The defendant is charged under a misdemeanor complaint with (1) Criminal Possession of a Controlled Substance in the Seventh Degree (Penal Law ["PL"] § 220.03), (2) Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs (Vehicle and Traffic Law ["VTL"] § 1192[2]), (3) Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs (VTL § 1192[3]), (4) Making an Unlawful U-Turn (VTL § 1160[e]) and (5) Failing to Signal While Turning (VTL § 1163[a]). The accusatory instrument alleges, in pertinent part, that on or about March 7, 2014, between 3:50 a.m. and 4:00 a.m. at the NE intersection of 130 Street and 89 Avenue in Queens County, New York, the deponent, Police Officer William Chan, observed the defendant:

"operating a 2000 Toyota and failed to signal while making a left turn when making an illegal U-turn.

Deponent further states that upon stopping the defendant[ ]s vehicle he observed the defendant to have bloodshot watery eyes and [a] strong odor of marijuana emanating from the defendant and the defendant was unsteady on his feet upon exiting said vehicle.

Deponent further states that the defendant admitted, he had a beer.

Deponent further states that he recovered a plastic ziplock bag containing 5 capsules [of] Methylenedioxymethamphetamine (Molly) from the defendant's front left pants pocket.

Deponent further states that his conclusion that the substance recovered is Methylenedioxymethamphetamine (MDMA) is based upon his experience as a police officer and in his training in the identification and packaging of controlled substances and marijuana.

Deponent further states that he removed the defendant to the 112 PCT and was present when an intoxilyzer exam was administered to the defendant and that the results of said intoxilyzer exam indicated that the defendant had a .093 of one percentum or more by weight of alcohol in his blood.

PARTIES' CONTENTIONS

The defendant argues that the complaint must be dismissed as the People were not ready for trial within the mandated 90 day deadline (see CPL 30.30[1][b]). He asserts that the People did not convert the complaint into an information until the lab report analysis of the capsules was filed 185 days after his arraignment, on September 9, 2014. The defendant further questions whether the complaint was in fact converted by service of the lab report, because the report indicates that the recovered capsules did not actually contain Methylenedioxymethamphetamine, but instead contained another distinct substance, methylone.

In response, the People claim that they were ready at the arraignment. They argue that in satisfaction of the standard set in People v Kalin, 12 NY3d 225 (2009), the allegations here were sufficient to convert the charge of Criminal Possession of a Controlled Substance in the Seventh Degree. Specifically, they assert that the officer's conclusion that the capsules contained a controlled substance, based solely on his experience as a police officer and training in the identification and packaging of controlled substances and marijuana, was adequate.

For the reasons that follow, the defendant's motion is DENIED.The defendant's contention that the complaint was not converted to an information until the People filed the lab report identifying the capsules recovered from the defendant is correct. Nevertheless, the time between the arraignment and service of the lab report is excludable. The complaint was properly converted to an information when the lab report was filed despite the officer incorrectly identifying the recovered substance as Methylenedioxymethamphetamine rather than methylone. Accordingly, to date, the People are charged with 42 days on the charge of Criminal Possession of a Controlled Substance in the Seventh Degree and 2 days for all of the remaining charges.

Where the top charge against the defendant is a class A misdemeanor, the People must announce ready for trial within 90 days of the commencement of the action, absent a showing of excludable time (see CPL 30.30[1][b]). In order to establish that the People are ready for trial, the record of the proceedings must show the People are actually ready and (1) clearly stated their readiness on record, or (2) filed and served a certificate of readiness off calendar (see People v Smith, 82 NY2d 676, 678 [1993]); People v Kendzia, 64 NY2d 331, 338 [1985]). The People [*2]cannot be actually ready until they convert the complaint to an information. However, the presence of hearsay in an accusatory instrument is not a jurisdictional defect and can be waived by the defendant through his failure to move to dismiss pursuant to CPL 170.30 prior to the commencement of trial (see People v Casey, 95 NY2d 354, 364 [2000]).

The defendant was arraigned on March 7, 2014. The People declared that they were ready for trial on all counts and the presiding judge marked the People as such in the court file. This court is not bound by calendar markings or previous comments of other judges as to issues of trial readiness (see People v Berkowitz, 50 NY2d 333, 349 [1980]). Such issues are properly addressed when the defendant submits a written motion to dismiss on speedy trial grounds (see id.). The People's statement of readiness was in part illusory (see id.). The People could not be ready on all counts at the arraignment because the count of Criminal Possession in the Seventh Degree was not facially sufficient absent a lab report identifying the contents of the recovered capsules.

The People argue that a lab report is not needed to convert the original complaint into an information. Although People v Kalin, supra, does not require that the People file and serve a lab report in all drug cases, it does reaffirm the general legal principle that a legally sufficient information must contain non-hearsay allegations establishing, if true, every element of the offense charged and the defendant's commission thereof (see Casey, 95 NY2d at 360). An information that fails to satisfy these requirements is jurisdictionally defective (see CPL 100.40[1]; see also People v Alejandro, 70 NY2d 133 [1987]; People v Dumas, 68 NY2d 729 [1986]). Furthermore, in reviewing an accusatory instrument for facial sufficiency, as long as the factual allegations "give the accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense", the accusatory instrument should be given a "fair and not overly restrictive or technical reading" (Casey, 95 NY2d at 390). Reliance on a conclusory factual allegation to support any element of a charge will render that charge defective and thus facially insufficient (see Dumas, 68 NY2d at 730). The required nonconclusory evidentiary allegations must be contained within the four corners of the instrument itself (see People v. Thomas, 4 NY3d 143, 146 [2005]).

The complaint alleges the officer recovered "5 capsules of Methylenedioxymethamphetamine." This allegation is conclusory. A lab test or some other evidence identifying the capsules as a controlled substance is required to convert the complaint to an information, as it would remove the possibility of subjecting the defendant to being tried twice for the same offense (see Casey, 95 NY2d at 360). Therefore, the complaint was not facially sufficient as to the criminal possession of a controlled substance count until the lab report was filed 185 days after the arraignment. Although the time charged to the People would have normally begun to immediately accrue, at the arraignment the defendant requested time to file an omnibus motion and a motion schedule was set. The case was adjourned to April 28, 2014 for decision on the motion. This period is excludable (see CPL 30.30 [4][a][b]; see also People v Worley, 66 NY2d 523, 527 [1985]). (0 days)

On April 28, 2014, this matter was again adjourned to June 23, 2014 to allow the court additional time to render its decision on the omnibus motion. This period is excludable (see id.; see also Worley, 66 NY2d at 527). (0 days)

On June 23, 2014, this matter was adjourned to September 9, 2014 for hearings. (CPL [*3]30.30 [4][a][b]). (0 days)

On September 9, 2014, the People filed and served the lab results concerning the recovered capsules, which converted the accusatory instrument to an information as to the criminal possession charge. However, the People were not ready for the hearing and requested that the case be adjourned to September 11, 2014. Instead, the case was adjourned to October 22, 2014. Inasmuch as this was not a post-readiness adjournment as to the count of Criminal Possession in the Seventh Degree, the People are charged with the entire adjournment as to that count. (42 days). However, given that this was a post-readiness adjournment as to the other counts, the People are charged with only the 2 day period they requested for the remaining charges (see People v. Boumoussa, 104 AD3d 863, 863 [2d Dept 2013]). (2 days). The court finds no merit to the defendant's argument that the People may not partially convert the accusatory instrument (see People v. Miraglio, 17 Misc 3d 154 [Crim Ct, Kings County [2007]). The other counts were converted at arraignment as they were supported by the allegations in the complaint, the intoxilyzer exam report, and the other paperwork submitted by the People.

The fact that the laboratory analysis report indicates that the defendant possessed a controlled substance other than that alleged by the police officer does not render the complaint facially insufficient (see People v. Hobson, 22 Misc 3d 111[A] [Crim Ct, NY County 2009]; see also People v. Blake, 6 Misc 3d 958 [Crim Ct, NY County 2005]). A person is guilty of criminal possession in the seventh degree when he or she knowingly and unlawfully possesses a controlled substance (see PL § 220.03). Methylone and Methylenedioxymethamphetamine are controlled substances under NY Public Health Law § 3306 even though they are defined separately and have distinctive characteristics. The lab report serves as a correction to the Officer Chan's mistaken conclusion that the capsules contained Methylenedioxymethamphetamine. It does not compromise the defendant's ability to prepare a defense and removes the danger of being tried twice for the same offense (see Hobson, 22 Misc 3d at 6; see Blake, 6 Misc 3d at 961). The lab solely represents "a variance' between the drug referred to in the information and the expected proof at trial" (People v. Archer, 31 Misc 3d 1225[A] [Sup Ct, Bronx County 2011]).

On October 22, 2014, the People announced ready, but the defendant answered not ready. The case was adjourned to January 7, 2015. This period is excludable (see CPL 30.30 [4][b]). (0 days)

On January 7, 2015, the People were ready to proceed. The instant motion had been filed on December 16, 2014, so a motion schedule was set and the case was adjourned to March 2, 2015 for decision. This period is excludable (see CPL 30.30 [4][a][b]; see also People v Worley, 66 NY2d 523, 527 [1985]; People v Douglas, 209 AD2d 161, 162 [1st Dept 1994] ). (0 days)

This matter was also adjourned on March 2, 2015 and again on April 21, 2015 to allow the court time to consider the People's overdue response in deciding the motion. These periods are excludable (CPL 30.30 [4][b]). (0 days)

Therefore, pursuant to the above analysis, the People are charged with a total of 42 days on the count of Criminal Possession of a Controlled Substance in the Seventh Degree and 2 days for all the remaining charges.