Defendant moves for an order of dismissal on speedy trial grounds alleging that the Prosecution failed to announce their readiness for trial within the statutory time limit.

The Prosecution opposes.

For the reasons explained more fully herein, Defendant's motion to dismiss is GRANTED.

Defendant was arraigned on a misdemeanor complaint charging Forcible Touching and related offenses on June 13, 2024 (PL §130.52[1]). On July 8, the Prosecution served and filed a superseding information (SSI) containing identical charges. On July 22, the Prosecution served and filed a Certificate of Compliance (COC) and Statement of Readiness (SOR). On July 23, the parties appeared in Part SV; the Cout adjourned the case for Defendant's COC and any discovery challenges. On September 24, the parties appeared in Part SV; the Court adjourned the case for hearings and trial. On October 29, the parties appeared in Part TP2; the Prosecution announced they were not ready and requested an adjournment date of November 12. On December 4, the parties appeared in Part TP2; the Prosecution announced they were not ready and requested two days. On January 24, the parties appeared in Part TP2; the Prosecution stated ready, but Defendant was not ready. On March 4, the parties appeared in Part TP2; the Prosecution announced they were not ready and asked for seven days.^[FN1] On April 3, the parties appeared in Part TP2; the Prosecution was not ready and requested seven days. On May 7, the parties appeared in Part TP2; the Prosecution was not ready and requested seven days. The Court stated that they would be charged only for the time requested, but that their SOR may be deemed illusory, and they were required to file a new SOR off-calendar. On June 11, the parties appeared [*2]in Part TP2; the Prosecution was not ready and requested ten days. On July 8, the Prosecution served and filed a new COC and SOR. On September 10, Defendant filed the instant motion to dismiss.

Defendant argues that the Prosecution's SOR was illusory insofar as they were not ready to proceed on several appearance dates that followed. In total, Defendant argues they have exceeded their ninety-day speedy trial limit.

The Prosecution argues that they should be charged a maximum of sixty-six days of speedy trial time. They calculate thirty-eight days from June 13 to July 22. They argue that they should not be charged any time from October 29 because defense counsel was also unready to proceed. They calculate an additional two days on December 4 (forty days total), nine days on March 4 (forty-nine days total), and seven days on April 3 (fifty-six days total). They argue they should not be charged any time from May 7, as they say the Court instructed them that no additional time would be charged. Finally, they argue that they should be charged ten days on June 11, as that was the period they requested (sixty-six days total).

Pursuant to CPL §30.30(1)(b), the prosecution must declare trial readiness within ninety days from the date of commencement of a misdemeanor criminal action. To properly announce trial readiness, the prosecution must certify in good faith compliance with their discovery obligations pursuant to CPL §245.20 (CPL §30.30[5]). A defendant seeking dismissal pursuant to CPL §30.30 meets their initial burden by alleging that the prosecution has failed to declare readiness within the statutorily prescribed period (People v Beasley, 16 NY3d 289, 292 [2011]).

Once the defendant has shown that there is more than ninety days of delay, the burden of proving the existence of excludable periods falls upon the prosecution (People v Berkowitz, 50 NY2d 333, 349 [1980]). The prosecution must demonstrate that the disputed adjournments are excludable by reference to a statutory provision (People v. Luperon, 85 NY2d 71, 77-78 [1995]; People v. Cortes, 80 NY2d 201 [1992]; People v. Santos, 68 NY2d 859 [1986]; Berkowitz, 50 NY2d at 348-350). The prosecution also bears the burden to clarify, on the record, the basis for an adjournment so that the motion court can determine to whom the adjournment should be charged (Cortes, 80 NY2d at 215-216; People v Liotta, 79 NY2d 841 [1992]; Berkowitz).

The accusatory instrument was filed on June 13, 2024. The Prosecution accrued thirty-nine days of chargeable time between June 13 and July 22, when they filed their first SOR.^[FN2]

Despite the Prosecution's claim that they should not be charged for the time they were not ready on October 29, defense counsel's readiness to proceed is not at issue in a speedy trial calculation (CPL §30.30). They are charged an additional fourteen days from October 29 to November 12, their requested adjournment date (fifty-three days total). They are charged two [*3]more days from December 4 (fifty-five days total). They are charged an additional seven days from March 4 (sixty-two days total). They are charged seven more days from April 3 (sixty-nine days total).

The Court rejects their argument that they should not be charged any time from May 7, when they stated not ready and requested seven days. The Court indicated they would not be charged any additional time beyond their request, as the Court was unwilling to deem their SOR illusory on Defendant's application. However, there is no basis upon which to believe the time is not chargeable, as it does not fall within any statutory exception and the Prosecution plainly stated that they were not ready to proceed. Indeed, the Prosecution does not cite any statutory provision upon which to exclude the time. They are charged seven more days from May 7 (seventy-six days total).

This does not address the Court's instruction on May 7 that the Prosecution file an off-calendar SOR and explain the previous two dates on which they were not ready, though. During the appearance, the Court instructed the Prosecution that, at the next appearance, they must "have information as to why they were not ready on the last two court dates, and [they] have to be ready for a statement of readiness." The Court indicated that, without such information, the original SOR may be deemed illusory. When the parties appeared on June 11, the Prosecution again stated not ready, asking for an additional ten days because the police officer witness was off and "there must be a conflict with the scheduling as well." They did not address the Court's May 7 instruction to provide information as to why they had not been ready on the two previous dates, did not file an off-calendar SOR, and indeed did not even make an in-court SOR. Their next SOR did not come until July 8, sixty-two days after the Court's instruction and twenty-seven days after the most recent prior appearance.

In short, Prosecution failed to explain the previous two days on which they were not ready and failed to make another SOR on June 11, as the Court instructed them to do on May 7. Based on the record presented, the Court finds that the Prosecution was on notice that their SOR was insufficient to maintain their readiness and speedy trial clock began to toll again on June 11. The clock ran until July 8, when the Prosecution filed another SOR off-calendar, adding twenty-seven days of includable time. This brings the total includable speedy trial time to one hundred and three days.

Because the Prosecution has exceeded their ninety-day speedy trial limit, Defendant's motion to dismiss is granted (CPL §30.30[1][b]).

This constitutes the decision and order of the Court.