The defendant is charged with Criminal Possession of a Controlled Substance in the First, Second, Third and Fourth Degree (Penal Law §§§§ 220.21(1), 220.18(1), 220.16(1), 220.09(1)). The defendant now moves to dismiss the indictment on the grounds that he has been denied his right to a speedy trial pursuant to Criminal Procedure Law 30.30.

In the instant motion, defendant contends that the People have exceeded their statutory speedy trial time because they failed to produce him from Westchester County where he was incarcerated on an unrelated matter, between February 28, 2012, and June 11, 2012.^[FN1] Defendant contends that all time between February 28, 2012, and June 11, 2012, when he was not produced is chargeable to the People.

The People oppose defendant's motion. The People concede that they should be [*2]charged with the time between defendant's arrest on September 22, 2011, and January 18, 2012, the date they filed their statement of readiness on the instant indictment, a period of 118 days. However, the People contend that after learning of defendant's incarceration in Westchester County, they made numerous attempts to produce defendant for his court appearances in Supreme Court. With respect to the disputed adjournments, the People contend that they exercised due diligence as required by statute to secure defendant's production and despite the failure of their efforts, the time between February 28, 2012, and June 11, 2012, is exculdable.

In an interim decision and order dated December 20, 2012, this Court ordered a hearing to provide the People with an opportunity to present both testimonial and documentary evidence to substantiate the efforts which they contend establish their due diligence. The hearing was limited in scope to the efforts made by the People to produce the defendant on each of the following adjourn dates; February 28, 2012, April 2, 2012, April 18, 2012, May 16, 2012, June 4, 2012 and June 11, 2012. That hearing was held on March 1, 2013.

The Court has reviewed the following: (1) defendant's Notice of Motion to dismiss, (2) the People's Affirmation in Opposition, (3) defendant's Reply Affirmation, (4) the People's Supplemental Affirmation in Opposition, (5) the hearing testimony. (6) the People's Memorandum of Law, dated April 12, 2013, and the applicable law. For the reasons that follow, defendant's motion is denied.

The following information has been gleaned from the written submissions.

The defendant was arrested on September 22, 2011, and arraigned on the accusatory instrument the following day. The case was adjourned until October 11, 2011, for Grand Jury action. On the adjourn date, there was no Grand Jury action and the case was adjourned until December 12, 2011, for presentation to the Grand Jury.

On December 12, 2011, there was no Grand Jury action and the case was adjourned until February 28, 2012. On that date, the People were informed by defense counsel that defendant was incarcerated in Westchester County as he had been arrested there on December 7, 2011. Since defendant was not in the custody of the New York City Department of Corrections, the People would have to produce the defendant for the next adjourn date, February 28, 2012.

On December 29, 2011, the defendant was indicted by a Bronx Grand Jury. The indictment was filed on January 3, 2012. The People filed a Statement of Readiness on January 18, 2012.

On February 28, 2012, defendant's case was scheduled in Bronx Supreme Court. The defendant was not produced and the case was adjourned until April 2, 2012. The defendant was not produced by the People from Westchester County on the next four adjourn dates, April 2, 2012, April 18, 2012, May 16, 2012, and June 4, 2012. [*3]

On June 11, 2012, defendant was finally produced for his court appearance. Prior to this appearance, on June 6, 2012, the defendant filed the instant motion. The People filed their Affirmation in Opposition on July 27, 2012. On October 11, 2012, defendant filed a Reply Affirmation. The People filed a Supplemental Affirmation in Opposition on October 19, 2012.

In an interim decision and order dated November 30, 2012, the People were directed to provide this Court with the stenographic minutes from the adjournment on May 16, 2012.In a second interim decision and order dated December 20, 2012, after review of all submissions a hearing was ordered on the instant motion, limited in scope to the efforts of the People to produce defendant for adjournments in which defendant was not in fact produced. At the hearing the People were permitted to present both testimonial and documentary evidence to establish the diligence of their efforts to produce the defendant from Westchester County.

On March 1, 2013, that hearing was held. Upon conclusion of that hearing a schedule was set for written submissions and the case was adjourned for decision.^[FN2] This now constitutes the decision on defendant's motion.

Pursuant to CPL 30.30(1) an accusatory instrument shall be dismissed when the People are not ready for trial within six months of the commencement of the criminal action. Once the defense alleges that there are in excess of six months of chargeable time the People must show that there were periods within those over six months with which they are not charged.^[FN3]

The burden is on the People to demonstrate that the disputed adjournments are excludable after the defendant has raised the claim that the People have exceeded their statutory speedy trial time. People v. Santos, 68 NY2d 859 (1986); People v. Berkowitz, 50 NY2d 333 (1980).

The People concede that they are to be charged with 118 days between September 22, 2011, when the defendant was arrested, and January 18, 2012, when they filed their statement [*4]of readiness.

The filing of the accusatory instrument commenced the criminal action on September 22, 2011, and speedy trial began to run as of September 23, 2011, since the actual day of the filing is not includable for calculation purposes. People v. Stiles, 70 NY2d 765 (1987). The case was adjourned for Grand Jury action.The People are charged until the Statement of Readiness was served and filed. see People v. Kendzia, 64 NY2d 331, 337 (1985) see also, People v. Chavis, 91 NY2d 500, 505 (1998)

The disputed adjournments take place between February 28, 2012, and June 11, 2012.

There are five adjournments in the aforementioned time period, which defendant contends are chargeable to the People based upon their failure to exercise due diligence to produce the defendant. To the contrary, the People contend they satisfied the due diligence requirement and as such all time is excludable.

"The failure of the People to produce the defendant does not automatically require that the time be chargeable to the People." People v. Gatling, 160 Misc 2d 886 (1994). Pursuant to CPL 30.30(4)(e), the time period is not chargeable to the People provided they exercise due diligence in order to produce the defendant. The requirement to use due diligence attaches when the People have knowledge, either actual or imputed, of defendant's incarceration. People v. Henningsen, 18 Misc 3d 1143(A), 2008 WL 612166 (NY City Crim. Ct. 2008). Upon learning of a defendant's incarceration the People have "an affirmative duty to be diligent and make reasonable efforts to secure defendant's presence." Henningsen at 4.There is no precise formula by which due diligence is measured. Rather, each case must be reviewed on an individual basis in order to determine if the People made reasonable efforts to secure defendant's appearance, thereby satisfying the due diligence requirement. Although there are many cases in which due diligence has been found to exist, from them there emerges no defined or described specific efforts and actions which satisfy this requirement. see People v. Pierce, 2007 NY Slip Op 1952, 38 AD2d 22 (1st Dept. 2007); People v. Williams, 220 AD2d 787 (2nd Dept 1995); People v. Cipriano, 221 AD2d 461 (2nd Dept. 1995). Although a precise definition has not been established for what constitutes due diligence, what is clear is that merely filing a detainer or an arrest warrant with the retaining jurisdiction does not constitute due diligence. People v. Scott, 242 AD2d 478 (1st Dept. 1997); People v. Melendez, 92 AD2d 904 (2nd Dept. 1983).

The People were required to produce the defendant from Westchester County on each of the following adjourn dates; February 28, 2012, April 2, 2012, April 18, 2012, May 16, 2012, June 4, 2012 and June 11, 2012.^[FN4] [*5]

On March 1, 2013, that hearing was held. The People called one witness, Assistant District Attorney (hereinafter "ADA") Candace Brooks. Her testimony is as follows. ADA Brooks has been an Assistant District Attorney for approximately nine-and-a-half years and is currently assigned to the Narcotics Bureau. Between February 22, 2012, and February 28, 2012,^[FN5] she was assigned to the prosecution in the instant matter. The case had been previously assigned to ADA Jevet Johnson. The first adjourn date where ADA Brooks was the assigned assistant was February 28, 2012. ADA Brooks was aware that the defendant was incarcerated in Westchester County and that the People were required to prepare an order to produce for his court appearance.

ADA Brooks testified that there are two methods which can be used to produce a defendant who is incarcerated in Westchester County. The first method (hereinafter "Method 1"), is done through Rikers Island and the second method (hereinafter "Method 2") is done by sending a Detective Investigator (hereinafter "DI") from the District Attorney's Office to pick the defendant up from Westchester County.

The steps required to produce an inmate from Westchester County using Method 1 require the ADA to get permission from the Westchester ADA to produce the defendant, prepare an Order to Produce, and then serve that Order to Produce on Rikers Island and Westchester County Corrections. Once the order is prepared, a case-aid in the District Attorney's Office is responsible for filing the order with the New York City Department of Corrections and faxing the order to Westchester County Corrections. The case-aid will physically bring the order to the Department of Corrections window and then fax and send the order by overnight mail to the Westchester County Correctional facility. Upon completion of the aforementioned steps, the case-aid returns the order and accompanying fax certifications to the assigned assistant. Once the order is filed, the coordinators, who are civilian employees working in the jail, make the arrangements for transportation of the defendant.

Method 2 requires the ADA to get permission from the Westchester ADA, prepare an Order to Produce, and have the Order served on Westchester County Corrections. Additionally, the ADA must "book" the date with the DIs and provide them with a copy of the Order to Produce. As a courtesy on the day of production, the ADA should contact Westchester Corrections to give them the names of the DIs who will be coming for the defendant.

Based upon the hearing testimony, defendant's motion, the People's Affirmation in [*6]Opposition, defendant's reply, the People's supplemental Affirmation in Opposition, and the People's Memorandum of Law, the Court finds as follows as to the disputed adjournments:

People's Efforts to Produce defendant on February 28, 2012

Prior to February 28, 2012, in Court on December 12, 2011, the People had been apprised of defendant's incarceration in Westchester County and the need to produce him for his appearance on this case. ADA Johnson was the ADA assigned to the defendant's case at the time this information was communicated to the People.

At the hearing held on the motion, ADA Brooks testified that ADA Johnson prepared the order to produce the defendant for the February 28, 2012, court appearance using Method 1. The People have submitted an "Order to Produce" /"Take Out Order,"^[FN6] dated February 22, 2012. The People's "Affirmation"attached to the order is undated. The "Order to Produce"/"Take Out Order" is addressed to the Commissioner of Corrections, Westchester County and "CC'd" to Commissioner of Corrections, City of New York. Additionally, attached to this order is a "Fax Transmission Cover Sheet," addressed to Inmate Records, with a telephone fax number of 914-231-1233. The cover sheet contains the printed message on the bottom: "Transmit Confirmation Report" with a time and date stamp of February 23, 2012 at 11:47 a.m..

The defendant was not produced on this court date of February 28, 2012, and the case was adjourned until April 2, 2012.

The Court finds that the steps taken by the People to produce the defendant for appearance on February 28, 2012, demonstrate they exercised due diligence.

Accordingly, the time between January 18, 2012, the day the People filed their statement of readiness, and February 28, 2012, the first date where production of defendant was required, is not chargeable to the People even though the defendant was not produced.

People's Efforts to Produce defendant on April 2, 2012

ADA Brooks, who was now the assigned assistant, testified that she was now responsible for producing the defendant on April 2, 2012. With respect to this adjournment, ADA Brooks testified that she "just copied the same method that Jevet Johnson had used." (13:24)^[FN7] ADA Brooks testified that she inquired of her colleagues as to whether or not Method 1 had been used and was successful. ADA Brooks was informed that Method 1 had been used successfully to produce approximately 75-100 inmates from Westchester. ADA [*7]Brooks used Method 1 and prepared an order to produce for defendant's production. She gave the order to the case aides to serve on Rikers Island and on Westchester Corrections by fax and overnight mail. Further, ADA Brooks testified that she called for permission from the Westchester ADA each time she prepared an order to produce for this defendant. Defendant was not produced on April 2, 2012.

ADA Brooks was unable to produce documentary evidence of her efforts to produce defendant for April 2, 2012. However, ADA Brooks testified "Just knowing me, I always do orders to produce. I mean I have done them in every case, I - - just don't have a copy to show." (19: 15-17) The Court credits her testimony as it pertains to the steps taken by her to produce the defendant. Despite the fact that the defendant was not produced, the Court finds that the People were duly diligent in their second attempt to produce the defendant. It was reasonable for the People to attempt to produce the defendant on this second court appearance using Method 1. ADA Brooks had no reason to believe that Method 1 would be unsuccessful. To the contrary, ADA Brooks testified that prior to preparing the order using Method 1 she inquired as to whether or not this method had been successful to produce a defendant from Westchester County. ADA Brooks was informed that Method 1 had been repeatedly successful and she heard no reports of failure to produce a defendant.

The one prior failed attempt to secure this defendant's production using a previously proven method did not now require additional or different steps be taken. Therefore, the Court finds that the People have satisfactorily demonstrated that they exercised due diligence in their second attempt to produce the defendant. Accordingly, the time between February 28, 2012, and April 2, 2012, is excludable.

People's Efforts to Produce defendant on April 18, 2012

The third adjourn date upon which the People were required to produce the defendant was April 18, 2012. The defendant was not produced from Westchester County and the case was adjourned until May 16, 2012.

ADA Brooks testified that to produce the defendant on April 18, 2012, she again utilized Method 1. The People have submitted a two-page document as evidence to substantiate their efforts. The first page, which is not dated, is entitled Order to Produce and the second page is the Affirmation by the Assistant District Attorney. The Order to Produce is addressed to the Commissioner of Corrections, Westchester County, with a copy to Commissioner of Corrections, City of New York.^[FN8] [*8]

Defendant was not produced on April 18, 2012. Based upon the testimony at the hearing, ADA Brooks utilized Method 1 and simply repeated the same method which now had failed to produce defendant on February 28, 2012, and April 2, 2012. ADA Brooks admittedly took no additional steps to ensure that the defendant would be produced for this court appearance and she did not endeavor in any way to ascertain why the previous two attempts at production had failed.

Due diligence requires more than mere repetition of a method which contains inadequate steps to produce the defendant. Accordingly, the People are to be charged with the 16 day period between April 2, 2012, and April 18, 2012.

People's Efforts to Produce defendant on May 16, 2012

The fourth adjourn date upon which the People were to produce the defendant was May 16, 2012. ADA Brooks testified that on April 18, 2012, with defendant again not produced and after the three failed attempts to produce the defendant, the sitting Judge instructed the People during a bench conference to send their Detective Investigators to get the defendant. The case was then adjourned until May 16, 2012, a date selected by the Court.

ADA Brooks learned of the Court's instructions to send the DIs to Westchester when she received the "status" sheet back on the case after the adjournment. The status sheet with the aforementioned information was introduced in evidence at the hearing and reviewed by the Court. In her "Affirmation in Opposition," ADA Brooks states that, "The People attempted to coordinate with the detective investigators to deliver defendant to Bronx Supreme Court for May 16, 2012, in accordance with the method recommended by the court. However, due to short staffing and the need to produce other defendants from various jurisdictions, the date set by the court could not be accommodated." (People's Reply, p. 4) During the hearing, ADA Brooks testified that she was using Method 2 to produce the defendant because of the Court's instructions to send the DIs. Prior to calling the DI's, ADA Brooks made the requisite calls to Westchester County in which she requested and received permission for defendant's production. ADA Brooks further testified that her "attempt" to arrange for the DIs to produce the defendant consisted of making one phone call to the DIs, speaking with the Lieutenant who informed her that the DIs were not available on May 16, 2012, the date the Court had selected. Upon learning of the DI's unavailability, ADA Brooks immediately proceeded to "book" the next date that the DIs were available, which was June 4, 2012. At the time defendant's case was called the People requested that the case be adjourned until June 4, 2012, for defendant's production.

The time between April 18, 2012, and May 16, 2012, is not chargeable to the People. The Court credits the testimony of ADA Brooks as it pertains to her efforts to produce the defendant for May 16, 2012.

In accordance with the Court directive, the People were attempted to produce [*9]defendant for May 16, 2012, which was the date selected by the Court. The People were diligent in their efforts to produce defendant for May 16, 2012, in order to comply with the Court directive. The People should not now be charged with the time because of their inability to accommodate the Court-selected date.

Accordingly, the time between April 18, 2012, and May 16, 2012, is excludable. See CPL 30.30(4)(e).

People's Efforts to Produce defendant on June 4, 2012

The fifth adjourn date upon which the People were required to produce the defendant was June 4, 2012. The People had requested this as the adjourn date because this was a date upon which the DIs were available to pick up the defendant. However, on June 4, 2012, once again the defendant was not produced for this court appearance. The case was adjourned until June 11, 2012.

ADA Brooks testified that she had "booked" June 4, 2012,with the DI"s because she was informed by the DIs that this was the earliest date they were available. ADA Brooks prepared the order for June 4, 2012, and the order was submitted it to the Westchester County facility where the defendant was incarcerated. To support their contention that this was done, the People direct the Court's attention to a three-page document which consists of an "Order to Produce and Take Out Order," dated May 16, 2012, the Affirmation of the Assistant District Attorney in support of the order and a Fax Transmission Cover Sheet. Additionally, the order indicates that the Westchester County District Attorney's Office had been apprised of and consented to the defendant's production for this court date. As proof of service, the People have provided the Fax Transmission Cover Sheet addressed to Inmate Records. The bottom of the document contains the printed message "Transmit Confirmation Report" dated May 23, 2012, at 11:33 a.m..

ADA Brooks testified that as a courtesy, when using Method 2 to produce a defendant, an inter-office memo suggested that the ADA call the correctional facility where the defendant was located in order to provide the names of the DIs who would be coming for the defendant. On the morning of June 4, 2012, ADA Brooks called the DI"s to find out which Detectives were going to pick up the defendant and "that's when I was told that there had been a problem. Either they didn't get my order to produce, something was wrong with it and that they weren't going to be able to get him on June 4th."(25: 4 -7)

With regard to this adjourn date, the People have corroborated their efforts to produce the defendant for this court date by submitting the Order to Produce/Take Out Order, with proof of service on Westchester Corrections and after receiving the necessary approval of Assistant District Attorney Craig Chicini from the Westchester County District Attorney's Office.

As established by the hearing testimony and the documentary evidence, the People have exercised due diligence in their efforts to secure the production of defendant, albeit unsuccessful. Accordingly, pursuant to CPL 30.30(4)(e), the time between May 16, 2012, and [*10]June 4, 2012, is excludable.

People's Efforts to Produce defendant on June 11, 2012

On June 11, 2012, the defendant was produced for his court appearance. The People used Method 2 to produce the defendant for this appearance. The instant motion was filed on June 6, 2012. Accordingly, this adjournment is excludable.

There are 134 days of chargeable time. Inasmuch as the People have not exceeded their statutory speedy trial time, defendant's motion is denied.

The foregoing constitutes the decision and order of the Court.

Dated: May, 2013

Bronx, New York

__________________________

Hon. Barbara F. Newman

Justice of the Supreme Court