2022, the People filed their COC and off-calendar statement of readiness (“SOR”). Speedy Trial Motion The People are required to declare readiness for trial within 90 days of the commencement of a criminal action charging an “A” misdemeanor. (CPL §30.30 [1][b]). Defendant has satisfied his initial speedy trial burden by alleging that the People were not ready for trial as required under CPL §30.30[1][b]. Defendant argues that the February 16 adjournment to March 24: (i) was not a “consent adjournment” under §30.30 [4][b] because the court adjourned the case for the People to file a COC; (ii) was not a situation where a bench warrant is stayed or the defendant is avoiding prosecution, so §30.30 [4][c] does not apply; and (iii) did not prevent the people from filing their COC and declaring trial readiness. In opposition, the People argue that the Defendant’s failure to appear in court on February 16, 2022 rendered the 36-day period thereafter excludable. (People v. Luperon, 85 NY2d 71 [1995]; People v. Drummond, 215 AD2d 579 [2d Dep't 1995]). The prosecutor insists that defense counsel’s request that the court excuse Defendant’s appearance, and her consent to an in absentia arraignment constitute an excludable adjournment under CPL §30.30 [4][b], and that the Court’s action is analogous to the staying of a bench warrant, excludable under §30.30 [4][c]. In this case, several competing principles operate. Judges have considerable discretion to control their own calendars, of which granting adjournments and excusing appearances is a corollary. (People v. Coppez, 93 NY2d 249 [1999]). However, such discretion is not unfettered. CPL §170.10 [1] specifically requires defendants to appear personally for arraignment upon the filing of a local criminal court information (with two exceptions not relevant here). Arraignment on a misdemeanor complaint after appearance on a DAT confers only limited jurisdiction on the court. (People v. Stirrup, 91 NY2d 434 [1998]; People v. Parris, 79 NY2d 69 [1992]; People v. Masellis, 140 Misc 2d 1024, 1027 [Crim Ct NY County 1988]). To proceed with a prosecution, a misdemeanor complaint must be replaced by a facially sufficient information, upon which the defendant then must be arraigned. (CPL §§170.10[1]; 170.65[1]; People v. Slade, 37 NY3d 127, 136 [2021]). There is no statutory provision which permits a court to conduct an arraignment on a converted misdemeanor information in the absence of a defendant’s personal appearance. When on February 16, 2022, Defendant failed to appear for arraignment on the converted accusatory instrument, the presiding judge could have issued a bench warrant for Defendant’s failure to appear. Alternatively, the court could have issued a warrant, stayed its execution, and adjourned the case for arraignment purposes. (People v. Mendoza, 72 Misc 3d 1223(A) [Crim Ct NY County 2021]; People v. Penil, 18 Misc 3d 355, 356-57 [Sup Ct Bronx County 2007]; People v. Dhanraj, 40 Misc 3d 250, 252 [Crim Ct Bronx County 2013]). Instead, the judge acceded to defense counsel’s express request for excusal despite the mandates of CPL §§170.10[1] and 170.65[1]. Then also at Defendant’s request, the court adjourned the case to March 24, 2022 for the People to file their COC.1 CPL §30.30 was enacted to ensure prompt trial readiness by the People and guard against prosecutorial inaction by sanctioning delays which they have caused. (People v. Sinistaj, 67 NY2d 236 [1986]; cited in People v. Mendoza, 72 Misc 3d 1223(A)). It is well-settled that pre-readiness delays due to court congestion do not absolve the People from their speedy trial obligation, because such delays do not prevent the People from filing an off-calendar statement of trial readiness to stop the clock. (People v. Barden, 27 NY3d 550, 553 [2016] [internal citations omitted]). However, pre-readiness delays are not always automatically chargeable to the People, as the above general rule does not operate to eliminate otherwise statutorily recognized excludable time periods. (People v. Cortes, 80 NY2d 201, 213 [1992]; People v. Worley, 66 NY2d 523, 527 [1985]; People v. Notholt, 242 AD2d 251, 253-254 [1st Dep't 1997]). A pre-readiness delay is excludable, for example, under CPL §30.30 [4] [b] if it is a continuance “granted by the court at the request of, or with the consent of, the defendant or his or her counsel,” or under §30.30 [4][c][i] if it results “from the absence or unavailability of the defendant.” (People v. Cortes, 80 NY2d 201, 213 [1992]). Exclusion of time for defense adjournments “is free standing” and applies prior to and irrespective of the People’s readiness, as such adjournments are express waivers by defendants — for their own benefit — of the ensuing delay in prosecution. (People v. Kopciowski, 68 NY2d 615, 617 [1986]; People ex rel LaBrew v. Vance, 192 AD3d 645 [1st Dep't 2021]; People v. Ortiz, 295 AD2d 134, 135 [1st Dep't 2002];People v. Delacruz, 241 AD2d 328 [1st Dep't 1997]; People v. Cambridge, 230 AD2d 649 [1st Dep't 1996]; People v. Benitez, 75 Misc 3d 1204(A), *3 [Dist Ct Suffolk County 2022] [internal citations omitted]). It is well-settled that neither court congestion nor the People’s affirmative request (with defense’s silent acquiescence) render an adjournment excludable from the People’s time. (People v. Barden, 27 NY3d, at 556 [internal citations omitted]). But the controlling consideration here is not whether Defendant’s failure to appear prevented the People from being ready within 90 (or, in this case, 92) days, but whether Defendant waived the delay in the proceedings by requesting or consenting to the adjournment. (People v. Meierdiercks, 68 NY2d 613 [1986], citing Worley, 66 NY2d 523). Here, the basis for the adjournment was defense counsel’s express request that the court excuse her client’s failure to appear for arraignment in the information on February 16, 2022. Defendant’s position here relies on the common practice where courts permit defendants to waive their right to be present for certain routine court appearances, with an expectation that the speedy trial time under CPL §30.30 continues to run normally. (People v. Ghaonbalha, 66 Misc 3d 1214(A) [Crim Ct NY County 2020] [holding that since defendant's appearance was excused by the court, a bench warrant could not be issued and no exclusion under CPL §30.30 [4][c][ii] is triggered]; see also, People v. Dhanraj, 40 Misc 3d 250 [Crim Ct Bronx County 2013]). However, this was not a “routine” calendar call; Defendant failed to appear for a critical stage of the proceedings for which his personal appearance was required by statute. (CPL §§170.10[1]; 170.65[1]). An unexcused appearance for arraignment normally would result in the issuance of a bench warrant, and a risk of apprehension and incarceration. But by the attorney’s request, the presiding judge suspended the possibility of adverse consequences to Defendant. Defense counsel undoubtedly understood that her client could not be arraigned in absentia, but once the presiding judge took that action, even to the extent of pleading not guilty on his behalf counsel accepted the advantage and requested the case be put over for the People to file their COC. These facts compel the conclusion that the February 16 adjournment is excludable under CPL §30.30 [4][b] as a “delay caused by the defendant for his own benefit, and with the court’s permission, under circumstances in which both the defendant and the court have determined that the adjournment is desirable.” (People v. Worley, 66 NY2d 523, 527 [1985]; People v. Brauen, 169 Misc 2d 655 [Cattaraugus County Ct 1996][court issued a bench warrant but since it would have resulted in defendant's apprehension and incarceration, court withdrew the warrant at counsel's request, and the adjournment was held to be at the request of defense counsel]). Additionally, the Court disagrees with Defendant’s argument that this is not a case where a bench warrant was issued and stayed or where Defendant is avoiding prosecution to render excludable the time under CPL §30.30[4][c][i]. Not only is counsel’s contention unsupported by Defendant’s conduct in appearing only three times out of seven dates on which this case has been calendared. But the unprecedented circumstance of the court’s waiver of Defendant’s required appearance for arraignment at counsel’s request is analogous to that of issuing and staying a bench warrant, to give the accused another chance to appear before imposing a consequence. The Court is aware of cases which hold that a defendant can only be absent or unavailable once a bench warrant is issued. (People Dugan, 273 AD2d 704 [3d Dep't 2000]; People v. Woodward, 219 AD2d 837 [4th Dep't 1995], cited in People v. Morillo-Reyes, 59 Misc 3d 1233(A) [Crim Ct Bronx County 2018]). However, such cases ignore the clear legislative intent of the 1996 amendments to §30.30, which separated the exclusion of time due to a defendant’s absence or unavailability (under CPL §30.30 [4][c][i]) from that period after a bench warrant has been issued (as provided in §30.30 [4][c][ii]). (People v. Penil, 18 Misc 3d 355, 359 [Sup Ct Bronx County 2007]). Moreover, the plain language of the first sentence of CPL §30.30 [4][c][i] does not require that a defendant be deemed “absent” or “unavailable” only when his location or presence cannot be determined or procured by due diligence. (Id.). This sentence stands alone in the subsection; its language is clear and unambiguous. Undefined in the statute, the court gives effect to the ordinary, commonly accepted, and plain dictionary definition of “absent” as “not present,” and “unavailable” as “unable or unwilling to do something.”2 (State of New York v. Patricia II, 6 NY3d 160, 162 [2006]; People v. King, 61 NY2d 550 [1989]). The succeeding clauses in §30.30 [4][c][i] simply illustrate two situations in which Defendant must be declared absent or unavailable; nothing in their language indicates an intention to limit the idea of “absent or unavailable” to exclude all other situations in which a defendant fails to appear for court. (see, People v. Penil, 18 Misc 3d, at 359). The Court has already determined that Defendant’s failure to appear personally for arraignment on the converted information was required by statute, and therefore that he was not properly excused. (People v. Mendoza, 72 Misc 3d 1223(A) [Crim Ct NY County 2021]). The Court also finds that counsel’s omission to state a reason for Defendant’s absence or indicate his whereabouts rendered him absent and unavailable, and therefore the 36-day adjournment is excludable from the People’s time under §30.30 [4][c][i]. (See, e.g., People v. Williams, 21 Misc 3d 1118(A) [Crim Ct Kings County 2008]; People v. Tersta, 16 Misc 3d 1135(A) [Crim Ct NY County 2007]). In sum, although the unique facts of the February 16 adjournment here may not fit squarely into historical interpretations of CPL §30.30 [4] exclusions, the Court can find no rationale upon which to charge the People with this time, whether the exclusion is held to be under §30.30 [4][b] or 30.30 [4][c][i]. The delay clearly was due not to the People’s “dereliction,” but to defense counsel’s request that the court give Defendant another chance to appear as required for arraignment under CPL §170.65[1], without suffering any consequences. (see, e.g., People v. Carter, 91 NY2d 795,799 [1998]). Finally, the Court acknowledges the People’s delay in filing their opposition papers Nonetheless, “extensions of time to file motions and to respond to motions are liberally granted, and some lapses, both on the part of the People and defense counsel, are overlooked.” (People v. Walsh, 176 Misc 2d 144, 148 [Crim Ct Kings County 1997]). Especially in view of Defendant’s repeated failures to appear throughout the pendency of the case, the Court declines to charge the People with the 16-day period of delay in filing their response herein. Time Calculation Defendant was arraigned on a misdemeanor complaint in the DAT part on December 18, 2021. The 90-day statutory period began to run on December 19, 2021. (People v. Stiles, 70 NY2d 765 [1987]). The matter was adjourned to February 16, 2022, on which date the People filed a supporting deposition to convert the complaint to an information, but Defendant failed to appear and as set forth above, this adjournment to March 24, 2022 is excludable despite the court’s excusing his appearance. On March 24, 2022, Defendant again failed to appear, his absence was again excused by the court at counsel’s request, and the matter was adjourned to April 25, 2022. This adjournment is excludable on the same grounds as the previous adjournment. In view of the foregoing, the Court finds the People are charged only with the 60 days from December 19, 2021 to February 16, 2022, after which date the time is excluded under CPL §30.30 [4][b] and [c] until the People stopped the clock by filing their SOR on March 30, 2022. Accordingly, the Court finds that the People’s COC and SOR were timely filed within the §30.30 period. COC Challenge Defendant additionally argues that the March 30, 2022 COC and SOR were not valid to stop the speedy trial clock as their discovery compliance omitted the required items of (i) witness contact information and (ii) underlying CCRB documents for the police witness. The People explained their efforts to identify any additional civilian witnesses depicted on the body-worn camera video of the incident but were unable to determine who they were. The Court is satisfied that the prosecutor exercised due diligence in this regard. Further, the CCRB is an independent, non-law enforcement agency whose records are not within the People’s constructive possession as defined in article 245 but are equally accessible to all members of the public. (People v. Perez, 73 Misc 3d 171, 183 [Sup Ct Queens County 2021]). Thus, the sharing of those CCRB records which are in the People’s actual possession discharges their responsibility under CPL §245.20[1][k][iv]. The Court finds that the People’s discovery compliance was reasonable under the circumstances, and the COC was properly filed in good faith after the People exercised due diligence in gathering and sharing the required discovery under article 245. Further, the Court finds that all issues in the motion can be resolved from the information contained in the motion papers and the contents of the court file, and therefore Defendant’s request for a hearing is denied. (People v. Allard, 28 NY3d 41 [2016]; People v. Jimenez — Gomez, 198 AD3d 443 [1st Dep't 2021]). Conclusion Defendant’s motion to dismiss the information on speedy trial grounds and on grounds of the COC challenge is denied in its entirety. SO ORDERED. Dated: August 18, 2022
