Defendant Richard Hauptner moves for dismissal of the accusatory instrument charging him with violating Vehicle and Traffic Law ("VTL") § 1192(2) Operating Vehicle While Intoxicated, VTL § 1192(3) Operating a Motor Vehicle While Intoxicated, VTL § 1192(2-a)(a) Aggravated Driving While Intoxicated, and VTL § 1192(1) Operating a Motor Vehicle While Impaired by Alcohol, on the ground that he has been denied his right to a speedy trial pursuant to Criminal Procedure Law ("CPL") § 30.30(1)(b). For the reasons that follow, Defendant's motion to dismiss is GRANTED.

Since the Defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony, the People are required to be ready for trial within ninety (90) days from the commencement of the criminal action, less any excludable time (CPL § 30.30(1)(b); People v Worley, 66 NY2d 523 [1985]).

The People are considered to be ready for trial when they 1) communicate their actual readiness in open court or file a certificate of actual readiness with the court and serve a copy on the defense counsel and 2) are in fact ready to proceed at the time they declare readiness (People v Kendzia, 64 NY2d 331 [1985]).

To satisfy the initial burden Defendant bears the burden under CPL § 30.30, the defendant need allege "only that the prosecution failed to declare readiness within the statutorily prescribed time period" (People v Luperon, 85 NY2d 71, 77-78 [1995]).

Once the Defendant has alleged a delay of more than this allowable time, the People have the burden of demonstrating their entitlement to a statutory exclusion for some, if not all, of the period of delay at issue (People v Cortes, 80 NY2d 201 [1992]). Moreover, the People are required to ensure a sufficiently clear record of the proceeding to permit the Court to make an informed decision as to whether the People should be charged the time between the appearance date and the adjourn date (Id.at 215).

Having reviewed the parties' submissions, the Court notes that only one adjournment period is in dispute and that a determination of that period is dispositive. The parties agree, and the Court concurs, that absent the disputed adjournment period there are 79 days of chargeable 30.30 time. Accordingly, the Court will address only the disputed period from April 28, 2015 until May 26, 2015.

The Defendant argues that period is chargeable. While admitting that prior to April 28, 2015, the parties agreed to waive from April 28, 2015 until the next adjourn date, the defense proved that the Court rejected the parties' attempt to waive, noting that it does not permit consent adjournments, and stated on the record and also wrote in the Court's action sheet that the time would be charged. The Defendant argues that the parties' private agreement to waive time is not binding on the Court for speedy trial purposes.

The People contend that the adjournment is not chargeable based upon the parties' agreement and written stipulation to that effect. They fail, at their peril, to address the Court's rejection of the parties' attempt to consent and its determination that the time would be charged. Nor do the People address the defense argument that the Court has the discretion to reject out of court agreements to waive speedy trial time.

It has long been held by this Court that the parties' private agreements to adjourn cases are not binding upon the Court for speedy trial purposes (People v Frazier, 161 Misc 2d 695 [Crim Ct, NY Co 1994]). Any doubt that the Court has the discretion to deny a consent adjournment was put to rest in People v Rivas, 78 AD3d 739 (2d Dept 2010), where the Appellate Division noted that not only is the Court not bound by the private agreements of counsel, but is permitted only to grant such agreements if it is satisfied that the postponement is in the interests of justice, taking into account the public interest in prompt disposition of charges (Id. at 740).

At the call of the calendar on April 28, 2015, the People announced that they were not ready. The parties entered into an out-of-court agreement to waive speedy trial time. The Court firmly and explicitly rejected that waiver and announced that the time would be charged to the People. The case was adjourned until May 26, 2015. The People did not file a Certificate of Readiness off calendar. On May 26, 2015, the People again announced that they were not ready. Accordingly, the 28 days of the disputed adjournment period are chargeable to the People, bring them to well over the allotted 90 day period permitted by law.

Based upon the foregoing, it is ORDERED that the Defendant's motion is GRANTED. This constitutes the decision and order of the court. A copy of the decision will be mailed to the parties and placed in the court file.