The defendant moves for dismissal of the accusatory instrument pursuant to CPL § 30.30(1)(b) by motion served and filed on January 19, 2011. The People oppose the motion by affirmation in opposition served and filed on February 8, 2011. This decision amends an earlier decision rendered in court on March 7, 2011.

The defendant was arraigned on May 25, 2010, and charged with assault in the third degree, Penal Law (hereinafter "PL") § 120.00(1), an A misdemeanor; attempted assault in the third degree, PL § 110/120.00(1), a B misdemeanor; menacing in the third degree, PL § 120.15, a B misdemeanor; and harassment in the second degree, PL § 240.26(1), a violation.

CPL § 30.30(1)(b) mandates that the People must be ready for trial within 90 days from the commencement of a criminal action when the defendant is charged with one or more offenses, at least one of which is a misdemeanor punishable by more than three months in jail. Failure to abide by the time limits imposed by CPL § 30.30 requires dismissal of the charge.

The defendant bears the burden of going forward by sworn allegations of fact to show that there has been an inexcusable delay beyond the time allowed by statute, and then the People have the burden of demonstrating sufficient excludable time in order to withstand a motion to dismiss (People v Santos, 68 NY2d 859; People v Berkowitz, 50 NY2d 333).

The defendant through his attorney's affirmation alleges only two facts that pertain to this issue—that "the action commenced as a Class A misdemeanor on May 25, 2010 when Mr. Devilar was arraigned. . ."; and that "(a)lmost 8 months have passed since commencement,"(Defendant's Affirmation, ¶¶ 4 and 7). From that the defendant arrives at the conclusion, "(t)hus there have been more than 90 days of chargeable time since this action commenced," (id. at ¶ 7).

The People's response contains detailed adjournment-by-adjournment allegations of fact and argues that the People have accrued merely 32 days of chargeable time.

After carefully examining all submissions by both parties and a review of the court file, the court concludes that the People's calculations are correct. However, that is not the basis for the denial of this motion.

It seems to be a somewhat commonly held belief—albeit a mistaken one—that defendants [*2]merely need to allege that the case has chronologically surpassed the 90 day time period permitted by CPL § 30.30(1)(b) to then have the burden shift to the People to demonstrate that there are any excludable days pursuant to CPL § 30.30(4). Yet it is well established that when determining whether the People have met their obligation to be ready for trial within the applicable speedy trial time period, one must compute the time which has elapsed between commencement of the action and the People's declaration of readiness for trial, subtracting any periods of delay that are excludable under the terms of CPL § 30.30 and then adding any post-readiness periods of delay which are attributable to the People and are ineligible for exclusion (People v. Cortes, 80 NY2d 201). Where a defendant fails to allege those basic calculations, there is a distinct possibility that the motion is being submitted although it is without merit. Such is the case at bar.

The question raised by this defendant's motion is whether the defendant has met his burden of alleging sufficient facts to support his motion to dismiss.

Although the defendant did not include a memorandum of law with his motion, the attorney's affirmation does cite to People v. Berkowitz, 50 NY2d 333,349, in reference to the People's burden to demonstrate excludable adjournments. People v. Berkowitz states, "once the defendant has shown the existence of a delay greater than six months, the burden of proving that certain periods within that time should be excluded falls upon the People," (id). The Court of Appeals, when using the word "shown", is mindful of the procedural requirements of CPL §§ 170.45 and 210.45. In fact, in Berkowitz, the Court describes how the defense counsel's affidavit supplied factual allegations in support of the motion to dismiss.

CPL § 210.45(1), as made applicable to misdemeanor informations by CPL § 170.45, dictates what must be included in a motion to dismiss. Where a motion to dismiss is based upon the existence or occurrence of facts, as is the case in a motion to dismiss pursuant to CPL § 30.30, then the motion must contain sworn allegations of the existence or occurrence of those facts (CPL § 210.45[1]). A defendant's motion to dismiss a case due to the People's exceeding the time limit allowed by CPL § 30.30 to announce readiness for trial must be based upon the existence of facts that would allow the court to determine whether the People have exceeded that time limit. A mere statement by the defendant that the People have exceeded the 90 day time limit, as was done in this case, is not an allegation of fact, but a simple statement of the legal conclusion that the motion is urging the court to reach. In doing so, the defendant may be alleging a ground that constitutes a legal basis for the dismissal of the case, but is failing to allege essential facts to support that motion. CPL § 210.45(5)(b) permits the court to deny the motion if the "motion is based upon the existence or occurrence of facts, and the moving papers do not contain sworn allegations supporting all the essential facts."

Here, the defendant through his attorney's affirmation offers only the following: "Almost 8 months have passed since commencement. Thus there have been more than 90 days of chargeable time since this action commenced," (Defendant's Affirmation, ¶ 7). This suggests that the conclusion—that there are more than 90 chargeable days—logically flows from the statement that almost 8 months have passed since the case commenced. It does not. The defendant bases his motion on the fact that more than 90 chronological days have passed since the defendant's arraignment, not 90 "chargeable" days.

Furthermore, he fails to acknowledge that the People first declared their readiness for trial [*3]15 days after arraignment, which essentially stopped the "30.30 clock", (CPL § 30.30[3][b]; People v. Giordano, 56 NY2d 524, 525).

Without the defendant setting forth even the most basic review of what has occurred during those months, it is not surprising that he has submitted what is a dismissible motion. Instead, all that the defendant has accomplished by filing this motion without first presenting his own calculations as to periods of pre-readiness and post-readiness is to add another adjournment to the case and to accrue 47 more days of excludable time under CPL § 30.30(4)(a)—which underlines the wisdom of the requirement that a motion contain sufficient allegations of fact upon which to base the conclusion that the People have exceeded their allotted time in which to announce readiness for trial.

The plain language of CPL § 210.45 requires the dismissal of the defendant's motion. For the defendant's motion to be sufficient to shift the burden to the People under CPL § 210.45, the defendant must at a minimum allege when, if at all, the People answered ready, and if the People have, whether there exists sufficient post-readiness time to exceed the 90 day allotment.

Accordingly, pursuant to CPL §§ 170.45 and 210.45(5)(b), the court denies the defendant's motion to dismiss the accusatory instrument which was based upon CPL § 30.30(1)(b) for having failed to allege essential facts to support that motion, as is required by CPL § 210.45(1).

The foregoing constitutes the decision and order of this court.

Brooklyn, New York

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FREDERICK C. ARRIAGA

Judge of the Criminal Court