Appeal from an order of the Criminal Court of the City of New York, Kings County (John H. Wilson, J.; op 36 Misc 3d 1239[A], 2012 NY Slip Op 51740[U]), dated September 10, 2012. The order denied the People's motion to, in effect, set aside a prior determination dismissing the accusatory instrument pursuant to CPL 30.30.

ORDERED that the order is affirmed.

On January 9, 2012, the People filed a misdemeanor complaint charging defendant with two counts of aggravated harassment in the second degree (Penal Law § 240.30 [1] [a], [2]) and one count of harassment in the second degree (Penal Law § 240.26 [1]). At the arraignment on January 9, 2012, defendant was represented by Clifford Levin, Esq., of the Legal Aid Society. The Criminal Court adjourned the case to March 19, 2012 for the People to file a supporting deposition. On March 19, 2012, Donald Vogleman, Esq., appeared and, in the presence of the Assistant District Attorney (ADA), announced that he had been retained by defendant, filed a notice of appearance and handed the ADA his business card bearing his address and telephone number. The ADA indicated to the court that the People were not ready to file a supporting deposition. The court adjourned the case to April 13, 2012, noting that this date "is beyond the [CPL] 30.30 date." On March 21, 2012, the People served a statement of readiness upon the Legal Aid Society and filed the statement of readiness and a supporting deposition with the court. At the proceeding held on April 13, 2012, the ADA reiterated the People's trial readiness and asserted that the written statement of readiness had been served upon Mr. Vogelman on April 10, 2012. The court, however, noted that the People had not served Mr. Vogleman with a written statement of readiness on March 21, 2012. The ADA argued that so long as the mailing of the statement of readiness to prior counsel had been "done in good faith," it should be considered an effective statement of readiness so as to stop the speedy trial clock. The ADA further contended that the period from January 9, 2012 to March 19, 2012 should not be chargeable to the People because, on January 9, 2012 defendant had requested discovery, and the adjournment to March 19, 2012 had also been granted for the purpose of offering defendant the opportunity to obtain counsel. On April 13, 2012, the court, sua sponte, dismissed the accusatory instrument on speedy trial grounds (CPL 30.30 [1] [b]).

Thereafter, the People moved to, in effect, set aside the order of April 13, 2012. In support of the motion, the People argued that their good faith service of the statement of readiness upon defendant's prior attorney, the Legal Aid Society, on March 21, 2012, tolled the [*2]speedy trial time period and, as a result, defendant was not denied the right to a speedy trial. On September 10, 2012, the Criminal Court denied the People's motion.

In calculating whether the People exceeded the 90-day period applicable to the class A misdemeanor charges (CPL 30.30 [1] [b]), our review of the record reveals that the time period from January 10, 2012 to March 19, 2012 (a total of 70 days) was chargeable to the People, since the adjournment on January 9th was for the sole purpose of having the People convert the complaint to an information by filing a supporting deposition, and not, as the People assert, for defendant to retain counsel or to obtain discovery.

As noted above, on March 19, 2012, Mr. Vogelman appeared in court and stated that he had been retained as counsel for defendant. He presented the People with his business card listing his address and telephone number, and he filed a notice of appearance (see Uniform Rules for all Courts [22 NYCRR] § 200.5). The People assert that, notwithstanding these facts, the statement of readiness that had been served on defendant's former attorney, Clifford Levin of the Legal Aid Society, on March 21, 2012 tolled the speedy trial time period.

The People's communication of readiness for trial may be done either by the prosecutor's statement of readiness in open court or through a written notice of readiness sent by the prosecutor to defense counsel and the appropriate court clerk (see People v Kendzia, 64 NY2d 331, 337 [1985] People v Clark, 174 Misc 2d 324 [App Term, 9th & 10th Jud Dists 1997]). Since the People were present in court on March 19, 2012, when Mr. Vogelman announced that he had been retained by defendant and that he had filed a notice of appearance with the court, the additional 21 days from March 20, 2012 to April 9, 2012 (one day prior to the date when the People mailed Mr. Vogelman the certificate of readiness) are chargeable to the People (see People v Corley, 30 Misc 3d 1232[A], 2011 NY Slip Op 50311[U] [Crim Ct, NY County 2008] [certificate of readiness served on the prior defense counsel did not toll the speedy trial time period since new counsel had been appointed on the record in the presence of the People] People v Chittumuri,189 Misc 2d 743 [Crim Ct, Queens County 2001] [the People's mailing of the statement of readiness to the defendant's former attorney (Legal Aid), who the People knew or should have known had been replaced by another attorney, was ineffective] People v Zhu, 171 Misc 2d 298 [Sup Ct, Kings County 1997], revd on other grounds, 245 AD2d 296 [1997] [mailing certificate of readiness to counsel who the People knew had withdrawn from the case failed to satisfy the requirement of serving defendant's counsel with a certificate of readiness] compare People v Odjody, 35 Misc 3d 1221[A], 2012 NY Slip Op 50804[U] [Crim Ct, Kings County 2012] [where newly retained defense counsel had not filed a notice of appearance, the service of the statement of readiness upon the defendant's original attorney of record tolled the speedy trial time period]). As service of the statement of readiness upon defendant's prior attorney did not stop the speedy trial clock, we find that a total of 91 days is chargeable to the People. Consequently, defendant was denied the right to a speedy trial.

Accordingly, the order is affirmed.

Weston, J.P., Aliotta and Solomon, JJ., concur.
Decision Date: April 18, 2014