Defendant is charged with one count of Criminal Possession of Marijuana in the Fifth Degree (PL Sec. 221.10), a Class B misdemeanor and one count of Unlawful Possession of Marijuana (PL Sec. 221.05), a violation.

By motion dated November 15, 2013, Defendant seeks 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.

The Court has reviewed the Court file, Defendant's motion, and the People's Response dated December 30, 2013.

The motion to dismiss pursuant to CPL Sec. 30.30 is granted. Since the substance [*2]recovered from Defendant was not analyzed until October 7, 2013, the People could not have been ready for trial when they filed a Statement of Readiness on September 27, 2013. Thus, the People are charged with a total of 65 days to date in this matter.

Defendant was arrested on August 1, 2013, and arraigned the next day. The People stated not ready. Bail was set, and the matter was adjourned to August 7, 2013 for conversion.

On August 7, 2013, the People again stated not ready. The matter was adjourned to October 7, 2013, however, before that date, on September 27, 2013, the People filed and served a Statement of Readiness on the Court and defense.

On October 7, 2013, the Court informed the People that their statement of readiness "includes the supporting deposition, but not a lab or field test." The People responded that they were nonetheless ready for trial "pursuant to People v. Kalen (sic)," however, the Court stated that in the absence of a laboratory report, "you're not ready." See, minutes of October 7, 2013, p 3, attached to People's Response dated December 30, 2013. The matter was then adjourned to October 10, 2013.

On October 10, 2013, the People filed and served a laboratory report. The report states that the substance to be tested was submitted to the lab on August 2, 2013, but was not assigned to a chemist for testing until October 4, 2013. The report also indicates that after the substance was tested and the presence of marijuana was detected, the laboratory report was prepared on October 7, 2013.

All subsequent adjournments have been for consideration of Defendant's motion to dismiss.

LEGAL ANALYSIS

The top count of the Criminal Court Complaint is a Class B misdemeanor. Thus, 60 days is the applicable time limit. See, CPL Sec.30.30(1) ( c); 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.")

There is no dispute that the People are charged with 5 days for the time between Defendant's arraignment on August 2, 2013 and the next court date of August 7, 2013. If the day of Defendant's arraignment is excluded from the time calculations, 5 days is charged for this time period. See, People v. Stiles, 70 NY2d 765, 520 NYS2d 745 (1987); People v. Eckert, 117 Misc 2d 504, 458 NYS2d 494 (City Ct., Syracuse, 1983). [*3]

Likewise, there is no argument regarding the time between August 7, 2013, and the filing of the People's Statement of Readiness with the Court and the People on September 27, 2013 . This is an additional 51 days, and the People concede that they are charged with at least 56 days total time up to this date. See, People's Response dated December 30, 2013, p 4.

The question arises regarding the time between September 27, 2013 and October 7, 2013. Is the People's Statement of Readiness effective, or is it illusory?

In this case, the only answer possible is a finding that the Statement of Readiness is illusory.

The People's reliance upon People v. Kalin, 12 NY3d 225, 230, 878 NYS2d 653 (2009), is misplaced, since conversion of the charge is not the issue presented here. Whether or not the People required the laboratory report to convert the charge is immaterial in this context.

Kalin states that, "so long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading." Citing, People v. Konieczny, 2 NY3d 569, 575, 780 NYS2d 546 (2004), citing, People v. Casey, 95 NY2d 354, 360, 717 NYS2d 88 (2000).

Thus, under Kalin, "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). On this basis, then, the People assert that a laboratory report is unnecessary to convert the charges on the docket.

However, regardless of whether or not the People had converted the complaint, for the People to be actually ready to proceed to trial of this action, they must satisfy one of the necessary elements of their direct case; they must have proof that the substance recovered, was marijuana. See, Criminal Jury Instruction, Vol. 3, Sec. 221.10. ("In order for you to find the defendant guilty of this crime, the People are require to prove, from all of the evidence in the case beyond a reasonable doubt, each of the following elements...2. That what the defendant possessed was in fact marijuana.")

Here, the substance to be tested was submitted to the lab on August 2, 2013, but not assigned to a chemist for testing until October 4, 2013. The report indicating the presence of marijuana in the substance tested was not prepared until October 7, 2013. Therefore, the People were unprepared to carry their burden of proof on September 27, 2013, when they filed their Statement of Readiness..

Under People v. Kendzia, 64 NY2d 331, 337, 486 NYS2d 888 (1985),"there must be a communication of readiness by the People which appears on the trial court's record. This requires either a statement of readiness by the prosecutor in open court...or a written notice of readiness sent by the prosecutor to both defense counsel and the appropriate court clerk, to be [*4]placed in the original record..." See, also, People v. Wilson, 86 NY2d 753, 754, 631 NYS2d 127 (1995); People v. Bonilla, 94 AD3d 633, 942 NYS2d 509 (1st Dept, 2012): People v. Mahmood, 13 Misc 3d 1206(A), 824 NYS2d 757 (Crim Ct, Kings Cty, 2006).

For a statement of readiness to be valid, the People must be ready to commence trial at the time the statement is made. "(T)he prosecutor must make (the) statement of readiness when the People are in fact ready to proceed." A statement of readiness is not "a prediction or expectation of future readiness." See, Kendzia, 64 NY2d at 337. See, also, People v. Nunez, 47 AD3d 545, 546, 851 NYS2d 128 (1st Dept, 2008) ("the record supports the motion court's finding that the (People's) request...was merely an illusory expectation of future readiness.")

For a statement of readiness to be genuine, the People must have removed all legal impediments to the commencement of their case. In other words, the People are ready to proceed when they have "done all that is required of them to bring the case to a point where it may be tried." See, People v. England, 84 NY2d 1, 4, 613 NYS2d 854 (1994), citing People v. McKenna, 76 NY2d 59, 64-65 556 NYS2d 514 (1990). See, also, People v. Dauphin, 112 AD3d 471, 976 NYS2d 465 (1st Dept, 2013); People v. Brewer, 63 AD3d 402, 403, 880 NYS2d 56 (1st Dept, 2009); People v. Khachiyan, 194 Misc 2d 161, 163, 752 NYS2d 243 (Crim Ct, Kings Cty, 2002).

If one of the necessary elements of the People's case is proof that the substance recovered from this Defendant is marijuana, and that substance was not analyzed until October 7, 2013, then the Statement of Readiness filed and served on September 27, 2013 is illusory, nothing more than a prediction or expectation of future readiness.

Therefore, if we add the time between August 2, 2013 and August 7, 2013 (5 days) to the time between August 7, 2013 and October 7, 2013 (60 days), the People are charged with a total of 65 days to date in this matter.

On this basis, Defendant's motion to dismiss the docket pursuant to CPL Sec. 30.30 is granted. Sealing is stayed for thirty days.

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

Dated: Bronx, New YorkFebruary 26, 2014 [*5]

_______________________________Hon. John H. Wilson, JCC