County Court, Wayne County, August 18, 2022

Andrew D. Correia, Public Defender (Scott Turner of counsel), for appellant.

Michael D. Calarco, District Attorney, for respondent.

The defendant, Courtney L. Clement, moved for an order invalidating the plaintiff's certificate of compliance and statement of readiness for trial and dismissing the plaintiff's accusatory instruments on the grounds she had been denied a speedy trial by virtue of incomplete and untimely discovery. The court below denied this application and hence she filed this appeal.

The fundamental issue this court has to address is whether the People were ready for trial within 90 days of the commencement of the criminal action.{**78 Misc 3d at 333}

The defendant was arrested and charged with aggravated driving while intoxicated, Vehicle and Traffic Law § 1192 (2-a), and accompanying charges on November 6, 2019. Her appearance ticket required her to appear in the Marion Justice Court on November 27, 2019, at which time the defendant did not appear. The matter was rescheduled for arraignment on January 8, 2020.

The defendant was arraigned on January 8, 2020, at which point the time began to run for the purposes of CPL 30.30. The matter was adjourned to January 22, 2020, for discovery.

The People first announced their readiness for trial in a letter to the court dated November 13, 2019.

On December 20, 2019, the District Attorney (DA) sent some discovery material to defense counsel. Absent from this transmission was body cam video of the traffic stop and field sobriety test that formed the basis of the arrest and the charges.

The People and the defendant agree that from the time the defendant was arraigned on [*2]January 8, 2020, until the court appearance on January 22, 2020, is chargeable to the People (14 days).

On January 22, 2020, the defendant appeared in court with counsel who requested all discovery and body cam evidence. The assistant district attorney (ADA) explained he did not have access to the body cam evidence but would ask the main office to retrieve it.

The next appearance before the court was February 26, 2020, at which time the defendant appeared with substitute defense counsel. The People incorrectly informed the court and substitute defense counsel that the body cam video had already been provided to the Public Defender's Office. Relying on this incorrect representation, substitute defense counsel asked the court to adjourn the matter to give defendant's counsel time to review the video. Substitute defense counsel and the court relied on this incorrect information and the matter was adjourned until March 25, 2020.

On March 20, 2020, the Governor issued an executive order suspending CPL 30.30 time limits until such time as petit juries were reconvened in a particular jurisdiction (Executive Order [A. Cuomo] No. 202.8 [9 NYCRR 8.202.8]). On August 7, 2020, petit juries were reconvened in Wayne County by order of the Seventh Judicial District. Thus the defense and the DA in his submission agree that the time began to run against the People for speedy trial purposes on September 4, 2020.{**78 Misc 3d at 334}

This matter came before the Justice Court again on August 26, 2020. Defense counsel once again demanded the body cam video. The judge indicated on the record that the request for body cam has been renewed and they are absolutely entitled to this information.

On September 23, 2020, this matter came before the court again. The DA filed a new certificate of compliance and statement of readiness on this date. However, at this time the videocam evidence had not been provided to defense counsel. The DA apprised the court that the body cam had not been disclosed but indicated, "She'll have the body cam tomorrow." This evidence was provided on September 24, 2020. All parties agree that the time from arraignment, January 8, 2020, until January 22, 2020, is chargeable to the People (14 days). On January 22, 2020, the People had not produced video camera evidence and the matter was adjourned to February 26, 2020. It is this court's view that this time frame (35 days) is chargeable to the People.

[1] On February 26, 2020, the court and substitute defense counsel were presented with the inaccurate information by the ADA that the videocam footage was already provided to the Public Defender's Office. Consequently, the substitute defense counsel requested an adjournment so the defense counsel could review the videocam footage. Since the DA's office had an obligation to provide this video footage and failed to do so and misrepresented that they had done so, this time is chargeable to the People (see People v Blue, 114 Misc 2d 383 [Sup Ct, Kings County 1982]). The time period allocated to the People is 23 days from February 26, 2020, to March 20, 2020.

The CPL 30.30 clock stops from March 20, 2020, until September 4, 2020, and then resumes.

On August 7, 2020, the petit juries were reconvened in Wayne County by the order of the Seventh Judicial District. Thus the defense and the District Attorney in their respective submissions on this appeal agree that the time resumed running against the People for speedy trial purposes on September 4, 2020. [*3]

The time period from September 4, 2020, to September 23, 2020, is 19 days. This time period is charged to the People as the videocam footage was not presented until September 24, 2020.

The total time charged to the People for CPL 30.30 is 91 days:{**78 Misc 3d at 335}

January 8, 2020, to January 22, 2020 (14 days)

January 22, 2020, to February 26, 2020 (35 days)

February 26, 2020, to March 20, 2020 (23 days)

September 4, 2020, to September 23, 2020 (19 days)

Total time 91 days

The People were not ready for trial within 90 days of the arraignment. Thus this action is dismissible on the basis of CPL 30.30.

[2] To the extent that the lower court denied the relief to the defendant on the basis that the defendant failed to show prejudice under CPL 245.80, such an added requirement for CPL 30.30 relief is in error. CPL 30.30 requires the People to be ready for trial within 90 days or the matter can be dismissed by defense motion based on time and nothing else. A showing of prejudice has never been required when the Court of Appeals has specifically held: "The statutory right to dismissal granted a defendant if the prosecutor is not ready for trial . . . is based upon policy reasons and does not require consideration of prejudice to defendant" (People v Lawrence, 64 NY2d 200, 205 [1984]).

The record is bereft of any explanation by the DA's office for its failure to produce the videocam footage. CPL article 245 provides the means to obtain an extension of time to provide discovery.

Under CPL 245.20 (5) and 245.70 (2), (4), a party can seek a stay of automatic discovery upon motion and showing a good cause. Here the People did not file a motion or offer any "good cause" or "exceptional circumstances" to extend the time or justify the withholding of the body cam evidence.

[3] The prosecution will be deemed ready only where it has done all that is required to bring this case to the point where it can be tried immediately (see People v Robinson, 171 AD2d 475, 477 [1st Dept 1991]). A statement of readiness must be of present readiness not some time in the future (see People v Kendzia, 64 NY2d 331, 337 [1985]). Since the prosecutor's indication that the body cam evidence would be provided tomorrow was a statement of future readiness, the People were not ready for trial on September 23, 2020. Thus the certificate of compliance and statement of readiness were not accurate and the clock did not stop for CPL 30.30 purposes.

The fact that the defendant entered a plea of guilty to the charges on March 24, 2021, is not a bar to this appeal.{**78 Misc 3d at 336}

CPL 30.30 (6) states: "An order finally denying a motion to dismiss pursuant to [30.30 (1)] shall be reviewable upon an appeal from an ensuing judgment of conviction notwithstanding the fact that such judgment is entered upon a plea of guilty."

This court finds no merit to the assertion that the CPL 30.30 claim was not preserved below. CPL 470.05 (2) states that an issue is preserved for appeal where "the court expressly decided the question raised on appeal." The lower court's decision was an express denial of the defendant's CPL 30.30 motion to dismiss. [*4]

The decision and order of the lower court is reversed. Consequently, all charges are dismissed against the defendant.