Criminal Court of the City of New York, Bronx County, July 5, 2023

The Legal Aid Society (Katie Kuhl of counsel) for defendant.

Darcel D. Clark, District Attorney (Jennifer Rentrope of counsel), for the People.

Defendant moves, inter alia, for dismissal of the misdemeanor charges on statutory speedy trial grounds pursuant to Criminal Procedure Law §§ 30.30 and 210.20 (1) (g).^[FN1] Specifically, defendant asserts that the People's certificate of compliance (COC) and statement of readiness (SOR) were filed after the close of business on the 90th day following arraignment and, thus, were untimely. The People oppose the motion.

Upon review and consideration of the submissions, court file and relevant legal authority, the court finds that the People's COC and SOR, filed February 17, 2023, were served and filed within their statutorily prescribed time.{**80 Misc 3d at 314}

Accordingly, the People's prosecution pursuant to CPL 30.30 was not untimely and defendant's motion is denied.

On November 19, 2022, defendant Juan Martinez was arrested, arraigned and charged with violating Penal Law § 220.03 (criminal possession of a controlled substance in the seventh degree) and Vehicle and Traffic Law §§ 1192 (3) (driving while intoxicated), 1192 (2) (driving while intoxicated; per se), and 1192 (1) (driving while ability impaired). Defendant was released on his own recognizance.

The People filed their COC and SOR off calendar on February 17, 2023. On March 29, 2023, defendant filed the instant motion to dismiss the information pursuant to CPL 30.30 [*2]and 210.20 (1) (g), which asserted that the prosecution was untimely because the People's COC and SOR were purportedly filed after the 90th day following arraignment. On April 17, 2023, the prosecution opposed the motion, and aver that their COC and SOR, although filed after 5:00 p.m., were nonetheless timely, and that the People have met their statutory obligation to communicate their readiness to defense counsel. The People also note that defendant has not challenged the sufficiency of their COC. Defense counsel's reply brief, dated April 26, 2023, reiterates defendant's prior arguments, and specifically rebuts the prosecution's premise that the existence of night arraignments demonstrates that court hours extend beyond 5:00 p.m. Finally, defendant requests that the People be charged an additional five days for their delay in filing their opposition, originally due on April 12, 2023.

I. Applicable Standard for CPL 30.30 (1)

In a motion to dismiss misdemeanor charges pursuant to CPL 30.30 (1), a defendant has the initial burden to demonstrate that the prosecution failed to declare readiness for trial within 90 days (see CPL 30.30 [1] [b]; People v Luperon, 85 NY2d 71, 77-78 [1995]).

Generally, a criminal action is commenced by the filing of an accusatory instrument against a defendant, and it is settled law that the date on which the action is commenced is excluded from the CPL 30.30 computation (see CPL 1.20 [17]; People v Stiles, 70 NY2d 765, 767 [1987]).{**80 Misc 3d at 315}

The People's readiness for trial has traditionally been declared on the record in open court, or in writing to the court and defendant, which declaration must be actual and not merely anticipatory. Following legislative reforms to the CPL, after January 1, 2020, the People must also now satisfy their statutory obligations pursuant to CPL 245.50 (3), which provides that "the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper certificate pursuant to subdivision one of this section" (see People v Kendzia, 64 NY2d 331, 337 [1985]; People v Pierna, 74 Misc 3d 1072, 1087 [Crim Ct, Bronx County 2022]; People v Aquino, 72 Misc 3d 518, 520 [Crim Ct, Kings County 2021]). Consequently, courts have examined the prosecution's efforts to ensure that they have turned over all known discoverable materials pursuant to CPL 245.20 in determining the validity of a COC (see People v Adrovic, 69 Misc 3d 563, 574-575 [Crim Ct, Kings County 2020]; People v Vargas, 76 Misc 3d 646, 652 [Crim Ct, Bronx County 2022]).

Where a defendant meets his burden to demonstrate that the prosecution failed to declare readiness within the statutorily prescribed time, the burden then shifts to the People to identify excludable delays (see Luperon, 85 NY2d at 78 ["the People must ordinarily identify the exclusions on which they intend to rely, and the defense must identify any legal or factual impediments to the use of these exclusions"]).

II. The Parties' Arguments

Defendant's motion is entirely premised upon the argument that the People's filing of their COC and SOR at 5:54 p.m. on the 90th day following arraignment was untimely (affirmation of defendant's counsel at 7). Defense counsel further speculates that because the prosecution did not provide confirmation of its court filing, it must be presumed that the COC, SOR and supporting documentation had been filed after the court had closed for business at 5:00 [*3]p.m. and, thus, it would have been impossible for him to be brought to trial within 90 days (affirmation of defendant's counsel at 7-8). Defendant also contends that the court could not have conducted its inquiry of the prosecution's actual readiness pursuant to CPL 245.50 (3) due to the untimely COC filing (affirmation of defendant's counsel at 8). Defense counsel further posits that the Electronic Document Delivery System (EDDS) is a mere delivery system rather than a filing procedure in which documents are marked as submitted and checked for compliance (affirmation of defendant's counsel at 10).{**80 Misc 3d at 316}

In his reply brief, defendant also asserts that the existence of nighttime arraignments does not ipso facto extend close of business hours according to CPL 30.30 (reply affirmation of defendant's counsel at 2). Lastly, defense counsel contends that the prosecution should be charged five additional days for failing to request an extension of time to file its opposition brief, due on April 12, 2023, until April 17, 2023 (reply affirmation of defendant's counsel at 3).

Initially, the People state that they fulfilled their statutory obligation pursuant to CPL 30.30 (1) because they were indeed ready to proceed to trial when they declared their readiness on the 90th day following arraignment (mem in support of the People's opp § A). The prosecution further avers that its COC filing should not be considered untimely because courts remain open after 5:00 p.m., including for night arraignments (mem in support of the People's opp § A). Finally, the People note that defendant has raised no objection to the adequacy of their COC (mem in support of the People's opp § B).

III. The Court's Analysis

A. The court's section 30.30 (5) COC review is not a condition precedent to the People's declaration of trial readiness.

Criminal Procedure Law § 30.30 (5) states, in pertinent part, that when a prosecutor gives notice that the People are ready for trial, "the court shall make inquiry on the record as to their actual readiness" (see CPL 30.30 [5] [emphasis added]).

Defendant cites to People v England for the proposition that just as an arraignment on an indictment is a prerequisite to a declaration of trial readiness, so too is the court's on the record inquiry of the People's readiness pursuant to CPL 30.30 (5) (see People v England, 84 NY2d 1, 4-5 [1994] ["Defendant could not have been brought to trial before arraignment, the process by which the court acquires jurisdiction over a defendant"]). However, defendant's reliance on the England holding is misplaced as the facts at bar are wholly inapposite.

In England, the Court found that the prosecution, having declared its readiness for trial following the defendant's arraignment on the felony complaint, had inexplicably delayed presentment to the grand jury such that the arraignment on the indictment occurred after its speedy trial time had already expired (see England at 3 ["it was the People's unexplained laxity in obtaining an indictment that was a direct, and virtually insurmountable, impediment to the trial's very commencement{**80 Misc 3d at 317} within the statutory period" (internal quotation marks and citations omitted)]). Consequently, the People's preliminary declaration of readiness before conversion rang hollow, and their speedy trial time had already run before they filed their supplemental COC following arraignment on the indictment (see England at 5).

[1] However, defendant's attempt to extrapolate from the England holding fails because the condition precedent to that defendant's arraignment, namely an indictment on the felony complaint by a grand jury, was strictly prescribed by CPL 30.30 (1), but there is no analogous [*4]time constraint that governs when the court is to conduct its inquiry pursuant to CPL 30.30 (5), except that the statutory scheme contemplates that the court's COC review will not occur until after the People have already declared their readiness to proceed to trial.

It is well-settled that the court's review pursuant to CPL 30.30 (5) is intended to safeguard the discovery process from the filing of illusory COCs to delay accrual of speedy trial time when discovery remains outstanding (see e.g. People v Figueroa, 76 Misc 3d 888, 892 [Crim Ct, Bronx County 2022], citing People v Payne, 75 Misc 3d 1224[A], 2022 NY Slip Op 50656[U], *2 [Crim Ct, Bronx County 2022]; see also People v Spaulding, 75 Misc 3d 1219[A], 2022 NY Slip Op 50544[U], *2 [Crim Ct, Bronx County 2022]; People v Rodriguez, 77 Misc 3d 23, 25 [App Term, 1st Dept 2022]; People v Diaz, 77 Misc 3d 727, 733 [Crim Ct, Bronx County 2022]).

However, defendant cannot be heard to argue that the court's examination and determination of the COC's validity will occur before the People can state their readiness when the COC filing is the trigger for the court's review in the first instance. The prosecution's initial pronouncement of readiness will stop their speedy trial time pending subsequent review by the court. If the People's declaration is made on the record, the court will contemporaneously examine the COC; however, "if the statement is by notice, the inquiry would occur at the appearance thereafter" (see People v McClure, 80 Misc 3d 238, 243 [Crim Ct, Bronx County 2023]). There is no comparison with England.

B. Filing and Service of the People's COC and SOR

EDDS submissions constitute filings with the court.

Defendant asserts that EDDS is a delivery system, and he provides citations for several cases in support of the argument that submission of documents via EDDS does not constitute{**80 Misc 3d at 318} filing with the court (see People v McDuffie, Sup Ct, Kings County, Feb. 18, 2022, Sciarrino, J., index No. 73570/21 ["It is more akin to presenting the document for filing, after which the filing is either approved or rejected by a court clerk" (citations omitted)]; People v Miller, 75 Misc 3d 215, 219 [Crim Ct, Kings County 2022] ["(EDDS) does not constitute service upon any other party, nor does it constitute filing of those documents with the court or County Clerk" (emphasis omitted)]; People v Kolodii, Crim Ct, Kings County, Dec. 15, 2021, Arriaga, J., index No. 016898/21 ["The clerk must be involved to have it considered filed and not merely submitted"]).^[FN2]

[2] As an initial matter, a review of the People's EDDS email confirmation/receipt following submission of their COC and SOR, along with other documents, on February 17, 2023, includes the following proviso, "NOTE: The sending and/or receipt of any documents through the court's Electronic Document Delivery System (EDDS) does not constitute service upon any other party" (see mem in support of the People's opp, exhibit C). However, there is no longer any explicit reference to whether the submission constitutes filing with the court (see id.).

Where CPL 30.30 (1) (b) quantifies the prosecution's obligation to prosecute by speedy trial in days, and not hours, constraining the parties' ability to file documents via EDDS after 5:00 p.m. is unreasonable and counter to efficient management of increasingly voluminous [*5]dockets. Such reasoning would also produce inconsistent and arbitrary outcomes where, for instance, in one case the prosecution submitted its COC and SOR at 4:50 p.m. and in another case at 5:01 p.m. Would the former docket be any more likely to have its submissions contemporaneously reviewed than the latter? It strains credulity to suggest so and yet, the former docket would be treated as timely although in both cases the documents would be accepted by EDDS irrespective of their submission time. This court finds no statutory impediment to EDDS filings (see People v Mclean, 77 Misc 3d 492, 498, 501 [Crim Ct, Kings County 2022] ["(u)nlike the prior in-person system of filing with the court, this new electronic method (EDDS) does not require in-person filing with the court clerk and, thus, allows for submissions to be filed at any hour" (emphasis added)]; People v Middleton, 79 Misc 3d 418, 421 [Crim Ct, NY County {**80 Misc 3d at 319}2023] [there is no "specific statutory requirement that a statement of readiness for trial must be made during business hours"]).

To be clear, this analysis contemplates the specific use of EDDS to file documents after 5:00 p.m. but is not intended to remark on court operations in general, for which we recognize that "for the disposition of business . . . the court shall commence not later than 9:30 a.m. and conclude not earlier than 5 p.m." (see Rules of Chief Judge, Hours of Ct [22 NYCRR] § 3.1).

Timeliness of the People's COC and SOR Filings

It is well established that the prosecution must state its readiness in two ways: (1) such declaration must be communicated in open court, or by written notice of readiness to defense counsel and the court clerk, and (2) the statement is made when the prosecution is indeed ready to proceed to trial (see Kendzia at 337). Almost 40 years later, although the electronic mechanism used by the People to communicate their readiness could not have been contemplated, the Kendzia Court's reasoning is no less sound.

However, while courts of concurrent jurisdiction have held that if a court were to acknowledge as filed submissions sent after 5:00 p.m. on the 90th day following arraignment, such a holding would contravene the precise and unequivocal holding in Kendzia, this court respectfully disagrees and finds no disharmony (see Mclean, 77 Misc 3d 492; Middleton, 79 Misc 3d 418).

Criminal Procedure Law § 30.30 (1) provides, in pertinent part, that a motion to dismiss "must be granted where the people are not ready for trial" (see CPL 30.30 [1] [emphasis added]). Moreover, CPL 30.30 (1) (b) requires the People to announce their readiness for trial within 90 days (see Mclean, 77 Misc 3d at 503-504, citing Kendzia). CPL 30.30 provides a barometer to gauge the prosecution's readiness to bring a defendant to trial; it does not entitle a defendant to a trial within 90 days (see CPL 30.30 [1]; Mclean at 503).

Assuming, arguendo, that the prosecution files its COC on the 90th day before 5:00 p.m., CPL 30.30 (5) still requires the court to inquire as to the validity of the declaration. Thus, the notion that immediately upon filing the COC, the defendant would be entitled to their trial is a misapprehension of the statute.

Additionally, it is of no import that, as defendant has pointed out, trials are not conducted during night arraignments. This{**80 Misc 3d at 320} court respectfully submits that in the absence of clear statutory guidelines, it is appropriate to apply the General Construction Law to compute CPL 30.30 (1) time (see Stiles at 765, 767). General Construction Law § 19 provides, in pertinent part, that "[a] calendar day includes the time from midnight to midnight" (see General Construction Law § [*6]19; see also People v Murray, 77 Misc 3d 1205[A], 2022 NY Slip Op 51146[U], *4-5 [Mount Vernon City Ct 2022] ["(t)his means that the 90th day ends at midnight of that day, rather than at 5:00 p.m."]). Accordingly, this court finds that the People, having served and filed their COC and SOR on the 90th day following defendant's arraignment, have not exceeded their speedy trial time.

In light of the court's finding, defendant's argument that the People accrued five additional days of speedy trial time because they failed to promptly request an extension of time to file their opposition is rendered moot.

IV. The CPL 30.30 Calculation

In a motion to dismiss misdemeanor charges pursuant to CPL 30.30 (1), defendant has the initial burden to demonstrate that the prosecution failed to declare readiness for trial within the 90 days (see CPL 30.30 [1] [b]; People v Luperon, 85 NY2d 71, 77-78 [1995]). The burden then shifts to the People to identify excludable delays (see Luperon, 85 NY2d at 78).

In the case at bar, defendant has set forth no objection to the People's COC. Accordingly, the prosecution's CPL 30.30 calculation commenced the day following defendant's arraignment on November 20, 2022. When the People filed a valid COC on February 17, 2023, they declared their readiness for trial and stopped their speedy trial clock.

The court finds that the People were ready for trial 90 days after arraignment, within the time prescribed by law (see CPL 30.30 [1] [b]).

Based upon the foregoing, defendant's motion for dismissal of the misdemeanor charges on statutory speedy trial grounds pursuant to CPL 30.30 is denied.