Defendant is charged with Assault in the Third Degree (Penal Law § 120.00 [1]) and Harassment in the Second Degree (Penal Law § 240.26 [1]). By Notice of Motion, Affirmation and Memorandum of Law dated March 5, 2016, Defendant moves for dismissal of the accusatory instrument on speedy trial ground pursuant to CPL § 30.30. By Affirmation in Opposition dated March 29, 2016, the People oppose dismissal claiming that they have been ready for trial within the required statutory period.

In rendering a decision, this court has reviewed Defendant's Notice of Motion Affirmation and Memorandum of Law dated March 5, 2016, the People's Affirmation in Opposition dated March 29, 2016, the court file, and relevant statutes and case law.

Criminal Procedure Law § 30.30 (1) requires the People to be ready for trial within a certain period of time. Time begins to run upon commencement of a criminal action. Commencement occurs when an accusatory instrument is filed (CPL § 1.20 [17]). Defendant was arraigned by a first-party misdemeanor complaint on August 12, 2015, the top charge of which was Assault in the Third Degree, a class A misdemeanor. The People have ninety days from commencement to be ready for trial (See CPL § 30.30 [1] [b]). The People are considered ready for trial when (1) there is no legal impediment to trying the People's case; and (2) they communicate their actual readiness in open court or send written notice of readiness to the court clerk and defense counsel (People v Kendzia, 64 NY2d 331 [1985]).

A defendant's speedy trial motion need only include sworn allegations that there has been unexcused delay in excess of the statutory time period. The burden then shifts to the People to show that specific periods should be excluded (People v Santos, 68 NY2d 859, 861 [1986]). Based on the sworn allegations of each party, as well as an examination of the court file, mindful that the record made by the court at the time of adjournment is not conclusive as to how much time is chargeable (People v Berkowitz, 50 NY2d 333, at 348-349 [1980]), this court rules accordingly.

On August 12, 2015, Defendant was arraigned on a misdemeanor complaint before Honorable George Grasso for Assault in the Third Degree and Harassment in the Second Degree. The People stated ready. The case was adjourned to September 24, 2015 in Part DVM for Defense motions. Adjournments for defense motions are excludable pursuant to

Zero (0) days are chargeable to the People.

On September 24, 2015, the parties appeared before Honorable Carol Sharpe. The People withdrew statement notice. Therefore, Huntley/Dunaway hearings were denied. The matter was adjourned to November 12, 2015 in Part DVM for trial. The People are afforded a reasonable amount of time to prepare for hearings and trial (People v Reed, 19 AD3d 312 [1st Dept 2005]).

Zero (0) days are chargeable to the People.

On November 12, 2015, the parties appeared before Honorable Julio Rodriguez III. The People were not ready to proceed to trial. The matter was adjourned to January 14, 2016 in Part DVM for trial.

Sixty three (63) days are chargeable to the People.

On January 14, 2016, the parties appeared before Honorable Julio Rodriguez III. Once again the People were not ready for trial. The matter was adjourned to February 16, 2016 in Part DVM for trial.

The court file contains a statement of readiness and affidavit of service filed on February 9, 2016. The affidavit of service indicates that the statement of readiness was mailed to Elizabeth Bender of the Legal Aid Society at 260 East 161st Street, Bronx, New York 10451. The same name and address appears on the Notice of Appearance. Defense counsel alleges that she never received a statement of readiness from the People (Bender Affirmation at ¶ 9).

The People's filing of a notice of readiness stops the clock on speedy trial so long as defense counsel is promptly notified. (See Kendzia, supra). Since the People served the notice of readiness by mail on the same day of filing, they promptly notified Defendant.

Defendant primarily relies on People v Chittumuri (189 Misc 2d 743 [Crim Ct, Queens County 2001) to support his argument that the People did not provide a valid statement of readiness. However, the factual circumstances in Chittumuri are distinguishable from the instant matter. In that case, during an adjournment for conversion, the People filed a supporting deposition and certificate of readiness with the court on October 3, 2001. The People served the certificate of readiness, by mail, to the Legal Aid Society. However, a new attorney, not affiliated with the Legal Aid Society, took over as Defendant's attorney prior to service of the certificate of readiness. The new attorney personally appeared, on the record, in the presence of an assistant district attorney on August 15, 2001. Defendant received a copy of certificate of readiness at the next court date on October 31, 2001. The People's mistake in sending the certificate of readiness to the previous attorney was "an avoidable error made by the People themselves" (Id. at 748). Therefore, the twenty eight days between the filing of the certificate of readiness and the next scheduled court date on which Defendant received a certificate of readiness did not constitute prompt notification under Kendzia.

While personal service of a notice of readiness would be the surest method of delivery, that requirement does not exist in statute or case law.

A properly executed affidavit of service raises a presumption that a proper mailing occurred (Engel v Lichterman, 62 NY2d 943 [1984]). While it may be true that Defense counsel still has not received a statement of readiness by mail, her allegation does not rebut the People's affidavit of service by mail.

Even if the statement of readiness, served by mail on February 9, 2016, did not stop the speedy trial clock, the People also stated ready on the next appearance date, seven days later, on February 16, 2016. Given that the People filed the statement of readiness within the statutory period, mailed notification to current Defense counsel's address and orally stated ready a week later, this court finds that the People's communication of readiness was effective on February 9, 2016.

The following time periods are chargeable to the People:

August 12, 2015 to September 23, 2015 (0 days).

September 24, 2015 to November 11, 2015 (0 days).

November 12, 2015 to January 13, 2016 (63 days).

January 14, 2015 to February 15, 2016 (26 days)

The relevant statutory time period is governed by CPL § 30.30 (1) (b). The People had ninety days from commencement on August 12, 2015 to be ready for trial. Since eighty nine days are chargeable to the People, they have not exceeded speedy trial time.

This constitutes the Decision and Order of the court.