[*1]

Pretrial motion (CPL §255.10) by the defendant for relief in the nature of dismissal or reduction of an indictment, dismissal pursuant to CPL §30.30, compelling discovery and/or a bill of particulars, preclusion and/or suppression of evidence, and other relief.

The defendant is charged by a three count indictment, filed on April 30, 2009, with having committed the crimes of criminal sale of a controlled substance in the third degree (Penal Law §220.39[1]), a class B felony, criminal possession of a controlled substance in the third degree [*2](Penal Law §220.16[1]), a class B felony, and criminal possession of a controlled substance in the seventh degree (Penal Law §220.03), a class A misdemeanor. The charges arise out of an incident alleged to have occurred on July 2, 2008 in the Town of Moriah, Essex County, in which it is claimed the defendant attempted to sell Oxycodone and possessed a quantity of cocaine. The defendant was arraigned on May 12, 2009, at which time the district attorney filed a notice of trial readiness and stated on the record that the People were ready for trial. The Court issued a preliminary conference order establishing dates for completion of discovery, service of bills of particulars, and the filing of pretrial motions ^[FN1].

The defendant's counsel filed an amended notice of motion on June 26, 2009, along with an affidavit of personal service of a copy thereof upon the district attorney's office that same date. The notice of motion is supported by an affirmation of counsel and various exhibits. The return date in the amended notice of motion is July 10, 2009. No papers in opposition to the motion were filed with the court by the district attorney. The amended notice of motion seeks an order "[p]ursuant to CPL §30.30, dismissing the indictment on the grounds that defendant's right to a speedy trial was violated", and in the supporting affirmation of defense counsel it is averred that the criminal action was commenced on July 2, 2008 and that the People announced their readiness for trial on May 12, 2009.

A motion to dismiss an indictment on the grounds that the defendant has been denied the right to a speedy trial "must be granted where the people are not ready for trial . . . within six months of the commencement of . . . [the] criminal action" (CPL §30.30[1][a]). A criminal action is commenced when an accusatory instrument is filed against a defendant in a criminal court (see CPL 1.20, subd. 17; People v. Sturgis, 38 NY2d 625, 627, 381 NYS2d 860, 861, 345 NE2d 331, 332). " Ready for trial' comprises two elements, (i) 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 (ii) the People must in fact be ready to proceed at the time they declare readiness (People v. Kendzia, 64 NY2d 331, 337, 486 NYS2d 888, 476 NE2d 287)" (People v. Chavis, 91 NY2d 500, 505, 673 NYS2d 29, 31, 695 NE2d 1110, 1112). "If the People are not ready for trial within the time sanctioned by the statute, the indictment must be dismissed and the defendant released" (People v. Dean, 45 NY2d 651, 656, 412 NYS2d 353, 355, 384 NE2d 1277, 1279). "[T]he right to a speedy trial guaranteed by CPL 30.30, which relates to prosecutorial readiness, is not dependent in any way on whether the defendant has expressed his readiness for trial or whether the defendant can demonstrate prejudice resulting from the delay" (People v. Hamilton, 46 NY2d 932, 934, 415 NYS2d 208, 209, 388 NE2d 345, 346).

"A defendant seeking a speedy trial dismissal pursuant to CPL 30.30 meets his or her initial burden on the motion simply by alleging only that the prosecution failed to declare readiness within the statutorily prescribed time period' (People v. Luperon, 85 NY2d 71, 77-78, 623 NYS2d 735, 647 [*3]NE2d 1243)" (People v. Goode, 87 NY2d 1045, 1047, 643 NYS2d 477, 666 NE2d 182, 183). In computing the time period between commencement of the criminal action and the People's statement of readiness, the date the action was commenced is excluded (see People v. Stiles, 70 NY2d 765, 520 NYS2d 745, 514 NE2d 1368). Also to be excluded are certain periods of time, such as delays attributable to various enumerated circumstances including those caused by the defendant (CPL §30.30[4][a]-[j]), provided that the People prove "that certain periods within that time should be excluded" (People v. Berkowitz, 50 NY2d 333, 349, 428 NYS2d 927, 936, 406 NE2d 783, 792). Thus, once a defendant has shown the existence of an unexcused delay greater than . . . six months, the burden of showing that time should be excluded falls upon the People [citations omitted]" (People v. Santos, 68 NY2d 859, 861, 508 NYS2d 411, 413 , 501 NE2d 19, 21; see also People v. Luperon, supra at 78, 623 NYS2d at 739, 647 NE2d at 1247 ["the People must ordinarily identify the exclusions on which they intend to rely"]; People v. Stewart, 57 AD3d 1312, 1314, 870 NYS2d 157, 160, leave denied 12 NY3d 788, 879 NYS2d 65, 906 NE2d 1099; People v. Drummond, 215 AD2d 579, 627 NYS2d 55).

Significantly, "[w]here a defendant moves to dismiss an indictment on the grounds specified in CPL 30.30 and includes in the moving papers sworn allegations that there has been unexcused delay in excess of the statutory maximum, the motion must be granted summarily unless the People controvert the factual basis for the motion [citations omitted]" (People v. Santos, supra at 861, 508 NYS2d at 413, 501 NE2d at 21; see also CPL §210.45[4] ^[FN2] ). "Normally what is not disputed is deemed to be conceded" (People v. Gruden, 42 NY2d 214, 216, 397 NYS2d 704, 706, 366 NE2d 794, 796), and "vague assertions regarding excludable periods without specifying any dates whatsoever" are insufficient to defeat a motion to dismiss on speedy trial grounds (People v. Wood, 115 AD2d 834, 836, 495 NYS2d 794, 796).

Here, the defendant's amended notice of motion clearly seeks dismissal of the indictment pursuant to CPL §210.20 for denial of the defendant's speedy trial rights under CPL §30.30, and defense counsel's affirmation alleges that the criminal action was commenced on July 2, 2008 and the People declared readiness for trial on May 12, 2009. As a result, the defendant met her initial burden of establishing that more than six months, namely more than ten months ^[FN3], elapsed between the commencement of this action and the prosecution's readiness. The district attorney's failure to submit any papers in opposition to the pretrial motion, let alone even in response to this branch of [*4]the defendant's motion, is fatal ^[FN4]. "The sworn allegations of fact essential to support defendant's motion were conceded by the People when they failed to submit opposition papers contesting these allegations (People v. Gruden, 42 NY2d 214, 397 NYS2d 704, 366 NE2d 794). Under these circumstances the court is required by statute to grant the motion (CPL 210.45[4][c]; see also, People v. Gonzalez, 116 AD2d 735, 497 NYS2d 778)" (People v. Cole, 73 NY2d 957, 958, 540 NYS2d 984, 985, 538 NE2d 336, 337) despite evidence in the court's own records indicating that prior to indictment there was a signed plea agreement and a personal appearance for waiver of indictment and the filing of a superior court information at which the defendant refused to go forward with the agreement. By failing to raise any issue of fact, this Court is without authority to schedule a hearing (CPL §210.45[4]) relative to whether there was any preindictment delay "attributable to defendant, [namely] that the indictment was impeded or prevented by defendant's actions" (People v. Thill, 75 AD2d 709, 710, 427 NYS2d 125, reversed on other grounds 52 NY2d 1020, 438 NYS2d 297, 420 NE2d 95; see also People v. Sturgis, supra at 629, 381 NYS2d at 862, 345 NE2d at 333; People v. Rice, 87 AD2d 894, 449 NYS2d 522).

The defendant's motion must thereby be, and hereby is, granted, and the indictment dismissed for denial of the defendant's right to a speedy trial. All other issues raised in the defendant's pretrial motion need not be reached.

IT IS SO ORDERED.

ENTER

____________________________________

Richard B. Meyer

J.C.C.