Defendant moves for reconsideration of the Court's prior finding that only 59 speedy trial days were chargeable to the People. As a result of that finding, the Court, by Decision and Order dated November 3, 2014, denied defendant's motion to dismiss on speedy trial grounds. See CPL 30.30(1)(b).

On November 20, 2014, defendant filed a motion to reargue, asserting that the Court's finding as to one adjournment period was incorrect. Defendant specifically addressed the period from his arraignment, which took place on March 7, 2013, to April 8, 2013, a period of 32 days. At arraignment, the Court adjourned the case both for conversion and for defendant to retain private counsel.

In deciding defendant's original speedy trial motion, this Court rejected the People's concession that this period was chargeable. Instead, citing, inter alia, CPL § 30.30(4)(f) and People v. Stefano, 159 AD2d 1016, 552 N.Y.S.2d 727 (4th Dept. 1990), the Court found that this period was excludable as a period during which defendant was "without counsel through no fault of the court." § 30.30(4)(f).

This Court originally concluded that 59 days were chargeable to the People. Defendant's motion to reargue seeks to add the 32 days between March 7, 2013, and April 8, 2013, to this count. Since 59 + 32 = 91, if the Court were to change its ruling as to this period, the speedy trial motion would indeed have to be granted. See § 30.30(1)(b) (90-day speedy trial clock in Class A misdemeanor cases). For the reasons that follow, however, the Court adheres to its prior decision.

Defendant's primary argument is that, because neither defendant nor his counsel consented to the adjournment at issue, the time should be charged to the People. But the requirement that there be explicit consent to an adjournment applies only to exclusions of time pursuant to CPL § 30.30(4)(b). The Court excluded the time at issue here pursuant to § 30.30(4)(f), not § 30.30(4)(b), therefore consent was not required.

It is true, as defendant notes, that People v. Masellis, 140 Misc 2d 1024, 1029, 532 N.Y.S.2d 465, 469 (Crim. Ct. NY County 1988), held that a period during which a misdemeanor complaint remained unconverted and the defendant was directed to retain private counsel should be charged to the People because the defense did not consent to the adjournment. But the Court declines to follow Masellis, and disagrees with its reasoning. Importing the consent requirement that is contained only in § 30.30(4)(b) to the other exclusion periods identified in § 30.30(4) is clearly inappropriate. Had the Legislature intended that these other periods be excluded only on the defendant's consent, it would have incorporated a consent requirement directly into those subsections.

Defendant's motion also requires the Court to examine more closely the substantive speedy trial issue: Specifically, should a period during which a misdemeanor case is adjourned both for conversion and for the defendant to retain private counsel really be charged to the People? As to this, there are cases on both sides. Masellis, although it ultimately turned on the consent issue, also held that an exclusion pursuant to § 30.30(4)(f) was "not available to the People since they had yet to convert the misdemeanor complaint into an information." 140 Misc 2d at 1026, 532 N.Y.S.2d at 467. People v. Krecko, 168 Misc 2d 1030, 1033-34, 646 N.Y.S.2d 607, 609-10 (Crim. Ct. Queens County 1996) also charged the People with the period during which a misdemeanor case was adjourned for conversion and for defendant to retain private counsel:

On the other hand, at least one court has held that the absence of counsel pending conversion warrants the exclusion of time under § 30.30(4)(f). People v. Francisco, 176 Misc 2d 288, 671 N.Y.S.2d 636 (Crim. Ct. Bronx County 1998) ("[T]he conclusion seems inescapable that, even in the absence of an information, the failure of defense counsel to appear will render the period of his absence excludable pursuant to CPL 30.30(4)(f).")

In addition, and more generally, courts have regularly applied § 30.30(4)(f) to exclude those periods where a case was adjourned due to the absence of counsel, irrespective of the stage of the case. E.g. People v. Sullivan, 44 Misc 3d 1227(A) (Crim. Ct. NY County 2014) (adjournment for hearing and trial); People v. Ocasio, 9 Misc 3d 465, 959 N.Y.S.2d 898 (Sup. Ct. Bronx County 2013) (response and decision); People v. Rickard, 71 AD3d 1420, 898 N.Y.S.2d 393 (4th Dept. 2010) (period between arraignment and appointment of public defender); People v. Bahadur, 41 AD3d 239, 841 N.Y.S.2d 5 (1st Dept. 2007) (plea negotiations); People v. Brown, 23 AD3d 703, 803 N.Y.S.2d 304 (3d Dept 2005) (pending grand jury action).

For the reasons that follow, this Court agrees with this prevailing view, and adheres to its original finding that the period at issue here should not have been charged to the People. First, this finding derives from the interpretation of the statute that is the most faithful to its language. The statute dictates that periods where the defendant is without counsel through no fault of the court should be excluded from the speedy trial calculation. This language is absolute, contains no exceptions, and is drafted in such a way that it is not amenable to any judicially-crafted exceptions. As the Third Department has noted,

Second, the Court's ruling is supported by both the policy behind and the structure of CPL § 30.30 itself. The gravamen of the speedy trial statute is to move cases toward readiness for trial; those cases in which the People are not ready within a specified period of time must be dismissed. But it is simply impossible for a case to be tried when a defendant who is not acting pro se is without counsel. The People should not be expected to be ready for trial during a period in which the case cannot possibly be tried, and accordingly, they should not be charged for their lack of readiness during this time.

Finally, the Court's interpretation of § 30.30(4)(f) has the benefit of being an easy-to-apply bright-line rule. If a represented defendant is without counsel through no fault of the court, the time is excluded. Period. An alternative reading of the section would lead to ad hoc judicial rule-making of the worst possible sort. Courts might apply § 30.30(4)(f) at some stages of the [*4]case, but conclude that it does not apply at others, as the did courts in Masellis and Krecko. Courts might also attempt to identify the reason that defendant was without counsel and apply § 30.30(4)(f) to some, but find that it does not apply to others. New York's speedy trial law is already a confusing morass of rules, exceptions, counter-rules and counter-exceptions. This Court refuses to contribute to that pool.

Finally, the Court notes that there is a readily available answer to the argument that it is unfair to the defendant to stop the speedy trial clock during a long adjournment pending conversion while the defendant retains private counsel. Once defendant has secured counsel, that attorney can file Notice of Appearance with the court, off-calendar. From that day forward defendant is no longer without counsel, and a court would be free to conclude that the speedy trial clock resumed as of that date.

Accordingly, the Court adheres to its original speedy trial ruling. Defendant's motion to reargue is denied.