The defendants are each charged with committing the offenses of assault in the third degree in violation of PL § 120.00 [1], petit larceny in violation of PL § 155.25 and criminal possession of stolen property in the fifth degree in violation of PL § 165.40. Each defendant now moves to dismiss pursuant to CPL § 30.30 on the ground that they have been [*2]denied a speedy trial. The People oppose both motions.

Since the motions contain overlapping arguments, and each docket has shared appearance dates, the Court hereby consolidates the motions for its consideration in this single decision/order.

On a motion pursuant to CPL § 30.30, the "speedy trial" statute, the defendant bears the burden of demonstrating an inexcusable delay beyond the time allowed by the statute with sworn allegations of fact. If such a showing is made, the burden then shifts to the People, who must show that the delay is justifiable in order to withstand the motion to dismiss (People v Santos, 68 NY2d 859 [1986]; People v Berkowitz, 50 NY2d 333 [1980]).

The People answer ready by announcing "ready" on the record, or by filing a statement of readiness and serving a copy on defense counsel within a reasonable time thereafter (see People v Anderson, 252 AD2d 399 [1st Dept 1998], lv denied 92 NY2d 1027 [1998]; see also People v Kendzia, 64 NY2d 331 [1985]). The statute contemplates announcement of present readiness, not a prediction or expectation of future readiness (People v Kendzia, supra at 337).

Calculations

January 7, 2010 through January 12, 2010 (5 Days Chargeable in both cases)

On January 7, 2010, the defendants were arraigned. The cases were adjourned to January 12, 2010 for conversion. Therefore, 5 days are chargeable to the People.

January 12, 2010 through February 4, 2010 (0 Days Chargeable in both cases)

On January 12, 2010, the People filed two supporting depositions and the complaint was converted to an information. A motion schedule was set and the case was adjourned to February 4, 2010 for the People to respond and for decision on the motion. This period is not chargeable to the People (CPL 30.30 [4] [a]). On January 13, 2010, the People filed Certificates of Readiness in each case.

February 4, 2010 through April 20, 2010 (0 Days Chargeable in both cases)

On February 4, 2010, the defendants' omnibus motions were decided, and Dunaway, Wade and Mapp hearings were ordered in each case. Both cases were therefore adjourned to April 20, 2010. This period is not chargeable to the People (CPL 30.30 [4] [a]).

Defendant Wilson's attorney claims that this case appeared on the calendar on March 10, 2010, at which time the People answered not ready for trial. The Court has reviewed the court file. Both Wilson and Corley's cases were adjourned from February 4, 2010 to April 20, 2010, and were never calendared for March 10, 2010. To the extent that Wilson has failed to establish through sworn statements that his case was calendared for March 10, 2010, and that the People answered "not ready" at that time, this claim is rejected.

April 20, 2010 through June 24, 2010 (24 Days Chargeable in both cases)

On April 20, 2010, the People answered not ready. Both cases were then adjourned to June 24, 2010. However, the People filed a Certificate of Readiness in each case on May 14, 2010. Therefore, only 24 days are chargeable to the People.

June 24, 2010 through September 23, 2010 (43 Days Chargeable with respect to Wilson, 91 Days Chargeable with respect to Corley)

On June 24, 2010, the People again answered not ready. Both cases were adjourned to September 23, 2010 for hearing and trial. With respect to the court action sheet [*3]for defendant Corley's case, the court indicated that the defendant requested an adjournment. However, the court has reviewed the transcript from the proceedings that day; no such request was made by Corley, and neither defendant otherwise consented to an adjournment. Therefore, this Court finds that the subject marking on the court action sheet was erroneous and therefore this period not excludable.

On August 6, 2010, the People filed a Certificate of Readiness. Therefore, only 43 days are chargeable to the People in Wilson's case (see People v Anderson, supra).

Defendant Corley's attorney, Andrea F. Moletteri, Esq., claims that she never received the People's August 6, 2010 Certificate of Readiness. She points out that the Affirmation of Service by ADA Lauren Perry for this Certificate of Readiness indicates that it was mailed to "The Legal Aid Society, 49 Thomas Street, New York, New York, 10013." Attorney Moletteri maintains in a sworn affirmation that she has never worked for the Legal Aid Society, and that the defendant has never been represented by the Legal Aid Society. Rather, Attorney Moletteri states that her office mailing address is "New York County Defender Services, 225 Broadway, Suite 1100, New York, New York, 10007 ("225 Broadway")." The defendant maintains that this Certificate of Readiness is invalid because it was never received by counsel. The People do not argue that they served defendant's counsel at 225 Broadway or otherwise explain their failure to do so.

The Certificate of Readiness serves several important purposes. It indicates that the People believe in good faith that they are ready to proceed to trial. It insures that the statement of "readiness" is made to both the court and the defendant as contemporaneously as possible to mirror such a declaration in open court in the defendant's presence. Further, it notifies the defendant that he or she should be ready for imminent trial (People v. Collins, 186 Misc 2d 818 [Crim Ct, Richmond Co. 2000]; People v. Chittumuri, 189 Misc 2d 743 [Crim Ct, Qns Co. 2001]).

Here, the People attempted to serve Corley with the Certificate of Readiness at the wrong address. Attorney Molleteri filed a Notice of Appearance on behalf of Corley on January 7, 2010, and said notice indicated that her office was located at 225 Broadway. Indeed, the People's prior Certificate of Readiness dated May 14, 2010 was sent to 225 Broadway, the correct address. Despite the People's communication of readiness by filing a statement with the court, their failure to promptly serve Corley's attorney amounts to an ex parte communication. Thus, the August 6, 2010 Certificate of Readiness cannot toll the running of the applicable time period (see i.e. People v. Zhu, 171 Misc 2d 298 [N.Y.Sup. 1997], rev'd on other grounds, 245 AD2d 296 [2d Dept 1997]; see generally People v. Kendzia, 64 NY2d 331 [1985]). Accordingly, the entire period from June 24, 2010 through September 23, 2010, 91 Days, is chargeable to the People with respect to defendant Corley.

Defendant Wilson does not argue that he did not receive the August 6, 2010 Certificate of Readiness.

September 23, 2010 through December 8, 2010 (7 Days Chargeable in both cases)

On September 23, 2010, the People answered not ready, and requested a one week adjournment. Therefore, only seven days are chargeable to the People in both cases.

December 8, 2010 through February 8, 2011 (0 Days Chargeable in both cases)

On December 8, 2010, the case was adjourned for the defendant to make the [*4]instant motion and for the People to respond. This time is excludable (CPL § 30.30 [4] [a]; People v. Worley, 66 NY2d 523 [1985]).

The balance is attributable to the instant motion, and this court's consideration thereof, and is not chargeable to the People (CPL 30.30 [4] [a]; People v Brown, 99 NY2d 488 [2003]; People v. Worley, supra).

In total, only 79 days are chargeable to the People with respect to defendant Wilson. Defendant Wilson's motion to dismiss is denied.

However, 127 day are chargeable to the People with respect to defendant Corley. Insofar as the People have failed to come forward with any argument that would justify their delay in trying Corley within the time constraints set forth in CPL § 30.30, his motion to dismiss must be granted and the information filed in connection with Docket 2010NY001834 is dismissed.

Conclusion

In accordance herewith, it is hereby:

ORDERED that the defendant Wilson's motion to dismiss, Docket 2010NY001832, is denied in its entirety; and it is further

ORDERED that the defendant Corley's motion to dismiss, Docket 2010NY001834, is granted; and it is further

ORDERED that the case against Brian D. Corley, Docket 2010NY001834, is hereby dismissed.

Any requested relief not expressly addressed by the Court has nonetheless been considered and is hereby denied.

The foregoing is the decision and order of the Court.

Dated: March 7, 2011So Ordered:

New York, New York

______________________

Hon. Lynn R. Kotler, J.C.C.