DECISION & ORDER By motion filed May 22, 2023, defendant moves, inter alia, for dismissal pursuant to Criminal Procedure Law (“CPL”) §30.30 (1) (b) and §170.30 (1) (e). Specifically, defendant avers that the People failed to fulfill their CPL §245.20 disclosure obligations within their statutorily prescribed time because defense counsel was not served with discovery until April 25, 2023, the ninety-first day following arraignment. On June 5, 2023, the People opposed the motion and on June 12, 2023, defendant filed her reply brief. Upon review and consideration of the submissions, court file and relevant legal authority, the court finds that the People’s service of their CPL §245.20 disclosures on the ninety-first day following arraignment rendered their Certificate of Compliance (“CoC”) illusory. Accordingly, the People’s prosecution pursuant to CPL §30.30 (1) (b) was untimely and defendant’s motion for dismissal of the charges on statutory speedy trial grounds is GRANTED. PROCEDURAL BACKGROUND On January 24, 2023, defendant Raidiris Infante was arrested, arraigned, and charged with violating Penal Law (“P.L.) §120.00 (1) (assault in the third degree) and §265.01 (2) (criminal possession of a weapon in the fourth degree), both misdemeanors, and §240.26 (1) (harassment in the second degree), a violation. As defendant was charged with two misdemeanors and a violation, the prosecution had ninety days to declare their trial readiness (see §30.30 [1] [b]). The People filed their CoC, Statement of Readiness (“SoR”) and supporting deposition (“SD”) on April 24, 2023, at 11:57 pm. DISCUSSION I. Applicable Standard for CPL §30.30 (1) In a motion to dismiss misdemeanor charges pursuant to CPL §30.30 (1), a defendant has the initial burden to demonstrate that the prosecution failed to declare readiness for trial within ninety days (see CPL §30.30 [1] [b]); People v. Luperon, 85 NY2d 71, 77-78 [1995]). Generally, a criminal action is commenced by the filing of an accusatory instrument against a defendant, and it is settled law that the date on which the action is commenced is excluded from the CPL §30.30 computation (see CPL §1.20 [17]; People v. Stiles, 70 NY2d 765, 767 [1987]). Following legislative reforms to the CPL, after January 1, 2020, the People must now also satisfy their statutory obligations pursuant to CPL §245.50 (3), which provides that “the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper certificate pursuant to subdivision one of this section” (see People v. Kendzia, 64 NY2d 331, 337 [1985]; People v. Pierna, 74 Misc 3d 1072, 1087 [Crim Ct, Bronx County 2022]; People v. Aquino, 72 Misc 3d 518, 520 [Crim Ct, Kings County 2021]). Consequently, courts examine the prosecution’s efforts to ensure that it has served all known discoverable materials pursuant to CPL §245.20 to determine the validity of a CoC (see People v. Adrovic, 69 Misc 3d 563, 574-575 [Crim Ct, Kings County 2020]; People v. Vargas, 76 Misc 3d 646, 652 [Crim Ct, Bronx County 2022]). II. The Parties’ Arguments The crux of defendant’s motion to dismiss is that the prosecution failed to comply with the statutory mandate set forth by CPL §245.50, insofar as the People filed their CoC prior to serving their disclosures pursuant to CPL §245.20 (affirmation of defendant’s counsel at 4). The prosecution’s service of discovery at 12:02 a.m. on April 25, 2023, according to defense counsel, was untimely because it was the ninety-first day after arraignment (affirmation of defendant’s counsel at 4 and exhibit B). Defendant further lists various and sundry discovery items that remain outstanding, including memo books, hospital records, and evidence required by CPL §245.20 (k) (affirmation of defendant’s counsel at 4-5). Additionally, in her reply brief, defendant avers that the prosecution has miscalculated excludable days (reply affirmation of defendant’s counsel at 4-5). Initially, the People contend that they stated their readiness within ninety days pursuant to CPL §30.30 (1) (memorandum in support of the People’s opposition at §A). Specifically, the People assert that they were compliant with their CPL §245.20 discovery obligations, served on April 24, 2023 (memorandum in support of the People’s opposition at §A). Next, the prosecution avers that there are only eighty-nine chargeable days since arraignment (memorandum in support of the People’s opposition at §A). Finally, the People state that any purported outstanding discovery either doesn’t exist, or is not in their possession and, ergo, is not discoverable (memorandum in support of the People’s opposition at §A). III. The Court’s Analysis Pursuant to CPL §245.50 (1), where the prosecution has complied with their disclosure obligations, the People are required to serve a CoC on defendant and file it with the court as a declaration of their readiness for trial (see CPL §245.50 [1]). The prosecution’s pronouncement of readiness will stop its speedy trial time pending subsequent review by the court and if the People’s declaration is made on the record, the court will contemporaneously examine the CoC, but “if the statement is by notice, the inquiry would occur at the appearance thereafter” (see People v. McClure, __ NY3d ___, 2023 NY Slip Op 23184 [2023]). However, as noted in Pierna, “[s]ignificantly, CPL article 245 now ties the People’s good faith compliance with their discovery obligations to the calculation of speedy trial time pursuant to CPL 30.30″ (see Pierna at 1093). Accordingly, if a court finds that a failure to comply with disclosure obligations pursuant to CPL §245.20 rendered a CoC illusory, the People would be charged speedy trial time (see Id.; see also People v. Amissah, 79 Misc 3d 401, 406-407 [Crim Ct, Bronx County 2023] ["The mere filing of a CoC or SCoC without a recitation of the prosecution's attempts to comply with disclosure of previously undisclosed materials has not satisfied the court's inquiry into the reasonableness of the People's actions"] citing Adrovic at 574-575). In the case at bar, the People filed their CoC, SoR, and SD with mere minutes to spare at 11:57 pm on April 24, 2023, the ninetieth day following defendant’s arraignment. However, defense counsel has provided documentary evidence that the prosecution did not serve its CPL §245.20 disclosures until five minutes later at 12:02 am on April 25, 2023, the ninety-first day after arraignment (affirmation of defendant’s counsel exhibit B). This Court has previously held that in the absence of any statutory or appellate guidance, and where the Legislature has drafted CPL §30.30 (1) (b) to quantify the applicable time period in days, the prosecution should not be constrained to file or serve documents before 5:00 pm on the ninetieth day following arraignment because General Construction Law §19 provides, in pertinent part, that “[a] calendar day includes the time from midnight to midnight” (see McKinney’s Gen Cons Law, §19; see also People v. Martinez, ___ NY3d ___, 2023 NY Slip Op 23194, *5 [Crim Ct, Bronx County 2023]; People v. Nichols, 79 Misc 3d 1211[A], 2023 NY Slip Op 50591[U], *2 [Crim Ct, Bronx County 2023] citing People v. McLean, 77 Misc 3d 492, 498 [Crim Ct, Bronx County 2022]; People v. Middleton, 187 NYS3d 552, 555 [Crim Ct, NY County 2023]). However, it does not follow that the People, having barely filed their CoC within ninety days following arraignment, had statutory license to serve discovery, which their CoC represented had already been disclosed, after their time to declare their readiness for trial had expired. There is no reasonable statutory interpretation of CPL §30.30 (1) (b), §245.20 or §245.50 (1) that would permit such an outcome. In the case at bar, documentary evidence in support of the People’s contention that discovery was timely served is conspicuously missing. The People did not append an EDDS filing receipt with time stamp to their opposition, nor did they proffer any email communication with defense counsel demonstrating that their disclosures were timely served. Additionally, there are no documents in the court file which confirm when discovery was served on the defense. Thus, defendant’s claim that disclosures were not served until the ninety-first day following arraignment, is uncontroverted. It is axiomatic that if the People did not serve their CPL §245.20 disclosures within ninety days, they cannot have timely declared their readiness for trial pursuant to CPL §245.50 (1), or CPL §30.30 (5) because “[t]he obligation is inflexible. No trial ready statement is valid unless the People file a CoC which truthfully asserts that the People have exercised due diligence and made reasonable inquiries to ascertain the existence of material and information subject to discovery” (see Pierna at 1087; see also Aquino at 520). Consequently, the Court finds that the People’s CoC, filed on April 24, 2023, was illusory. In light of the Court’s finding, defendant’s argument that the People failed to disclose discoverable items pursuant to CPL §245.20 is rendered moot. IV. The CPL §30.30 Calculation Where a defendant meets her burden to demonstrate that the prosecution failed to declare readiness within the statutorily prescribed time, the burden then shifts to the People to identify excludable delays (see Luperon, 85 NY2d at 78 ["the People must ordinarily identify the exclusions on which they intend to rely, and the defense must identify any legal or factual impediments to the use of these exclusions"]). In the instant matter, the prosecution’s CPL §30.30 calculation commenced the day following defendant’s arraignment on January 24, 2023. The People were not converted and were not ready for trial when they appeared in court on March 7, 2023 (January 25, 2023 to March 7, 2023: 42 days charged to the People). The People were not converted and were not ready for trial when they appeared in court on April 6, 2023 (March 7, 2023 to April 6, 2023: 30 days). When the People filed an illusory CoC and SoR at 11:57 am on April 24, 2023, they failed to declare their readiness for trial and did not stop their speedy-trial clock (April 6, 2023 to April 25, 2023: 19 days). Therefore, in toto, 91 days are chargeable to the People. The Court finds that the People were not ready for trial within ninety days after arraignment, the time prescribed by law (see CPL §30.30 [1] [b]). CONCLUSION Based upon the foregoing, defendant’s motion for dismissal of the misdemeanor charges on statutory speedy trial grounds pursuant to CPL §30.30 is GRANTED. This constitutes the opinion, decision, and order of the Court. Dated: July 12, 2023
