Defendant is charged with Unlawful Possession of Marihuana, in violation of Penal Law (P.L.) section 221.05. Defendant now moves the court for an order dismissing the accusatory instrument on the ground that he has been denied his right to a speedy trial pursuant to Criminal Procedure Law (C.P.L.) sections 30.30(1)(d) and 170.30(1)(e).

The defendant has the initial burden of showing, through sworn allegations of fact, that there has been an inexcusable delay beyond the time allotted by the statute (People v. Santos, 68 NY2d 859, 861 [1986]). Once the defendant has made that showing, the People bear the burden of demonstrating sufficient excludable time in order to withstand a motion to dismiss (id.). [*2]

Based on a review of the court file, the submissions of the parties and the official minutes of the court proceedings on November 26, 2012; January 24, 2013; February 28, 2013; and April 26, 2013, the court finds as follows:

October 26, 2012 - November 26, 20120 days

On October 26, 2012, the defendant was arraigned on an information and the People answered ready. The matter was adjourned to November 26, 2012, for discovery by stipulation (DBS).

An adjournment for discovery is excludable (C.P.L. §30.30 [4][a] People v. Dorilas, 19 Misc 3d 75, 76-77 [App Term, 2nd Dept 2008] [time attributable to DBS is excludable] People v. Khachiyan, 194 Misc 2d 161, 166 [Crim Ct, Kings County 2002] [An adjournment for DBS which "is in lieu of motion practice and discovery practice in Kings County" is excludable]).

November 26, 2012 - May 23, 2013178 days

On November 26, 2012, the People filed with the court and served on defense counsel DBS. The minutes of the proceedings reflect that on that date, defense counsel requested that the People turn over the search warrant materials.

For the next six months, from November 26, 2012, through May 23, 2013, this matter was adjourned four (4) times for the People to turn over the search warrant materials. The first adjournment was from November 26, 2012, until January 24, 2013, a period of approximately two months. On January 24, 2013, the People failed to turn over the search warrant materials and represented on the record that "there was a mix-up ... [and the People] weren't able to get the search warrant materials." The People neither elaborated on the nature of the "mix-up" nor offered any further explanation for their failure to turn over the search warrant materials as directed.

On January 24, 2013, the court directed the People to turn over the search warrant materials off-calendar by February 14, 2013. The matter was then adjourned to February 28, 2013, for defense motions. As of February 28, 2013, the People had not yet turned over any search warrant materials so the defense was unable to go forward with its motion.

On February 28, 2013, the People advised the court on the record that "the People had ordered [the search warrant materials] but have not yet received them." The matter was then adjourned for another two months to April 26, 2013, for the People to turn over the search warrant materials.

On April 26, 2013, the People again failed to turn over the search warrant materials necessitating a fourth adjournment of this matter for the sole purpose of search warrant materials. The stenographic minutes of the proceeding reflect that on April 26, 2013, the People made the following record, "I have it was on for today for search warrant materials. I ordered the search warrant materials back on February 11th. I checked on them — as crazy as it sounds, I checked on them yesterday, and I was told that they hadn't been written up yet, and the guy who does the search warrant materials would get to them early next week. I know it's no excuse, your Honor, but the People did revise — we have revised our offer in light of that ... ."

In response, the defense indicated that it intended to file a motion once it received the search warrant materials and requested that the search warrant materials be turned over to the defense at least two weeks before the next date so that the defense would have enough time to [*3]draft and serve their motion. The court directed the People to file and serve the search warrant materials by May 20, 2013. The minutes of the proceeding reflect that the court advised all parties that the matter was being adjourned to June 13, 2013, but the court action sheet was endorsed with an adjournment date of May 23, 2013.

The People did not comply with the court's directive to turn over search warrant materials until May 23, 2013. It took the People approximately six (6) months, that is 178 days, to turn over the search warrant materials in a case where the defendant is charged with a violation, which, because the defendant appears to have no prior convictions under P.L. articles 220 or 221, is punishable by a maximum fine of $100.

In their response, the People assert that they answered ready for trial on the adjournment dates of January 24, 2013, February 28, 2013, and April 26, 2013. The People's assertion is belied by the court minutes, which do not reflect that the People answered ready for trial on those dates. Rather on each of those dates, the People advised the court that they did not have the search warrant materials that the court had repeatedly directed them to turn over.

The People further submit that the four adjournments from November 26, 2012, through May 23, 2013, are not chargeable to the People because "once the People have announced ready for trial [as they did at defendant's arraignment on October 26, 2012, and November 26, 2012], post-readiness delay in answering discovery motions does not affect continued readiness, and is therefore, not chargeable to the People" (People's Affirmation, p 2). The People's response neglects to address the fact that their failure to turn over the search warrant materials in this marijuana violation case "effectively prevented the case from going forward" (People v. Daley, 265 AD2d 566, 567 [2nd Dept 1999] [People properly charged with delay resulting from their failure to prepare a protective order and provide defense with a redacted copy of the search warrant and supporting affidavit]).

In People v. Daley, supra, the Appellate Division found that the People were properly charged with "the unreasonable period of delay resulting from their unexcused and prolonged failure to prepare a protective order and provide the defense with [a redacted copy of the search warrant materials]" (Daley, 265 AD2d at 567). The Court continued, "Contrary to the People's contentions, their unexcused failure precluded the defendant from moving to controvert the warrant and thus effectively prevented this action from going forward" (id.). Other courts have consistently held that the People's unexcused failure to turn over search warrant materials is chargeable to them for speedy trial purposes (see, e.g., People v. Portorreal, 28 Misc 3d 388, 399 [Crim Ct, Queens County 2010] ["Because the People's neglect to provide the warrant and affidavit ... prevented the Court from rendering a decision on the motion to controvert, the People are chargeable with fifty-one (51) days for this period on all counts"] People v. Ingram, 35 Misc 3d 1238[A] [Crim Ct, Kings County 2012] [People charged with period that elapsed from date search warrant materials were to be provided to court to date they were actually provided to court] see also People v. McKenna, 76 NY2d 59, 64 [1990] [People's negligent failure to provide grand jury minutes for five months mandated speedy trial dismissal because trial could not go forward until the motion to inspect the grand jury minutes and dismiss or reduce indictment was decided]).

Unlike in People v. Saunders, 8 Misc 3d 214, 217 [Crim Ct, Kings County 2005], cited by the People, where the court found that the People provided a reasonable explanation for their [*4]failure to turn over the search warrant materials, here, the People have proffered no reasonable excuse for their dilatory conduct in failing, for a period of approximately six months, to provide the search warrant materials to the court. In fact, on the record on April 26, 2013, the People conceded that there was "no excuse" for their failure to turn over the search warrant materials and, notwithstanding the court's directive on November 26, 2012, the People further indicated that the search warrant materials were not even ordered until February 11, 2013.

Accordingly, the court finds that the People are chargeable with the unreasonable six month period of delay resulting from their "unexcused and prolonged failure" to provide the search warrant materials in this matter (Daley, 265 AD2d at 566-67; see also Portorreal, 28 Misc 3d 388; Ingram, 35 Misc 3d 1238[A] McKenna, 76 NY2d 59).

The court notes that a review of the court file and the minutes of the proceedings on November 26, 2012, January 24, 2013, February 28, 2013, and April 26, 2013, show that at no point from November 26, 2012, through April 26, 2013, did the court grant or allow a consent adjournment pursuant to C.P.L. section 30.30(4)(b) (see People v. Rivas, 78 AD3d 739, 740 [2nd Dept 2010] [court "obligated to grant an adjournment on consent only if it is satisfied that postponement is in the interest of justice, taking into account the public interest in the prompt dispositions of criminal charges' "] see also People v. Frazier, 161 Misc 2d 695, 696-7 [Crim Ct, NY County 1994] ["private agreements" made between the People and the defense to adjourn cases on consent are "not binding on the court for speedy trial purposes"]).

For the reasons set forth above, the entire period from November 26, 2012, through May 23, 2013, which resulted in four adjournments for the People to provide search warrant materials, is chargeable to the People.

May 23, 2013 - August 13, 20130 days

On May 23, 2013, the matter was called into the record but neither defendant nor defense counsel of record appeared. As stated above, the minutes of the prior adjourn date of April 26, 2013, reflect that the parties were advised that the matter was being adjourned to June 13, 2013, not May 23, 2013.

On May 23, 2013, approximately six months after they were first directed to disclose the search warrant materials, the People finally provided the court with the search warrant materials for an in camera review. On July 31, 2013, the People filed with the court an ex parte motion for a protective order limiting disclosure of the affidavit in support of the search warrant on the ground that certain redactions were required to protect the identity and safety of the informant. The matter was adjourned to August 13, 2013, for the court's decision on the People's motion for a protective order and for defendant and defense counsel to be notified. This period is excludable as an adjournment for pre-trial motions and the period during which said motions are "under consideration by the court" (C.P.L. §30.30 [4][a]).

August 13, 2013 - October 29, 20130 days

On August 13, 2013, the court issued a written decision granting the People's motion for a protective order and the matter was adjourned to October 29, 2013, for hearings and trial. This period is excludable because the People are entitled to a reasonable adjournment to prepare for hearings and trial once hearings are ordered (see People v. Greene, 223 AD2d 474 [1st Dept], lv den 88 NY2d 879 [1996] People v. Hernandez, 268 AD2d 344 [1st Dept], lv den 95 NY2d 253 [2000] People v. Lucas, 25 Misc 3d 1213[A] [Crim Ct, Kings County 2009]). [*5]

October 29, 2013 - January 23, 20140 days

On October 29, 2013, the People answered ready for hearing and trial but the defendant did not appear in court. The matter was adjourned to January 23, 2014, for the defendant to appear. This period is excludable as an adjournment granted by the court at the request and consent of defense counsel and also as a period during which defendant failed to appear in court after having previously been released on his own recognizance (C.P.L. §30.30 [4][b], [c][ii]).

January 23, 2014 - April 10, 20140 days

On January 23, 2014, the defendant appeared in court with his attorney and defense counsel requested a speedy trial motion schedule. The court set a briefing schedule: the defendant's motion was due by February 20, 2014, and the People's response was to be filed and served by March 13, 2014. The matter was adjourned to April 10, 2014, for the court's decision on defendant's speedy trial motion. An adjournment for motion practice and the time during which the motion is "under consideration by the court" is excludable (C.P.L. §30.30 [4][a] see People v. Shannon, 143 AD2d 572, 572-573 [1st Dept], lv den 73 NY2d 860 [1988] [time while speedy trial motion under consideration by court is excludable]).

In total, the People are charged with 178 days, which exceeds the allowable time set forth in C.P.L. section 30.30(1)(d). Accordingly, defendant's motion to dismiss the accusatory instrument for lack of a speedy trial must be granted. The accusatory instrument is thus dismissed.

This constitutes the decision and order of the court.

Dated: April 10, 2014_________________________

Brooklyn, New York

JOANNE D. QUIÑONES

J.C.C.