The defendant is charged with endangering the welfare of a child (PL §260.10(1)) and moves to dismiss on statutory and constitutional speedy trial grounds. In accordance with a prior order of this Court, the People have submitted transcripts of adjourned dates for the purpose of demonstrating their readiness announcement(s) and any excludable time periods upon which they seek to rely in opposition to the defendant's motion. The Court has evaluated same and reviewed the parties' arguments on the motion.

The within criminal action commenced on August 11, 2011 with the filing of an accusatory instrument charging a violation of PL §260.10(1) under docket number 2011SU-036967. (Parenthetically, the Court notes that the defendant was also charged under docket number 2011SU-036968 for conduct allegedly arising out of the same incident. Although these two dockets did travel together, they were never consolidated for trial.) The defendant was arraigned and the matter was adjourned to August 18, 2011, at which time the defendant appeared with counsel, the People made a readiness announcement on the record and the matter was adjourned to August 24, 2011 at the defendant's request for purposes of a hearing on an order of protection. Several subsequent adjournments were granted for purposes of discovery and motion practice. The defendant's omnibus motion was submitted on January 19, 2012. By order of the Court dated January 23, 2012 the defendant's motion to dismiss the PL §260.10 information was granted as both facially and jurisdictionally defective. On February 14, 2012 the People re-filed an information charging the same offense under docket number 2012SU-009501 and requested a criminal summons, which was issued on February 15, 2012, returnable on March [*2]8, 2012. The People filed a Kendzia notice dated February 16, 2012.

Pursuant to CPL 30.30(1)(b), the People were required to make an effective statement of their readiness for trial within 90 days of the commencement date of the within criminal action, taking into account all excludable time periods. It has been held that there can be only one criminal action for each set of charges against a defendant. (See People v. Sinistaj, 67 NY2d 236). As such, the commencement date of this criminal action for CPL 30.30 purposes relates back to August 11, 2011. Although the People made their initial readiness announcement on August 18, 2011, it has been held that, "[s]ince the original accusatory instrument was jurisdictionally defective, any statement of readiness made by the People was illusory because the People could not validly declare themselves ready until there was an accusatory instrument

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sufficient for trial." (People v. Kerins, 26 Misc 3d 127(A) [App Term 2nd Dept, 9th & 10th Jud Dists 2009]; see also People v. Reyes, 24 Misc 3d 51 [App Term 2nd Dept, 9th & 10th Jud Dists 2009]). However, the entirety of the period from the filing of the jurisdictionally defective information to the filing of the sufficient information is not automatically chargeable to the People, as adjournments on a defendant's request or consent are still excludable even in the absence of readiness. (See People v. Worley, 66 NY2d 523). Review of the submissions herein discloses that the following periods were excludable: August 11 to August 24, 2011 [defendant was without counsel and adjournment at defendant's request for hearing] and October 13, 2011 to January 23, 2012 [adjournments for discovery and motion practice]. This Court finds, however, that the 50-day period from the August 24, 2011 order of protection hearing to October 13, 2011 is chargeable to the People. The transcript pertaining to that adjourned period reflects that the matter was adjourned to a date "convenient for discovery and motions." In the absence of an effective readiness statement, the People would not be able to utilize an exclusion for an adjournment at Court request and no specific defense request or consent for this adjournment is noted in the transcript. It is the People's burden "to ensure, in the first instance, that the record . . . 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" with a particular adjournment and, in the absence of a such a record, the People "must assume responsibility for the . . . delay." (See People v. Cortes, 80 NY2d 201).

The People concede that the period from the January 23, 2012 order dismissing the original information to the February 16, 2012 filing of a Kendzia notice is chargeable to them. This accounts for 24 days of delay. Although the People argue that they tolled the CPL 30.30 time by the filing of the Kendzia notice, it is the opinion of this Court that said argument is unavailing in the particular circumstances of this matter. The moving papers aver that the notice in question was not sent to defense counsel, but rather to the defendant herself and that it in fact [*3]bore an incorrect docket number. Although the Court finds that the typographical error in the docket number was de minimis, the failure to follow the required procedure for service of the notice renders same ineffective for CPL 30.30 purposes. In order for the People to make an effective statement of readiness via the notice procedure, the Kendzia court required that there be "a written notice of readiness sent by the prosecutor to both defense counsel and the appropriate court clerk." (People v. Kendzia, 64 NY2d 331). In response to the defendant's argument, the People do not dispute that they did not serve defense counsel, but instead contend that because the original accusatory instrument under docket number 2011SU-036967 had been dismissed, "there was no counsel retained [when the new instrument was filed] and [the Kendzia notice] was therefore sent to the defendant." The Court finds this argument to be unavailing. The second accusatory instrument, albeit assigned a new docket number, was directly derived from the original docket, on which the defendant was clearly represented by counsel. Additionally, the same counsel represented the defendant on the companion docket still being prosecuted herein. As such, service on the defendant in this circumstance was improper. (Cf. People v. Frazier 171 Misc 2d 407, citing People v. Osgood, 52 NY2d 37 [once an indictment is obtained after dismissal of a felony complaint, "counsel who represented the defendant on the felony complaint

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is the person on whom a readiness notice should be served"]; People v. Corley, 30 Misc 3d 1232(A) ["Despite the People's communication of readiness by filing a statement with the court, their failure to promptly serve [the defendant's] attorney amounts to an ex parte communication"]). The People's opposition further contends that "[s]ervice on the Court alone serves as an effective statement of readiness." The cases that the People cite in support are inapposite, as they involved challenges to the People's service of notices directly to the Court rather than the Court clerk; service upon defense counsel was not at issue therein. By reason of the foregoing, therefore, the statutory speedy trial time herein was not tolled by service of the Kendzia notice.

The People next allege that "the defendant was formally arraigned on the new, sufficient information, on March 8, 2012." However, the transcript for that date merely recites that the defendant was given an April 2, 2012 date for all purposes and does not reflect any statement of readiness by the People.

Although the adjourned period from April 16 to October 10, 2012 is excludable as related to motion practice, there exists a 14-day adjournment from April 2 to April 16, 2012 and a 63-day period from November 30, 2012 to February 1, 2013 for which no transcripts or other admissible proof has been provided. Thus, the People have not sustained their burden of proof to [*4]exclude those time periods. When added to the chargeable time periods already enumerated herein, this Court finds that the People are charged with at least 151 days of time and have thus exceeded their statutory speedy trial mandate.

Accordingly, the defendant's motion to dismiss pursuant to CPL 30.30 is granted. Upon issuance of the accompanying order, the Court shall furnish the defendant with notice pursuant to 22 NYCRR §200.40. By reason of the foregoing, the defendant's constitutional speedy trial motion is denied as moot.

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J.D.C.