District Court of Suffolk County, First District, February 9, 2023

Legal Aid Society, Central Islip (Bradley L. Kaufman of counsel), for defendant.

Raymond A. Tierney, District Attorney, Central Islip (Brandon Wong of counsel), for the People.

It is ordered that this omnibus motion by the defendant is decided as follows: The defendant's motion to strike the CoC/SoR (certificate of compliance/statement of readiness) is granted. The defendant's motion to dismiss the accusatory instruments based upon an alleged violation of his statutory speedy trial rights is granted. The defendant's remaining motions are denied as moot.

On May 23, 2022, the defendant was charged under docket No. CR-013206-22SU with one count of harassment in the second degree in violation of New York State Penal Law § 240.26 (1), a violation. He was arraigned on June 21, 2022.

By motion dated November 3, 2022, the defendant now moves this court for an order (1) striking the CoC/SoR as invalid; (2) dismissing the accusatory instruments based upon an alleged violation of his statutory and constitutional speedy trial rights; (3) dismissing the accusatory instrument as both jurisdictionally defective and facially insufficient; and (4) for various discovery.

A. Motion to Strike the CoC

The defendant first contends that the People's CoC/SoR, filed on June 13, 2022, is invalid due to the fact that (1) the People{**78 Misc 3d at 725} failed to properly and timely serve their CoC/SoR (see defendant's aff at Point I.A ¶¶ 25-34); (2) the People failed to comply with their automatic discovery obligations pursuant to CPL 245.20 (1) inasmuch as they failed to disclose (a) the 911 telephone calls made in connection with the incident and (b) police officer Flynn's IAB records (see defendant's aff at Point I.B ¶¶ 35-44); and (3) the CoC/SoR does not contain the certification required by CPL 30.30 (5-a) (see defendant's aff at Point I.C ¶¶ 56-60).

1. Failure to Properly and Timely Serve CoC/SoR

The defendant first argues that the People's service of the CoC/SoR (dated June 13, 2022) upon the defendant himself on June 22, 2022—when he was represented by the Legal Aid Society—was improper. (See defendant's aff at Point I.A ¶ 14.)

Although neither party has submitted a transcript of the minutes of the arraignment proceeding, the People do not contest the defendant's representation that he was represented by the Legal Aid Society at his arraignment on June 21, 2022. (See People's aff ¶ 9; defendant's aff ¶¶ 13-14.) The next day, June 22, 2022, the People mailed the CoC/SoR and discovery to the defendant at his last known personal address. (See People's aff ¶ 10; defendant's aff ¶ 14.) On September 2, 2022, the People sent the CoC/SoR and discovery to defendant's counsel. (See People's aff ¶ 13; defendant's aff ¶ 18.)

[1] CPL 245.50 (1) states that the People "shall serve upon the defendant and file with the court a certificate of compliance" when they have provided the discovery required under CPL 245.20 (emphasis added). While the statute is silent as to whom to serve in the event the defendant is represented by counsel, it is the opinion of this court that it is a fundamental tenet of law that once a defendant has counsel, all further contact with the defendant must be through that attorney. (See e.g. Rules of Prof Conduct [22 NYCRR 1200.0] rule 4.2 [a] ["(i)n representing a client, a lawyer shall not communicate . . . with a party the lawyer knows to be represented by another lawyer in the matter"]; CPLR 2103 [b] ["(e)xcept where otherwise prescribed by law or order of court, papers to be served upon a party in a pending action shall be served upon the party's attorney"]; see also People v Rossi, 154 Misc 2d 616 [Muttontown Just Ct, Nassau County 1992] [the mailing of a supporting deposition directly to a defendant, rather than defendant's{**78 Misc 3d at 726} counsel, invalidated the deposition, resulting in a dismissal of the accusatory instrument under CPL 100.25 (2)].)

Since it is uncontroverted that the defendant was represented by the Legal Aid Society during his arraignment on June 21, 2022 (see People's aff ¶ 9; defendant's aff ¶¶ 13-14), and since the People have not argued that such representation ended on June 21, 2022, this court concludes that the defendant was represented by the Legal Aid Society on June 22, 2022. Nor do the People contend that they were unaware of the defendant's representation by counsel on June 21 and/or June 22, 2022. Consequently, the People improperly served the CoC/SoR upon the defendant by mailing it directly to him rather than to his counsel; thus, the CoC/SoR is invalid.

Accordingly, the defendant's motion to strike the CoC/SoR as invalid is granted.

In light of this court's striking the CoC/SoR on the ground that the CoC/SoR was improperly served, this court need not reach the defendant's remaining arguments in favor of striking the CoC/SoR.

B. Motion to Dismiss Based on Statutory Speedy Trial Grounds

Next, the defendant contends that the People have exceeded their statutory speedy trial time pursuant to CPL 30.30. (See defendant's aff at Points II, II.A ¶¶ 61-85.)

Pursuant to CPL 30.30 (1) (d), with respect to the charged violation, the People were required to make an effective statement of their readiness for trial within 30 days of the commencement date of the within criminal action, taking into account all excludable time periods. The within criminal action was commenced when the defendant was arraigned on June 21, 2022.^[FN1] The People filed their CoC/SoR on June 13, 2022.

The gravamen of the defendant's speedy trial motion is that the People's CoC/SoR is invalid. Thus, the CoC/SoR filed on June 13, 2022 (and served on June 22, 2022), failed to stop the running of the speedy trial clock with respect to the charge; rather the defendant contends that the time elapsed from the date charges were filed (May 23, 2022) until the date of the filing of the instant motion (Nov. 3, 2022), 164 days, is chargeable to the People.

[2] This court finds that the defendant has met his initial burden on a CPL 30.30 motion by alleging that the prosecution{**78 Misc 3d at 727} failed to declare readiness within the statutorily-prescribed time period. (See People v Goode, 87 NY2d 1045 [1996].) The ultimate burden of proving that certain time periods should be excluded falls upon the People. (See People v Berkowitz, 50 NY2d 333 [1980].)

For the reasons discussed above, this court finds that the CoC/SoR dated June 13, 2022, is invalid. It is undisputed that the People properly served defendant's counsel with the CoC/SoR on September 2, 2022. (See defendant's aff at Point I.A ¶ 18; People's aff ¶ 13.) Assuming, arguendo, that the People's CoC/SoR filed on September 2, 2022, is valid (and not illusory for failure to comply with the automatic disclosure requirements of CPL 245.20),^[FN2] then the time from arraignment on June 21, 2022,^[FN3] until proper service of the CoC/SoR on September 2, 2022 (73 days), is chargeable to the People.

Accordingly, as there exists a minimum of 73 days (more than the statutorily-prescribed 30 days for a violation) of chargeable time herein, the defendant's motion to dismiss on statutory speedy trial grounds is granted.

In light of this court's dismissal of the case, the defendant's remaining motions are denied as moot.

By reason of the foregoing, the defendant's motion to strike the CoC/SoR is granted. The defendant's motion to dismiss the accusatory instruments based upon an alleged violation of his statutory speedy trial rights is granted. The defendant's remaining motions are denied as moot.