The defendant charged by misdemeanor information with one count of Criminal Possession of Stolen Property in the Fifth Degree (P.L. §165.40) moves for dismissal of the charge pursuant to CPL §30.30 on speedy trial grounds. The People oppose defendant’s motion. The defendant contends that the misdemeanor complaint should be dismissed on speedy trial grounds because the People failed to be ready for trial within the applicable ninety (90) day period. On June 19, 2022 the People filed the misdemeanor complaint.1. The defendant contends that 93 days are chargeable to the People, and as such, they have violated the defendant’s speedy trial rights. In opposition, the People contend that only eighty-nine (89) days are chargeable to the People and as such, they are within the statutory ninety (90) days they have to be ready for trial. Pursuant to CPL §30.30(1)(b), the People in this case are required to be ready for trial within ninety (90) days of the commencement of the criminal action. The point of commencement of an action for speedy trial purposes is the filing of the first accusatory instrument (People v. Lomax, 50 NY2d 351 [1980]; see also People v. Stirrup, 91 NY2d 434 [1998]). The actual date of filing is not included in the calculation (People v. Stiles, 70 NY2d 765 [1987]). The burden is on the People to prove their entitlement to statutory speedy trial exclusions for pre-readiness delays (People v. Luperon, 85 NY2d 765 [1995]). CPL §30.30(4) (c)(ii) provides that in computing the time within which the People must be ready for trial, the period of delay resulting from the failure of the defendant to appear when required after having been previously released on bail or his own recognizance, and provided that the defendant is not in custody on another matter, is excluded. Moreover, where adjournments are allowed at the defendant’s request or with the defendant’s consent, those periods of delay are expressly waived in calculating the People’s trial readiness (People v. Kopciowski, 68 NY2d 615 [1986]). Upon review of the submissions of the parties and a review of the official court file, the Court makes the following findings: In the case at bar, the People filed the original accusatory instrument, that being a misdemeanor complaint, with the Court on June 19, 2022 and as such, that is the date of the commencement of the action (See People v. Smietana, 98 NY2d 336 [2002]; People v. Hauben, 12 Misc 3d 1172A [Dist. Ct. Nassau 2006]; People v. Griffen, 141 Misc 2d 627 [Crim Ct Queens Cty 1988]. The defendant was arraigned on June 19, 2022 on the charges and was released on his own recognizance. The matter was adjourned to June 24, 2022 at the People’s request. On the June 24, 2022, July 8, 2022, July 29, 2022, and August 12, 2022 calendar dates, the People did not file an owner’s deposition, certificate of compliance (“CoC”) or statement of readiness (“SoR”). On all those dates, the People requested an adjournment. Accordingly, the entire time period from June 20, 2022 through August 12, 2022 is chargeable to the People (54 days chargeable to People). On August 12, 2022 the matter was adjourned to August 30, 2022 at the People’s request (18 days chargeable to the People). On August 30, 2022, the People filed an owner’s deposition and the matter was adjourned to September 13, 2022 at the People’s request (14 days chargeable to the People). The defendant argues that the misdemeanor complaint has not been converted to an information since the People never made an application to the Court to convert the misdemeanor complaint to an information upon filing the owner’s deposition. The defendant further argues that the owner’s deposition fails to make out a prima facie case that the defendant knew that the car was stolen, as required by the statute. The People cannot be ready for trial until they have converted a misdemeanor complaint into an information (People v. Caussade, 162 AD2d 4, 8, 560 N.Y.S.2d 648 [2d Dept 1990]). CPL §100.40(1) provides that pursuant to CPL §100.15 an information is sufficient on its face when the allegations provide reasonable cause to believe that the defendant committed the offense charged, and when the non-hearsay allegations establish, if true, every element of the offense charged and the defendant’s commission thereof. In order for a misdemeanor complaint to be converted into an information, the factual portion of the instrument must contain “non-hearsay allegations that establish, if true, every element of the crime charged and defendant’s commission thereof” (CPL §100.40(1)(c); People v. Alejandro, 70 NY2d 133, 511 N.E.2d 71, 517 N.Y.S.2d 927 [1987]). A person is guilty of Criminal Possession of Stolen Property in the Fifth Degree [P.L. §165.40] “when he knowingly possesses stolen property, with the intent to benefit himself or a person other than an owner thereof or to impede the recovery by an owner thereof.” For the charge of Criminal Possession of Stolen Property in the Fifth Degree to be facially sufficient, the accusatory instrument must contain facts that (i) the defendant possessed stolen property and that (ii) the owner of said property did not give the defendant permission or authority to take, use or otherwise exercise dominion or control over said property. Here, the factual portion of the accusatory instrument provides non-hearsay allegations that the defendant was observed by an officer driving a 2020 Jeep bearing NY REG JRT9230, a vehicle reported as stolen in the E-Justice system. Therefore, in order to convert the charge of Criminal Possession of Stolen Property in the Fifth Degree (PL §165.40), the People needed to serve and file the owner’s deposition corroborating that the vehicle was not the defendant’s vehicle and that the defendant did not otherwise have permission or authority to possess the vehicle. This was accomplished on August 30, 2022 when the People served and filed the Owner’s Deposition, wherein Kathryn Scalon of Enterprise Rent-A-Car affirmed that she was the owner or otherwise entitled to possession of the vehicle and that the defendant did not have the permission to possess or use the vehicle on June 18, 2022. Therefore, the Court finds that the complaint was properly converted to an information on August 30, 2022. On September 13, 2022, the matter was adjourned to September 27, 2022 for discovery at the People’s request. The People filed a CoC with a SoR on Friday September 16, 2022 at 5:13pm via email announcing readiness after the Mount Vernon City Court clerk’s office was closed at 5:00pm. The CoC and SoR were stamped filed by the clerk’s office on Saturday September 17, 2022 at 8:55am, as the Court was in session that day. The defendant filed the instant motion on September 20, 2022. Defendant maintains that court business concludes at 4:30pm. Thus, defendant argues, that since the People filed the certificate of compliance and statement of readiness after close of business on a Friday evening, the certificate of compliance could not be deemed filed until the next business day, Monday September 19, 2022. In opposition, the People argue that Court was not closed at 5:13pm on September 16, 2022. The People argue that they often receive communications from the clerks of the court at 5:13pm and thereafter. Accordingly, the People argue that they stated ready on the 89th day. The People satisfy their CPL §30.30 obligation once they declare their readiness for trial (People v. Giordano, 56 NY2d 524, 434 N.E.2d 1333, 449 N.Y.S.2d 955 [1982]. The People are “ready” when they serve “either a statement of readiness by the prosecutor in open court, transcribed by a stenographer or recorded by the clerk or a written notice of readiness sent by the prosecutor to both defense counsel and the appropriate court clerk (People v. Chavis, 91 NY2d 500,505, 695 N.E.2d 1110, 673 N.Y.S.2d 29 [1998]). “The People can always stop the §30.30 clock by ‘declaring readiness in writing, through an off-calendar statement’ even though the defendant may have no immediate knowledge of the filing, and therefore obviously cannot proceed directly to trial at that time” (People v. Boateng, 73 Misc 3d 1238[A], 157 N.Y.S.3d 920, 2022 NY Slip Op 50017[U] [Crim. Ct. Bronx Cty., 2022] citing People v. Barden, 27 NY3d 550, 556, 36 N.Y.S.3d 80, 55 N.E.3d 1053 [2016]). A “proper” certificate of compliance is necessary to stop the speedy-trial clock. (C.P.L. §245.50[3]). The statute defines a “proper” certificate of compliance in “subdivision one” of C.P.L. §245.50. Subdivision one, in turn, defines a certificate of compliance as one that is filed “[w]hen the prosecution has provided the discovery required by subdivision one of section 245.20,” except for materials that are lost, destroyed, or under a protective order (C.P.L. §245.50[1] (emphasis added)). As previously discussed, one of the methods for the People to announce “ready for trial” is a written notice of readiness sent by the prosecutor to both defense counsel and the appropriate court clerk (See People v. Chavis, 91 NY2d 500; See also People v. Kendzia, 64 NY2d 331, 337). The dispute in the present case is whether the People’s SoR and CoC electronically filed with the clerk of the Mount Vernon City Court, after the 5:00 p.m. close of business on the 89th day, was timely to stop the running of the 30.30 clock. While there are no appellate court decisions directly on point, the court is aware of two lines of reasoning applied by lower courts in this situation. After the close of business: Several lower courts have examined whether the People’s filing of the CoC/SoR with the court clerk after the close of business is untimely to stop the 30.30 clock. In People v. Boateng, 73 Misc 3d 1238 (A) [Crim Ct Bronx Cty 2022], the People emailed the CoC and SoR to defense counsel and the court at 4:50 p.m. on the 90th day. The defense argued the filing was after the closed of business and did not stop the 30.30 clock until the 91st day. The Court found, inter alia, that the statement of readiness was made within business hours on the 90th day. Therefore, the 30.30 clock stopped on that day. In People v. Miller, 75 Misc 3d 215 [Crim. Ct. Kings Cty 2022], the People emailed the CoC and SoR to defense counsel and the court at 7:10 p.m. on the 90th day (Friday, November 3, 2021). The defense argued the filing was after the close of business and did not stop the 30.30 clock. The People contended that CPL §30.30 does not specify the time of day the CoC and SoR must be filed. Therefore, the General Construction Law §19 applies, under which a calendar day includes the time from midnight to midnight. The Miller court held that the CoC and SoR were untimely because Kendzia, 64 NY2d 331, requires that the filing with the appropriate court clerk must encompass further action by the clerk to place the filed documents in the court record. According to the court, under EDDS, the electronically filed documents are not deemed filed but merely presented for filing until the clerk process and stamp received on the documents. An “after regular business hours” filing would not allow for such action by the clerk. People v. Silva, 2022 NYLJ Lexis 550 [Crim Ct. New York Cty 2022] followed Miller’s reasoning that prior to the use of EDDS, the People would have had to present the CoC and SoR to the clerk and have the documents stamped for timely filing, and there is no basis for a different result because documents are filed electronically. In the case at hand, the SoR and CoC are timely under the reasoning of these lower court decisions because the after-hours filing on Friday, September 16, 2022 (the 89th day) was stamped received by the clerk’s office on Saturday, September 17, 2022 (the 90th day) as the court was in session on that day, thereby stopping the 30.30 clock on the 90th day. The midnight deadline The Court of Appeals held that it is appropriate to apply the provisions of the General Construction Law in calculating time periods under CPL §30.30. (People v. Stiles, 70 NY2d 765, 520, NYS.2d 745 [1987]). In other words, where a statute does not provide clear guidelines or is silent or ambiguous, then the General Construction Law applies. On the other hand, where the language of the statute is unambiguous and clear on its face, it would be inappropriate to invoke the General Construction law (See People ex rel. Neufeld on Behalf of Garcia v. McMickens, 70 NY2d 763, 520 NYS2d [1987]). While CPL §30.30(1)(b) requires the People to announce ready for trial within ninety days from commencement of a misdemeanor criminal action, the statute, on its face, does not state when a day begins or when it ends for purposes of calculating the ninety-day period. It does not explain how the period is calculated when the People announce readiness by filing a CoC and SoR with the court clerk after the close of business. The statue does not require the People to file their CoC/SoR with the court clerk during business hour. Nor does it state that the People may file these documents after the court closes. New York General Construction Law provides that “a calendar day includes the time from midnight to midnight” (Gen. Constr. L. §19. See also People v. McLean, 2022 NY Slip Op 22334 [Crim Ct. Kings Cty 2022]. This means that the 90th day ends at midnight of that day, rather than at 5:00 p.m. when the court closes. In the present case, the People’s electronic filing of the CoC and SoR on the 89th day (Friday, September 16, 2022 at 5:13 p.m.) is timely because it was filed with the clerk before the end of the 90th day, thereby stopping the 30.30 clock. The electronic filing is not inconsistent with Kendzia’s requirement that the clerk place the filed documents in the court record, as there is no time limit for the clerk to take such action. (See Id.) The defendant’s motion to dismiss on speedy trial grounds is denied. This constitutes the Decision and Order of this Court. Dated: November 9, 2022
