The defense moves to dismiss this case under C.P.L. § 30.30[1][b] because the People have never stated ready for trial. The People counter that the defense implicitly and retroactively waived all C.P.L. § 30.30 claims by emailing that they were interested in a disposition. Upon consideration of the defense's motion, the People's response, the defense's reply, and the court file, the motion is granted.

The People commenced this case against Mr. Johnnie on July 19, 2022. Their most serious charge against him was a misdemeanor punishable by 364 days in jail. At arraignment, the People were not ready for trial. The court adjourned the case to September 22, 2022. On that date, the People again were not ready for trial. The court adjourned the case to November 17, 2022.^[FN1]

One hundred days after arraignment, on October 27, 2022, the defense attorney in this case emailed the prosecutor. In the interest of expediency, Mr. Johnnie was willing to plead guilty to disorderly conduct if the case could be advanced to a sooner date. On October 28, 2022, the prosecutor contacted a court and requested to advance the case. However, that court could not accommodate the request, so the next adjournment date remained November 17, 2022.

On November 17, 2022, the defense requested a motion schedule to file this C.P.L. § [*2]30.30 motion.

The People's most serious charge against Mr. Johnnie is a "misdemeanor punishable by a sentence of imprisonment of more than three months." (C.P.L. § 30.30[1][b]). Therefore, the defense's motion to dismiss must be granted if the People were not ready for trial within 90 days of arraignment. (Id.).

The defense "meets [their] initial burden on the motion simply by alleging only that the prosecution failed to declare readiness within the statutorily prescribed time period." (People v. Goode, 87 NY2d 1045, 1047 [1996]). The People then "bear the burden of establishing their entitlement to exclude any prereadiness delays from the calculation" and "must ensure that the record is sufficiently clear as to who is chargeable for a delay." (People v. Smith, 110 AD3d 1141, 1142 [3d Dep't 2013] [internal quotation marks omitted]; see also People v. Matteson, 166 AD3d 1300, 1301-02 [3d Dep't 2018] [same]; People v. Robinson, 67 AD3d 1042, 1044 [3d Dep't 2009] [same]). If the People fail to do so, then, if they have never answered ready, the entirety of every adjournment is generally chargeable to them. (See People v. Barden, 27 NY3d 550, 556 [2016]; People v. Chavis, 91 NY2d 500, 505 [1998]; People v. Smith, 82 NY2d 676, 678 [1993]; People v. Brothers, 50 NY2d 413, 417 [1980]).

The defense has met its initial burden. The People commenced this case on July 19, 2022. Ninety days after that date was October 17, 2022. The People did not state ready for trial before that date. Indeed, they have never stated ready for trial.

However, the People do not claim that any time within the first 90 days after arraignment is excludable. (See Pr. Resp. at 1-3). Nor do they claim that the defense caused any delay within those first 90 days. (See id.). Instead, they argue that by sending an email expressing interest in a disposition on the 100th day after arraignments, "the defendant and his counsel waived the defendant's statuatory [sic] and constitutional speedy trial rights." (Id. at 1).

The People reason that because the defense attorney emailed the prosecutor asking for a disposition on the 100th day after arraignments, her "conduct clearly shows that she waived the defendant's speedy trial rights." (Id. at 3). "In the defendant's motion to dismiss," they write, "Defense Counsel eludes [sic] that she was aware the defendant's statutory speedy trial rights were ripe, and that there was a reason in which the defendant nonetheless wished to plead guilty." (Id. at 2). In other words, the People do not argue that some delay in the first 90 days was excludable because it was caused by the defense. Instead, they argue that the defense's email on the 100th day waived the C.P.L. § 30.30 speedy-trial right entirely—and even retroactively. (See id. at 1-3).

The People cite two cases in support of this argument, but neither provides any support. Both cases analyze when a particular delay is attributable to the defense. The first case is People [*3]v. Trepasso, 197 AD2d 891, 891 [4th Dep't 1993].^[FN2] There, the Appellate Division, Fourth Department, held that a defense attorney could explicitly consent to an adjournment for plea negotiations without their client's consent. (Id.). As such, a particular delay was attributable to the defense. (See id.). The second case is People v. Camarda, 54 AD2d 567, 567-68 [2d Dep't 1976].^[FN3] There, the Appellate Division, Second Department, held that a pretrial delay did not violate the constitutional right to a speedy trial. (Id.). Similarly, that was because the accused person caused much of that delay. (Id.). Both cases apply an uncontroversial rule: that the defense cannot complain about delay that they expressly acquiesce to or themselves cause.

However, neither of these cases held that a defense attorney's conduct could waive their client's statutory right to a speedy trial entirely and retroactively. Nor did either hold that the defense could waive a period of time that they did not expressly acquiesce to or themselves cause. And so, neither case supports the People's claim here that a defense attorney's email after the C.P.L. § 30.30 time had expired, expressing interest in a plea, somehow waived time before the email. Indeed, the court can find no case that has ever held anything similar. While a person entirely waives their C.P.L. § 30.30 claim upon actually pleading guilty, (People v. Friscia, 51 NY2d 845 [1980]), there is no authority that the same occurs simply upon a defense attorney's email expressing interest in a disposition.

As such, at the very least, the C.P.L. § 30.30 clock ran uninterrupted from arraignments on July 19, 2022, past the 90-day maximum for this case. (C.P.L. § 30.30[1][b]). Accordingly, the court must grant the defense's motion. (Id.). The case is dismissed.

The foregoing constitutes the order and decision of the court.