The issue presented in this case is whether any portion of the initial adjournment period following a court's decision on pre-trial motions in a misdemeanor case should be excluded from the ninety day period within which the People must first assert their readiness for trial under Criminal Procedure Law  30.30.

The Defendant is charged with menacing in the second degree (PL  120.14[1]) and criminal possession of a weapon in the fourth degree (PL  265.01[2]). By Motion to Dismiss, served on January 29, 2007, she has moved for an order dismissing the charges based on the People's failure to be ready for trial pursuant to Criminal Procedure Law § 30.30[1]. The People responded on March 2, 2007. To date, the People have not announced their readiness for trial, a period encompassing two hundred and six days as of December 20, 2006, when decision on this motion was reserved.

Because the most serious count the defendant is charged with is an A misdemeanor, the People were required to be ready for trial within ninety days of commencement of the criminal action, absent excludable time (CPL §30.30 [1][b]). In her motion, the Defendant argues that more than ninety days are chargeable to the People since this action was commenced on May 28, 2006. The People argue that only eighty-one days of the elapsed time are chargeable to them. Determination of this [*2]motion turns on the fifty-one day period from the date a court decided defendant's initial omnibus motion and adjourned the case for a combined Dunaway/Huntley/Wade hearing and trial. For the reasons set forth below, the Court finds that only fourteen days of this adjournment period are excludable for Criminal Procedure Law  30.30 purposes and, as a result, more than ninety days of chargeable time has elapsed since the commencement of this action. Accordingly, Defendant's motion to dismiss is granted.

At the outset it should be noted that the People concede the forty-six days from May 28, 2006, to July 13, 2006, and the thirty-five days from November 15, 2006, until December 20, 2006, are chargeable to them. Both sides agree that the period that this motion has been before the Court, December 20, 2006, until March 8, 2007, is excluded as a reasonable period of delay resulting from the determination of pre-trial motions (CPL  30.30[4][a]).

The parties disagree as to whether the fifty-one day period from September 25, 2006, the day that the court decided defendant's initial pre-trial motions, to November 15, 2006, the day the court adjourned the case for a Dunaway/Huntley/Wade hearing and trial, is excludable under Criminal Procedure Law 30.30. The court action sheet for November 15, 2006, the day a court rendered its oral decision, does not indicate that the People or the defense requested a definite amount of time or a particular date for hearings and trial. The current practice in the Manhattan Criminal Court is to conduct pre-trial hearings just prior to jury selection; it is also the general practice for the judge who decides defense motions and orders hearings to adjourn the case for approximately six to eight weeks due to court congestion.

The defense argues that at least thirty-seven days of the fifty-one days of this adjournment are chargeable to the People. The People respond that the entire period is excludable. Both the People and defense cite Appellate Division authority for the proposition that following an adjournment for trial, a period reasonably necessary to allow the People to prepare for trial is excludable (see People v Green, 90 AD2d 705 [1st Dept 1982]; People v Douglas, 156 AD2d 173 [1st Dept 1989]). Not surprisingly, the People argue that the entire adjournment period is a reasonable period to prepare for this misdemeanor trial. As is customary, the defense counters that New York City criminal courts have held two weeks to be a reasonable trial preparation period following decisions on pre-trial motions in comparatively complex misdemeanor cases (see People v. Jaswinder, 165 Misc 2d 371 [Crim Ct. New York County 1995] [finding that, without any affirmative explanation by the People for the necessity of a longer period, two weeks of the adjournment period following decision on defendant's initial omnibus motion was a reasonable time to prepare for trial on two charges of attempted assault in the third degree and leaving the scene of an accident when no hearings were ordered and charging the People with the remaining twenty-one days of the period]; People v. Curtis, 196 Misc 2d 1001 [Crim Ct. New York County 2003] [finding that two weeks of the adjournment period following the court's decision on defendant's discovery motion was excludable as a reasonable time for the People to prepare for a trial on two charges of assault in the third degree, one charge of attempted assault in the third degree and harassment in the second degree when no hearings were ordered and charging the People with the remaining forty-one days of the period]; but see People v. [*3]Billups, 2005 NY Slip Op 50511U [Crim. Ct. New York County 2005] [finding the entire adjournment period from May 27, 2004, when the court ruled on defendant's pre-trial motion and granted a Huntley hearing, and July 1, 2004, when the case was adjourned for hearing and trial excludable as a reasonable time to prepare for hearing and trial]).

Neither side address the reasons for the relatively long delay (fifty-one days) between the court's decision and the date set for hearing and trial. This Court takes judicial notice of the fact that such delays are customary and are occasioned by the heavy caseloads in the all purpose parts resulting in chronic court congestion. On September 25, 2006, the sitting judge in All Purpose Part A handled one hundred and forty-two cases with future calendars exceeding one hundred cases well into November. Long adjournment dates for initial hearings and trials were at that time, and continue to be, a direct result of this congestion.

The purpose of Criminal Procedure Law  30.30 is to promote the prompt resolution of criminal charges; it is not a speedy trial statute in the constitutional sense. Rather, the statute addresses the issue of prosecutorial readiness for trial (see People v Anderson, 66 NY2d 52 [1985]), and requires the prosecution to be ready for trial within a reasonable time in all but the unusual case (see People v Berkowitz, 50 NY2d 333 [1980]). A statement of readiness comprises two elements: 1) "either a statement of readiness by the prosecutor in open court, transcribed by a stenographer, or recorded by the clerk or a written notice of readiness sent by the prosecutor to both defense counsel and the appropriate court clerk and 2) the People must in fact be ready to proceed at the time they declare readiness" (People v Kendzia, 64 NY2d 331, 337 [1985]). A motion made pursuant to Criminal Procedure Law  30.30 must be granted where the People were not ready for trial within the statutorily required time periods (CPL  30.30[1]).

In addressing whether court congestion is excludable for Criminal Procedure Law  30.30 purposes, the Court of Appeals has held that any delay due to pre-readiness court congestion does not excuse the People from a timely declaration of their readiness for trial (see People v. Correa, 77 NY2d 930 [1991]; People v Smith, 82 NY2d 676, 678 [1993]; People v Brothers, 50 NY2d 413, 417 [1980]; People v Stirrup, 91 NY2d 434 [1998]). In Stirrup, the People tolled the speedy trial clock by serving and filing a certificate of readiness off calendar thereby satisfying the two elements required by Kendzia (see also People v. Chavis, 91 NY2d 500, 506 [1998]). Furthermore, according to the Court of Appeals, even in the post-readiness situation, congestion and other administrative delays not occasioned by the People's own laxity, do not relieve the People of their duty to maintain trial readiness, which entails more than a mere empty assertion of readiness (see People v. Stirrup, 91 NY2d 434, 440 [1998]; citing People v England, 84 NY2d 1, 4 [1994]; People v Kendzia, 64 NY2d 331, 337 [1985]). In the post-readiness context, the People bear the burden of ensuring that the record explains the cause of adjournments sufficiently for a reviewing court to determine which party should properly be charged with any delay (see People v Liotta, 79 NY2d 841, 843 [1992] [post-readiness adjournment charged to the People when they failed to clarify on the record the basis for the adjournment] ; accord, People v Collins, 82 NY2d 177, 182 [1993]; People v Cortes, 80 NY2d 201, 215-216 [1992]). In either pre or post-readiness [*4]posture, a properly served and filed certificate of readiness is the kind of record commitment to proceed that satisfies the People's duty to be ready for trial, and tolls the "speedy trial clock" from running for the remainder of an adjournment period (see Stirrup, 91 NY2d at 440).

Neither side cites, nor has this Court found, any appellate decision that explicitly holds that the entire adjournment period following a trial court's decision on motions is automatically excluded for Criminal Procedure Law  30.30 purposes. To the contrary, existing appellate authority establishes that determination of the reasonable period to be excluded is case specific and varies according to the complexity of the case (see People v. Torres, 60 NY2d 119, 127-28 [1983] [remanding for a determination as to what portion of an adjournment should be charged to the defendant as a reasonable and necessary delay brought about by defendant's omnibus motion]; see also People v. Green, 90 AD2d 705 [1st Dept. 1982] [finding that, although the People requested only a ten day adjournment to prepare for hearings, the fifteen day adjournment following the ordering of Wade and Huntley hearings was in fact excludable as a reasonable period for the People to prepare for hearings]; People v. Rowe, 227 AD2d 212 [1st Dept. 1996] [finding that the twenty-one day period after the hearing court's denial of defendant's Criminal Procedure Law  30.30 motion was excludable as a reasonable period for the People to prepare for trial]; People v. Heine, 238 AD2d 212 [1st Dept. 1997] [holding that the thirty-two day period between October 14, 1994, and November 15, 1994, was properly excluded as a reasonable amount of time for the People to prepare their case following motion practice]; People v. Moolenaar, 262 AD2d 60 [1st Dept. 1999] [affirming the trial court's exclusion of a thirty-two day period as a reasonable amount of time for the People to prepare for the suppression hearing ordered as a result of defendant's motion]; People v. Hernandez, 268 AD2d 344 [1st Dept. 2000] [holding that the adjournment period following the denial of defendant's suppression motion was a reasonable period of delay resulting from pre-trial motions]; People v. Reed, 19 AD3d 312, 315 [1st Dept. 2005] [affirming the hearing court's exclusion of the thirty-five day period following the trial court's decision on defendants' and co-defendants' omnibus motions, dictated on the record, ordering Wade and Huntley hearings as a reasonable period of time for the People to prepare for hearings]). At a minimum, this appellate authority requires a court hearing a speedy trial motion to make a determination, based on the complexity of the charges, of what period of an adjournment constitutes a period reasonably necessary for the People to be ready for hearings and/or trial and is therefore not chargeable to the People.

The Court notes that the decisions discussed above all concerned complex felony cases, while most criminal court cases involve straightforward and uncomplicated misdemeanor charges. Under Criminal Procedure Law  30.30[1][a] the People are required to be ready for trial within six months of the commencement of a criminal action when a defendant is accused of one or more offenses, at least one of which, is a felony. Any adjournment period following a court's decision on pre-trial motions, whether granting hearings or not, that may be considered reasonable for the People to prepare in a felony case will typically be significantly longer than the reasonable amount of time allowed for the People to prepare in a misdemeanor case. [*5]

This Court also notes that a different rationale for excluding an entire adjournment period following a court's ordering of hearings has been applied in the post-readiness context. Criminal Procedure Law  30.30[4][a] excludes from the time within which the People must be ready " a reasonable period of time resulting from . . . pre-trial motions . . . and the period during which such matters are under consideration by the court." When a case is in a post-readiness posture courts have reasoned that, when a court orders a suppression hearing, it necessarily defers a final decision on suppression until after the hearing and therefore the matter is still under consideration by the court (see CPL  710.60[2], [3] & 710.60[4]; People v. Albrechtsen, 1 Misc 3d 703, 710 [County Ct. Green County 2003]; People v. Simpkins, 193 Misc 2d 148, 151 [Crim. Ct. Bronx County 2001]; People v. Santiago, 147 Misc 2d 143 [Crim. Ct. New York County 1990]). However, even after the People have initially declared their readiness, once a reasonable time to prepare for hearings has expired, an unexcused delay to proceed with hearings may be charged to the People (see People v. Mckenna, 76 NY2d 59, 64 [1990]; People v. Simpkins, 193 Misc 2d 447, 448 [App. Term 1st Dept. 2002] appeal denied 99 NY2d 285 [2003]). Furthermore, "a statement of readiness for a hearing is not a substitute for a statement of readiness for trial" (see People v. Chavis, 91 NY2d 500, 502 [1998]). While the customary practice in some courts may be to adjourn a case and conduct hearings well in advance of trial, it is the practice in the New York County criminal courts to adjourn a case for combined hearings (if ordered) and trial. Hearings are often completed the same day as jury selection and may even be completed the same day the trial begins. The People may not rely on this type of court congestion to relieve them of their responsibility for timely declaring their readiness for trial (People v Kendzia, 64 NY2d 331, 338 [1985]).

In this straightforward misdemeanor case, the court action sheet indicates that on September 25, 2006, the court decided Defendant's pre-trial motions. On that date, the court granted a Dunaway/Huntley/Wade hearing and adjourned the case for hearing and trial until November 15, 2006. The criminal court complaint and the People's Voluntary Disclosure Form ("VDF") establish that this is a relatively uncomplicated case. There are no photographs, tape recordings, scientific or medical reports. The combined Dunaway/Huntley/Wade hearing ordered is uncomplicated. Where, as here, it is not the complexity of the case but court calendar congestion that cause a lengthy adjournment period, the entire period is not automatically excluded for speedy trial purposes. Rather, following an adjournment for trial, a period reasonably necessary to allow the People to prepare for trial is excludable (see People v Green 90 AD2d 705 [1st Dept 1982]; People v Douglas 156 AD2d 173 [1st Dept 1989]). As the Court of Appeals repeated in Chavis, "the People may avoid being charged with pre-readiness delay occasioned by court scheduling by simply filing a certificate of readiness (citations omitted), which presupposes an actual readiness to proceed (see People v. Chavis, 91 NY2d 500, 506 [1998]). This Court finds that only fourteen days of this adjournment period are excluded as a reasonable time for the People to prepare for trial (see People v. Jaswinder, 165 Misc 2d 371 [Crim Ct, New York County 1995]; People v. Curtis, 196 Misc 2d 1001 [Crim Ct, New York County 2003]). To do otherwise would contravene the purpose of the Criminal Procedure Law  30.30 and ignore the clear directives from the [*6]Court of Appeals.

Because the People failed to declare their readiness for trial as required by the statute, this Court finds that the remaining thirty-seven days of the adjournment period from September 25, 2006, until November 15, 2006, are charged to the People. When these thirty-seven are added to the eighty-one days conceded by the People, the Court finds that one hundred and eighteen days are charged to the People. Accordingly, the charges against the defendant are dismissed pursuant to Criminal Procedure Law § 30.30[1].

This case is next on the calendar in Part A on March 8, 2007. The Court directs that sealing be stayed until April 6, 2007, and the People have leave to reargue this motion on or before the sealing date.

This opinion constitutes the decision and order of the Court.

Dated:New York, New York

March 8, 2007

________________________

ANTHONY J. FERRARA

Judge of the Criminal Court