DECISION & ORDER Opinion Defendant moves for an order (i) dismissing the accusatory instrument pursuant to CPL §§30.30 and 170.30(1)(e) and (ii) granting such relief as this Court may deem proper. For the reasons set forth herein, defendant’s motion to dismiss the accusatory instrument is granted in its entirety. Procedural and Factual History Defendant was arraigned on March 17, 2023 and charged with Penal Law §§120.05(3) (assault in the second degree — D Felony); 120.00(1) (assault in the third degree — A Misdemeanor); 240.26(1) (harassment in the second degree — Violation) and Vehicle and Traffic Law §§1192(3) (driving while intoxicated — Unclassified Misdemeanor); 1192(2) (driving while intoxicated, per se — Unclassified Misdemeanor); 1192(1) (driving while impaired — Traffic Infraction). Since defendant was charged with at least one felony, the People must certify their readiness for trial within six months of the commencement of a criminal action. CPL §30.30(1)(a). On August 15, 2023 (150th day), the People dismissed the felony charges leaving only misdemeanor charges. The complaint, therefore, was converted to a misdemeanor complaint. Also on August 15th, the defendant was arraigned on the misdemeanor complaint. The matter was adjourned to September 26, 2023 for the People to convert the accusatory instrument to an information and file their CoC. Off-calendar on August 18, 2023, the People filed a 2012 issued protective order via the Electronic Document Delivery System and served it to defendant via email with a statement; “I am filing the attached protective order for PO Rodriguez in this matter.” However, there was no indication that the People were moving for a protective order in the instant matter. On the adjournment date of September 26, 2023, defendant requested a motion schedule which was granted with leave to file motions on October 24, 2023. The matter was adjourned to January 11, 2024 for the court’s decision. On December 28, 2023, defendant belatedly filed a motion to dismiss on speedy trial grounds. As a result, on the adjournment date of January 11, 2024, the People requested leave to file opposition which was granted with defendant having an opportunity to submit a reply. Now before the court is defendant’s motion seeking an order dismissing the accusatory instrument based upon CPL §30.30 speedy trial grounds. Specifically, defendant asserted that the People should be charged 194 days of CPL §30.30 time from March 17, 2023 to September 26, 2023. Moreover, the filing of a 2012 protective order alone did not constitute a motion which motion would have caused the speedy trial clock to stop. Additionally, the People did not file a certificate of compliance (“CoC”) or declare their readiness for trial within their speedy trial deadline. Therefore, the matter must be dismissed on speedy trial grounds. In opposition, the People argued that filing the 2012 protective order on August 18, 2023, halted the speedy trial time since it was a pre-trial motion. Moreover, since defendant never responded to the 2012 protective order filing the time was excludable. Also defendant’s instant motion must be added to defendant’s excludable time. Consequently, the People’s CPL §30.30 time stopped at 153 days when the protective order was filed. Legal Analysis Pre-trial Motion Exclusion Generally, pre-trial motion time and time “under consideration by the court” are excludable from the speedy trial calculation. CPL §30.30(4)(a). Additionally, any non-frivolous motion made by either the People or defendant is excludable including a motion for a protective order. See People v. Erby, 68 Misc. 3d 625 (Sup. Ct. Bronx Cnty. 2020). “The plain language of the aforementioned statute does not limit its applicability to motions made by the defense.” People v. Sivano, 174 Misc. 2d 427, 429 (App. T. 2nd Dept. 1997). The People may only avail themselves of CPL §30.30(4)(a) exclusion for pre-trial motions that are under contention and require a response. See People v. Reed, 19 A.D.3d 312 (App. T. 1st Dept. 2005)(consolidation); People v. Torres, 205 A.D.3d 254 (App. Div. 1st Dept. 2022)(protective order); People v. Ocasio, 39 Misc. 3d 465 (Crim. Ct. Bronx Cnty. 2013)(omnibus and severance). Only the “delays attributable to responding to and deciding motions actually made” are excludable time for pre-trial motion practice. People v. Collins, 82 N.Y.2d 177 (1993). In contrast, the statutory exclusion does not apply to summary motions. People v. M.V., 79 Misc. 3d 448 (Crim. Court Kings Cnty. 2023)(motion to dismiss a felony count is ministerial and does not constitute an excludable pre-trial motion). A motion is a “written or oral application requesting a court to make a specified ruling or order.” Black’s Law Dictionary (11th ed. 2019). In civil practice, a motion is initiated through the filing of a notice of motion which is required to notify the opposing party of the relief sought and when the motion will be heard. CPLR §2214. Contrarily, the Criminal Procedure Law does not contain any rule on motion procedure. As a result, criminal courts must apply general rules to fill any voids left by the Criminal Procedure Law. See e.g., People v. Hutchinson, 80 Misc. 3d 678 (Crim. Ct. Bronx Cnty. 2023)(civil law on electronic signatures); People v. Harris, 80 Misc. 3d 932 (Crim Ct. Bronx Cnty. 2023)(General Construction Law on periods of time); People v. Roberts, 76 Misc. 3d 448 (Crim. Ct. New York County 2022)(civil law on motions to renew and reargue). Consequently, in applying CPLR §2214 to the criminal law, a moving party shall file a notice of motion to commence motion practice unless authorized by the court to use any other method. See e.g. 22 NYCRR 1250.4(a)(4)(Appellate Division requires motions made via notice of motion to provide notice to all parties as prescribed by CPLR 2214(b)). Here, the People’s filing of the 2012 protective order did not constitute a motion for a protective order. The People served a document labeled Protective Order which contained a caption with multiple cases and a gray back stating “People v. Jacob Solorzano, et. al”. Missing from the People’s filing was a Notice of Motion, Affirmation in Support, or any document indicating that the People were requesting that the court render a decision. People v. Thomas, 59 Misc. 3d 64 (App. T. 1st Dept. 2018)(off-calendar affirmation to dismiss felony counts did not stop the CPL §30.30 time since the filing contained no notice of motion or return date.). Consequently, there was neither a Notice of Motion nor a motion schedule set by the Court that would require a decision date. See People v. Collins, 82 N.Y.2d 177 (1993)(adjournment to an IAS part was not excludable since the “record [was] devoid of any suggestion that the adjournment was made for the purpose of defense motions or even for the purpose of setting up a motion schedule. “); cf. People v. Brown, 99 N.Y.2d 488 (2003)(pre-trial motion was not hypothetical despite no motion being filed because the court set a motion schedule and a decision date for defense counsel’s contemplated motion). Moreover, the Court disagrees with the People’s contention that the time is excludable because the 2012 protective order contained a non-disclosure agreement which defendant’s attorney failed to fill out and sign. When a pre-trial motion is filed, only the time the motion is under the court’s consideration is excludable. See CPL §30.30(4)(a); People v. Erby, 68 Misc. 3d 625 (Sup. Ct. Bronx Cnty. 2020)(court held that speedy trial time was excludable until February 3, 2020 because on that date defendant consented to the protective order and the People received a final decision). The excludable time includes any period in which the motion is under consideration including adjournments and hearings. People v. Prisco, 32 Misc. 3d 349 (Crim. Ct. Queens Cnty. 2011)(time remained excludable when the court ordered a hearing on a pre-trial motion since the motion remained under consideration). In the instant matter, the 2012 protective order contained an unsigned non-disclosure agreement with no date or indication that it pertained to the instant matter. Additionally, the People did not affirmatively request that defendant’s attorney sign the non-disclosure agreement. Moreover, the People’s failed to follow up with the court or request a prompt hearing when they received no response from defense counsel. CPL §245.70(3). Consequently, no dispute existed between the parties for the court to resolve or motion under the court’s consideration. Therefore, no time was excludable. Clearly, absent a notice of motion or any other document indicating that People were requesting an order from the court, the 2012 protective order did not constitute a pre-trial motion and failed to stop the CPL §30.30 clock from ticking. Speedy Trial Calculation Since defendant was charged with at least one felony, the People were required to be ready for trial within six months of the commencement of the criminal action. CPL §30.30(1)(a). Accordingly, the People’s CPL §30.30 time commenced on March 18, 2023, the day after defendant’s arraignment. People v. Obey, 80 Misc. 3d 1223(A) (Crim. Ct. Bronx Cnty. 2023) citing People v. Harris, 80 Misc. 3d 932 (Crim. Ct. Bronx Cnty. 2023). On August 15, 2023, the 150th day, the People converted the felony complaint to a misdemeanor complaint. Generally, when the felony complaint becomes a misdemeanor complaint, a new 90-day speedy trial period begins provided that the total chargeable time does not exceed six months. CPL §30.30(7)(c); People v. Guirola, 51 Misc. 3d 13, 16 (N.Y. App. T. 2016)(“where a felony complaint is replaced with a new accusatory instrument, the highest charge of which is a class A misdemeanor, the People must be ready for trial within 90 days from the filing of the new instrument or six months from the filing of the felony complaint, whichever is earlier.”). CPL §30.30(7)(c); People v. M.V., 79 Misc. 3d 448 (Crim. Ct. N.Y. Cnty. 2023). Consequently, the People had 32 days remaining. On August 18, 2023 (153rd day), the People filed and served a Protective Order for a 2012 case. The Protective Order did not constitute a pre-trial motion and failed to stop the CPL §30.30 time. On September 26, 2023, defense counsel requested the instant motion schedule, which effectively halted the speedy trial clock. As of September 26, 2023, 192 days of CPL §30.30 time were chargeable to the People. The People did not file a CoC or declare their readiness for readiness for trial before the statutory deadline of 182 days. Accordingly, the defendant’s motion is granted. This Court finds that the People exceeded their speedy trial time and this matter is dismissed. This constitutes the decision of the court. Dated: March 18, 2024
