Appeal from a judgment of the Criminal Court of the City of New York, Kings County (John H. Wilson, J.), rendered May 19, 2011. The judgment convicted defendant, upon a jury verdict, of 8 counts of overdriving, torturing and injuring an animal, 69 counts of failing to provide proper food and drink to an impounded animal, and 8 counts of carrying an animal in a cruel manner. The appeal from the judgment of conviction brings up for review an order of the same court dated March 31, 2011 (op 31 Misc 3d 896 [2011]) denying, among other things, defendant's renewed motion to dismiss the accusatory instrument on statutory speedy trial grounds.

ORDERED that the judgment of conviction is reversed, on the law, so much of the order dated March 31, 2011 as denied defendant's renewed motion to dismiss the accusatory instrument on statutory speedy trial grounds is vacated, defendant's renewed motion is granted, and the accusatory instrument is dismissed.

Defendant was charged in a single accusatory instrument with 69 counts of overdriving, torturing and injuring an animal (Agriculture and Markets Law § 353), 69 counts of failing to [*2]provide proper food and drink to an impounded animal (Agriculture and Markets Law § 356), and 69 counts of carrying an animal in a cruel manner (Agriculture and Markets Law § 359), all class A misdemeanors (see Penal Law § 55.10 [2] [b]). Defendant moved to dismiss the accusatory instrument on statutory speedy trial grounds, and the People opposed the motion. On January 11, 2011, the Criminal Court orally denied defendant's motion, finding that there were only 62 days chargeable to the People, and indicated that it would issue a written order following the trial. After a jury trial, defendant was found guilty of 8 counts of violating Agriculture and Markets Law § 353, 69 counts of violating Agriculture and Markets Law § 356, and 8 counts of violating Agriculture and Markets Law § 359. Thereafter, as part of a motion to set aside the verdict, defendant renewed his prior motion to dismiss the accusatory instrument on statutory speedy trial grounds, and the People opposed the motion. By order dated March 31, 2011, the Criminal Court denied defendant's original and renewed speedy trial motions, again determining that only 62 days were chargeable to the People (op 31 Misc 3d 896). It is undisputed that, since the accusatory instrument charged defendant with class A misdemeanors, which are punishable by a sentence of imprisonment of more than three months, 90 days is the applicable statutory speedy trial time limit (see CPL 30.30 [1] [b]). We agree with defendant that the accusatory instrument should have been dismissed on speedy trial grounds, since at least 93 days are chargeable to the People.

As the People concede, the 24-day period between October 14, 2008, the date that defendant was arraigned on the initial complaint, dated October 13, 2008, and November 7, 2008, the date that the People converted the complaint to an information and filed a statement of readiness, and the 18-day period from July 19, 2010 to August 6, 2010, during which the People answered not ready for hearings and requested specific adjournments, were chargeable to them. Thus, 42 days are chargeable to the People.

The Criminal Court should have also charged the People with at least an additional 51-day period from June 8, 2009 to July 29, 2009. The record demonstrates that a motion schedule was initially set by the court on March 31, 2009 for defendant to submit his pretrial omnibus motion by a date certain and for the People to respond thereto by April 28, 2009. The case was adjourned to May 12, 2009 for the court's decision on the motion. On May 12, the People requested an extension of time to submit their opposition papers. The People were granted an extension, on consent, to submit their opposition papers by June 8, 2009, and the case was adjourned until July 29, 2009 for the court's decision on the motion. The People concede that they, in fact, did not submit their opposition papers until July 29. Thus, this 51-day period from June 8, 2009 to July 29, 2009 constitutes a period of unreasonable delay beyond the deadline which had been set by the court for motion practice (see People v Delosanto, 307 AD2d 298 [2003]; People v Gonzalez, 266 AD2d 562 [1999]; People v Owens, 209 AD2d 549 [1994]; People v Commack, 194 AD2d 619 [1993]; cf. CPL 30.30 [4] [a]). As a result, when these days are added to the previously discussed 42 days chargeable to the People, the total amount of chargeable time was beyond the statutorily allotted 90 days (see CPL 30.30 [1] [b]). Consequently, the accusatory instrument should have been dismissed on statutory speedy trial grounds.

We note that the record demonstrates that, on November 2, 2009, while a decision on defendant's pretrial omnibus motion was pending, the People withdrew their opposition papers [*3]and filed a new set of opposition papers to be substituted for the prior ones. However, in view of the foregoing analysis, we need not pass on whether the People should have been charged for this entire period of delay, nor need we decide whether the People should have been charged with any period of time between April 28, 2009 and June 8, 2009. We note that we likewise need not pass on whether the Criminal Court properly charged the People with the 19-day period from December 2, 2010 to December 21, 2010, when the People answered not ready for a hearing based on their witness, the arresting officer, being on vacation, or whether the People were able to demonstrate that this period was excludable as an exceptional circumstance under CPL 30.30 (4) (g) (see generally People v Boyd, 189 AD2d 433 [1993]).

In view of the foregoing, the other contentions raised by defendant are rendered academic.

Accordingly, the judgment of conviction is reversed, so much of the order dated March 31, 2011 as denied defendant's renewed motion to dismiss the accusatory instrument on statutory speedy trial grounds is vacated, defendant's renewed motion is granted, and the accusatory instrument is dismissed.

Solomon, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: September 05, 2013