DECISION AND ORDER The defendant, Eduardo Palma-Amaya, is charged with Driving While Under the Influence of Alcohol (VTL §§1192[1]; 1192[2]; and 1192[3]), Aggravated Unlicensed Operation of a Motor Vehicle (VTL §511[1][a]), and Unlicensed Operator (VTL §509[1]). The defendant moves to dismiss the accusatory instrument pursuant to CPL §30.30 and, alternatively, he moves for a Dunaway hearing, Huntley hearing, Sandoval hearing, and a pre-trial voluntariness hearing for noticed statements, as well as the suppression of any illegally obtained evidence. The People consent to Dunaway, Huntley, and Sandoval hearings and oppose the motion in all other respects. For the reasons set forth below, the defendant’s motion is denied in all respects except to the extent that a Huntley/Dunaway hearing is ordered. PROCEDURAL HISTORY On February 18, 2023, at approximately 4:13 a.m., the defendant is alleged to have operated a motor vehicle while under the influence of alcohol. The police assert that they observed the defendant sleeping in the driver’s seat of his vehicle with the ignition running. The defendant allegedly exhibited red watery eyes, a strong odor of alcohol, slurred speech, and had an unsteady gait upon exiting the vehicle. The police also allegedly observed a half empty can of Modelo beer in the vehicle console’s cup holder. The defendant allegedly admitted to consuming two or three Modelo beers prior to driving the vehicle and he also submitted to a chemical breath test, which revealed a blood alcohol concentration of .112 percent. The defendant was arraigned on February 19, 2023, when the accusatory instrument was filed. The People electronically filed a certificate of compliance (COC) and statement of readiness (SOR) in the New York State Unified Court’s Electronic Document Delivery System (EDDS) on May 22, 2023, at 6:25 p.m. and a supplemental COC on August 10, 2023. The defendant filed the instant motion on July 21, 2023. SPEEDY TRIAL The defendant argues that the COC and SOR were electronically filed in EDDS on May 22, 2023, after business hours (ostensibly 9 a.m. to 5 p.m.); it was not actually received by the clerk for filing until the next day, May 23, 2023, during business hours; and the speedy trial time expired on May 22, 2023, at the close of business. The People counter that the filing of a COC and SOR is not limited to business hours; the filing occurred before midnight on the ninetieth day; their declaration of readiness is valid; and the motion to dismiss on speedy trial grounds should be denied. When the current version of the speedy trial statute was first enacted in 1970, electronic filing did not exist. Therefore, filings normally occurred during business hours. The practice of paper filing has resulted in a widely accepted misconception that the People were required to file their statement of readiness during business hours on the ninetieth day or face dismissal. However, that interpretation contradicts the plain language of CPL §30.30(1), the General Construction Law, and legal precedent. 1. Filing on a Statutorily Defined Calendar Day In In re Norton, (34 AD 79 [2d Dept], app dismissed, 158 NY 130 [1899]), the Second Department addressed the validity of filing documents with a clerk after business hours in accordance with the controlling statutory language that allowed for filing on the entirety of the calendar day. In Norton the petitioner brought a writ of mandamus to compel the respondent, the Queens County Clerk, to accept his certificate of nomination as a candidate to the New York State Senate for filing at the time it was personally handed to the clerk, which was after business hours and outside of the clerk’s office. According to county law, the respondent’s business hours ran from 9:00 a.m. to 5:00 p.m. between the days of September 31st and April 1st. However, ELN §59 allowed the petitioner to file his certificate of nomination with the respondent on the entire calendar day and not only during business hours. The petitioner presented his certificate of nomination to the respondent in person after the close of business on October 14th. The respondent argued that by filing after business hours, the Queens County Clerk was prevented from lawfully receiving and filing the certificate of nomination. In rejecting the respondent’s argument, the Second Department held: “As we have seen, the election law gave to the petitioner the whole day of the 14th of October in which to file his certificate. This contemplated a day of 24 hours. Such are the terms of the statutory construction law. Laws 1894, c. 447. It is quite apparent, therefore, that, if the petitioner must have filed the certificate before the clerk’s office closed upon this last day, his right to a full day of 24 hours is abridged. There ought to be no abridgement of his clear legal right in this respect, unless it be worked by clear legal authority” (Norton, at 81-82). GCN §25-a provides, in pertinent part: “When any period of time…before which an act is authorized or required to be done, ends on a Saturday, Sunday, or a public holiday, such act may be done on the next succeeding business day and if the period ends at a specified hour, such act may be done at or before the same hour of such next succeeding business day…” “The General Construction Law…should be read into every statute subsequently enacted, unless the wording of such later statute plainly expresses a contrary intent” (O’Keeffe v. Dugan, 185 AD 53 [2d Dept 1918], affd 225 NY 667 [1919]; People v. Powell, 179 Misc2d 1047, 1048 [App Term 2d Dept 1999]). GCN §19 provides that “[a] calendar day includes the time from midnight to midnight. Sunday or any day of the week specifically mentioned means a calendar day.” Affirming the midnight-to-midnight principle of GCN §19, the Court of Appeals held: “In the absence of an express limitation, the law does not take notice of a fraction of a day.” (Matter of Garelick v. Rosen, 274 NY 64, 68 [1937]). CPL §30.30(1) also expressly references calendar days and not business hours.1 The description of whole days used in CPL §30.30(1) is indistinguishable from the language of ELN §59 that was addressed by the Norton court. Thus, in the same way, to arbitrarily limit the People’s ability to announce ready to the hours of 9:00 a.m. to 5:00 p.m. is to unlawfully abridge their statutory right to a full 24-hour day to fractions of the day (Norton, supra; Garelick, supra). Notably, CPL §30.30 has been amended numerous times since the advent of electronic filing, and none of the amendments have restricted the People’s filings to the business hours of 9:00 a.m. to 5:00 p.m. 2. When Filing Requires Recording in Official Court Records to be Valid The Norton court also reasoned that filings need only occur in the clerk’s office during business hours in circumstances in which the filing would affect third parties: “[L]eaving a judgment roll with the clerk after the closing of the office did not constitute the same a valid judgment as of the time of delivery, but that it became operative upon the following business morning, when the clerk opened the office. It is, however, to be observed that judgments are required to be docketed in books kept for that purpose, and cannot become effective until received at the clerk’s office where such books are kept. In cases of this class, the docketing of judgments, recording of mortgages, and other similar acts, are required, not alone for the protection of the parties whose interest is to have them recorded or docketed, but it also affects or may affect the rights of third parties, as the act of record determines their status, and the necessary steps to insure a lien are required by positive law” (Norton, at 81). The People’s obligation is to properly announce ready, and to be actually ready for trial when they announce it (People v. Kendzia, 64 NY2d 331 [1985]). Properly announcing ready can be effectuated by either a declaration in open court or by a notice sent to the defendant and the court clerk, to be placed in the original court file (id., at 337). It is the communication of readiness to the defendant and the court that satisfies the first prong of Kendzia. The second prong of Kendzia is for the People to be actually ready for trial. This means that the People “have done all that is required of them to bring the case to a point where it may be tried” (People v. England, 84 NY2d 1, 4 [1994]). The court’s inability to try the case when the announcement is made has no bearing on the validity of the People’s readiness (id.). The communication of readiness to the court and the defendant has no legal significance for anyone outside of the immediate criminal proceeding. The communication denotes that the prosecution is ready to move to the next phase of the criminal proceeding. Moreover, a statement of readiness is not recorded in the same manner as an entry of judgment, which is recorded in a judgment roll (see Norton, at 81). 3. Discussion Norton has remained undisturbed for over one hundred and twenty years. Norton stands for the proposition that if a filing does not have an impact on third parties and the filing can be effectuated on the proper recipient on the calendar day permitted by law, it is deemed properly filed at the time of filing, and the ministerial act of placing the filing in an official file has no effect on the timing of the actual filing (Norton, at 82). If this principle was true over one hundred and twenty years ago, when a filing was done by paper, in person, outside of the clerk’s office, then there is no basis to not apply the same logic and principle to the modern convenience of an electronic filing after business hours in the court’s own computer system. Here, the filing of the COC and SOR was effectuated on the court clerk by electronically filing in EDDS and digitally time stamped when filed. Additionally, since the People’s statement of readiness has no impact on a third party and is not recorded as a judgment, the statement of readiness takes effect when filed in EDDS and not when it is copied into the court file by the clerk. The court is unaware of any appellate determinations on this issue, and the trial courts are split on when to deem a statement of readiness valid if it is filed after the end of business (compare People v. McLean, 77 Misc3d 492 [Kings Co Crim Ct 2022][statement of readiness filed after 5:00 p.m. valid] and People v. Middleton, 79 Misc3d 418 [NY Co Crim Ct 2023] ][statement of readiness filed after 5:00 p.m. valid], with People v. Kinch, 75 Misc3d 741 [Kings Co Crim Ct 2022] [statement of readiness filed after 5:00 p.m. invalid] and People v. Miller, 75 Misc3d 215 [Kings Co Crim Ct 2022][statement of readiness filed after 5:00 p.m. invalid]). The trial courts that have held that a statement of readiness filed after business hours can only be deemed valid on the next business day do not address or distinguish the rationale of Norton (supra). Accordingly, this court declines to adopt the reasoning of any trial court that does not distinguish (or reaches a different result than) the Norton court. Instead, this court adheres to the rationale of Norton in accepting the People’s COC and SOR filed in EDDS at any time on a given calendar day in conformity with CPL §30.30(1) as valid. 4. Speedy Trial Calculations A defendant seeking dismissal pursuant to CPL §30.30 meets their initial burden by alleging that the People have failed to declare readiness within the statutorily prescribed period (People v. Beasley, 16 NY3d 289, 292 [2011]). The statutory period to announce ready on an “A” misdemeanor is within ninety days from the date of arraignment (CPL §30.30[1][b]). Once a defendant has shown that there is more than ninety days of delay, the burden of proving the existence of excludable periods falls upon the People (People v. Berkowitz, 50 NY2d 333, 349 [1980]). The charges in the instant information require the People to be ready within ninety days of arraignment on February 19, 2023 (CPL §30.30[1][b]). The People had until midnight on Monday May 22, 2023, to file their statement of readiness (GCN §25-a; Matter of Garelick v. Rosen, 274 NY 64, 68 [1937]). The People properly filed their COC and SOR on May 22, 2023 (In re Norton, 34 AD 79 [2d Dept 1898]). Thus, the People’s announcement of readiness is valid at the time of filing in EDDS (id.). The People are charged ninety days from the defendant’s arraignment on February 19, 2023, to the filing of their COC and SOR in EDDS on May 22, 2023, and zero days from the filing of the SOR until the date of this decision. Thus, the People are charged a total of ninety days. Accordingly, the motion to dismiss for violating the defendant’s right to a speedy trial is denied (CPL §30.30[1][b]). ALTERNATIVE RELIEF The defendant’s motion for a Dunaway/Huntley hearing is granted on consent. The defendant’s motion for a Sandoval hearing is denied without prejudice. The instant case appears to be the defendant’s only arrest. The defendant’s motion to preclude unnoticed statements and for a pre-trial voluntariness hearing for unnoticed statements is denied. The defendant has failed to identify any unnoticed statements. This constitutes the decision and order of the court. Dated: September 8, 2023
