DECISION AND ORDER Defendant Joseph Santiago, charged with one count of Forcible Touching [PL §130.52(1)] and one count of Sexual Abuse in the Third Degree [PL §130.55] moves, by notice of motion dated July 28, 2022, to dismiss the accusatory instrument pursuant to CPL 30.30(1)(b) and CPL 170.30(e). For reasons that follow, Defendant’s motion is DENIED. The Court finds that only 47 chargeable days have elapsed since the commencement of the case. Background and Procedural History Mr. Santiago, the Defendant, is charged with Forcible Touching and related charges, associated with an incident occurring on March 17, 2022 in New York County where he is accused of grabbing the complainant’s hips and thrusting his penis into her buttocks without her consent. Mr. Santiago was arrested on April 8, 2022 and was arraigned on a Desk Appearance Ticket on April 27, 2022. The case was adjourned for the People to provide a supporting deposition to May 31, 2022. On May 31, 2022, the People provided a supporting deposition and the complaint was deemed an information. The case was adjourned for trial to June 27, 2022. On June 27, 2022, the People were not ready for trial and the case was adjourned for trial to July 27, 2022. On July 26, 2022, off-calendar, the People filed a certificate of compliance (COC). On July 27, 2022, the People answered not ready for trial and informed the court and defense counsel that the complainant had been deployed to military service on June 14, 2022. The Defense requested a motion schedule, which was set by the Court, and the case was adjourned for decision to August 31, 2022. On July 28, 2022, the instant motion to dismiss was filed off-calendar and on August 17, 2022, the People filed their response off-calendar. On August 31, 2022, the case was adjourned again for decision to September 23, 2022. On September 19, 2022, the Defense filed a reply off-calendar. Discussion Mr. Santiago is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony. Accordingly, the People are required to be ready for trial within 90 days from the commencement of the criminal action, less any excludable time. CPL 30.30(1)(b). Although commencement of a criminal action begins at the arraignment, computation for speedy trial purposes begins on the next day. People v. Stiles, 70 N.Y.2d 765 (1987). Once a defendant has alleged that an excess of the allowable time has elapsed, the burden shifts to the People to demonstrate whether any periods are to be excluded from the calculation, such that the allowable time has not elapsed. People v. Santos, 68 N.Y.2d 859 (1986); People v. Berkowitz, 50 N.Y.2d 333 (1980). Mr. Santiago argues that 91 days of includable speedy trial time have elapsed since the commencement of the action. The People respond that only 371 days of chargeable time have accrued. The sole dispositive issue in the case is whether this Court should exclude the period of delay occasioned by the complainant’s military deployment as an exceptional circumstance. Defendant argues that the People are not entitled to such an exclusion because they did not inform the Court or the Defendant about the complainant’s military deployment and resultant unavailability for over one month past the time they learned of it, on what the Defense deems to be the 90th day since the commencement of the case. See, Def. reply, p.2, 4. The People respond that because the complainant is a necessary witness for trial, her unavailability due to her military deployment qualifies as an exceptional circumstance pursuant to CPL 30.30(4)(g) and that they are entitled to an excludable period of time beginning on the date of her deployment, which they affirm was June 14, 2022. CPL 30.30(4)(g) states, in pertinent part: “In computing the time within which the People must be ready for trial…the following periods must be excluded: (g)…periods of delay occasioned by exceptional circumstances, including but not limited to, the period of delay resulting from a continuance granted at the request of a district attorney if (i) the continuance is granted because of the unavailability of evidence material to the people’s case, when the district attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will become available in a reasonable period[.]“ Although there is no precise definition of what constitutes an exceptional circumstance under CPL 30.30(4)(g),2 the unavailability of a prosecution witness due to his or her military deployment has clearly been held to qualify. See, People v. Thompson, 118 A.D.3d 922 (2d Dep’t. 2014); People v. Williams, 293 A.D.2d 557 (2d Dep’t. 2002); People v. Rodriguez, 8 Misc.3d 1013(A) (Sup. Ct. Bx. Co. 2005); People v. S.F., 63 Misc.3d 198 (Crim. Ct. Bx. Co. 2018). In the instant case, the Court finds that the complainant’s military deployment does qualify as an exceptional circumstance within the meaning of CPL 30.30(4)(g) and as such, warrants an exclusion from the 90-day speedy trial requirement, starting from the date of her deployment, June 14, 2022. In reaching this decision, the Court finds, first, that the complainant is a necessary witness for trial in this case, a fact that the Defense does not dispute. Further, the People have provided this Court with sufficiently detailed information in their affirmation and response to substantiate that the complainant has been unavailable to testify at trial since her military deployment on June 14, 2022, in particular, that she was required to participate in mandatory pre-deployment training for the National Guard in Texas from June 14, 2022 until September of 2022; that she was to then be deployed immediately thereafter to the Horn of Africa until July of 2023; and that the People had verified this information with the complainant’s victim advocate, a Lieutenant. See, Peo. Resp. p. 2-3, 5(ii). The Court has no reason to doubt the veracity of the People’s statements contained in their affirmation and response. Although it would have been better practice to inform the Court and the Defense immediately upon learning of the complainant’s unavailability, the Court finds that there was not an unreasonable delay between the time the People became aware and when they informed the Court and the Defense. Subsequently, the People have been diligent in providing information regarding the complainant’s itinerary and the expected date of her return and their subsequent ability to proceed with a trial in this case. Finally, although the granting of an exclusion necessitates a lengthy adjournment, it is not unreasonably lengthy given the circumstances as to violate CPL 30.30(4)(g)(i). The Court makes the following calculations with respect to each adjournment: April 27, 2022 — May 31, 2022 The case was arraigned and adjourned for conversion. Both sides agree this time period is chargeable. 34 days are charged. May 31, 2022 — June 27, 2022 The complaint was deemed an information and the case was adjourned for trial. On June 14, 2022, the complainant was deployed to military service, warranting an excludable adjournment as explained in this decision and pursuant to CPL 30.30(4)(g). Accordingly, during this time period, 13 days are charged. June 27, 2022 — July 27, 2022 On June 27, 2022, the People were not ready for trial and the case was adjourned for trial to July 27, 2022. Although the People had not yet informed the Court about the complainant’s unavailability, the Court is excluding this adjournment pursuant to CPL 30.30(4)(g), as previously explained. 0 days are charged. July 27, 2022 — August 31, 2022 On July 27, 2022, the People answered not ready for trial and informed the Court of the complainant’s military deployment, and the Defense requested a motion schedule. This time period is therefore excludable. CPL 30.30(4)(g); CPL 30.30(4)(a). 0 days are charged. August 31, 2022 — September 23, 2022 On August 31, 2022, the case was adjourned for the Court’s decision to September 23, 2022. On September 19, 2022, the Defense filed a reply off-calendar. This adjournment is excludable as a period during which motions were under consideration by the Court. CPL 30.30(4)(a). 0 days are charged. Conclusion The Court finds that only 47 days of includable time have elapsed, which does not exceed the allowable time of 90 days for this accusatory instrument, therefore, Mr. Santiago’s motion to dismiss pursuant to CPL 30.30(1)(b) and CPL 170.30(e) is DENIED. This matter will be adjourned to August 1, 2023 in Part C. The People are ordered to promptly inform the Defense and the Court should the People determine prior to that date that their case is no longer viable, so that the case may be advanced. This opinion constitutes the decision and Order of the Court. Dated: September 23, 2022
