The defendant is charged with menacing in the second and third degrees, P.L. §§ 120.14(1), 120.15, petit larceny, P.L. § 155.25, criminal possession of stolen property in the fifth degree, P.L. § 165.40, aggravated harassment in the second degree, P.L. § 240.30(1), harassment in the second degree, P.L. § 240.26(1), and criminal possession of a weapon in the fourth degree, P.L. § 265.01(1). On January 16, 2001, the defendant filed a motion to dismiss the charges pursuant to C.P.L. § 30.30(1)(b). The People responded to the motion on January 29, 2001. On February 15, 2001, this Court granted the motion to dismiss. This decision sets out the findings and conclusions of the Court.

The action against this defendant commenced with the filing of the complaint on August 22,

2000. Therefore, the People had to be ready for trial by November 20, 2000, that is, within 90 days.

People v. Lomax, 50 NY2d 351 (1980); C.P.L. § 30.30(1)(b). By filing this motion on January 16,

2001, defense counsel tolled the speedy trial time. People v. Shannon, 143 AD2d 572 (1st Dept.),

lv. denied, 73 NY2d 860 (1988). The People have the burden of going forward to prove that all but

90 of the 147 days that elapsed are excludable, People v. Santos, 68 NY2d 859, 861 (1986), and

the defendant bears the ultimate burden of proving he is entitled to dismissal. People v. Cortes, 80

NY2d 201, 215 (1992).

[*2]August 22, 2000 to August 25, 2000

The complaint was filed on August 22, 2000 and the case was adjourned to August 25, 2000. The People concede that this time period is includable because the adjournment was granted so that the People could convert the misdemeanor complaint into an information.

3 days included.

August 25, 2000 to August 30, 2000

On August 25, 2000, the People filed and served the corroborating affidavits of Nyshea Wallace and Police Officer Mike Howell, thereby converting all of the charges except criminal possession of a weapon in the fourth degree. The People concede that they were not ready for trial. The case was adjourned to August 30, 2000 for open file discovery (OFD) on the converted charges and for the ballistics report, which was needed to convert the weapon charge. Although the People concede that they were not ready, they are not charged with this period of delay as it affects the converted charges. With regard to those charges, the adjournment was for the benefit of the defense, which was to receive discovery without having to file a formal demand for discovery or request for a bill of particulars. See People v. Collins, 82 NY2d 177, 181 (1993); People v. Worley, 66N.Y.2d 523, 527 (1985); People v. Espinoza, 170 AD2d 309, 309-10 (1st Dept.), lv. denied, 78 NY2d 954 (1991). The People are properly charged with time as it applies to the gun count. They conceded this time should be included and the defendant did not ask for discovery on this count and thus the People cannot claim the benefit of any exclusion with regard to this count.

5 days excluded on the converted charges;1

5 days included on the unconverted charge.

August 30, 2000 to October 4, 2000

On August 30, 2000, the People filed and served the ballistics report, thereby converting the charge of criminal possession of a weapon in the fourth degree. The People also filed and served OFD. The case was adjourned to October 4, 2000 for trial. No statement of readiness was made by the People on this date. Indeed, the People conceded on the record on October 18, 2000 that no statement of readiness was ever made in the period of August 22, 2000 to October 18, 2000. Although the People did not state ready, they contend that this time should be excludable. First, they assert they should not be charged with the adjournment because the Court set the adjournment date that was convenient for its calendar. This Court rejects this argument because it is not in accord with the law. Court congestion does not prevent the People from stating ready for trial. Before the People announce they are ready, the delays necessitated by court congestion do not excuse the People s failure to announce ready. People v. Smith, 82 NY2d 676, 678 (1993); People v. Correa, 77 NY2d 930, 931 (1991); People v. Brothers, 50 NY2d 413, 417 (1980).

The People s second contention — that they are entitled to a reasonable time to prepare for trial — is also rejected. Until the People announce that they are ready for trial, the time runs against them unless they can claim the benefit of an exclusion listed in C.P.L. § 30.30. People v. Anderson, 66 NY2d 529 (1985). There is no exclusion in § 30.30 that grants the People a reasonable time to prepare for trial before they [*3]announce ready for trial. Cf. People v. Collins, 82 NY2d at 180 (a delay occasioned by a local court rule

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1 The converted charges were menacing in the second and third degrees, petit larceny, criminal possession of stolen property in the fifth degree, aggravated harassment in the second degree and harassment in the second degree.

35 days included.

October 4, 2000 to October 18. 2000

On October 4, 2000, the People were not ready for trial and requested a two week adjournment. The People concede the adjournment to October 18, 2000 is chargeable to them.

14 days included.

October 18, 2000 to November 28, 2000

In their motion papers, the People concede that they were not ready for trial on October 18,

2000. Further, they do not claim that any of the time between October 18, 2000 and November 28,

2000 is excludable. This Court finds that the entire period is includable. The People conceded on

the record on October 18, 2000 that they made no statement of readiness before this date. When this

Court adjourned the case from October 18 to November 28, it said it would charge the People with

all the time until they made a statement of readiness. No statement was made in this time period.

41 days included.

8 days excluded.

December 6, 2000 to December 12, 2000

The People again announced ready for trial and the case was adjourned to December 12, 2000 for trial. Because the People were ready, this time is excludable.

6 days excluded.

December 12, 2000 to January 2, 2001

In their motion papers, the People assert they cannot be charged with any time in the period of December 12, 2000 to January 2, 2001 because they were ready on December 12, 2000. Their claim is belied by the record. On December 12, 2000, the minutes show, the People were not ready. They requested one week. The defendant requested the balance of the time and did not consent to the time requested by the People. Accordingly, on December 12, this Court charged the People with seven days and excluded the balance of the adjourned period. This Court adheres to this ruling.

The People s argument that the time should be excluded because they intended to drop all charges involving the complaining witness Wallace and proceed only with the gun charge, which required only the testimony of a police officer, is rejected. This argument was not made by the assistant assigned to the case

7 days included;

14 days excluded.

January 2, 2001 to January 16, 2001 [*4]

On January 2, 2001, the People were not ready for trial. Defense counsel then requested time to file a speedy trial motion. Under the schedule that was set, the Defendant was to file a motion on or before January 16, 2001 and the People were to submit their answer on January 29, 2001. This Court finds that this time period is excludable. Although the People were not ready, the adjournment was granted for the benefit of the defense, which was given time to file motions. People v. Collins, 82 NY2d at 181; People v. Worley, 66 NY2d at 527; People v. Espinoza, 170 AD2d at 309-10. Once the motion was filed on January 16, 2001, the speedy trial time was tolled. People v. Shannon, 143 AD2d at 527.

14 days excluded.

March 16, 2001

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J.C.C.