DECISION AND ORDER By Notice of Motion and supporting Affirmation, both dated and filed April 28, 2022, Defendant moves this Court for an Order pursuant to, inter alia, CPL 30.30, dismissing the indictment on the ground that the case is beyond speedy trial limits. The People oppose Defendant’s motion by Affirmation in Opposition, dated May 24, 2022 and filed May 25, 2022, with the exhibits annexed thereto. Defendant replied by Affirmation in Response, dated and filed June 14, 2022, with one exhibit annexed thereto. The People submitted a Sur-Reply dated July 1, 2022 and filed July 5, 2022, with one exhibit annexed thereto. Finally, Defendant further replied by Affirmation in Response to People’s Sur-Reply, dated and filed July 20, 2022. Based upon all of the proceedings had heretofore, the Court finds the following facts: On January 26, 2021, Defendant was arraigned upon felony complaint, CR-002516-21SU, charging Defendant with one county of Grand Larceny in the Third Degree, in violation of Penal Law §155.35. After a series of adjournments, Defendant was charged by Grand Jury indictment with one count of Grand Larceny in the Third Degree, in violation of Penal Law §155.35, and one count of Conspiracy in the Fifth Degree, in violation of Penal Law §105.05. Defendant was arraigned on that indictment on November 17, 2021, whereupon the People also filed a Certificate of Compliance and announced their readiness for trial. From the commencement of this criminal action, on January 26, 2021, to the date the People filed the Certificate of Compliance and announced their readiness for trial, November 17, 2021, two-hundred-ninety-five (295) elapsed. Defendant contends that all of this time is chargeable to the People, and that because it exceeds the statutory time period of one-hundred-eighty (180) days, his right to a speedy trial has been violated. However, in effect at the time this criminal action was commenced was Executive Order No. 202, as well as subsequent Executive Orders (collectively, the “Executive Orders”), which, inter alia, tolled and suspended CPL 30.30 (see Executive Order [Cuomo] No. 202 [9 NYCRR 8.202]; Executive Order [Cuomo] No. 202.8 [9 NYCRR 8.202.8]; Executive Order [Cuomo] No. 202.67 [9 NYCRR 8.202.67]; Executive Order [Cuomo] No. 202.72 [9 NYCRR 8.202.72]; Executive Order [Cuomo] No. 202.87 [9 NYCRR 8.202.87]). Pursuant to a further Executive Order, the tolling and suspension of CPL 30.30 “remain[ed] in effect through and including May 23, 2021,” and was effectively rescinded as of May 24, 2021 (Executive Order [Cuomo] No. 202.106 [9 NYCRR 8.202.106]). The People concede that the time from the date the suspension and tolling of CPL 30.30 was rescinded, May 24, 2021, through the date the People filed a Certificate of Compliance and announced their readiness for trial, November 17, 2021, is chargeable against the People. A calculation of that time period comes to a duration of one-hundred-seventy-seven (177) days.1 The time period at issue herein is January 26, 2021, the commencement of the criminal action, through May 23, 2021, the last day the tolling of CPL 30.30 was in effect. Both sides essentially acknowledge that the Executive Orders were in effect during that time period. However, Defendant contends that the CPL 30.30 suspension did not apply to this criminal action, and points to specific language in Executive Order 202.87 in support of his argument. Defendant argues that Executive Order 202.87 suspended CPL 30.30 only “to the extent necessary to toll any time periods contained therein…” (Executive Order [Cuomo] No. 202.87 [9 NYCRR 8.202.87] [emphasis added]). More specifically, Defendant argues that the language “to the extent necessary” is qualifying language which gives the Executive Order the effect of suspending and tolling CPL 30.30 only in situations where the circumstances made it impossible for prosecutors to move a case forward, as a result of the COVID-19 pandemic. In particular, Defendant suggests that where the People were able to convene grand juries, there was no need for suspension of CPL 30.30 and thus the Executive Order had no effect. Defendant argues that because the Suffolk County District Attorney’s Office had been presenting new cases to grand juries during this time, the suspension of CPL 30.30 did not apply to this jurisdiction, and thus that such time was chargeable to the People. This Court acknowledges the existence of lower court decisions interpreting the language of Executive Order 202.87 in the way Defendant puts forth. At the same time, however, it cannot ignore the other decisions that run counter to Defendant’s argument. Given the lack of binding authority or any legislative or appellate guidance on this specific issue, this Court must rely on its own interpretation of the Executive Order 202.87. In doing so, this Court disagrees with Defendant. The plain language of the Executive Order 202.87 gives it the effect of suspending and tolling CPL 30.30, without limitation. If the Governor intended to toll CPL 30.30 only in situations where the circumstances made it impossible to convene grand juries during the time period in question, he could have included specific language to that effect in Executive Order 202.87, just as he had done in prior orders (see People v. Aquino, 74 Misc 3d 1147, 1151 [Sup Ct, NY County 2022]). However, Executive Order 202.87 contains no such language. Additionally, it would be irrational to interpret Executive Order 202.87 as applying only to jurisdictions where grand juries could not be convened. The COVID-19 pandemic created many difficulties that prevented cases from moving forward through the court system — not only the unavailability of juries and grand juries, but also the unavailability of court staff, judges, witnesses, attorneys, and even defendants, not to mention the limited number of technological and logistical resources that made remote court proceedings possible (see People v. Aiken, 75 Misc 3d 1212[A], 2022 NY Slip Op 50475[U], *3 [Sup Ct, NY County 2022]). Executive Order 202.87 created an unconditional blanket suspension and toll of CPL 30.30 from its effective date up through and including May 23, 2021, when it was rescinded. Accordingly, the time period from January 26, 2021 through May 23, 2021 is not chargeable to the People for CPL 30.30 purposes. Thus, the People’s filing of the Certificate of Compliance and announcement of readiness for trial on November 17, 2021 was timely. For all of the foregoing reasons, Defendant’s motion is denied. The foregoing shall constitute the Decision and Order of the Court. Dated: September 15, 2022
