DECISION AND ORDER The defendant was charged in criminal court complaint with two counts of Assault in the Third Degree (Penal Law §120.00 [1] & [2]), Aggravated Harassment in the Second Degree (Penal Law §240.30 [4]), Attempted Assault in the Third Degree (Penal Law §110/120.00 [1]), and Harassment in the Second Degree (Penal Law §240.26 [1]), for allegedly striking the complainant in the face with a bottle and causing a cut, bleeding, and substantial pain. The complaint was converted to an information 99 days later. The defendant moved to dismiss the information on statutory speedy trial grounds (CPL 170.30 [1] [e]; 30.30). The People opposed this motion, claiming exceptional circumstances (CPL 30.30 [4] [g]). The defendant failed to file a response, although defense counsel asked for additional time to do so. A motion to dismiss must be granted when the People are not ready for trial “within 90 days of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony” (CPL 30.30[1][b] and 170.30[1][d] or [e]).A criminal action is commenced when the People file the first accusatory instrument (CPL 1.20 [17]; People v. Lomax, 50 NY2d 351 [1980]). Except for excludable delay periods (see CPL 30.30 [4]), the proscribed period continues to run until the People state their present readiness for trial (People v. Price, 14 NY3d 61 [2010]; People v. Cortes, 80 NY2d 201, 208 [1992]; People v. Kendzia, 64 NY2d 331 [1985]).“[O]nce a defendant has shown the existence of an unexcused delay greater than [the statutory maximum], the burden of showing that time should be excluded falls upon the People” (People v. Barden, 27 NY3d 550 [2016]; quoting People v. Santos, 68 NY2d 859, 861 [1986]; see People v. Santana, 80 NY2d 92, 105 [1992]).”“Generally, the burden is on the People to establish their entitlement to exclude any pre-readiness delays from the calculation under a CPL 30.30 motion and the burden is on a defendant to prove that any post-readiness delays that directly implicate the People’s ability to proceed with trial are chargeable to the People, unless the People failed to satisfy their burden to ensure that the record is sufficiently clear as to who is chargeable for an adjournment (see People v. Cortes, 80 NY2d 201, 210, 215-216 [1992])” (People v. Robinson, 67 AD3d 1042 [3d Dep't 2009]).The defendant argues that 99 days, from January 10, 2018, to April 19, 2018, should be included in the speedy trial calculation. The People argue that the court should exclude the 28-day period from February 12, 2018 (the date the complainant was admitted to a sentenced inpatient drug treatment program), to March 8, 2018 (the date the People were finally able to talk to the complainant in the treatment facility), for “exceptional circumstances” (CPL 30.30 [4] [g]).1On January 10, 2018, the People filed a misdemeanor complaint. The matter was adjourned to February 15, 2018, for the People to file the complainant’s supporting deposition. On January 22, 2018, an Assistant District Attorney (ADA) contacted the complainant. The complainant informed the ADA that he was a defendant in an unrelated felony case being prosecuted by the New York County District Attorney’s Office, and gave the ADA his Legal Aid Society (LAS) attorney’s name and phone number. The ADA contacted the attorney for the complainant, whose firm also represents the defendant, and left a voice mail. The People state the complainant’s LAS attorney never returned the ADA’s phone call.During the week of February 11, 2108, the complainant left a voice mail for the ADA, stating that he was being sentenced to an inpatient treatment facility and could not be reached while he was in the facility. On February 20, 2018, the ADA emailed the complainant’s attorney asking where the complainant was being treated. The People state that the complainant’s LAS attorney never returned the ADA’s email.During the week of February 26, 2018, the complainant left a voice mail stating that he was still in the facility and doing well, but he did not have the facility’s number. On or about March 8, 2018, the complainant called and spoke with the ADA. The complainant provided the treatment facility information and a fax number where the ADA could send the supporting deposition. The ADA faxed the complaint and the supporting deposition to the fax number provided by the complainant.On or around April 9, 2018, the complainant contacted the ADA again, stated the fax machine had not been working, but it was now and he would send it back, and gave the ADA a contact number. On April 17, 2018, the ADA received a signed supporting deposition, dated April 8, 2018, and a letter dated April 18, 2018 [sic], from the complainant’s case worker, which confirmed that the complainant had been at the facility since February 12, 2018. The ADA called the complainant, who explained the treatment program only allowed him an extremely limited number of phone calls a week (sometimes only one day a week, and many times that day was Saturday). The complainant also informed the ADA that the program could take him to court if a subpoena was served on the facility. On April 19, 2018, the People served and filed the supporting deposition, and the complaint was deemed an information by the court.The court finds the 28-day period of delay is excluded, because the People exercised due diligence in attempting to obtain a supporting deposition from the complainant (see People v. Zirpola, 57 NY2d 706 [1982]). “The Legislature enacted this catchall provision because it could not anticipate every situation that might warrant the tolling of the speedy trial clock” (People v. Smietana, 96 NY2d 336, 341 [2002]). The exceptional circumstance exclusion applies “only when the People for practical reasons beyond their control cannot proceed with a legally viable prosecution” (People v. Price, 14 NY3d 61, 64 [2010]). Therefore, an exceptional circumstances exclusion is available only when the factors for the delay prevented the People from being ready for trial. (Smietana, at 341).In these circumstances, “the statute’s text contemplates that the prosecutor will seek a continuance from the court…” (Price, at 64). It is preferred that the People “secure a prior judicial ruling as to the exceptional circumstances rather than ask a court to apply the exclusion after the fact” (id.). This would ensure that the defendant was kept abreast of the status of his case and the charges pending against him (id.). Here, given the possible conflict of interest, that certainly would have been the preferred method. But, a period of delay may be excluded from speedy trial calculations where there are exceptional circumstances, such as the unavailability of a prosecution witness for treatment, even in the absence of a formal continuance (CPL 30.30 [4] [g]; People v. Alcequier, 15 AD3d 162 [1st Dep't 2005]; see People v. Goodman, 41 NY2d 888 [1977]).The People’s affirmation constitutes sufficient proof that the complainant was unavailable due to his inpatient treatment’s restrictions (Alcequier, 15 AD3d 162; see People v. Bailey, 221 AD2d 296 [1st Dep't 1995]; People v. Celestino, 201 AD2d 91, 95 [1st Dep't 1994]). The People are not required to show that the witness was completely immobilized or totally incapacitated (see, People v. Martinez, 268 AD2d 354 [1st Dep't 2000], lv denied 94 NY2d 922 [2000]). Further, the People demonstrated that they “attempted with due diligence to make the witness available” (Zirpola, 57 NY2d at 708). Due diligence requires the People to “undertake ‘credible, vigorous activity’ to make the witness available” (People v. Figaro, 245 AD2d 300 [2d Dep't 1997], quoting People v. Washington, 43 NY2d 772, 774 [1977]). It does not require extraordinary efforts to secure the witness’s presence (People v. Martinez, 268 AD2d 354 [1st Dep't 2000]).Since these 28 days are excluded, the court finds only 71 days charged to the People.Accordingly, the motion is denied.IT IS SO ORDERED.Dated: May 30, 2018New York, New York
