DECISION and ORDER Defendant, Dayvonne Quintero, is charged with Assault in the Third Degree (Penal Law §§120.00[1] and [2]), Endangering the Welfare of a Child (PL §260.10[1]), Criminal Mischief in the Fourth Degree (PL §145.00[1]) and other related charges. Pursuant to Criminal Procedure Law §§30.30(1)(b) and 170.30(1)(e), defendant moves to dismiss the accusatory instrument on speedy trial grounds. The People oppose the application. For the reasons below, the Court finds that seventy (70) days of speedy trial time are chargeable to the People. Accordingly, defendant’s motion to dismiss is DENIED. BACKGROUND According to the allegations in the accusatory instrument, on April 7, 2021, in the county and state of New York, defendant forced open the complainant’s door, causing the chain lock to break. Defendant punched the complainant, causing bleeding, bruising and swelling to her face. This conduct allegedly occurred while the complainant was holding her son and in the presence of her other son. Additionally, defendant is alleged to have broken the complainant’s mirror and cell phone and taken her Apple watch. DISCUSSION CPL §30.30(1)(b) requires dismissal of an accusatory instrument when the People are not ready for trial within 90 days of the commencement of a criminal action where, as here, the charges carry the potential sentence of imprisonment of more than three months. The determination as to whether the People have satisfied their obligation under CPL §30.30 is done by computing the time between the filing of the accusatory instrument and the People’s declaration of readiness, subtracting any periods of delay that are excludable under CPL §30.30(4) and then adding any post-readiness periods of delay that are actually attributable to the People and are ineligible for an exclusion. The first day of speedy trial time, when the accusatory instrument is filed, is excluded from the time calculation (People v. Stiles, 70 NY2d 765 [1987]). In a motion to dismiss pursuant to CPL §30.30, the defendant bears the initial burden of demonstrating that the People were not ready within the statutory time period (People v. Sibblies, 22 NY3d 1174[2014]); People v. Santos, 68 NY2d 859 [1986]). The burden then shifts to the People to establish that a period should be excluded (CPL §30.30[4]). 1) April 13, 2021 to May 19, 2021: 35 Days Chargeable The accusatory instrument in this case was filed on April 13, 2021. On that date, defendant was arraigned and the matter was adjourned to May 19, 2021. This time, a total of thirty-five days, is chargeable to the People. People v. Stiles, 70 NY2d at 767. 2) May 19, 2021 to July 8, 2021: 35 Days Chargeable; 70 Total Days Chargeable On May 19, 2021, the People filed a superceding information and the matter was adjourned to July 8, 2021. The People filed a Certificate of Readiness (“COR”) and Certificate of Compliance (“COC”) on June 23, 2021, thereby stopping the speedy trial clock. Therefore, an additional thirty-five days are chargeable to the People. 3) July 8, 2021 to August 11, 2021: 0 Days Chargeable; 70 Total Days Chargeable On July 8, 2021, the People announced ready for trial and the matter was adjourned to August 11, 2021. This time is not chargeable to the People. 4) August 11, 2021 to September 29, 2021: 0 Days Chargeable; 70 Total Days Chargeable On August 11, 2021, the People announced ready for trial. The defendant announced not ready and the matter was adjourned to September 29, 2021 for trial. This time is not chargeable to the People. 5) September 29, 2021 to October 27, 2021: 0 Days Chargeable; 70 Total Days Chargeable On September 29, 2021, the People announced ready for trial. The defendant announced not ready and the matter was adjourned to October 27, 2021 for trial. This time is not chargeable to the People. 6) October 27, 2021 to February 3, 2022: 0 Days Chargeable; 70 Total Days Chargeable On October 27, 2021, defendant and counsel appeared before the Honorable Michael Gaffey. The assistant district attorney standing up on the case announced ready for trial on behalf of the People. Defense counsel announced not ready, noting that there were outstanding discovery issues and that she was starting another trial that day. The People requested that the case be put on for a firm trial date. Judge Gaffey ordered the parties to conference the case pursuant to CPL §245.35 and adjourned the case for trial on December 7, 2021. The court file action sheet contains a notation from that same date that indicates that a defense counsel named Levine stood up on the case and it was dismissed and sealed by the court. Neither defense counsel, defendant nor the assigned assistant were present and there are no court minutes of the proceeding. A few days later, after defense counsel received a notification from her internal case management system, she reached out to the assigned assistant who noted that the dismissal must have been a mistake. Before the next scheduled court date of December 7, 2021, the parties continued to confer about the case going to trial and regarding outstanding discovery issues. On December 7, 2021, this case was added to the calendar in front of the Honorable Jonathan Svetkey. The matter was adjourned to December 21, 2021 for the People to order and provide the minutes from the October 27th court appearance. On December 21, 2021, the court minutes from October 27, 2021 were provided to the court and the case was adjourned to the following day, December 22, 2022 for decision on whether to unseal and restore the case. On December 22, 2021, after reviewing the court minutes, Judge Svetkey found that the dismissal was a clerical error by the Court and that the People never moved for dismissal. The Court, having the authority to correct its own mistakes, reinstated the case (see People v. Richardson, 100 NY2d 847, 850 [2003]). Judge Svetkey further ordered that the case be unsealed nun pro tunc to October 27, 2021 and adjourned the matter to February 3, 2022 for trial. Defendant argues that the People should be charged from October 29, 2021 to December 7, 2021 and thereafter for two reasons: first, defendant avers that the People’s statement of readiness on that date was illusory because the People redacted large portions of text messages between the People and the complainant without a protective order and without any indication as to why that information had been redacted. Second, defendant argues that the People could not validly state ready for trial when there was no case pending on which to announce ready. Further, defendant argues that the People were aware of the error since October 29, 2021 when defense counsel informed them and did nothing to rectify the matter until December 7, 2021. As an initial matter, this Court finds that the People’s COC and COR were not illusory as the People have provided to the Court both redacted and unredacted copies of the messages at issue. Upon review of these materials, the Court finds that the redactions were unrelated to the subject matter of the case and therefore were not disclosable pursuant to CPL §245.20(1). Additionally, after the parties were ordered to confer pursuant to CPL §245.35, that same day the assigned assistant explained that the redacted information contained instructions on how to sign forms. Nonetheless, she later disclosed unredacted copies of these text messages to defendant on December 1, 2021. The Court will not invalidate the COC or COR based on this discovery discrepancy as it finds that this information was not related to the subject matter of the case. Moreover, this type of discovery discrepancy is what CPL §245.35 was designed to resolve, as the parties did here. Additionally, assuming arguendo that this information was related to the subject matter of the case, defense counsel has shown no prejudice by the belated disclosure (see CPL §245.80[1]). Finally, since the filing of the COC and COR were in good faith and reasonable under the circumstances, this Court finds that they were properly filed (see CPL §245.60). Accordingly, the People are not charged speedy trial time based on this claim. Turning now to defendant’s argument that the People could not have been ready because there was no case to be ready on, this Court finds that since this dismissal was due to a clerical error by the Court, this time is not chargeable to the People. From the period of October 27th to December 7th, the People were reasonable in believing that the case was still pending and that defense counsel’s internal dismissal notification had been a mistake. The assigned assistant was aware that she never moved for dismissal, she received calendar notes reflecting that the case was adjourned for trial and the People’s internal case management system showed that the matter was adjourned to December 7, 2021 for trial. Critically, the proceedings that occurred in court on October 27th — which defendant and counsel were present for — showed that the case was still pending. Indeed, the People and counsel continued to make efforts to bring the case to trial, by conferring regarding discovery and discussing possible trial dates. Defendant, relying on People v. Antonio Smith (CR-010382-20QN, Decision and Order dated August 4, 2021, Crim Ct, Queens Co) and People v. Sanchez, 8 Misc 3d 900 (Crim Ct, NY Co 2005), argues that the People could not, after sealing had taken effect, attempt to resurrect a case wherein the error was known or should have been known to them during the time in which the error could have been corrected. However, defendant’s reliance on these cases is misplaced; in both instances, the assistant district attorney, on the record, made their own motion or joined in the defendant’s application to dismiss and seal the case pursuant to CPL §30.30. In Sanchez, the court held that since the mistake was caught the same day and within the thirty-day window in which the People had to appeal the decision, the case was never in fact sealed. In Smith, after the People moved to unseal the case over two months later, the court denied the application. Here, the People never moved to dismiss the case; on the contrary, the People requested a firm trial date and the parties agreed on the date of December 7, 2021 for trial. Indeed, the communications between the parties showed that both sides assumed that this dismissal notification was a ministerial error. On December 7, 2021, upon confirming that the case had been dismissed and sealed in error by the Court, the People promptly moved to unseal and restore the case. The Court, having the authority to correct its own mistakes, adjourned the matter and subsequently reinstated the case (see People v. Richardson, supra). Aside from a notation in the court action sheet that states “Dismissed and Sealed,” there is no indication in the court record (in the minutes or otherwise) that the case was terminated “in favor of the accused” as required for sealing under CPL §160.50 (see People v. Sanchez, supra). As both the dismissal and sealing were the Court’s mistakes, through no fault of the People, this Court will not penalize the People for its own error. As the People announced ready on October 27, 2021 and maintained their readiness through December 7, 2021, this Court finds that they are not chargeable for speedy trial time during that period (see CPL §30.30[4][b]). As an alternative holding, since the People — for practical reasons beyond their control — could not proceed with a legally viable prosecution due to the Court’s clerical error, this Court finds that this time is excludable as an exceptional circumstance (see CPL §30.30[4][g]; People v. Price, 14 NY3d 61, 64 [2010]; People v. Smietana, 98 NY2d 336 [2002]). Moreover, the adjournment between December 7, 2021 and December 21, 2021 was also due to exceptional circumstances occasioned by the Court’s ministerial error. As such, this time is excludable (see CPL §30.30[4][g]; People v. Comma, 146 Misc 2d 305, 312-313 [Crim Ct Kings Co 1990]). The time between December 21 and December 22, 2022, when the court adjourned the matter to review the minutes to reach a decision is also excludable (see CPL §30.30[4][a]). Finally, the period between December 22, 2022 and February 3, 2022, after Judge Svetkey ordered that the case be unsealed, restored and adjourned for trial, is not chargeable to the People as they were not expected to go forward with the trial on December 22, 2022 and were entitled to a reasonable amount of time to prepare for trial following the Court’s decision (see CPL §30.30[4][a]; People v. Green, 90 AD2d 705, 706 [1st Dept 1982]). 7) February 3, 2022 to March 21, 2022: 0 Days Charged; 70 Total Days Chargeable On February 3, 2022, the People announced ready for trial. Defense counsel requested and the Court set the instant motion schedule. This time is not chargeable to the People (see CPL §30.30[4][a]; People v. Shannon, 143 AD2d 572 [1st Dept 1988]). CONCLUSION A total of seventy (70) days is chargeable to the People. It is hereby ORDERED that defendant’s motion to dismiss the accusatory instrument pursuant to CPL §30.30 is DENIED. This constitutes the decision and order of the court. Dated: March 18, 2022
