The defendant is charged with one count of Attempted Assault in the Third Degree (Penal Law §110.00/120.00[1]), one count of Assault in the Third Degree (Penal Law §120.00[1]), and one count of Harassment in the Second Degree (Penal Law §240.26[1]). He seeks dismissal of the accusatory instrument on speedy trial grounds pursuant to CPL 30.30. At issue is whether the People should be charged for an adjournment resulting from their failure to produce the defendant and from a sua sponte court order for motion practice over the defense counsel's objection. For the reasons that follow, the court answers this question in the affirmative and grants the motion to dismiss.

The People are required to announce their readiness for trial within ninety days from the commencement of the action where the defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony (see CPL 30.30[1][b]). Once the defendant establishes the existence of a delay in excess of 90 days, the burden is on the People to show that the time should be excluded (see People v Santos, 68 NY2d 859 [1986]).

On November 15, 2006, the defendant was arraigned and the case was adjourned to January 3, 2007 for the People to file a supporting deposition. The defendant was released on his own recognizance. Sometime thereafter, the defendant was incarcerated on a parole warrant in Westchester County.The People filed a supporting deposition on January 3, 2007 and the case was adjourned to January 17, 2007 and to January 31, 2007 for the People to produce the defendant. The defendant's sole appearance in this case was at arraignment and the People never produced him at any of the four subsequent adjournments herein.

The People concede that the period between arraignment and the January 31, 2007 adjournment is chargeable to them, and that they should be charged 77 days (see CPL 30.30[1][b]). However, the court calculates 79 chargeable days, commencing on November 16, 2006, the day after the defendant's arraignment (see People v Stirrup, 91 NY2d 434, 438 [1998]); People v Stiles, 70 NY2d 765 [1987]).

The only adjournment at issue is the period from January 31, 2007 to March 29, 2007. On January 31, 2007, the People failed to produce the defendant for a second scheduled [*2]appearance, and the presiding judge, sua sponte, ordered a motion schedule over the defense counsel's objection. The case was adjourned to March 29, 2007 for the People to produce and for response and decision.

The People argue that the entire period from January 31, 2007 to March 29, 2007 is excludable for motion practice (see CPL 30.30[4][a]) and rely upon People v Worley (66 NY2d 523 [1985]) in support of such argument. Further, the People contend that they believed the defendant was not incarcerated after the Department of Corrections advised that the defendant was not in custody and after the presiding judge set a 57-day adjournment for motion practice.

The defendant argues in opposition that Worley is inapplicable to this case since defense counsel neither requested nor consented to an adjournment. Moreover, the defendant maintains that the People failed to exercise any diligent attempts to produce him and, thus, should be charged from January 31, 2007 to March 16, 2007, the date that defense counsel filed the instant 30.30 motion.

The court notes that People v Worley, supra, is inapplicable to this case. Worley refers to delays in which the defendant consents, inasmuch as "exclusions rest generally on theories of estoppel or waiver" (id. at 528). With respect to delays for motion practice, the Court of Appeals in Worley excluded time required for defendant's pretrial motions since it found that the delay was "caused by the defendant for his own benefit and with the court's permission, under circumstances in which both the defendant and the court have determined that the adjournment [was] desirable" (id. at 527).

In this case, the defendant objected on the record when the presiding judge ordered, sua sponte, a motion schedule, and, therefore, the facts are more akin to those instances where defense counsel neither requested nor consented to an adjournment (see generally People v Meierdiercks, 68 NY2d 613 [1986]), or where defense counsel expressly objected to an adjournment (see generally People v Masellis, 140 Misc 2d 1024 [Crim Ct, NY County 1988]); People v Knapp, 164 Misc 2d 216 [Crim Ct, Richmond County 1995]). In the aforementioned cases, the People were charged for each adjournment, and in Knapp the People were charged for an adjournment ordered, sua sponte, for motion practice over the defense counsel's objection (see Knapp, supra at 223-225).

While the court acknowledges that delays attributed to motion practice are excluded (see CPL 30.30[4][a]), the court is of the opinion that the adjournment at issue is chargeable to the People since defense counsel objected to the sua sponte motion schedule.

The disputed adjournment in this case, however, was also for the People to produce. CPL 30.30(4)(e) excludes those periods of delay where the People are aware of defendant's incarceration in another jurisdiction provided that they were diligent in attempting to produce the defendant (see People v Anderson, 66 NY2d 529, 540 [1985]). The People offer as their sole attempt to produce the defendant a confirmation by the Department of Corrections that the defendant was not in its custody. One inquiry to the Department of Corrections, which is only responsible for inmates within New York City, does not constitute diligence by the People (see generally People v Barasso, 193 AD2d 448 [1st Dept 1993], lv denied 81 NY2d 1070 [1993] [People not diligent in attempting to produce a defendant incarcerated in another county by checking certain addresses, speaking to the complainant, and running computer searches]; People v Davis, 184 AD2d 575 [2d Dept 1992] [inquiry with City Corrections did not constitute sufficient proof that defendant was not in custody and only proved that the People conducted a [*3]check of unknown thoroughness]).

The People are in a "singularly good position" to locate a defendant incarcerated within the state (see People v Neal, 160 Misc 2d 173, 176 [Sup Ct, NY County 1994]), and should have exercised additional attempts to produce him. The People's sole inquiry with the Department of Corrections was conducted prior to the January 17, 2007 adjournment for which they concede they should be charged. "[W]here, as here, delay results from the People's failure to produce a defendant for trial, responsibility can only be attributed to the prosecution" (People v Daniels, 217 AD2d 448, 451 [1st Dept 1995]). As the People made no further attempts to produce the defendant and since the adjournment was ordered over the defense counsel's objection to motion practice, the People are charged for the 44-day period from January 31, 2007 until the instant 30.30 motion was filed on March 16, 2007.

The total amount of time charged is 119 days, which exceeds the statutory 90-day time limit. Accordingly, the defendant's motion to dismiss on speedy trial grounds is granted (see CPL 30.30 [1][b]).

Dated: April 12, 2007

New York, New York

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Judge of the Criminal Court