Defendant is charged with Criminal Possession of a Controlled Substance in the Seventh Degree (PL Sec. 220.03), a Class A misdemeanor, Criminal Possession of Marijuana in the Fifth Degree (PL Sec. 221.10), a Class B misdemeanor, and Unlawful Possession of Marijuana (PL Sec, 221.05), a violation.

By two motions, both dated October 17, 2012, Defendant seeks (1) dismissal of the Criminal Court Complaint pursuant to CPL Sec. 30.30, asserting that the People have failed to comply with the time limitations imposed upon the prosecution of misdemeanors by that section, and (2) preclusion of the People's evidence due their failure to provide Defendant with a copy of the laboratory analysis.

The Court has reviewed the Court file, Defendant's motion, and the People's Responses both dated November 7, 2012 and the Memorandum of Law attached thereto.

Defendant's motions are both denied. The Court finds that the People are charged with 35 days in this matter; and the Court declines to preclude the People's evidence, in the absence of any evidence of bad faith on the part of the People, or prejudice to the Defendant caused by the delay in providing discovery. [*2]

(1) DEFENDANT'S MOTION PURSUANT TO CPL SEC. 30.30.

The top count of the Criminal Court Complaint herein is a Class A misdemeanor. Thus, there is no dispute that 90 days is the applicable time limit. See, CPL Sec.30.30(1) (b); People v. Cooper, 98 NY2d 541, 543, 750 NYS2d 258 (2002) ("CPL 30.30 time periods are generally calculated based on the most serious offense charged in the accusatory instrument and are measured from the date of commencement of the criminal action.").

Defendant was arrested on July 7, 2011, and was arraigned in this matter on the next day. The supporting depositions of Police Officer Remy and Detective Rohan, both dated July 7, 2011, were contained within the Court file, and based upon the presence of that document, the People stated ready for trial at Defendant's arraignment (See, People's Response dated November 7, 2012, p 1, para 4). Defendant was released on his own recognizance, and the matter was adjourned to July 26, 2011 for Discovery by Stipulation.

The People did not have a field test or laboratory analysis to file at the arraignment. Though the Court file does not reflect the People's Statement of Readiness at arraignments, as noted above, the purpose of the adjournment is reflected in the Court file.

This Court has ruled, in People v. Nunn, 24 Misc 3d 944, 882 NYS2d 887 (Crim Ct, Kings Cty, 2009), that the deeming of a complaint to be an information in the absence of a laboratory report is a violation of the defendant's due process rights. However, under People v. Kalin, 12 NY3d 225, 878 NYS2d 653 (2009), "the sworn allegations by the arresting officer were sufficient to satisfy the requirements of an information." See, People v. Jennings, 34 Misc 3d 137(A), 946 NYS2d 68 (App Term, 2d, 11th and 13th Dist, 2011); People v. Mack, 29 Misc 3d 140(A), 920 NYS2d 243 (App Term, 1st Dept, 2010).^[FN1]

This Court may not accept the statement of readiness made by the People at arraignment in the absence of a laboratory report. However, the absence of any evidence that Defendant objected to the People's statement of readiness at arraignment, coupled with the Court's notes that the purpose of the adjournment was for the service of discovery by stipulation, leads this Court to conclude that the period from July 8, 2011 (Defendant's arraignment) to July 26, 2011 is a consent adjournment for the service of discovery. Therefore, this adjournment is not charged to the People. See, People v. Lampley, 15 Misc 3d 1130(A), 841 NYS2d 221 (Crim. Ct., Kings Cty, 2007); People v. Camacho, 185 Misc 2d 31, 37, 711 NYS2d 283 (Crim. Ct., NY Cty 2000).

The People filed their discovery with Defense Counsel and the Court on July 26, 2011, and repeated their statement of readiness. The matter was then adjourned to September 7, 2011 for hearings and trial. Since the People are afforded a reasonable opportunity to be ready for hearings and trial, this time is also excluded. See People v. Fleming, 13 AD3d 102, 785 NYS2d [*3]333 (1st Dept., 2004), and cases cited therein.

On September 7, 2011, the People stated not ready for hearings and trial, and asked for two weeks. Although the matter was then adjourned for hearings and trial to November 3, 2011, a date longer than requested by the People, it is well settled that post readiness, the People are to be charged with only the amount of time they request. See, People ex rel Sykes v. Mitchell, 184 AD2d 466, 468, 586 NYS2d 937 (1st Dept, 1992); People v. Urraea, 214 AD2d 378, 625 NYS2d 937 (1st Dept, 1995). Thus, the People are charged with 14 days between September 7, 2011 and November 3, 2011.

On November 3, 2011, as well as the subsequent adjourn date of January 9, 2012, the People stated not ready for hearings and trial, and asked for one week each date. For the reasons noted above, the People are charged with 7 days between November 3, 2011 and January 9, 2012, and January 9, 2012, and the following adjourn date, February 23, 2012.

On February 23, 2012, the People stated not ready for hearings and trial, however, Defendant failed to appear. A bench warrant was issued, but cleared on February 28, 2012, upon Defendant's return to the Court's jurisdiction. The case was then adjourned to April 5, 2012 for hearings and trial. The time between February 23, 2012 and February 28, 2012, as well as the time between February 28, 2012 and April 5, 2012 is excluded. See, CPL Sec. 30.30(4)( c); People v. Notholt, 242 AD2d 251, 254, 662 NYS2d 297 (1st Dept, 1997).

On April 5, 2012, the People stated not ready, and requested one week. The matter was adjourned to May 30, 2012. Again, the People's request being post-readiness, the People are charged with 7 days for the time between April 5, 2012 and May 30, 2012.

On May 30, 2012, the People stated ready for hearings and trial, however, another matter involving this same Defendant went forward to a pre-trial hearing. This matter was then adjourned to September 13, 2012, and then again to October 17, 2012 while the other matter went forward. Since Defendant has failed to raise any credible basis upon which to question the good faith of the People's statement of readiness, this time is also excluded.

On October 17, 2012, Defendant filed the instant motion. Since all subsequent adjournments have been for the purpose of considering Defendant's motion to dismiss, all further time is excluded under CPL Sec. 30.30(4)(a). See, People v. Hodges, 12 AD3d 527, 784 NYS2d 638 (2d Dept., 2004); People v. Sivano, 174 Misc 2d 427, 429, 666 NYS2d 875 (App. Term, 1st Dept., 1997).

Thus, if we add the 14 days charged between September 7, 2011 and November 3, 2011 to the 7 days charged between November 3, 2011 and January 9, 2012, to the 7 days charged between January 9, 2012 and February 23, 2012 to the 7 days charged between April 5, 2012 and May 30, 2012, the People are charged with a total of 35 days in this matter. [*4]

Therefore, Defendant's motion to dismiss pursuant to CPL Sec. 30.30 is denied.

(B) DEFENDANT'S MOTION TO PRECLUDE THE PEOPLE'S EVIDENCE.

Defendant states that the People should be precluded from offering into evidence "the laboratory analysis done with respect to the alleged marijuana and cocaine...which was recovered from (Defendant's) person" since "(a)t no point from July 26, 2011...to present, have the People provided defense counsel with any laboratory analysis reports regarding the alleged marijuana and cocaine." See, Defendant's motion dated October 17, 2012, p 4-5.

While Defendant is correct in asserting that as of the date of his motion, the People had failed to provide him with the laboratory analysis for the evidence recovered, the People provided the subject laboratory analysis with their Response dated November 7, 2012.^[FN2] Now that Defendant has been provided with the lab report, the question is whether the unreasonable and unexplained delay in turning this evidence over to the defense requires preclusion of the report.

"(P)reclusion of evidence is a severe sanction, not to be employed unless any potential prejudice ...cannot be cured by a lesser sanction." See, People v. Jenkins, 98 NY2d 280, 284, 746 NYS2d 651 (2002). Further, in People v. Lewis, 44 AD3d 422, 422-423, 843 NYS2d 72, (1st Dept, 2007), the First Department ruled "although the People failed to show good cause for their delay, the delay itself did not cause defendant any prejudice."

Lewis discussed compelling a defendant to submit to handwriting samples, however, the same finding has been made in other matters where there was a delay in providing evidence prior to trial. In a case involving the collection of a DNA sample, the Court ruled that "the delay itself did not cause defendant any prejudice." See, People v. Ruffell, 55 AD3d 1271, 864 NYS2d 347 (4th Dept, 2008).

In People v. Caussade, 162 AD2d 4, 8, 560 NYS2d 648 (2d Dept, 1990), app den 76 NY2d 984, 563 NYS2d 772 (1990), the "court specifically held that the failure of a District Attorney to comply with the mandates of CPL article 240...is in no way inconsistent with the prosecutor's continued readiness for trial." See, also, People v. Saunders, 8 Misc 3d 214, 217, 797 NYS2d 268 (Crim Ct, Kings Cty 2005), citing Caussade, 162 AD2d at 8. This is based upon the difference between "the failure to comply with discovery, which could be addressed by a motion to compel under CPL Sec. 240.20, and a failure to perform an act which results in a delay of the prosecution, such as the failure to produce the Defendant for trial." 8 Misc 3d at 217, citing 162 AD2d at 10.

Though Defendant's assertion that the delay in producing the laboratory report was unreasonable and unexplained is absolutely correct, as in Saunders, Defendant here cannot [*5]establish any prejudice as a result of the delay. 8 Misc 3d at 217. Defendant has been provided with the report more than two months before the scheduled trial date of January 28, 2012, giving Defendant more than adequate time to prepare his defenses. Thus, in the absence of any prejudice to the defense, in this case, there is no basis to preclude the People's evidence.

Therefore, this branch of Defendant's motion will also be denied.

All other arguments advanced by Defendant have been reviewed and rejected by this court as being without merit.

This shall constitute the opinion, decision, and order of the Court.

Dated: Brooklyn, New YorkJanuary 3, 2013

_______________________________Hon. John H. Wilson, JCC