Supreme Court, New York County, October 25, 2023

Brian Kennedy, New York City, for defendant.

Alvin Bragg, District Attorney, New York City (Cory Robinson of counsel), for the People.

The defendant is charged with two counts of criminal mischief in the second degree (Penal Law § 145.10) and one count of criminal possession of a weapon in the fourth degree (Penal Law § 265.01). The indictment charges relate to two separate incidents. The first pertains to an incident occurring in Manhattan on September 15, 2022, at approximately 8:10 p.m., in which the defendant allegedly caused damage to an MTA bus. The second incident relates to damage the defendant allegedly caused to a Manhattan McDonald's restaurant on September 16, 2022, at approximately 2:25 a.m. Despite the fact that the MTA related incident occurred first, the defendant was arrested for the McDonald's incident before the MTA incident. The defendant was arrested on September 16, 2022, for the McDonald's incident and on September 27, 2022, for the MTA related incident. The defendant was initially charged with only misdemeanor offenses related to the McDonald's incident and more than one week later he was charged with a [*2]felony offense related to the MTA incident.^[FN1] On January 27, 2023, the defendant was indicted in a concurrent presentation for both incidents in one indictment.

In the instant motion, the defendant argues that the charges related to the McDonald's incident must be dismissed in that they violate his statutory speedy trial rights. The defendant asserts, and the People concede, that they indicted the defendant related to the McDonald's incident after the expiration of the speedy trial time allotted for the initially charged misdemeanor offenses. The People counter, however, that because the defendant was indicted on felony charges, the speedy trial time for felony offenses applies to the instant matter. The People further concede that 154 days of speedy trial time within which they were to be ready for trial has expired.

Once a defendant has alleged a delay of more than the permissible statutory time periods, the People have the burden{**81 Misc 3d at 889} of demonstrating time is excludable. (People v Santos, 68 NY2d 859 [1986].) The People are also responsible for preserving the record regarding the circumstances for each adjournment.

CPL 30.30 (1) (a) mandates that when a defendant is charged with at least one felony, the People must be ready to proceed to trial within six months of commencement of the criminal action. CPL 30.30 (1) (b) provides that the People must be ready for trial within 90 days of commencement of a criminal action in which a defendant is charged with a misdemeanor punishable by a sentence of imprisonment more than three months and none of which is a felony. A criminal action is commenced with the filing of an accusatory instrument against a defendant in a criminal court. (CPL 1.20 [17].) Should more than one accusatory instrument be filed, the action commences when the first instrument is filed. (Id.) "Accordingly, each criminal action generally has only one date of commencement for purposes of the CPL 30.30 readiness rule, regardless of how many times the accusatory instrument is amended or replaced." (People v Cooper, 98 NY2d 541, 543 [2002].)

As noted, the defendant argues that the misdemeanor time frame should apply to the McDonald's related incident and that since the People filed an indictment after the expiration of the 90 days allotted, the matter must be dismissed. The People assert that although the indictment was filed after the expiration of the speedy trial time attributable to misdemeanors, the time frame for the upgraded charges applies, and they are, therefore, within the statutory time frame to continue to trial.

The Court of Appeals in People v Cooper (90 NY2d 292 [1997]) affirmed the holding of the Appellate Division, First Department, finding that the initial charges against a defendant determine the starting point for speedy trial purposes. (Id. at 294, citing People v Cooper, 219 AD2d 426 [1st Dept 1996].) It is, however, the charges upon which the defendant is ultimately accused and for which he will be prosecuted that are the determinative factor of which time frame will apply. (Id.) This analysis applies even if the People indict a defendant on felony charges after the speedy trial time for the highest misdemeanor charges has expired.

Moreover, had the defendant made a motion pursuant to CPL 30.30, and the complaint dismissed, the People are nonetheless rightfully able to present evidence regarding the underlying matter to a grand jury and to obtain a felony indictment. (People v Wright, 88 AD3d [*3]1154, 1156 [3d Dept 2011].){**81 Misc 3d at 890} Once an indictment charging the defendant with felonies is filed, the six month time frame within which to prosecute the matter applies. (Id.; see also People v Capellan, 38 AD3d 393 [1st Dept 2007].) Since the six months is calculated by days and not by months, the time within which the People must be ready for trial in the instant matter is the equivalent of 181 days. The period beginning on September 16, 2022, when the initial accusatory instrument charging the defendant with misdemeanor charges was filed. The People concede they are charged with 154 days of speedy trial time, well within the statutory time frame provided by CPL 30.30 (1) (a).^[FN2] Accordingly, the defendant's motion to dismiss is denied.

Notably, because the MTA related incident and McDonald's incident were indicted together, the speedy trial clock for each runs concurrently. Therefore, the People are not allotted additional speedy trial time for the MTA related charges even though the defendant was arrested later on those charges. In other words, the People have exhausted 154 days on the indictment as a whole. Twenty-seven days remain for the People to be ready to try all the charges contained in indictment No. 70603-23.

Finally, this court notes that the People notified the defendant on January 24, 2023, of their intention to indict the instant matter. The defendant responded on January 25, 2023, indicating that he would be serving and filing a speedy trial motion. However, the instant motion was not served and filed until nine months later, on the day trial was set to begin, and only after the defendant's attempts to resolve the matter with a probationary plea failed. During the period from January to October, the defendant served and filed omnibus motions without reference to any speedy trial violation and participated in trial scheduling conferences without reference to the motion. Although a defendant may file a speedy trial motion at any time during the pendency of a matter, the better course of action{**81 Misc 3d at 891} would have been for counsel to file the instant motion in January rather than wait until the eve of trial.