Crimes - Right to Speedy Trial - Time between Order Returning Felony to Local Court Until Arraignment on Local Accusatory Instrument Chargeable to People

Sandra J. McCarthy, Conflict Defender, for defendant.

Mary Pat Donnelly, District Attorney (Claire D. Hewitt of counsel), for the People.

The above-named defendant stands charged with one count of criminal possession of drug paraphernalia in the second degree in violation of Penal Law § 220.50 (3), and two counts of {**87 Misc 3d at 573}criminal possession of a controlled substance in the seventh degree, in violation of Penal Law § 220.03.^[FN1]

The defendant filed an omnibus motion on January 30, 2025, seeking various forms of relief: an order relative to Brady and Rosario materials; an order declaring the People's [*2]discovery certificate of compliance (CoC) invalid; a ruling on Sandoval, Ventimiglia, and Molineaux issues; preclusion of any of defendant's statements and any identification under CPL 710.30; dismissal of the case under CPL 30.30 and also dismissal for failure to state a prima facie case with nonhearsay allegations of fact.

The People filed an affirmation in opposition on February 13, 2025, in response and in opposition.

The court addresses the defendant's motion to dismiss pursuant to CPL 30.30 first, as it is dispositive of the case.

This matter was commenced on June 13, 2024, by the filing of two felony complaints charging criminal possession of a controlled substance in the third degree pursuant to Penal Law § 220.16 (1), one felony complaint charging criminal possession of a controlled substance in the fourth degree pursuant to Penal Law § 220.09 (1), and one misdemeanor information charging criminal possession of a controlled substance in the seventh degree pursuant to Penal Law § 220.03. Because the top counts in this matter originated as felonies, under CPL 30.30 (1) (a), the date by which the People needed to announce their readiness for trial was December 13, 2024, six calendar months after commencement, consisting of 183 days in total.

The matter was adjourned to June 18, 2024, for a preliminary hearing. As an initial finding, upon review of the court's record, none of the adjournments in this court were done with the consent, or at the request, of the defendant. This five day period was chargeable to the People.

On June 18, 2024, the defendant appeared for preliminary hearing and waived the hearing. The matter was then divested{**87 Misc 3d at 574} to the Rensselaer County Court to await action of the grand jury.

This court received the People's December 9, 2024 letter in which they requested the returned matter be placed in the court's calendar within 10 days of the receipt of the Rensselaer County Court order, a copy of which was attached to their letter. The People also included a copy of their proposed prosecutor's informations.

On December 9, 2024, the People had four days in which to announce readiness for trial. The 174 day period between June 18, 2024, and December 9, 2024, is chargeable to the People, a fact they concede in their responsive papers.

This court received Rensselaer County Court's CPL 180.40 order and the returned case on December 10, 2024, resuming jurisdiction over the matter.

The People contend that the time from the signing of the order by Rensselaer County Court ordering the return of this matter to this court on December 9, 2024, up until the first appearance on this matter after the return, on January 2, 2025, is excludable as "other proceedings" involving the defendant under CPL 30.30 (4) (a).

After the return of jurisdiction was received by this court on December 10, 2024, the court scheduled the matter for an appearance to reconsider the felony complaints on January 2, 2025. The 24 day period between December 9, 2024, and January 2, 2025, is the period in contention.

On January 2, 2025, after reconsideration of the felony charges at the People's request, the felony complaints were reduced to misdemeanors and the defendant was arraigned on the [*3]prosecutor's informations. The matter was adjourned for the filing of the People's discovery CoC and statement of readiness (SoR) to January 9, 2025. This adjournment was not on consent and is not excludable. The People emailed their CoC and SoR to the court and defense counsel on January 6, 2025. The People concede that this four day period is chargeable to them, bringing the total of undisputed time chargeable to the People at 178 days.

A total of 202 days consisting of both undisputed and disputed time chargeable to the People elapsed between the commencement of this matter and the filing by the People of their CoC and SoR.{**87 Misc 3d at 575}

Because the elapsed time exceeds the time allowed under CPL 30.30, the burden is properly on the People^[FN2] to establish exclusions for the following periods: December 9, 2024, to December 10, 2024 (the return of this matter from Rensselaer County Court), and December 10, 2024, to January 2, 2025 (the calendaring of the matter for further proceedings by this court). Under the reasoning that follows the court finds that the time periods between December 9, 2024, and December 10, 2024, and December 10, 2024, and January 2, 2025, are not excludable and are properly charged to the People.

The inquiry that the court must make on a speedy trial motion is whether the People have done all that is required of them to bring the case to a point where it may be tried, within the time limit of CPL 30.30. (People v England, 84 NY2d 1, 4 [1994].) In this matter, the People had six months from commencement of this action to announce readiness for trial because the most serious crimes charged were felonies. (CPL 30.30 [1] [a].) To successfully announce readiness for trial the People first needed to establish their present readiness to proceed to trial by having a trial ready accusatory instrument filed in this court and have filed their CoC, prior to or concurrent with their SoR.

The People argue that the time between the signing of the ex parte order of return by Rensselaer County Court, on December 9, 2024, and the first scheduled appearance in this matter on January 2, 2025, should be excluded under CPL 30.30 (4) (a) as "other proceedings" regarding the defendant. They argue that the calendaring by this court of the first appearance was "outside of the People's control" (People's affirmation in opp ¶¶ 44-45), and therefore should be excluded under the reasoning of People v Shuler (231 AD3d 1285 [3d Dept 2024]) and People v Thomas (59 Misc 3d 64 [App Term, 1st Dept 2018]). The court does not find this argument persuasive.

CPL 30.30 (4) (a) provides exclusion of specific events from calculating CPL 30.30 ready for trial time:

"a reasonable period of delay resulting from other proceedings concerning the defendant, including but not limited to: proceedings for the determination of competency and the period during which defendant{**87 Misc 3d at 576} is incompetent to stand trial; demand to produce; request for a bill of particulars; pre-trial motions; appeals; trial of other charges; and the period during which such matters are under consideration by the court."

There are two types of exception categories which are included within the "other proceedings" category. The first is proceedings which either make the defendant unavailable [*4]like competency proceedings, or trials in other matters or involve a period when the case is being appealed and the time necessary to return it to a trial ready status. The other category of "other proceedings" revolves around delays in the adversarial litigation process of the specific case and the ebb and flow required in that process: demands to produce, requests for bills of particulars, pretrial motions, and the time periods during which such matters are under consideration by the court.

The time which the People seek excluded is the time between the Rensselaer County Court's decision to return this matter to this court for reconsideration, and the time that it took the court to schedule the same, which appears at first glance to be more like the latter category but is really neither. No pretrial motion was pending before this court and awaiting a decision. The same is true of the application to return the matter before Rensselaer County Court.

The excludable delay of pretrial motions "generally refers to delays attributable to responding to and deciding motions actually made." (People v Collins, 82 NY2d 177, 181 [1993] [citation omitted].)

In the paperwork filed in this court it is apparent that the ex parte application, while technically a motion in Rensselaer County Court, is not the type of pretrial motion which is granted exclusion under CPL 30.30. Analogizing the circumstances here to those in Collins, the People's application to restore this matter to this court's criminal calendar is not unlike the process of transfer to the Individual Assignment System (IAS) Part in the Collins case. Like Collins, the record is devoid of any suggestion of an adjournment for a defense motion or motion schedule. (Id.) Instead the time that elapsed for the return of the case to the criminal calendar is, as stated in Collins, "merely another instance of a delay occasioned by court scheduling which, as we have previously held, does not excuse the People from filing a certificate of readiness." (Id., citing People v Smith, 82 NY2d 676, 678 [1993].) Any delay attributable{**87 Misc 3d at 577} to the filing of the motion seeking the return of this matter for reconsideration as for the period of the December 9, 2024 filing and decision, and the December 10, 2024 receipt of jurisdiction by this court is administrative pre-readiness delay and not excludable.

The same is true for the period of delay between this court's receipt of jurisdiction on December 10, 2024, and the scheduled appearance on January 2, 2025. There was no motion pending before this court at that time. To the extent that People v Thomas (59 Misc 3d 64 [App Term, 1st Dept 2018]) stands for the premise that a formal motion to reduce or dismiss a felony complaint is excludable, it does not apply. No motion was made by the People to reduce the felony complaints until their appearance on January 2, 2025. The People sent a copy of Rensselaer County Court's order returning this matter to this court, with two proposed prosecutor's informations. In their letter they requested that the "reduction be placed on the court's calendar within ten days of receipt" of the County Court's order. The letter was copied to the Honorable Debra Young, and the Supreme Court Clerk's Office. Even if the court were to find that this request was somehow a formal motion to reduce the matter, despite no notice of motion seeking relief being attached, it was not on notice to the defendant and required no response. (See People v S.E., 79 Misc 3d 1233[A], 2023 NY Slip Op 50797[U] [Crim Ct, Queens County 2023].) Simply put, this was not a motion, it was a request to schedule the case returned to the court.

The underlying delay is that of court congestion rather than motion practice or other proceedings. Pre-readiness court congestion does not relieve the People of the obligation to be ready for trial within the required period. (See People v Chavis, 91 NY2d 500 [1998], citing[*5]People v Smith, 82 NY2d 676, 678 [1993], People v Brothers, 50 NY2d 413, 417 [1980],^[FN3] and People v Stirrup, 91 NY2d 434 [1998].)

While it is true that People v Shuler (231 AD3d 1285, 1289 [3d Dept 2024]), as cited by the People, held that "circumstances outside of the People's control, such as court congestion, are excluded from the speedy trial calculation," that case does not apply here. The Shuler court was discussing court{**87 Misc 3d at 578} congestion after the People had announced readiness for trial on an indictment which had been timely filed. Indictments are trial ready accusatory instruments and require nothing more of the People to be ready for trial than to proceed to trial after filing their CoC, so an off record CoC and SoR are sufficient to stop the CPL 30.30 clock. In that case, it was the post-readiness delay in arraigning the defendant prompted by the People's failure to produce him which proved fatal to the case.

In this case, the felony complaints had not yet been rendered trial ready by reduction which occurred upon the court's inquiry pursuant to CPL 180.50 on January 2, 2025. Accordingly, the time between December 9, 2024, and January 2, 2025, a total of 25 days which added to the undisputed 178 days amount to 203 days chargeable to the People. The People had 183 days to be ready for trial. This matter is dismissed. The remainder of defendant's motion is rendered moot.