DECISION AND ORDER Procedural History: The action commenced on December 12, 2018 when an accusatory instrument was filed, and the defendant was arraigned. Defendant is charged with one count of Criminal Possession of a Forged Instrument in the Third Degree (Penal Law §170.20), Criminal Possession of Marihuana in the Fifth Degree (Penal Law §221.10(1)) and Unlawful Possession of Marihuana (Penal Law §221.05). By motion filed on October 3, 2019, the defendant moves to dismiss the accusatory instrument for speedy trial violation pursuant to Criminal Procedure Law (CPL) 30.30. The People filed a response on October 17. Defendant filed a reply on October 29. For the reasons set forth below, Defendant’s motion to dismiss is granted. Motion to Dismiss for Speedy Trial Violation Pursuant to CPL 30.30(1), the applicable speedy trial period is determined by the highest charge in the accusatory instrument. Where the highest charge is a class A misdemeanor, the People are required to state their readiness for trial within ninety (90) days of the commencement of the criminal action (see CPL 30.30[1][b]). The day on which the accusatory instrument is filed is excluded from the calculation of speedy trial time (see People v. Stiles, 70 NY2d 765 [1987]). The defendant has the initial burden under CPL 30.30 to demonstrate by sworn allegations of fact that there has been an inexcusable delay beyond the time set forth in the statute (People v. Santos, 68 NY2d 859, 861 [1986]). Once the defendant has alleged that more than the statutorily prescribed time has elapsed without a declaration of readiness by the prosecution, the prosecution bears the burden of establishing sufficient excludable delay (id.; People v. Berkowitz, 50 NY2d 333, 348-349 [1980]). The burden is on the People to ensure “in the first instance” that the record of the proceedings is sufficiently clear to enable the court deciding the 30.30 motion to make an informed decision as to whether the People should be charged (People v. Cortes, 80 NY2d 201, 215-216 [1992]). Parties’ Contentions: Defendant argues that the case should be dismissed on speedy trial grounds. He contends that the People have failed to meet their CPL 30.30 obligation as a total of 201 days is chargeable to the People. Defendant’s argument is based largely on the position that the People’s off-calendar statements of readiness were illusory, because the People announced not ready at the immediately succeeding court dates. The People counter that the motion to dismiss must be denied as they are charged with at most 68 days of non-excludable time. The People contend that they properly announced their readiness for trial within the statutorily prescribed period set forth in CPL 30.30. Calculation of Excludable and Includable Time: Based on review of the court file, the transcript of selected proceedings and the submissions of the parties, the Court finds as follows: December 12, 2018 — February 1, 2019 On December 12, 2018, the defendant was arraigned. The People announced ready for trial (see Arraignment tr. at 3, line 25; at 4, line 1). There was no objection from defense counsel nor discussion concerning the validity of the People’s declaration. Nonetheless, the presiding judge adjourned the case for conversion (tr. at 4, lines 24-25). The People state that they then filed a statement of readiness off calendar on December 18 in an abundance of caution. This Court finds that the People’s in-court declaration of readiness was valid as there was no contemporaneous objection from defense counsel nor any presently persuasive reason as to why such declaration was not truthful. [0 days charged, 0 total days] February 1, 2019 — March 13, 2019 The People announced “ready.” They acknowledged that they served the off-calendar statement of readiness upon the wrong defense counsel but noted that they “should have been ready at the time of arraignment” (see February 1 Calendar Call tr. at 2, lines 8-23). The case was adjourned to March 13 for discovery by stipulation. An adjournment for discovery by stipulation is excludable as a period of delay for the purposes of CPL 30.30 (see CPL 30.30[4][a]; People v. Dorilas, 19 Misc 3d 75 [App Term, 2d Dept, 11th Jud Dist 2008]). [0 days charged, 0 total days] March 13, 2019 — May 6, 2019 The People did not serve and file discovery. The court instructed the People to file discovery off calendar by April 4. The case was adjourned to May 6 for hearings and trial. The People are entitled to a reasonable excludable adjournment to prepare for pre-trial suppression hearings ordered by the court (see People v. Greene, 90 AD2d 705 [1st Dept 1982]). [0 days charged, 0 total days] May 6, 2019 — July 1, 2019 The People were not ready for trial, because the assigned assistant district attorney (“ADA”) was out of the office. The court charged the People until the filing of a statement of readiness. The case was adjourned to July 1 for hearings and trial. May 29, 2019 Off calendar, the People served and filed a statement of readiness. Subsequently on July 1, the People announced “not ready” for trial. Defendant argues that this entire adjournment is chargeable to the People as the May 29 statement of readiness was illusory. This Court agrees. A statement of readiness for trial is valid if two requirements are met: (1) there is either a statement of readiness by the prosecutor in open court or a written notice of readiness sent by the prosecutor to both defense counsel and the court, and (2) the People are in fact ready to proceed at the time they declare readiness (People v. Brown, 28 NY3d 392, 403-404 [2016] [internal citations omitted]). The Court of Appeals has held that “an off-calendar statement of readiness is presumed truthful and accurate”; thus, the defendant bears the burden of demonstrating that a statement of readiness is illusory (id. at 405). However, the People still retain the burden of ensuring that the record explains the reasons for adjournments in the postreadiness context (id. at 406). Where the People file an off-calendar statement of readiness then subsequently are not ready, “the People ultimately must explain the reason for their change in readiness status” (id.). Here, in their written opposition to the defendant’s 30.30 motion, the People assert that prior to filing the May 29 statement of readiness, the assigned ADA spoke with the officer about the scheduled trial date and discussed meeting for trial preparation prior to said date. However, the assigned ADA had not yet met with the officer to prepare for trial nor is it even clear that a date certain to meet was agreed upon. A telephone conversation with a material witness1 about nothing more than scheduling falls short of the People having “done all that is required of them to bring the case to the point where it may be tried” (People v. England, 84 NY2d 1, 4 [1994]). The speedy trial statute does not contemplate a prediction or expectation of future readiness; it contemplates present readiness (People v. Kendzia, 64 NY2d 331, 337 [1985]). Accordingly, this Court finds that the People were not actually ready to proceed at the time they filed the May 29 statement of readiness; thus, it is deemed illusory. The entire adjournment from May 6 to July 1 is chargeable to the People. [56 days charged, 56 total days] July 1, 2019 — July 26, 2019 The People were not ready for trial and requested to be charged until they filed a statement of readiness. The People stated that they were not ready to proceed due to the unavailability of the arresting officer and the engagement of the assigned ADA in an unspecified trial part. The case was adjourned to July 26 for hearings and trial. July 10, 2019 Off calendar, the People served and filed a statement of readiness. However, on the subsequent court date of July 26, the People announced “not ready” for trial. Defendant contends that the June 10 statement of readiness was illusory, so this entire adjournment is chargeable to the People. In their response papers, the People do not address this statement of readiness and instead charge themselves 26 days. Furthermore, the People did not mention the July 10 statement of readiness at the July 26 court date (see July 26 Calendar Call tr.). Accordingly, the People are charged 25 days — the period from July 1 to July 26 [25 days charged, 81 total days] July 26, 2019 — September 20, 2019 The People were not ready for trial and again requested to be charged until they filed a statement of readiness. The People were not ready because the assigned ADA was attending mandatory grand jury training. The case was adjourned to September 20 for hearings and trial. August 7, 2019 Off calendar, the People served and filed a statement of readiness. However, in court on September 20, the People announced “not ready” for trial. The People explain in their opposition papers that the assigned ADA was unexpectedly out of the office for personal reasons not known to him at the time he filed the statement of readiness. Defendant argues that this reasoning is insufficient as it lacks detail or supporting documentation. A statement of readiness is only illusory if at the time it was filed, the People were not actually ready (see Brown, 28 NY3d at 406-407). The defendant has failed to demonstrate that the People were not actually ready at the time they filed the statement of readiness; and it is his burden. Because the People’s off-calendar statement of readiness “is presumed truthful and accurate”, and the People have provided a reason for their change in readiness status (see id. at 400, 405), this Court finds that the August 7 statement of readiness is valid. [12 days charged, 93 total days] September 20, 2019 — October 4, 2019 The People were not ready for trial and requested 14 days. The People stated that they were not ready to proceed because the assigned ADA was unexpectedly out of the office. The court again charged the People until the filing of a statement of readiness. The case was adjourned to October 4 for hearings and trial. September 23, 2019 Off calendar, the People filed a statement of readiness. However, they answered “not ready” at the October 4 calendar call. Defendant argues that the People should be charged the entirety of the adjournment from September 20 to October 4 except October 3, because the People have demonstrated a pattern of answering “not ready” in court. In support of his argument, Defendant points out that this statement of readiness was filed even before the expiration of the 14 days requested on the last court date. Because the People requested 14 days on the immediately preceding court date, filed a statement of readiness only 3 days later and then were subsequently not ready on the very next court date, this Court finds that 13 days are chargeable to the People for this adjournment.2 Additionally, the People have failed to explain the reason for their change in readiness; they neither address it in their opposition papers nor attach the minutes from the October 4 calendar call. [13 days charged, 106 days total] October 4, 2019 — November 7, 2019 The People were not ready. However, the speedy trial clock was stopped since the defendant filed the instant motion the day prior. The People were ordered to file any response by October 15. The case was adjourned to November 7 for decision. The period from October 3 to November 7 is excludable pursuant to CPL 30.30(4)(a) as a reasonable time for pre-trial motion practice. [0 days charged, 106 total days] Conclusion Accordingly, the court finds that a total of 106 days of non-excludable delay has elapsed. Therefore, the defendant’s motion to dismiss the accusatory instrument pursuant to CPL 30.30 is granted. The foregoing constitutes the Decision and Order of the Court. Dated: November 6, 2019 Kings County, New York
