Criminal Court of the City of New York, Kings County, October 1, 2024

Brooklyn Defender Services, Brooklyn (Lilian Giacoma of counsel), for defendant.

Eric Gonzalez, District Attorney, Brooklyn (Nicolle Feldman of counsel), for the People.

Defendant Carlos Aguilar Mandujano moves to dismiss the accusatory instrument in this matter pursuant to CPL 30.30 on the basis that the People have exceeded the statutory time permitted to effectively announce ready for trial.

This court finds that the People filed their certificate of compliance (COC) and statement of readiness (SOR) within the requisite speedy trial time. However, the accusatory instrument may be facially insufficient. Thus, defendant's motion to{**85 Misc 3d at 362} dismiss is denied, and the court invites defendant to move to dismiss this action pursuant to CPL 170.30 (1) (a) and 30.30 (1) (b).

Defendant was arraigned on January 25, 2024, on a felony complaint charging him with: Vehicle and Traffic Law § 1192 (3) driving while intoxicated (a class E felony); and Vehicle and Traffic Law § 1192 (1) driving while ability impaired (a traffic infraction).

At defendant's arraignment, the matter was adjourned to March 11, 2024, for the parties to appear in Part AP1F. On that date, the People answered not ready, and the matter was adjourned to March 27, 2024. On March 20, 2024, the People served and filed a superseding information (SSI), which charged defendant with Vehicle and Traffic Law § 1192 (1) and a misdemeanor count of Vehicle and Traffic Law § 1192 (3).

When the parties appeared in Part AP1F on March 27, 2024, the court reduced the felony Vehicle and Traffic Law § 1192 (3) charge to the misdemeanor version of that statute. The People were not ready on that date, and the matter was adjourned to May 13, 2024, in Part DWI. When the parties appeared on that date in DWI, the People announced not ready, and the case was adjourned for discovery compliance. The People served and filed their COC and SOR off-calendar on June 23, 2024. The court issued a motion schedule on July 1, 2024, and defendant filed the instant motion on July 26, 2024.

CPL 30.30 (1) (a) provides that, when the defendant is charged with at least one felony, the action must be dismissed if the People are not ready for trial within six months of its [*2]commencement. CPL 30.30 (1) (b) provides that an action in which the defendant is charged with at least one misdemeanor punishable by a sentence of more than three months must be dismissed when the prosecution is not ready for trial within 90 days of the action's commencement.

A defendant need allege "only that the prosecution failed to declare readiness within the statutorily prescribed time period" to satisfy the initial burden under CPL 30.30 (People v Beasley, 16 NY3d 289, 292 [2011]). Here, defendant argues that the People filed their statement of readiness five days after the People's deadline to declare readiness. Thus, the burden{**85 Misc 3d at 363} now shifts to the People to establish sufficient excludable delay (People ex rel. Nieves v Molina, 207 AD3d 797, 798 [2d Dept 2022]).

In this case, the calculation of defendant's speedy trial time involves both CPL 180.50, which concerns the dismissal of felony counts and reduction of felonies to misdemeanors, and CPL 30.30 (7) (c), which concerns the calculation of speedy trial time when there is such a dismissal or reduction. The People sought reduction of Vehicle and Traffic Law § 1192 (3) as an E felony to the misdemeanor version of that offense (affirmation of Lilian Giacoma [Giacoma affirmation] ¶¶ 5-7; affirmation of Nicolle Feldman [Feldman affirmation] ¶¶ 13-14). To that end, the People filed an SSI on March 20, 2024, that did not include the felony charge and, instead, included the misdemeanor charge (Giacoma affirmation ¶ 6; Feldman affirmation ¶ 13). The SSI also replaced the word "informant" with "deponent" in certain places (see People's exhibit 2).

Pursuant to CPL 180.50, reduction of a felony to a misdemeanor requires first that the court conduct an inquiry into the reduction^[FN*] (People v Yolles, 92 NY2d 960, 961 [1998]; People v Bhagat, 63 Misc 3d 162[A], 2019 NY Slip Op 50915[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2019]; People v Kane, 57 Misc 3d 35, 39 [App Term, 2d Dept, 9th & 10th Jud Dists 2017]). Here, the SSI was ineffective because it was filed before the inquiry (Yolles, 92 NY2d at 961; Bhagat, 2019 NY Slip Op 50915[U], *1; Kane, 57 Misc 3d at 39). On March 27, 2024, the parties appeared in this matter in Part AP1F, and there appears to be no dispute that, on that date, the court conducted the requisite inquiry (Giacoma affirmation ¶ 7; Feldman affirmation ¶ 14; People's opposition mem of law at 9). Moreover, pursuant to CPL 180.50 (3) (a) (iii), the file shows that the court notated on the complaint that the felony charge had been reduced to the misdemeanor. Although the SSI was not an effective reduction, the written edits to the original complaint were effective. Accordingly, the operative accusatory instrument is the notated original complaint.

CPL 30.30 (7) (c) states, as follows, in relevant part:{**85 Misc 3d at 364}

"[W]here a criminal action is commenced by the filing of a felony complaint, and thereafter, in the course of the same criminal action either the felony complaint is replaced with or converted to an information, prosecutor's information or misdemeanor complaint pursuant to article one hundred eighty of this chapter or a prosecutor's information is filed pursuant to section 190.70 of this chapter, the period applicable for the purposes of subdivision one must be the period applicable to the charges in the new accusatory instrument, calculated from the date of the filing of such new accusatory [*3]instrument; provided, however, that when the aggregate of such period and the period of time, excluding the periods provided in subdivision four, already elapsed from the date of the filing of the felony complaint to the date of the filing of the new accusatory instrument exceeds six months, the period applicable to the charges in the felony complaint must remain applicable and continue as if the new accusatory instrument had not been filed."

Interestingly, the operative date is the "filing" of the "new accusatory instrument." Where, as here, there is no filing of a new accusatory instrument (or the filed instrument is ineffective), the statute appears to be silent as to what action starts the speedy trial clock. Some cases have referred to the date of reduction as the operative event (People v Flores, 79 Misc 3d 1239[A], 2023 NY Slip Op 50834[U], *2 [Crim Ct, Bronx County 2023]; People v Maddox, 80 Misc 3d 1229[A], 2023 NY Slip Op 51127[U], *2 [Crim Ct, Kings County 2023]; People v Wahab, 77 Misc 3d 1212[A], 2022 NY Slip Op 51197[U], *2 n 1 [Crim Ct, Bronx County 2022]). This court does the same.

As set forth in the calculation below, the People filed the COC and SOR within the applicable speedy trial period.

CPL 30.30 Calculation

Because this action began with a felony accusatory instrument that was later reduced to a misdemeanor instrument, the court must determine the speedy trial period applicable to this matter pursuant to CPL 30.30. Pursuant to CPL 30.30 (7) (c), the court must calculate the sum of (i) the speedy trial period applicable to the charges in the newly filed misdemeanor complaint and (ii) the number of days that have already elapsed between the date that the original felony instrument was filed and the date the complaint was reduced (Wahab, {**85 Misc 3d at 365}2022 NY Slip Op 51197[U], *3; see also People v M.V., 79 Misc 3d 448 [Crim Ct, Kings County 2023]).

The top charge in the reduced accusatory instrument in this matter is an unclassified misdemeanor. Pursuant to CPL 30.30, the speedy trial period applicable to these charges is 90 days. The original felony complaint in this matter was filed on January 25, 2024, and defendant was arraigned on the same day. The felony instrument was reduced on March 27, 2024. Thus, 62 days elapsed between the filing of the original felony complaint and its reduction. The sum of the 90- and 62-day periods equals 152 days, which does not exceed six months. Accordingly, the speedy trial period applicable to this matter is 90 days from the date of reduction.

There are 88 days charged to the People:

Defendant was arraigned on a felony accusatory instrument on January 25, 2024. This accusatory instrument was later reduced to a misdemeanor complaint on the record in Part DWI on March 27, 2024, which restarted the speedy trial clock. The People announced not ready, and the matter was adjourned. 0 days charged.

The parties next appeared on May 13, 2024, and the People again answered not ready. 47 days charged.

The People filed their COC and SOR off-calendar on June 23, 2024. 41 days charged.

88 total days charged.

Dismissal

Although this court finds that the People filed their COC and SOR within the requisite speedy trial time, the complaint may be facially insufficient. Specifically, the complaint's use of the word "informant" is undefined and otherwise unclear. The facial sufficiency of the complaint [*4]is a jurisdictional issue (People v Smalls, 26 NY3d 1064, 1066 [2015]). Rather than address this matter sua sponte, this court invites defendant to move to dismiss for failing to file a facially sufficient accusatory instrument within the requisite speedy trial time. Should defendant choose to move, defendant must file the motion on or before October 18, 2024, the People must file their opposition on or before November 1, 2024, and defendant must file his reply on or before November 8, 2024.

Accordingly, it is hereby ordered that the defendant's motion to dismiss the accusatory instrument is denied. The court will address that portion of the instant motion seeking hearings after{**85 Misc 3d at 366} defendant's motion to dismiss for facial insufficiency or after the time for filing such motion as outlined herein has passed.