Defendant was originally charged with Criminal Sale of Marihuana in the Fourth Degree (PL § 221.40) and Unlawful Possession of Marihuana (PL § 221.05). In motion dated September 14, 2006, and filed November 15, 2006, defendant moved to dismiss the case for a CPL § 30.30 violation. Thereafter, on November 17, 2006, the People moved to dismiss the Criminal Sale charge, so the only charge remaining is the Unlawful Possession count. Although defendant's motion primarily addresses the misdemeanor count that has now been dismissed, the court understands the motion to be addressed to the entire accusatory instrument, as have the People. For the reasons that follow, the motion to dismiss the remaining count is denied.

The People served and filed a field test in this case, but never served and filed a supporting deposition from the arresting officer. Defendant questions whether the field test, which was prepared and sworn to by the arresting officer, converted the Unlawful Possession count.^[FN1] The judge in the All Purpose part held, and the People argue here, that the field test did convert the Unlawful Possession count. Neither defendant nor the People fully analyze how much speedy trial time is chargeable to the People.

In order to convert the misdemeanor complaint to an information, the People served and filed a field test certified by Detective Hector J. Rodriguez, the arresting officer named as the informant in the complaint; he conducted the field test on the contraband that he recovered from defendant's vehicle. The field test was positive for the presence of marihuana. The parties have not directed the court to any cases which address the question of whether a misdemeanor complaint can be converted to an information solely based upon a field test certified by the informant named in the complaint.^[FN2] For the reasons that follow, the court holds that the field test [*2]in this case did convert the hearsay in the complaint regarding the charge of Unlawful Possession of Marihuana.

The People may declare their readiness for trial only when they "are in fact ready to proceed." People v. Kendzia, 64 NY2d 331, 337 (1985). Since, pursuant to CPL § 170.65, a misdemeanor complaint must be replaced by an information for the purposes of prosecution, the People cannot effectively state ready for trial until the accusatory instrument has been converted to an information. People v. Brooks, 190 Misc 2d 247, 253 (App Term, 1st Dept 2001)("statement of readiness prior to conversion has no effect for purposes of tolling speedy trial statute when the defendant has not contributed to the delay"); People v. Quiles, 179 Misc 2d 59, 64 (Crim Ct, New York County 1998)(People could not effectively declare ready for trial where they failed to file and serve corroborating affidavit).

To be sufficient on its face, a misdemeanor information must contain factual allegations of an evidentiary character demonstrating reasonable cause to believe the defendant committed the offenses charged. CPL §§ 100.15 (3); 100.40 (1)(b); 70.10. These facts must be supported by non-hearsay allegations which, if true, establish every element of the offense. CPL § 100.40 (1) (c). An information which fails to satisfy these requirements is jurisdictionally defective. CPL §§ 170.30 and 170.35; People v. Alejandro, 70 NY2d 133, 136-37 (1987); People v. Dumas, 68 NY2d 729 (1986). Every element of the offenses charged must be supported by non-hearsay allegations in the instrument itself or by supporting depositions. CPL §§ 100.15(3); 100.40(1)(c). A supporting deposition is defined in CPL § 100.20 as:

a written instrument accompanying or filed in connection with an information, a simplified information, a misdemeanor complaint or a felony complaint, subscribed and verified . . . and containing factual allegations of an evidentiary character, based either upon personal knowledge or upon information and belief, which supplement those of the accusatory instrument and support or tend to support the charge or charges contained therein.

Various documents may meet the requirements for a supporting deposition. See, e.g., People v. Blake, 6 Misc 3d 958, 960-61 (Crim Ct, New York County 2005) (complaint read together with laboratory report, which included defendant's name, docket number and property clerk's invoice number, converted complaint to information; defendant had adequate notice of charges to prepare defense). Domestic violence cases are often prosecuted based upon a complaint and a domestic incident report ("DIR"). A DIR which satisfies the requirements set forth in CPL § 100.20 may qualify as a supporting deposition to an accusatory instrument. People v Vizcarrondo, 2003 NY Slip Op 50600 (U), *6-*7 (Crim Ct, Kings County); People v Modica, 187 Misc 2d 635, 636 (Crim Ct, Richmond County 2001) (Garnett, J.); People v Pizarro, NYLJ, Sept. 16, 1999, at 35, col 6 (Crim Ct, Kings County); People v Stridiron, 175 Misc 2d 16, 19 (Crim Ct, Queens County 1997). "[W]hether an individual DIR in a specific case sufficiently meets all the requirements of a supporting deposition can only be determined on a case-by-case basis, since each DIR must be examined to determine whether or not it contains non-hearsay factual allegations which tend to support the charges in the particular case." People [*3]v Rahim, NYLJ, Sept. 29, 1998, at 30, col 2 (Crim Ct, Queens County).

This court holds that the field test in this case satisfied the definition of a supporting deposition, and converted the hearsay in the complaint with respect to the charge of Unlawful Possession of Marihuana. In relevant part, the complaint here alleges that on or about August 23, 2005 at approximately 10:15 PM, at 863 Troy Avenue, County of Kings, State of New York, Detective Hector Rodriguez "observed the defendant in possession of a quantity of marihuana in that [he] did recover a quantity of marihuana from behind the passenger seat of [a 2002 Chevrolet Blazer with New York license number DDE7416] in which the defendant was sitting." The field test clearly refers to defendant by name and date of birth. It states that Detective Hector Rodriguez, the informant in the complaint, recovered 24 bags of marihuana from defendant's vehicle on August 23, 2005 at "2215" (that is, 10:15 PM) in front of 863 Troy Avenue, Kings County. The field test sets forth Detective Rodriguez's previous experience in making arrests for marihuana crimes and his familiarity with ziplock bags commonly used to package marihuana. Moreover, Detective Rodriguez signed the field test beneath a jurat, acknowledging that he could be prosecuted under PL § 210.45 for any false statements in the field test.

Thus, the non-hearsay allegations of the field test substantially mirror the allegations in the complaint and plainly refer to the incident alleged in the complaint. See People v Modica, 187 Misc 2d at 637-38; People v Vizcarrondo, 2003 NY Slip Op 50600 (U), *6-*7. Furthermore, the field test is properly verified in accordance with the requirements of CPL § 100.30 (d), and therefore satisfies the definition of a supporting deposition under CPL § 100.20. See People v. Charvat, 8 Misc 3d 13, 15 (App Term, 2d Dept 2005). The misdemeanor complaint and the field test, read together, clearly serve fundamental principles of justice by giving the "accused notice sufficient to prepare a defense" while providing sufficient details to prevent him from being tried twice for the same offense. People v. Casey, 95 NY2d 354, 360 (2000). Accordingly, the People converted the charge of Unlawful Possession of Marihuana when they served and filed the field test. This court holds that there was no legal impediment to the People's announcement of readiness for trial on that count. The question remains, however, whether they did so in a timely fashion.

Pursuant to CPL § 30.30 (1), the applicable speedy trial time is determined based on the

highest charge in the accusatory instrument. People v Walton, 165 Misc 2d 672, 674 (Crim Ct, Richmond County,1995). The highest charge in this case was originally an A misdemeanor. Pursuant to PL § 70.15, an A misdemeanor is punishable by a definite sentence not exceeding one year. Because at least one charge was punishable by a sentence of imprisonment of more than three months, the People were required to announce their readiness for trial within 90 days [*4]of commencing the criminal action against defendant. CPL § 30.30 (1) (b).^[FN4] In order to be successful on the instant motion, therefore, defendant has the burden of demonstrating the existence of a delay in excess of ninety days. People v. Santos, 68 NY2d 859, 861 (1986); People v. Khachiyan, 194 Misc 2d 161, 166 (Crim Ct, Kings County 2002). Once he has made that showing, the burden shifts to the People to establish that certain periods within that time should be excluded. People v. Santos, supra; People v. Khachiyan, supra.

1.August 24, 2005 to August 29, 2005

Defendant was arraigned on August 24, 2005. At that time, the People served and filed the field test, but no supporting deposition. The case was adjourned to August 29th for the People to convert the complaint to an information. For the reasons set forth above, this court holds that the field test partially converted the complaint. No time is charged regarding the Unlawful Possession count.

2.August 29 to October 20, 2005

On August 29th, the case was adjourned to October 20th for full conversion. No time is charged regarding the Unlawful Possession count.

3.October 20, 2005 to December 1, 2005

On October 20th, Judge Alex Zigman ruled that the field test converted both charges in the complaint. The case was adjourned for discovery by stipulation (DBS). As defendant concedes, no time is charged to the People. CPL § 30.30 (4) (a); People v. Khachiyan, 194 Misc 2d at 166 (DBS is in lieu of motion practice in Kings County and is therefore excludable from the speedy trial calculation, irrespective of the People's readiness for trial); People v. Camacho, 185 Misc 2d 31, 37 (Crim Ct, Kings County 2000) (adjournment on consent for DBS).

4.December 1, 2005 to January 17, 2006

On December 1st, the People served and filed discovery materials, and stated ready. The case was adjourned hearings and trial. No time is charged to the People, as they are entitled to a reasonable period of time to prepare for hearings or trial. CPL § 30.30 (4) (a); People v Reed, 19 AD3d 312, 315 (1st Dept), lv denied, 5 NY3d 832 (2005).

5.January 17, 2006 to February 22, 2006

On January 17th, the People were not ready and requested a one week adjournment. They also served and filed a laboratory analysis. The case was again adjourned hearings and trial. The People are charged only with the seven days they requested. People v. Nielsen, 306 AD2d 500, 501 (2d Dept 2003), lv denied, 1 NY3d 599 (2004); People v. Dushain, 247 AD2d 234, 236 (1st Dept), lv denied, 91 NY2d 1007 (1998).

6.February 22, 2006 to March 28, 2006

On February 22nd, the People stated ready, and the case was adjourned for trial. No time is charged to the People.

7.May 28, 2006 to April 27, 2006

On March 28th, the People stated ready for trial. Defendant failed to appear in court and [*5]the court stayed a bench warrant. The case was adjourned for defendant to appear. No time is chargeable to the People, due to defendant's absence. CPL § 30.30 (4) ( c) (i); People v. Benjamin, 292 AD2d 191, 192 (1st Dept), lv denied, 98 NY2d 635 (2002) (period during which defendant failed to appear and bench warrant was issued and stayed not chargeable to the People); People v. Malivert, 2007 WL 529690 (Crim Court, Kings County 2007) (Nadelson, J.) (to the same effect).

8.April 27, 2006 to June 7, 2006

On April 27th, defendant voluntarily returned to court and the case was adjourned to June 7th for hearings and trial. The People are not charged with the adjournment following defendant's return after issuance of a bench warrant. People v. Berger, 2 Misc 3d 46, 47 (App Term, 2d Dept, 2003), error coram nobis denied, 7 Misc 3d 5(2004), lv denied, 4 NY3d 796 (2005).

9.June 7, 2006 to July 18, 2006

On June 7th, the People stated ready. Apparently, defense counsel was engaged in Part 31 in Supreme Court. The case was adjourned to July 18th for hearings and trial. No time is charged to the People. CPL § 30.30 (4) (f).

10.July 18, 2006 to September 21, 2006

On July 18th, both the People and defendant were ready, but no court parts were available for trial. The case was adjourned to September 21st for trial. No time is charged to the People for an adjournment due to court congestion. People v. Rivera, 223 AD2d 476 (1st Dept), lv denied 88 NY2d 852 (1996).

11.September 21, 2006 to October 25, 2006

On September 21st, the case was adjourned pending a possible disposition. No time is charged to the People. People v. Henderson, 248 AD2d 485 (2d Dept), lv denied, 92 NY2d 853 (1998)(delay to conduct plea negotiations not chargeable to the People); People v. Mahmood, 10 Misc 3d 198, 200 (Crim Court, Kings County 2005) (Wilson, J.).

12.October 25, 2006 to November 15, 2006

On October 25th, the People were ready, but no court parts were available for trial and the case was adjourned for trial. No time is charged to the People for an adjournment due to court congestion. People v. Rivera, supra, 223 AD2d 476.

13.November 15, 2006 to November 17, 2006

On November 15th, the People answered ready for trial. Defendant served and filed the instant motion to dismiss pursuant to CPL § 30.30. The case was adjourned for two days for the People to consider dismissing the charge of PL § 221.40. No time is charged to the People pending defendant's motion. CPL § 30.30 (4) (a).

14.November 17, 2006 to January 10, 2007

On November 17th, the People consented to the dismissal of the Criminal Sale of Marihuana charge. The case was adjourned to January 10th for the People's response. No time is charged to the People. CPL § 30.30 (4) (a).

15.January 10, 2007 to February 15, 2007

On January 10th, the People failed to serve their opposition to defendant's motion and the court adjourned the case to February 15th for the People to respond. The People are charged with 36 days of delay. People v. Gonzales, 266 AD2d 562 (2d Dept), lv denied, 94 NY2d 920 (2000) (People properly charged with 20 days of delay for failing to respond to motion on originally [*6]scheduled date); People v. Reid, 245 AD2d 44 (1st Dept 1997), lv denied, 91 NY2d 1012 (1998) (to the same effect); People v. Commack, 194 AD2d 619 (2d Dept 1993) (to the same effect).

16.February 15, 2007 to March 14, 2007

On February 15th, the People filed and served their response and the case was adjourned for decision by the court. No time is charged to the People. CPL § 30.30 (4) (a).

Upon calculating all of the speedy trial periods applicable to this case, the court finds that 43 days are charged to the People. Accordingly, defendant's motion to dismiss the charge of Unlawful Possession of Marihuana pursuant to CPL § 30.30 is denied.

This opinion constitutes the decision and order of the court.

Dated:Brooklyn, New York

March 14, 2007

_______________________________

Miriam R. Best

Judge of the Criminal Court