Criminal Court of the City of New York, Bronx County, July 17, 2023

Legal Aid Society (Tasaion Miller-Veitch of counsel) for defendant.

Darcel D. Clark, District Attorney (Margaret Caruso and Diana Beague of counsel), for the People.

Defendant moves for an order dismissing the accusatory instrument pursuant to CPL 30.30 and 170.30 (1).

For the reasons set forth herein, defendant's motion is granted in its entirety.

Factual and Procedural History

Defendant was arraigned on January 21, 2023, and charged with Penal Law §§ 145.00 (criminal mischief in the fourth degree) and 240.26 (harassment in the second degree). On January 23, 2023, the People filed a supporting deposition through the Electronic Document Delivery System (EDDS). Subsequently, on March 8, 2023, the misdemeanor complaint was deemed an information without objection. The case, thereafter, was adjourned to April 12, 2023, for the People to file their certificate of compliance (CoC).

On April 12, 2023, for the initial calendar call, defendant was not present and the matter was adjourned. Over the People's objection, the court excused defendant's absence. However, the court notes indicate that defendant appeared later that day. The case was adjourned to April 26, 2023, for the People to file a CoC.

On April 21, 2023, at 11:58 p.m., the People filed with the court by EDDS a CoC, statement of readiness (SoR), and automatic disclosure form (ADF). Service of these documents was effectuated on defendant on April 22, 2023, at 12:00 a.m. by email. However, the discovery referenced in the CoC and ADF was served after the EDDS filing. Service of discovery was made by OneDrive at 12:01 a.m. and received by defendant at 12:02 a.m.

At the next court appearance, on April 26, 2023, defendant claimed that the People failed to turn over discovery prior to the expiration of their CPL 30.30 time. Defendant averred that the People exceeded their 90-day limitation to declare their{**80 Misc 3d at 934} readiness for trial. As a result, [*2]defendant requested a motion schedule. Defendant's request for a motion schedule was granted which paused the CPL 30.30 speedy trial time.

Defendant moved to dismiss the accusatory instrument contending that the People failed to declare their readiness for trial within the statutorily prescribed 90 days after the commencement of the action. Specifically, defendant maintains that the People should be charged speedy trial time from the date defendant was arraigned, January 21, 2023, until the date discovery was received, April 22, 2023. Consequently, the People should be charged 91 days.

In response, the People maintained that the filing of the CoC and SoR via EDDS suspended the running of the speedy trial clock. The People aver that the date of defendant's arraignment is excluded from the speedy trial time calculation. Consequently, the People's CPL 30.30 clock began to tick on January 22, 2023, and stopped on April 21, 2023. Moreover, the People assert that the CoC and SoR should be deemed valid since defendant has not raised any issues with the discovery disclosed.

General Application

The filing of a misdemeanor accusatory instrument triggers the People's obligation to be ready for trial within 90 days, less excludable time. (See People v Alvia, 78 Misc 3d 1228[A], 2023 NY Slip Op 50368[U] [Crim Ct, Bronx County 2023]; People v Fortty, 78 Misc 3d 1229[A], 2023 NY Slip Op 50379[U] [Crim Ct, Bronx County 2023]; CPL 30.30 [1] [b]; see also CPL 1.20 [16]-[17].) The speedy trial calculation commences the day after defendant's arraignment. (People v Stiles, 70 NY2d 765 [1987].) The People cannot be ready for trial until they file a proper CoC and declare their readiness for trial. (CPL 245.50 [3]; People v Erby, 68 Misc 3d 625, 630 [Crim Ct, Bronx County 2020].) A proper CoC must "identify the items provided" to defense counsel. (CPL 245.50 [1].) To be valid, the CoC must be filed after "exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery, the prosecutor has disclosed and made available all known material and information subject to discovery." (CPL 245.50 [1].) "No adverse consequence to the prosecution or the prosecutor shall result from the filing of a certificate of compliance in good faith and reasonable under{**80 Misc 3d at 935} the circumstances." (CPL 245.50 [1].) In other words, the statute does not require complete compliance and discovery disclosures for a CoC to be valid. (People v Alvia, 78 Misc 3d 1228[A], 2023 NY Slip Op 50368[U] [Crim Ct, Bronx County 2023], citing People v Gonzalez, 68 Misc 3d 1213[A], 2020 NY Slip Op 50924[U], *3 [Sup Ct, Kings County 2020] ["absence of certain discovery items from the disclosure memorialized in the original (CoC) (such as the scratch complaint report, an updated disclosure letter pertaining to a detective, and the resume of an expert) does not vitiate the original certificate"].)

In addition to filing a proper CoC, the People must proclaim their readiness for trial after "bring[ing] the case to a point where it may be tried." (People v England, 84 NY2d 1, 4 [1994].) The People are required to establish readiness within that time prescribed in CPL 30.30 (1).^[FN1] ([*3]People v Kendzia, 64 NY2d 331 [1985].) However, a defendant is not afforded the right to obligate the People to commence a trial within 90 days.

A valid announcement of readiness for trial has two requirements. (People v Kendzia, 64 NY2d 331 [1985].) First, the People must announce their readiness through "either a statement of readiness by the prosecutor in open court, transcribed by a stenographer, or recorded by the clerk or a written notice of readiness sent by the prosecutor to both defense counsel and the appropriate court clerk." (People v Chavis, 91 NY2d 500, 505 [1998].) Second, the People cannot feign readiness and must do "everything required of them to bring the case to trial." (People v Carter, 91 NY2d 795, 796 [1998].) However, "neither statute nor case law requires that the People have the ability to produce their witnesses instantaneously in order for a statement of readiness to be valid." (People v Dushain, 247 AD2d 234, 236 [1st Dept 1998].) Moreover, "[t]he People's declaration of readiness is 'presumed truthful and accurate' and 'a defendant who challenges such a statement must demonstrate that it is illusory.' " (People v Williams, 73 Misc 3d 1091, 1100 [Sup Ct, Kings County 2021].) Significantly, an illusory assertion of readiness does not toll the statutory speedy trial time from running. (People v Brown, 28 NY3d 392, 404 [2016].)

Once the People serve a CoC and SoR, the court may schedule a discovery conference and require the People and defense{**80 Misc 3d at 936} counsel to diligently confer to resolve any discovery disputes. (CPL 245.35.) Additionally, defendant must notify the prosecutor of any defects or deficiencies relating to the CoC as soon as practicable. (CPL 245.50 [4] [b].) Should defects or deficiencies with the CoC persist and remain unresolved, then defendant must act "as soon as practicable" to raise any challenges through written motion. (CPL 245.50 [4] [a], [c].)

However, "as soon practicable" is not defined within the Criminal Procedure Law statutory framework. The court is therefore charged with determining what constitutes "as soon as practicable" under the circumstances of a matter before it. When deciding whether defendant acted "as soon as practicable" the court may consider:

"the length of the delay; the underlying charges; the nature of the discovery violation; whether the violation is obvious, and susceptible to easy detection, or obscure, and more likely to escape notice; whether there is evidence that the defense knew or should have known of the error; the volume of discovery in the case; . . . the applicability of any statutory deadlines[;] . . . [and] resources available to the defense attorney; for example, a larger law firm, with superior technologies and more support staff, may be better equipped to unearth a discovery error than an overburdened solo practitioner or legal aid attorney." (People v Lanfair, 78 Misc 3d 371, 375 [Cohoes City Ct 2023]; see People v Seymour, 76 Misc 3d 615 [Suffolk Dist Ct 2023] [72 days of delay held unreasonable].)

Undoubtedly, the defendant cannot sit idly and "wait while the speedy trial clock ticks loudly in the background." (People v Ramirez, 75 Misc 3d 931, 935 [Crim Ct, Kings County 2022] [internal quotation marks omitted].)

Service and Filing of the CoC and SoR

With the advent of the electronic filing, in-person filing with the court clerk is no longer a requirement.^[FN2] Thus, the parties are permitted to file submissions at any hour. (People v Mclean, 77 Misc 3d 492 [Crim Ct, Kings County 2022].) In fact, the statute is devoid of any requirement that the CoC be filed{**80 Misc 3d at 937} by the close of business. (People v Murray, 77 Misc 3d 1205[A], 2022 NY Slip Op 51146[U] [Mount Vernon City Ct 2022].) Likewise, there is "[no] specific statutory requirement that a readiness statement must be made during business hours." (People v Middleton, 79 Misc 3d 418, 421 [Crim Ct, NY County 2023] [citation omitted].) Additionally, the speedy trial time is calculated in terms of days and does not mandate that the filings be executed within normal business hours. (People v Mclean, 77 Misc 3d 492 [Crim Ct, Kings County 2022] [assault, petit larceny, criminal possession of stolen property, endangering the welfare of a child, attempted assault, menacing, and harassment]; People v Middleton, 79 Misc 3d 418 [Crim Ct, NY County 2023] [grand larceny in the fourth degree and jostling]; People v Murray, 77 Misc 3d 1205[A], 2022 NY Slip Op 51146[U] [Mount Vernon City Ct 2022] [criminal possession of stolen property in the fifth degree].) "If the legislature wanted CPL 30.30 to be counted in hours, as opposed to days, they would have specifically articulated that in the statute, as they did in CPL 180.80." (People v Mclean, 77 Misc 3d 492, 498 [Crim Ct, Kings County 2022].)

Correspondingly, a CoC filed on the 90th day via EDDS before midnight is timely filed and consistent with legal authority. (People v Middleton, 79 Misc 3d 418, 422-423 [Crim Ct, NY County 2023] [Southern District of New York Electronic Case Filing Rules and Instructions mandate that a filing must be completed before midnight to be considered timely filed on such day].) Moreover, a "calendar" day "includes the time from midnight to midnight. Sunday or any day of the week specifically mentioned means a calendar day." (General Construction Law § 19; People v Murray, 77 Misc 3d 1205[A], 2022 NY Slip Op 51146[U], *5 [Mount Vernon City Ct 2022] ["New York General Construction Law provides that 'a calendar day includes the time from midnight to midnight' "].) Additionally, "[w]hen any period of time, computed from a certain day, within which or after which or before which an act is authorized or required to be done, ends on a Saturday, Sunday or a public holiday, such act may be done on the next succeeding business day." (General Construction Law § 25-a [1].)

Furthermore, documents are deemed filed with the court when submitted through EDDS. (People v Mclean, 77 Misc 3d 492 [Crim Ct, Kings County 2022] [the People may rely on the second EDDS email which states the documents were filed with the court on the date specified].) In contradiction,{**80 Misc 3d at 938} Administrative Order of the Chief Administrative Judge of the Courts AO/253/22 states that documents are not deemed filed with the court until the clerk or designee reviews the document to ensure the filing requirements and fees are complete. Also, filings conducted by EDDS do not constitute service on the other parties. (See Admin Order of Chief Admin Judge of Cts AO/114/20.)

Under CPL 245.50 (1) the People are required to "serve upon the defendant and file with the court a certificate of compliance." When filing a CoC, it is critical that the People affirmatively represent that they "disclosed and made available all known material and information subject to discovery." (CPL 245.50 [1].) A CoC cannot "be deemed [valid] until all [*5]of the material and information identified in the certificate as subject to discovery and electronically shared with defendant [is] actually produced to the defendant." (People ex rel. Ferro v Brann, 197 AD3d 787, 788 [2d Dept 2021] [emphasis added].) Even "[a] 'good faith' certification of 'due diligence' does not make a [CoC] proper if another necessary condition is not met—like if the People failed to 'provide[ ] the discovery required by subdivision one of section 245.20.' " (People v Vargas, 76 Misc 3d 646, 649-650 [Crim Ct, Bronx County 2022].) Consequently, should the People be aware of or possess material that was not disclosed, their CoC must be rendered invalid and, thereafter, cannot be resuscitated. (See People v Edwards, 74 Misc 3d 433 [Crim Ct, NY County 2021].)

Initially, defendant bears the burden of demonstrating that the People's speedy trial limit under CPL 30.30 (1) has elapsed and "any postreadiness adjournments occurred under circumstances that should be charged to the People." (People v Cortes, 80 NY2d 201, 215 [1992].) To prove their entitlement to dismissal, "the defense must identify any legal or factual impediments to the use of these exclusions." (People v Luperon, 85 NY2d 71, 78 [1995].) When defendant adequately alleges that the People were not ready within the statutory period, "the People [have] the burden of showing their entitlement to a statutory exclusion." (People v Luperon, 85 NY2d 71, 81 [1995]; People v Brown, 28 NY3d 392, 403 [2016].)

Specifically, the People shall not be deemed ready for trial for purposes of CPL 30.30 until the service of a proper CoC. (See CPL 30.30, 245.50 [1].) Likewise, CPL 30.30 (5) requires a statement of trial readiness to be accompanied or preceded by a certification of good-faith compliance with the disclosure in{**80 Misc 3d at 939} satisfaction of CPL 245.20. For the People to properly proclaim readiness for trial, they must fulfill their discovery obligations and serve the CoC and SoR on defendant even if the documents are not filed with the court. (See People v Ramirez, 75 Misc 3d 931 [Crim Ct, Kings County 2022] [People's CoC and SoR were proper when the superseding information and supporting deposition were only served on defendant and not filed with the court].)

Here, the People commenced providing to defendant discovery at 11:29 p.m. on April 21, 2023 (the 90th day) by serving the body worn camera footage on defense counsel. Thereafter, the People concluded the CoC, SoR, and ADF upload to EDDS at 11:58 p.m. Consequently, those documents are deemed filed timely with the court. Immediately thereafter the People served the EDDS stamped CoC, SoR, and ADF upon defendant. Service of the CoC, SoR, and ADF was effectuated upon defendant at 12:00 a.m. on April 22, 2023. Subsequently, discovery listed in the CoC and ADF were served by OneDrive at 12:01 a.m.

This court determines that the People's filing and service of the CoC, SoR, and ADF, and completion of their discovery disclosures constitute the performance of a series of continuous acts which commenced at 11:29 p.m. and concluded at 12:01 a.m. Thus, the underlying acts of filing and service on the court and defendant are continuous in character and rationally deemed as one action that commenced timely but completed untimely.

The first of the continuous acts began before the People's CPL 30.30 clock began to chime. Fatal is that service on defendant occurred after the People's CPL 30.30 time elapsed. The right to a speedy trial is a fundamental constitutional right that belongs to the defendant. (People v Wiggins, 31 NY3d 1 [2018]; CPL 30.20; see Strunk v United States, 412 US 434 [1973].) Consequently, the People should have completed service of the CoC, SoR, ADF and discovery on defendant within the CPL 30.30 constraints. (See CPL 245.50 [1].)

Speedy trial under CPL 30.30 is tied to prosecutorial readiness for trial and not a [*6]defendant's constitutional right. (People v Anderson, 66 NY2d 529 [1985]; see also People v Brothers, 50 NY2d 413 [1980]; see People v Smith, 82 NY2d 676, 678 [1993] [the People are not excused from timely declaring readiness for trial even when it results from court delays].) Since CPL 30.30 was enacted for "the narrow purpose of insuring prompt prosecutorial readiness . . . its provisions must be interpreted accordingly." {**80 Misc 3d at 940}(People v Jaquez, 71 Misc 3d 1110, 1119 [Crim Ct, NY County 2021].) For the People to be deemed ready under CPL 30.30, they must fulfill their discovery obligations and serve a CoC upon defendant. (CPL 245.50.)

Consequently, since the People failed to serve defendant with the CoC, SoR, and ADF within the statutory timeframe of CPL 30.30 they are deemed untimely. However, had the People completed their discovery obligations and service on defendant with the CoC, SoR, and ADF on or before 12:00 a.m., the court would have been inclined to deem the People timely under CPL 30.30. (See People v Ramirez, 75 Misc 3d 931 [Crim Ct, Kings County 2022] [superseding information and supporting deposition not filed with court]; see also State v Aderemi, 406 Wis 2d 132, 986 NW2d 306 [Ct App 2023] [information deemed filed on the date it was received by defense counsel instead of date stamped on the document].)

Moreover, the People should have provided an explanation for their delay. Consequently, the People's untimeliness cannot be justified absent a reasonable explanation for the belated service on defendant. (See e.g. Graves v Deutsche Bank Sec., Inc., 2011 WL 1044357, 2011 US Dist LEXIS 27336 [SD NY, Mar. 4, 2011, No. 07 Civ 05471 (BSJ) (KNF)] [motion deemed untimely when attorney's explanation was not credible]; Nutt v Commissioner of Internal Revenue, 160 TC No. 10 [2023] [petition filed after midnight Eastern Time deemed untimely when it was filed at 11:05 p.m. Central Time and petitioner provided no explanation for the delay]; In re Beal, 616 BR 140 [D Utah 2020] [complaint filed after midnight deemed untimely when delay was caused by attorney's lack of knowledge in uploading documents].)

Accordingly, the defendant's motion is granted. This court finds that the People exceeded 90 days of speedy trial time and this matter is dismissed.