City Court of Gloversville, March 23, 2018

William Martuscello for defendant.

Chad W. Brown, District Attorney (Amanda Nellis of counsel), for plaintiff.

Defendant moves for dismissal of charges pursuant to CPL 170.30 (e) on the grounds that he was denied his statutory right to a speedy trial under CPL 30.30. After a hearing held on defendant's motion, this court renders the following findings of fact and conclusions of law.

The criminal action against defendant was commenced in this local criminal court by the filing of a felony complaint on September 6, 2016.^[FN1] After waiving his right to a felony hearing on January 25, 2017, the defendant moved for divestiture pursuant to CPL 180.30. The matter was thereafter transmitted to county court on January 31, 2017.

On August 18, 2017, county court granted the People's ex parte application under CPL 180.40, and the case was returned to city court on September 1, 2017. The proceedings were thereafter scheduled for appearances on September 13, 2017, and on that same date, the felony complaint was replaced by a prosecutor's information charging the defendant with a misdemeanor.

On January 2, 2018, after a lapse of 482 days, the People filed a written declaration of readiness^[FN2] with this court.

After a hearing held on defendant's motion, this court finds that a total of 175 days are excluded under CPL 30.30 (4) (b){**59 Misc 3d at 831} representing "the period of delay resulting from a continuance granted by the court at the request of . . . the defendant."^[FN3] This court also finds that a total of 62 days are excluded under CPL 30.30 (4) (a), occasioned by defendant's adjournment request for "pre-trial motions." Finally, this court finds that a period of 50 days are excluded under CPL 30.30 (4) (f), representing the period of time during which the defendant was without counsel in county court.^[FN4]

This court previously excluded the two day time period between September 19, 2017, and September 21, 2017, when the proceedings were adjourned for assignment of counsel after the defendant's arraignment. Upon further consideration, this court finds that while CPL 30.30 (4) (f) excludes "the period during which the defendant is without counsel" that period is excludable only if the delay is "through no fault of the court." (Emphasis added.) Since it remains the court's responsibility to supervise the assignment of counsel to eligible indigent defendants, the pre-readiness delay caused by the unavailability of a public defender at arraignment, is considered a fault of the court, and therefore, the People will be charged with this delay. (See People v Cortes, 80 NY2d 201 [1992].)

This court rejects the People's contention that they are entitled to an exclusion from January 25, 2017 (the date defendant's attorney requested that the case be divested to county court), until the date of defendant's first appearance in county court on April 26, 2017. Contrary to the People's argument that the "case was being transferred between jurisdictions," there is absolutely no jurisdictional gap between divestiture and transmittal. While it may be true that the local criminal court maintains jurisdiction of the case until the papers are received by the superior court (CPL 180.30), these circumstances{**59 Misc 3d at 832} in no way prevented the People from presenting the matter to a grand jury^[FN5] or declaring readiness.

The same must be said of the exclusion that the People seek from June 27, 2017 (the defendant's last appearance in county court), until September 13, 2017, the date of defendant's [*3]first appearance in city court and the filing of the prosecutor's information. This court simply does not agree with the People that the case was held in abeyance "between two jurisdictions." The People did not make their application for transfer until August 17, 2017, and on that date, the case was still pending in county court. Between June 27, 2017, and August 17, 2017, there was nothing preventing the People from presenting the case to the grand jury. After county court signed the transfer order on August 18, 2017, there was no impediment to the filing of a prosecutor's information after the presentment of the original or a certified copy of the transfer order to city court.

It is well settled that administrative delays, court congestion and court scheduling are not exclusions under the readiness rule without a showing that the delays prevented the People from being ready for trial. (See People v LaBounty, 104 AD2d 202 [1984].)

At the most, the People would be entitled to an exclusion for one day while the transfer application was "under consideration" by county court, but this single exclusion will not change the outcome of this motion.

Under CPL 30.30 (1) (a), a motion made pursuant to sections 170.30 (1) (e) or 210.20 (1), must be granted where the People are not ready for trial within six months of the commencement of the criminal action when the defendant is accused of a felony. In this case, the statutory six month period equates to 181 days. Pursuant to section 30.30, the time period for compliance with speedy trial is calculated by "computing the time elapsed between the filing of the first accusatory instrument and the People's declaration of readiness, subtracting any periods of delay that are excludable under the terms of the statute." (See Cortes, 80 NY2d at 208.)

As stated earlier, a total of 482 days has lapsed between the filing of the first accusatory instrument on September 6, 2016, and the People's declaration of readiness on January 2, 2018.{**59 Misc 3d at 833} This court rules that a total of 287 days is excluded under CPL 30.30 (4), leaving a total of 195 days chargeable to the People. The People's declaration of readiness, therefore, was rendered untimely, and defendant's motion to dismiss is hereby granted.

The charges against the defendant are hereby dismissed, with prejudice.