DECISION AND ORDER Defendant moves for an order of dismissal on speedy trial grounds alleging that more than ninety days elapsed before the People filed their Certificate of Compliance (COC) and their Statement of Readiness (SOR). The People oppose. For the reasons explained herein defendant’s motion is denied. On November 9, 2022, the defendant was arraigned on a misdemeanor complaint charging one count of Criminal Mischief in the Fourth Degree (PL §145.01[4]). This commenced the running of the ninety-day period, less excludable time, within which the People must be ready for trial pursuant to the requirements of CPL. ‘ 30.30(1)(b). On February 8, 2023, the People filed a Certificate of Compliance (“COC”) and a Statement of Readiness (“SOR”). On April 4, 2023, defense counsel filed the underlying motion to dismiss. The parties are in contention over the time-period from January 11, 2023, to January 23, 2023. If this adjournment is charged to the People, they will have exceeded their ninety-day statutory time limitation. Once a defendant alleges that the People have failed to announce their trial readiness within the statutory speedy trial time, the People must demonstrate that the disputed adjournments are excludable by reference to a statutory provision. People v. Luperon, 85 NY2d 71, 77-78 (1995); People v. Cortes, 80 NY2d 201 (1992); People v. Santos, 68 NY2d 859 (1986); People v. Berkowitz, 50 NY2d 333 (1980). The prosecution also bears the burden to clarify, on the record, the basis for an adjournment so that the motion court can determine to whom the adjournment should be charged. Cortes, 80 NY2d 201, at 215-216; People v. Liotta, 79 NY2d 841 (1992); Berkowitz, 50 NY2d 333. On the morning of January 11, 2023, the defendant was present in court. Before defendant’s case was called, she was removed from the courtroom for being disruptive. Subsequently defendant is alleged to have assaulted two court officers in the hallway which led to her arrest. When defendant’s case was called in the afternoon, she was not present as she was being processed on the earlier arrest.1 The case was adjourned to January 23, 2023. Defense counsel argues this adjournment should be charged to the People because the defendant was not “absent” from the proceedings as she was in the building in the custody of employees of Office of Court Administration. CPL §30.30(4)(c)(i) provides in pertinent part: In computing the time within which the people must be ready for trial pursuant to subdivisions one and two of this section, the following periods must be excluded: (c)(i) the period of delay resulting from the absence or unavailability of the defendant. A defendant must be considered absent whenever his location is unknown and he is attempting to avoid apprehension or prosecution, or his location cannot be determined by due diligence. A defendant must be considered unavailable whenever his location is known but his presence for trial cannot be obtained by due diligence; Defense counsel’s assertion that the defendant was not “absent” is correct since defendant’s location was known. However, CPL §30.30(4)(c)(i) is also triggered when a defendant is “unavailable.” Defendant became unavailable when her willful misconduct prohibited her from appearing in court. The principle of “waiver by misconduct” is appropriately applied in this case. To charge the People for the adjournment following defendant’s in-court arrest would result in a dismissal, rewarding the defendant for her disruptive and volatile behavior. There is a strong public policy against allowing a defendant to take advantage of her own misconduct. See, People v. Geraci, 85 NY2d 359, 356 (1995) (internal citations omitted): While the principle is often characterized as involving ‘waiver by misconduct’…it is more realistically described as a forfeiture dictated by sound public policy…Indeed, the courts that have applied the rule have frequently justified it by invoking the maxim that the law will not ‘allow a person to take advantage of his own wrong’…Additionally, the rule is invoked to ‘[protect] the integrity of the adversary process…’” Additionally, defendant cannot be said to have suffered any prejudice from this delay which was caused by her own actions (see, People v. Singletary, 54 AD2d 767 [2d Dept 1976]) (defendant was not denied a speedy trial where defendant was to blame for the delay in the proceedings and used tactics effectuated to achieve that end). Accordingly, as the People have not exceeded their ninety-day speedy-trial time limitation, the defendant’s motion to dismiss is denied. The foregoing constitutes the Decision and Order of the court. Dated: May 17, 2023
