DECISION AND ORDER The defendant is charged in the instant indictment with Attempted Assault in the First Degree and other related charges in connection with an incident alleged to have occurred on November 18, 2022. The indictment also charges co-defendants NG and JP1 with various offenses stemming from the same incident. RELEVANT BACKGROUND On December 6, 2022, the defendant was arrested in connection with the instant charges. At his criminal court arraignment on December 7, 2022, bail was set in the amount of $200,000 insurance company bond (ICB) / $100,000 cash / $200,000 partially secured bond (PSB). In late December, the defendant and the co-defendants were indicted and jointly charged under the instant indictment.2 On January 25, 2023, the defendant and co-defendant NG were arraigned on the indictment in Supreme Court. On that same date, the People consented to Huntley/Wade/Dunaway hearings as to the defendant and to Wade/Dunaway hearings with respect to co-defendant NG. On March 3, 2023, counsel for co-defendant NG requested a psychiatric examination of his client pursuant to Criminal Procedure Law (CPL) article 730. On March 28, 2023, while the results of co-defendant NG’s 730 examination were still pending, the People filed a Certificate of Compliance (COC) asserting that they have disclosed and made available to the defendant all known material and information that is subject to discovery, together with a Statement of Readiness (SOR) declaring their readiness for trial. On April 13, 2023, upon application of the defendant, his bail was reduced to $100,000 ICB / $75,000 cash / $100,000 PSB without electronic monitoring or to $50,000 ICB / $50,000 cash / $50,000 PSB with electronic monitoring. On June 28, 2023, co-defendant NG’s examination results were received. He was deemed unfit to proceed and remanded to the Office of Mental Health (OMH) for treatment. Meanwhile, the defendant’s case proceeded to a pre-trial hearing and conference which was scheduled for June 6, 2023. Defense counsel was unable to appear on said date and the matter was adjourned to June 22, 2023. On June 22, 2023, the People extended a plea offer which was rejected. The People made the representation that “the offer will be pulled at the commencement of the hearings” (6/22/23 tr at 4). The matter was adjourned to August 15, 2023, for hearings and trial (id. at 5). On August 15, 2023, the People answered not ready because the assigned assistant was “currently engaged with another trial” before another Justice of this court3 (8/15/23 tr at 2). The People submitted that the adjournment should not be chargeable to the People pursuant to CPL section 30.30(4)(d) because the defendant “is joined for trial with the co-defendant,” who had been found unfit (8/15/23 tr at 2-3). The matter was adjourned to August 30, 2023, for hearings only. On August 30, 2023, the People answered ready for hearings, but defense counsel was unavailable. The People represented that the case could not procedurally move forward unless a motion to sever was filed and granted (see 8/30/23 tr at 3). The matter was adjourned to October 4, 2023, for hearings and trial. On October 4, 2023, the People answered ready for hearings but again asserted that the case could not go forward procedurally given the status of the co-defendant. The defendant conceded that the defendant and the witness who made the identification were known to one another. The defendant having conceded the Wade issue, the parties agreed that the remaining issues to be determined at the hearings only pertained to the defendant and not the co-defendant. A Huntley/Dunaway hearing was conducted and the defendant’s motion to suppress was denied. At the conclusion of the hearing, the defense stressed the fact that the defendant has been incarcerated since the beginning of this case on December 6, 2022, and declared their readiness to proceed to trial immediately (see 10/6/23 tr at 49-50). In response, the People made the following record: [T]his defendant is still joined under the same indictment with [NG.] And it’s the People’s position that we can’t move forward to trial procedurally until a motion to sever has been filed. The People would like to respond to that in writing and until one is filed, we procedurally cannot move forward to a trial date (id. at 49). At the defendant’s request, the court then set an expedited briefing schedule. The defendant’s motion to sever was to be filed and served by October 11, 2023 and the People’s response was to be filed and served by October 18, 2023. The defendant now moves, pursuant to CPL section 200.40, to sever his case from that of his co-defendant for the purpose of separate trials. The People oppose the motion on the grounds that the motion is untimely and lacks merit as the defendant and co-defendant’s cases are properly joined under CPL section 200.40(1)(c). DISCUSSION Timeliness Generally, all pretrial motions, including a motion to sever, must be served or filed within 45 days after arraignment and before commencement of trial (CPL §255.20[1]). The defendant was arraigned in Supreme Court on January 25, 2023. Thus, it is clear that this motion, filed on October 11, 2023, is beyond the 45-day statutory period. However, “the court must entertain and decide on its merits, at any-time before the end of the trial, any appropriate pre-trial motion based upon grounds of which the defendant could not, with due diligence, have been previously aware, or which, for other good cause, could not reasonably have been raised within the period specified” (CPL §255.20[3]). Here, the circumstances giving rise to the instant motion occurred well after the 45-day deadline. Co-defendant NG was found unfit to proceed on June 28, 2023, more than five months after the defendant’s arraignment. The co-defendant was then remanded to OMH and his case was essentially marked off-calendar until such time as he is determined to be fit to stand trial. Meanwhile, the defendant’s case continued in the normal course of criminal proceedings. By their own admission, it was not until August 15, 2023, that the People first represented that the case could not procedurally move forward as the defendant was still joined under this indictment with the co-defendant. Notably, on June 22, 2023, when the court first scheduled the matter for hearings and trial to commence on August 15, 2023, the People did not assert that the matter could not move forward to hearings and trial due to the co-defendant’s status. Rather, the People requested an August date for hearing and trial and advised the defense that the plea offer would be “pulled at the commencement of the hearing” (see 6/22/23 tr at 4). As such, the issues raised in the instant motion could not reasonably have been raised within the statutory deadline. In the interest of justice and for good cause shown, particularly in light of the specific circumstances of this case, the court exercises its discretion to address the merits of the motion. Merits “Two or more defendants may be jointly charged in a single indictment provided that … all the offenses charged are based upon the same criminal transaction” (CPL §200.40[1][c]). Criminal transaction is defined as “conduct which establishes at least one offense, and which is comprised of two or more or a group of acts either (a) so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident, or (b) so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture” (CPL §40.10[2]). In determining whether two acts are part of the same criminal transaction, the court must look at the nature of the crime and the underlying facts (People v. Griffin, 137 AD2d 558, 559 [2d Dept 1988]). Here, the defendant and remaining co-defendant are charged with various offenses stemming from an incident alleged to have occurred on November 18, 2022. Specifically, it is alleged that they acted in concert in the commission of the crimes of assault and intimidation of a witness who purportedly provided video surveillance to the police in an unrelated case involving individuals known to co-defendant NG. The acts attributed to the defendant and co-defendant are, without question, “closely related and connected in point of time and circumstances of commission as to constitute a single criminal incident.” Accordingly, the defendants here are properly joined. However, upon a showing of good cause, a court has the discretion to order “that any defendant be tried separately from the other or from one or more or all of the others” (CPL §200.40[1]). Good cause includes a finding that the defendant or the People will be unduly prejudiced by a joint trial (id.). The defendant moves for severance on the ground that his fundamental right to receive a speedy trial is prejudiced by being “forced” to wait for “his trial” until his co-defendant is deemed fit to proceed (Defense Counsel Aff [Def Aff] at
