Defendant moved to dismiss the indictment on the ground that he was denied his right to a speedy trial pursuant to CPL 30.30. In its previous decision dated December 8, 2006, incorporated herein, this Court found that the People were charged with 163 days of includable time, and held in abeyance its ruling regarding an additional 33 days pending receipt of the minutes from specific adjournments which the People had not yet provided to the Court. Upon receipt and review of the minutes, the Court, on March 13, 2007, orally granted defendant's motion to dismiss pursuant to CPL 30.30. This decision memorializes the Court's ruling.

On March 6, 2006, the case was adjourned to April 7, 2006, for hearing and trial as the People were not ready to proceed. In their initial set of motion papers the People asserted that they had requested a ten day adjournment. The People did not address this adjournment in their supplemental answer but have provided the minutes from this adjournment. The minutes reflect that the People initially requested a ten day adjournment. The Court, however, questioned the basis for the People's request and instructed the trial assistant in the part to telephone the assigned assistant to get further clarification of his readiness Following that telephone conversation the following colloquy with the Court ensued:

[Trial Assistant]: And he is asking for this as a control date,

the possibility of a disposition on the 13th.

Court: In other words, he is not asking for the ten days to

try this case....

[Trial Assistant]: He used the term control date.

Court: We don't adjourn things for control, we adjourn them for

trial....When will he be ready for trial? [*2]

[Trial Assistant]: He is requesting four weeks, your Honor.

Accordingly, in this post-readiness posture the People are charged until the date requested, which is four weeks. People v. Cajigas, 224 AD2d 370 (1st Dept.), app. dismissed, 88 NY2d 845 (1996); People ex rel. Sykes v. Mitchell, 184 AD2d 466 (1st Dept. 1992). The People having previously been charged with ten days from this adjournment are now charged with an additional 18 days.

On April 7, 2006, the People were again not ready for trial and the matter was adjourned to May 16, 2006, for hearing and trial. In the People's initial motion papers they asserted, without any support for the assertion, that they requested that the case be adjourned to April 17, 2006. This claim stood in contrast both to counsel's assertions and the Court's notations which reflected that the People requested that the case be adjourned to May 2, 2006. The People have now provided the minutes from this adjournment and again maintain that they requested an adjournment to April 17, 2006, and should be charged until that date. The minutes indicate the following colloquy:

[Trial assistant]: Your honor, the People are not ready.

The people are going to request April 17th.

Court: Mr. Karen's going to be trying these cases on April 17th.

Get Mr. Karen on the phone.

[Trial Assistant]: Your honor, Jill just spoke to ADA Karen

and he said certainly if the other one, Armond Hamilton,

which is the older one, is going to go, then he's going to

request May 2.

While in a post-readiness posture the People are charged only until the date requested, "...it is the People's burden to ensure, in the first instance, that the record of the proceedings at which the adjournment was actually granted is sufficiently clear to enable the Court considering the subsequent CPL 30.30 motion to make an informed decision as to whether the People should be charged." People v. Cortes, 80 NY2d 201, 215-26 (1992) (citations omitted); see People v. Collins, 82 NY2d 177 (1993) (People's burden to make record in post-readiness situation). Here the record does not support the People's contention that they had in fact requested that the case be adjourned to April 17. Indeed, upon further inquiry by the Court it became clear that the People were merely speculating as to their readiness and felt compelled to request May 2 as the adjourn date. This Court is not unmindful of the difficulties faced by the trial assistants in maintaining their case load and moving cases to trial, especially when more often than not a confluence of factors must exist to do so. Regardless, the law does not excuse the People from being both genuine and realistic in their requests for adjournments. Further, the People are not without options in this regard for they can always file a certificate of readiness if one trial does not go forward as originally anticipated and they consequently become ready on another case in its stead. But merely requesting an adjourn date based on speculation of another event's occurrence is not what our case law contemplates in post-readiness requests for postponements. Accordingly, the People are charged until May 2, 2006. Having previously charged the People 10 days the People now stand charged with an additional15 days.

Although the Court did not hold in abeyance its decision regarding the June 13, 2006 to July 25, 2006 adjournment, the People again address the chargeability of this adjournment in [*3]their supplemental motion. Initially the Court held that the People were charged with this entire adjournment as they at no time filed a certificate of readiness despite being instructed to do so. Nothing in the minutes or the People's supplemental motion sways this Court from its initial ruling. The record indicates that the assistant district attorney requested that the case be adjourned to June 19th but that the Court explicitly rejected this request in light of what was proven to be frivolous past requests for adjournments and in the absence of any facts which would tend to support a finding that the People would in fact be ready on the date requested. Additionally, the People where clearly instructed to file a certificate of readiness when they in fact became ready but that they would otherwise be charged until that time. At no time did the People file a certificate of readiness.

Now the People argue that they should have only been charged until the adjourn date requested, relying on the line of cases that the People are charged until the date requested when a case is in a post-readiness posture. The People's understanding of the notion of readiness is simply not supported in any of the case law. Announcing ready is not a statement that is to be made lightly nor is a post-readiness request for a trial date something blithely to be made. The statement of readiness or request for an adjournment to a date certain means readiness and all that being ready entails. It is remarkable that the People not only ignored the Court's directive to file a certificate of readiness and that they could have done so at any time without any prejudice, but that they instead chose to do nothing and now want to benefit from their inaction. Contrary to what the People would prefer, they can not now enure the benefit of their dubious post-readiness request for a postponement which was explicitly rejected by the Court at the time it was made. Accordingly, the People remain charged with the entire adjournment.

The People re-argue this Court's decision to charge the period from July 25, 2006, to August 16, 2006, the date they filed a certificate of readiness. On July 25, 2006, the People were not ready to proceed and were directed to file a certificate of readiness; the case was adjourned to August 21, 2006. The minutes indicate that defense counsel did not appear but rather a colleague from The Legal Aid Society appeared in his stead. The following colloquy ensued:

Court: The People are to file a certificate of readiness

when they are ready.

Defense: I think [counsel] is done with vacation next

week.

Court:How is August 21?

Defense: Fine.

The People maintain that this entire period is excludable pursuant to CPL 30.30(4)(b) and (f), and argue that this is a consent adjournment.

As the Court held in its initial decision, CPL 30.30(4)(b),(f) is inapplicable to the facts herein. Defendant was not without counsel, nor did counsel fail to appear. Rather, an associate of counsel was present and stood up on the case thus taking these set of facts outside of the "without counsel" exclusion. See People v. Liotta, 79 NY2d 841 (1992). The facts in this case are almost exactly the same as those in Liotta, supra. In Liotta, the record clearly reflected that trial counsel was on vacation. The defendant was, as here, represented by an associate and in those circumstances the Court of Appeals held that the People should be charged with the adjournment. [*4]

Further, the People's reliance on subsection 4(f) of CPL 30.30 is misplaced. The exception was initially intended to govern those circumstances in many areas of the state where a defendant is arraigned in a local village court without counsel. With this in mind People v. Lassiter, 204 AD2d 293 (1st Dept. 1997), and its progeny should not be read to expand the without counsel' exception to those situations where the People are not ready to proceed and the defendant is represented by a member of defense counsel's firm. There is here no basis in the record to conclude that another attorney from The Legal Aid Society would have been unable to try the case had the People been ready to proceed. Indeed, there have been many instances before this Court when the People have indicated that they would immediately reassign a case for trial when an assigned assistant was unavailable.

The People go on to argue in their latest supplemental submission that since defense counsel stated on August 21 that he would be leaving Legal Aid and that the case would therefore be reassigned that the defendant was effectively without counsel from July 25. This argument is without merit and is based on what has to be known to the People to be an inaccurate premise. While it is true that defense counsel did leave his employment at The Legal Aid Society to enter private practice, counsel, as the People must know, continued to represent defendant without any break in representation. He was defendant's attorney on July 25, on August 21, and remains so today.

Nor was there consent to the adjournment as counsel merely indicated to the Court that the date picked by the Court would be fine. As such, the People are charged until they filed the certificate of readiness.

In sum the People are charged with 196 days. Accordingly, defendant's motion to dismiss is granted.

This constitutes the decision and order of the Court.

Dated: April 13, 2007_________________________

J.S.C.