Queens County District Attorney (Johnnette Traill, William H. Branigan and Semyon Davydov of counsel), for appellant. Appellate Advocates (Brian Perbix of counsel), for respondent.

Appeal from an order of the Criminal Court of the City of New York, Queens County (Denise N. Johnson, J.), rendered November 29, 2022. The order granted defendant's oral motion to dismiss the accusatory instrument on statutory speedy trial grounds.

ORDERED that the order is reversed, on the law, defendant's motion to dismiss the accusatory instrument on statutory speedy trial grounds is denied, the accusatory instrument is reinstated, and the matter is remitted to the Criminal Court for all further proceedings.

Defendant was arrested on May 1, 2020 and charged with criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03, a class A misdemeanor) and unlawful possession of marihuana in the second degree (Penal Law § 221.05, a violation at the time, but no longer a cognizable offense following the repeal of article 221 of the Penal Law on March 31, 2021). Defendant was issued an appearance ticket, which instructed him to appear in court on August 29, 2020. Defendant failed to appear on that date and the matter was adjourned to December 11, 2020 and then to May 7, 2021, with no additional details set forth in the record. Defendant failed to appear on May 7, 2021 and a bench warrant was issued for his arrest.

Defendant first appeared in court on August 18, 2022. Defense counsel asked for an adjournment and the Criminal Court adjourned the matter to October 12, 2022. On October 12, 2022, defendant did not appear and his counsel stated that she had lost contact with him. The People stated that they were not ready for trial and the Criminal Court adjourned the matter to November 29, 2022 for the People to file a certificate of compliance, stating that the "bench warrant is stayed until that date." On November 29, 2022, 103 days after the arraignment, defendant again failed to appear. Defense counsel stated that the speedy trial time had elapsed. The People, relying on People v Alexander (67 Misc 3d 126[A], 2020 NY Slip Op 50373[U] [App Term, 1st Dept 2020], lv denied 35 NY3d 1042 [2020]), responded that the bench warrant [*2]had been stayed on October 12, 2022, so the 48 days since then were not chargeable to the People. When the Criminal Court asked whether defense counsel had any applications, defense counsel orally moved to dismiss the accusatory instrument based on CPL 30.30. The Criminal Court (Denise N. Johnson, J.) granted the motion without a written order and dismissed the accusatory instrument. The People filed their notice of appeal on July 13, 2023.

On appeal, the People contend that defendant's motion to dismiss the accusatory instrument was required to be in writing and made upon reasonable notice to the People (see CPL 210.45 [1]; 170.45). The People also contend that they were entitled to the exclusion of the 48 days between October 12, 2022 and November 29, 2022 because there was a stay of the bench warrant. Defendant counters that the People's appeal is untimely as their notice of appeal was filed and served more than seven months after the Criminal Court orally dismissed the accusatory instrument. Additionally, defendant asserts that the People waived their right to object to the form of defendant's motion, as they did not object at the time the motion was made, they substantively engaged in argument on the motion, and they failed to move for leave to reargue. Defendant also argues that the People failed to establish that the time between October 12, 2022 and November 29, 2022 was excludable from speedy trial calculations.

As an initial matter, it is well settled that a notice of appeal from an order must be filed within 30 days of service of a copy of that order (see CPL 460.10 [1]; see also CPL 460.10 [2]). While an appeal may be taken from an oral order (see People v Elmer, 19 NY3d 501 [2012]), to start the 30-day clock beyond which time an appeal would be untimely, there must be service of a copy of the order being appealed (see CPL 460.10). Here, there was no such service and, thus, the People's notice of appeal was timely, as the 30-day period to file a notice of appeal had not begun to run (see People v Jones, 22 NY3d 53 [2013]).

It is well settled that a motion to dismiss an accusatory instrument on statutory speedy trial grounds "must be made in writing and upon reasonable notice to the people" (CPL 210.45 [1]; 170.45; see also Matter of Holtzman v Goldman, 71 NY2d 564, 572-573 [1988]; People v Alston, 191 AD2d 176, 177 [1993]; People v Ramos, 94 AD2d 708 [1983]; People v Salanardi, 23 Misc 3d 139[A], 2009 NY Slip Op 50966[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). However, where the People are put on notice that the court is considering such an oral motion and the People fail to timely object thereto, they can be deemed to have waived these procedural requirements (see People v Mezon, 80 NY2d 155, 159-160 [1992]; People v Jennings, 69 NY2d 103, 113 [1986]). Here, the People did not object to the form of the motion or otherwise request that the motion be made in writing; rather, they argued the merits of the motion and did not seek leave to reargue after the motion had been decided (see Mezon, 80 NY2d at 159-160; Jennings, 69 NY2d at 113; People v Headley, 100 AD3d 775, 775 [2012]; People v King, 83 Misc 3d 29 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]). Consequently, the People waived their right to object to the form of the motion.

Turning to the merits of the motion, it is undisputed that, for CPL 30.30 purposes, this action was commenced on August 18, 2022, when defendant first appeared in court in response to the appearance ticket (see CPL 30.30 [7] [b]), and that the highest charge against defendant was a class A misdemeanor (see Penal Law §§ 220.03, 70.15 [1]). Thus, the People had 90 days within which to announce their readiness for trial (see CPL 30.30 [1] [b]). On November 29, [*3]2022, when the Criminal Court granted defendant's motion to dismiss, 103 days had elapsed from the date defendant had first appeared in court. However, when a court stays a bench warrant, the ensuing period of time is "a period accruing to defendant's benefit and is not chargeable to the People" (People v Medina, 198 AD2d 146, 146 [1993]; see also People v Notholt, 242 AD2d 251, 254 [1997]; People v Rowe, 227 AD2d 212, 214 [1996]). As the Criminal Court clearly stated on October 12, 2022 that the "bench warrant is stayed until [November 29th]," the 48-day period between October 12, 2022 and November 29, 2022 should not have been charged to the People. Consequently, the People's time to be ready for trial had not expired on November 29, 2022 and, therefore, the Criminal Court should not have granted defendant's motion to dismiss the accusatory instrument on statutory speedy trial grounds.

Accordingly, the order is reversed and defendant's motion to dismiss the accusatory instrument on statutory speedy trial grounds is denied.

BUGGS, J.P., TOUSSAINT and MUNDY, JJ., concur.