Defendant moves, under each of the above-captioned Indictments, for an order directing that defendant be released from custody pursuant to CPL §30.30(2)(a) due to the People's failure to be ready for trial within ninety days from the commencement of his commitment thereunder. After a review of the moving papers filed January 16, 2014, the People's Affirmation in Opposition filed February 14, 2014, the pertinent Supreme Court file and relevant statutory and caselaw authority, the application is decided in accordance herewith.

As a preliminary matter, the Court points out defendant's bail was set at $750,000.00 bond or cash and $800,000.00 bond or cash, for Indictment Nos. 4311/13 and 4737/13, respectively, and such bail conditions remain in force.

Defendant maintains a total of "133 days on 4311/13" and "144 days on 4737/13" must be charged to the People, while the People contend the total time chargeable for purposes of speedy trial calculations is well within statutory limits under each Indictment. In pertinent part, CPL §30.30(2)(a) provides:

... where a defendant has been committed to the custody of the sheriff in a criminal [*2]action he must be released on bail or on his own recognizance, upon such conditions as may be just and reasonable, if the People are not ready for trial in that criminal action within [] ninety days from the commencement of his commitment to the custody of the sheriff in a criminal action wherein the defendant is accused of one or more offenses, at least one of which is a felony ***.

With respect to Indictment No. 4311/13, defendant was arrested May 16, 2013, taken into custody, and arraigned May 17, 2013 in Criminal Court upon a felony complaint charging him with, inter alia, committing the A-II felony of Predatory Sexual Assault on February 2, 2013. Thereafter, defendant was indicted for committing the same offense as well as other related charges, and the matter was transferred to Supreme Court. The Indictment and a Statement of Readiness were filed June 19, 2013, such Statement of Readiness was served upon the defense June 20, 2013, and defendant's arraignment upon the Indictment was scheduled for July 11, 2013 by the Court, on which date the People also announced their readiness for trial in open court. The time from May 16 through June 20, 2013, thirty-five (35) days, is chargeable to the prosecution [see, People v. Kendzia, 64 NY2d 331 (1985)] during the period covering defendant's commitment into custody through his arraignment upon Indictment No. 4311/13.

With regard to the submission of the pertinent Grand Jury minutes requested by the Court on the date of defendant's arraignment upon the Indictment, there was, as defendant points out, and the People acknowledge, "delay" with respect to the People's submission thereof, and although the Court did not announce in open court that any time would be charged to the People, the Court did point out on October 24, 2013 that while some delay beyond a target period set for submission, consideration and determination of issues related to the relevant Grand Jury presentation could be considered reasonable, some portion of delay may not be, but the Court stated it would not otherwise comment upon whether any time could be found includable for purposes of "speedy trial" calculations unless and until an appropriate request for relief was brought before the Court. In the Court's view, the period from October 24, 2013 (the second date set for decision on the Grand Jury minutes) through December 12, 2013 (the date upon which the Grand Jury minutes for Indictment No. 4311/13 were finally submitted to the Court), forty-nine (49) days, is chargeable to the People. See, generally, People v. Harris, 82 NY2d 409 (1993); People v. McKenna, 76 NY2d 59 (1990). The Court specifically finds that while pre-trial motion practice generally tolls the "speedy trial" clock (see, CPL §30.30[4][a]), and that on September 5, 2013 the People requested, and the Court set, a motion schedule pertaining to a prospective court order to, inter alia, consolidate Indictment Nos. 4311/13 with 4737/13, albeit [*3]without first enabling the Court to pass upon the regularity of those proceedings as had been requested, such filing does not operate in this instance to toll the running of time during the cited period.

Upon careful examination of the record, the Court finds no other time is chargeable to the People from July 11, 2013 through the present date, due to a host of reasons for exclusion, including the initiation and continuation of open file discovery, the Court's request for the pertinent Grand Jury minutes for review and decision thereon dated January 16, 2014 (except as specifically set forth above), the People's submission of a combined oral swab and consolidation motion, as well as the instant application and determination.

With respect to Indictment No. 4737/13, defendant — in custody and awaiting trial under Indictment No. 4311/13 — was indicted for committing the A-II felony of Predatory Sexual Assault on May 12, 2013 as well as other related charges. The Indictment and a Statement of Readiness were filed on July 3, 2013, and such Statement of Readiness was served upon the defense July 4, 2013. Pursuant to an arrest warrant issued July 10, 2013, defendant was arrested and brought before the Court (Guzman, J.) for arraignment upon the Indictment July 25, 2013, on which date the People also announced their readiness for trial in open court.

As set forth in CPL 30.30(3)(c)(ii):

A motion made pursuant to subdivision two shall not: *** require the release from custody of any defendant who is also being held in custody pending trial of another criminal charge as to which the applicable period has not yet elapsed.

Consequently, in light of the Court's determination of defendant's "speedy trial" application pertaining to Indictment No. 4311/13, defendant's motion with respect to Indictment No. 4737/13 must be denied.

The Court concludes that no more than eighty-four (84) days of delay are chargeable to the People under Indictment No. 4311/13. Consequently, as less than 90 days of includable time have elapsed since the commencement of his commitment to custody, defendant has failed to establish a violation of CPL §30.30(2)(a) under Indictment No. 4311/13, and as a motion for defendant's release pursuant to CPL §30.30(2)(a) under Indictment No. 4737/13 therefore does not lie, and the Court finds defendant is not being illegally detained. Thus, the motion which seeks an order directing defendant be released from custody pursuant to CPL §30.30(2)(a) due to the People's failure to be ready for trial within ninety days from the commencement of his commitment is denied. [*4]

Accordingly, it is hereby

ORDERED, that defendant's motion for an order directing his immediate release under Indictment No. 4311/13 and under Indictment 4737/13 is denied.

ENTER

_____________________________Dated: March 27, 2014ELIZABETH A. FOLEY, J.S.C.

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