The defendant moved to dismiss the charges, alleging a violation of his right to a speedy trial pursuant to Criminal Procedure Law § 30.30 (1) (b). The parties disagree about the excludability of one adjournment from September 15, 2016 to December 13, 2016.

The defendant contends that this period of delay should be charged to the People for two reasons. First, the defendant argues that the People should be charged because this period of delay followed the defendant's in-court waiver of pre-trial motions. Second, the defendant argues that the People should be charged because the length of this adjournment exceeded a reasonable period of delay to prepare for trial. The People counter that this adjournment should be excluded because the defendant's in-court waiver of motions occurred after the court had previously granted the defendant's request for a motion schedule.

For the reasons explained below, the defendant's motion to dismiss is denied.

On May 20, 2016, the defendant was arraigned on a felony complaint that charged him with Sexual Abuse in the First Degree (Penal Law § 130.65 [2]), two counts of Strangulation in the Second Degree (Penal Law § 121.12), seven counts of Endangering the Welfare of a Child (Penal Law § 260.10 [1]), and one count of Aggravated Harassment in the Second Degree (Penal Law § 240.30 [1] [a]). The court adjourned the matter to May 25, 2016, for grand jury action. [*2]On May 25, 2016, the People announced that no grand jury action had occurred, and the court adjourned the matter to July 12, 2016, for grand jury action.

On July 12, 2016, the People superseded the felony complaint with an information charging the defendant with nine class A misdemeanors: two counts each of Forcible Touching (Penal Law § 130.52) and Criminal Obstruction of Breathing or Blood Circulation (Penal Law § 121.11 [a]), four counts of Endangering the Welfare of a Child (Penal Law § 260.10 [1]), and one count of Aggravated Harassment in the Second Degree (Penal Law § 240.30 [1] [a]).

On July 12, 2016, a new statutory speedy trial period commenced requiring the People to be ready for trial within 90 days, absent excludable time (see CPL 30.30 [5] [c] and [1] [b]; People v Sibblies, 22 NY3d 1174, 1175 [2014]). The court set a motion schedule calling for the defendant to file motions by August 29, 2016, and adjourned the matter to September 15, 2016, for the People's response and the court's decision. This period is excluded (CPL 30.30 [4] [a]).

On September 15, 2016, new counsel appeared for the defendant and announced that the defendant was waiving motions. The court adjourned the matter to December 13, 2016, for trial.

The defendant contends that his waiver of pre-trial motions obligated the People to announce their readiness for trial or be charged for any subsequent delay. The People counter that they should not be charged for the delay resulting from the defendant requesting a motion schedule and then waiving motions on the calendar date set for response and decision.

The defendant is responsible for a delay where, as here, the court grants the defendant's request to set a motion schedule, and the defendant later changes course and announces that he is waiving motions on the calendar date set for response and decision (see CPL 30.30 [4] [a]; People v Fuller, 8 AD3d 204, 205 [1st Dept 2004], lv denied 3 NY3d 706 [2004] [period of delay resulting from defendant's failure to accomplish stated intention to file motions excluded]; People v Garrett, 182 AD2d 496 [1st Dept 1992] [subsequent adjournment excluded after defendant announced waiver of motions on motion due date]; cf. People v Ali, 209 AD2d 227 [1st Dept 1994], lv denied 85 NY2d 905 [1995] [part of adjournment charged to People when defendant notified People off-calendar before the next court date that he had decided not to file motion]). As a result, the People are entitled to a subsequent, reasonable period of delay to prepare for trial (see id.).

The defendant further argues that the People should be charged because this adjournment exceeded a reasonable period of delay to prepare for trial. However, the transcript of the September 15, 2016, calendar call shows that the defendant is solely responsible for the length of the delay. After the defendant announced that he was waiving motions, the court suggested adjourning the matter to November 2 or 3 for trial. The People requested "an earlier date," explaining that the "complaining witness is giving birth in November so we would like the earliest possible trial date." Defense counsel responded, "Your Honor, I was going to request a later date. Mr. Rivera is starting a new job in Pennsylvania. He does not want to take time off." The court offered to adjourn the matter to a date in December, and defense counsel responded, "That makes more sense." The court adjourned the matter to December 13, 2016, for trial. As this exchange demonstrates, following the People's request for the earliest possible trial date, the defendant expressly requested and consented to a longer adjournment to accommodate his new job (see, e.g., People v Barden, 27 NY3d 550, 554 [2016]; People v Worley, 66 NY2d 523, 527 [1985]). For these reasons, the entire period from September 15 to December 13, 2016, is excluded.

As to the remaining adjournments, the court finds that the People did not exceed the statutory speedy trial period. On December 13, 2016, the People announced not ready for trial and the court adjourned the matter to January 31, 2017. On January 19, 2017, the People filed an off-calendar statement of readiness that tolled the statutory speedy trial period (see People v Brown, 28 NY3d 392, 403 [2016]; People v Kendzia, 64 NY2d 331, 337 [1985]). The People are charged with 37 days from December 13, 2016 to January 19, 2017.

On January 31, 2017, the People announced not ready for trial because the complainant and her children were ill, and requested February 7, 2017. The court adjourned the matter to March 16, 2017. The People are charged with the seven days they requested (see People v Cortes, 80 NY2d 201, 210 [1992]; People v Anderson, 66 NY2d 529, 535-536 [1985]; People v Rivera, 223 AD2d 476 [1st Dept 1996], lv denied 88 NY2d 852 [1996]; People v Urraea, 214 AD2d 378 [1st Dept 1995]).

On March 16, 2017, the People announced not ready for trial because the Assistant District Attorney was on trial and requested March 23, 2017. The court adjourned the matter to May 2, 2017. The People are charged with the seven days they requested (see id.).

On May 2, 2017, the People announced not ready for trial because the Assistant District Attorney was on trial, and the court adjourned the matter to June 26, 2017. On May 16, 2017, the People filed an off-calendar statement of readiness that tolled the statutory speedy trial period (see Brown, 28 NY3d at 403; Kendzia, 64 NY2d at 337). The People are charged with 14 days from May 2 to May 16, 2017.

On June 26, 2017, the People announced ready for trial, but the defendant had filed the instant motion on June 5, 2017. The court set a motion schedule requiring the People's response by July 10, 2017, and the court's decision by July 21, 2017, and adjourned the matter to August 1, 2017. This period is excluded (CPL 30.30 [4] [a]).

Prior to August 1, 2017, the defendant had requested an extension to the motion schedule to file a reply. On August 1, the court extended the motion schedule to include defendant's reply by August 3, 2017, the People's sur-reply by August 10, 2017, and adjourned the matter to September 13, 2017, for trial. This period is excluded (CPL 30.30 [4] [a]).

The court finds that the People are charged with 65 days. Accordingly, the defendant's motion to dismiss the charges pursuant to Criminal Procedure Law § 30.30 (1) (b) is denied.

A copy of this decision has been mailed electronically to the parties.

This constitutes the decision and order of the court.