By notice of motion dated July 9, 2025, defendant moves for dismissal of the accusatory instrument pursuant to Criminal Procedure Law ("CPL") § 30.30 (1) because the People did not declare readiness for trial within their statutorily prescribed time. The People did not oppose the motion.

Upon review and consideration of the submission, court file and relevant legal authority, the Court GRANTS defendant's motion to dismiss pursuant to CPL § 30.30 (1) (b).

On October 29, 2024, defendant Nelson Francois was arrested and charged with violating, inter alia, Penal Law ("PL") §§ 220.16 (1) (criminal possession of a controlled substance in the third degree), 265.03 (3) (criminal possession of a weapon in the second degree), 265.02 (8) (criminal possession of a weapon in the third degree), 220.06 (1) (criminal possession of a controlled substance in the fifth degree), 265.02 (1) (criminal possession of a weapon in the third degree), 265.01-b (1) (criminal possession of a firearm), all misdemeanors. Defendant was arraigned on October 30, 2024, at which time the prosecution served notice pursuant to CPL §190.50 of their intention to present their case to a grand jury.

At the court appearance held on November 1, 2024, after the People advised that they were unable to meet their obligations under CPL § 180.80, defendant was released on his own recognizance. There having been no grand jury action at the subsequent adjournment dates on December 10, 2024, and February 3, 2025, the docket was adjourned to March 17, 2025. However, on March 3, 2025, the People filed a notice of motion to compel a DNA swab from Mr. Francois and his co-defendant and at the next appearance, the court, noting no opposition from defense counsel, granted the People's motion. The docket was subsequently adjourned to April 30 and June 16, 2025, and there still having been no grand jury action, defense counsel requested permission to file the instant motion.

Defense counsel avers that the prosecution was untimely because there was no grand jury action, and the People did not declare trial readiness within 180 days (affirmation of defendant's counsel at 2-3). It is further asserted that even if the interval pending the People's motion to compel a DNA sample were deemed excludable time, the prosecution's speedy trial time had already run out (affirmation of defendant's counsel at 3).

In a motion to dismiss felony charges pursuant to CPL § 30.30, a defendant has the initial burden to demonstrate that the prosecution failed to declare readiness for trial within six months (see CPL § 30.30 [1] [b]); see also Luperon at 77-78). The burden then shifts to the prosecution to identify excludable delays (see CPL § 30.30 [4]; see also People v Hernandez, 81 Misc 3d 1201[A], 2023 NY Slip Op 51201[U], *7 [Crim Ct, Bronx County 2023] citing Luperon, 85 NY2d at 77-78 ["(T)he People must ordinarily identify the exclusions on which they intend to rely, and the defense must identify any legal or factual impediments to the use of these exclusions"]).

Additionally, the prosecution must declare readiness for trial on the record (see People v England, 84 NY2d 1, 4 [1994] ["Trial readiness in CPL § 30.30 means both a communication of readiness by the People on the record and an indication of present readiness"] citing People v Kendzia, 64 NY2d 331, 337 [1985]). Lastly, the People must satisfy their statutory obligation pursuant to CPL § 245.50 (3), which provides that "the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper certificate pursuant to subdivision one of this section" (see Kendzia, 64 NY2d at 337).

Generally, a criminal action is commenced by the filing of an accusatory instrument against a defendant, and it is settled law that the date on which the action is commenced is excluded from the CPL § 30.30 computation (see CPL § 1.20 [17]; see also People v Stiles, 7 NY2d 765, 767 [1987]). Accordingly, the People's speedy trial time began to accrue on October 31, 2024, the day following defendant's arraignment. The record demonstrates that no grand jury action had taken place nor had the People declared readiness for trial by the adjournment dates of November 1, 2024, (October 31 — November 1, 2024 = 1 day), December 10, 2024 (November 2 — December 10, 2024 = 38 days), and February 3, 2025 (December 11 — February 3, 2025 = 54 days).

On March 3, 2025, the People filed their motion to compel a DNA swab from defendant (February 4 - March 3, 2025 = 27 days). The People's application was granted at the March 17, 2025, appearance and the Court finds that the 13-day adjournment pending the People's motion is excludable time pursuant to CPL § 30.30 (4) (a) (see also People v Almonte, 84 Misc 3d 1268[A], 2025 NY Slip Op 50063[U], *5 [Crim Ct, Bronx County 2025]). At the next adjournment dates on April 30 and June 16, 2025, the People had still not declared trial readiness nor reported grand jury action (March 18 — April 30, 2025 = 43 days and May 1 — June 16, 2025 = 46 days).

The record at bar is incontrovertibly clear that the People did not ever report grand jury action nor advise that they had complied with their statutory obligations pursuant to CPL §§ 30.30 (5) and 245.50 (3), without which they could not toll their speedy trial time (see Kendzia, [*3]64 NY2d at 337). Consequently, 209 days in total are chargeable to the People and, thus, the prosecution was untimely, and the case must be dismissed.

Based upon the foregoing, defendant's motion for dismissal of the accusatory instrument on statutory speedy trial grounds pursuant to CPL § 30.30 (1) (b) is GRANTED.

This constitutes the opinion, decision, and order of the Court.