Defendant moves for an order of dismissal on speedy trial grounds alleging that the Prosecution failed to file a valid Certificate of Compliance (COC) and Statement of Readiness (SOR) within the statutorily permitted window.

The Prosecution opposes.

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

Defendant was arraigned on a felony complaint charging Attempted Assault in the Second Degree and related offenses on July 6, 2024 (PL §110/120.05[2]).^[FN1] On December 19, the Prosecution served and filed a motion to dismiss the felony counts, a superseding information (SSI) containing only misdemeanor charges, a COC, and a SOR.^[FN2] On December 30, the Prosecution contacted the Court via email to request that the case be advanced to Part SV for [*2]felony reduction and re-arraignment on the SSI. On January 6, 2025, the Court issued a written decision granting the Prosecution's motion to dismiss counts. On January 21, the parties appeared in Part SV, where the Court re-arraigned Defendant on the SSI. On March 6, the case was called in Part SV, but Defendant did not appear. The Court issued and stayed a bench warrant. On March 13, the case was called in Part SV. Defendant again failed to appear, and the Court ordered a bench warrant. On March 19, the parties appeared in Part SV, where the Court vacated the warrant. Defendant provided proof of hospitalization, and the Court expunged the bench warrant and adjourned the case for trial. On May 12, the parties appeared in Part TP2, where the Prosecution stated not ready and requested three days. On June 30, the parties appeared in Part TP2, where the Prosecution stated not ready and requested two days. On July 2, the Prosecution served and filed another SOR. On July 21, the parties appeared in Part TP2, where the Prosecution stated not ready and requested two days. On July 23, the Prosecution served and filed another SOR. On September 10, the parties appeared in Part TP2, where the Prosecution stated not ready and requested two days. On September 12, the Prosecution served and filed another SOR. On October 27, Defendant filed the instant motion to dismiss. On October 28, the parties appeared in Part TP2, where the Prosecution stated ready. The Court set a motion schedule and adjourned for decision and trial. The Prosecution timely served and filed their response on November 18.

Defendant argues that the Prosecution's COC and SOR, which were both filed at the same time as their motion to dismiss the felony counts, necessarily could not be valid, as they announced ready on a felony complaint without an indictment or information. Defendant further argues that because the Prosecution failed to offer a specific reason for their unreadiness on four successive appearances for trial, the short adjournment requests were illusory, and they should be charged for the entire period. In total, Defendant assesses more than six months of includable speedy trial time.

The Prosecution argues that they have not exceeded their statutory speedy trial period, calculating a total of one hundred and seventy-five includable days. They argue that the eighteen days between December 19, when they filed a motion, until January 6, when the Court issued its decision, are excludable under CPL §30.30(4)(a). The Prosecution further argues that their COC and SOR, filed December 19, were valid and sufficient to stop the clock. They argue that the seven days between March 6, when the Court issued and stayed a bench warrant, and March 13, when the Court ordered a bench warrant, are excludable under CPL §30.30(4)(c)(ii). They argue that because the case was not adjourned for trial at any point between when they filed their COC and SOR and May 12, the clock remained stopped during that period. As to the short adjournment requests, the Prosecution argues that they should only be charged for the number of days they specified. On May 12, they state that they were not ready because the assigned prosecutor was out sick. On June 30, July 21, and September 10, they state that they were not ready because their witnesses were not available. Nevertheless, they argue that the speedy trial clock stopped on September 10, when Defendant indicated her intent to file a motion, pursuant to CPL §30.30(4)(a). Finally, the Prosecution argues that the speedy trial stopped on October 27 with Defendant's motion, pursuant to CPL §30.30(4)(a).

Pursuant to CPL §30.30(7)(c), where a defendant is charged with a felony complaint that is later reduced to a misdemeanor complaint, the prosecution must declare trial readiness within ninety days from the date the misdemeanor complaint is filed, so long as the aggregate period [*3]has not exceeded six months. 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]). "Absent an individualized finding of special circumstances in the instant case by the court before which the charge is pending, the prosecution shall not be deemed ready for trial . . . until it has filed a proper certificate [of compliance]" (CPL §245.50[3]). 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 six months 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 first key question before the Court is whether the Prosecution's motion to dismiss the felony counts constitutes a "pre-trial motion" for purposes of CPL §30.30(4)(a). This Court and others have considered this question and concluded that it does not (see People v Thomas, 59 Misc 3d 64 [2018]; People v Manigat, 82 Misc 3d 1239[A] [2024]; People v M.V., 79 Misc 3d 448 [2023]; People v Bienaime, 83 Misc 3d 1265[A] [2024]; People v Lackhan, 84 Misc 3d 1251[A] [2024]). The exclusion carved out by CPL §30.30(4)(a) applies to "a reasonable period of delay resulting from other proceedings concerning the defendant, including . . . pre-trial motions . . . and the period during which such matters are under consideration by the court." A motion to dismiss counts is fundamentally a ministerial act, not a contested motion requiring time for a responsive filing and the Court's consideration (see generally People v Collins, 82 NY2d 177 [1993]). It is, therefore, not contemplated by the exception set forth in CPL §30.30(4)(a).

The next question the Court must consider is whether the Prosecution's COC and SOR, filed contemporaneously with the motion to dismiss the felony counts, were sufficient to stop the speedy trial clock. The thrust of Defendant's challenge is that the Prosecution could not possibly have been ready to proceed to trial on December 19, given that the felony counts had not yet been dismissed, and they had not secured an indictment or information. To answer this question, the Court turns to CPL §180.50, which governs reductions from felony to misdemeanor charges. "A charge is 'reduced' from a felony to a non-felony offense . . . by replacing the felony complaint with, or converting it to, another local criminal court accusatory instrument" upon the filing of an information charging the defendant with the non-felony offense (CPL §180.50[3][a]). Furthermore, "upon the filing of an information . . . pursuant to this section, the court must dismiss the felony complaint from which such accusatory instrument is derived" (CPL §180.50[3][d]). Under the circumstances, the Court finds that the Prosecution accomplished the required steps to reduce the case to a misdemeanor information by filing the SSI. By filing the SSI, they triggered the Court's obligation to dismiss the felony complaint. Thus, their SOR was valid.

Finally, the Court will calculate the includable speedy trial time. It is undisputed that the Prosecution accrued one hundred and sixty-six days of includable speedy trial time between July 6 and December 19, 2024. The Prosecution's SOR, filed on December 19, stopped the clock. The Court finds that the Prosecution's reasons for the adjournments on May 12, June 30, July 21, and September 10 were sufficiently specific to warrant charging them only for the requested days. Accordingly, they are charged three days from the May 12 trial date, two days from the June 30 trial date, two days from the July 21 trial date, and two days from the September 10 trial date, bringing the total to one hundred and seventy-five days of includable time. Defendant stopped the clock on October 27 with the filing of the instant motion (CPL §30.30[4][a]).

The period from when the original complaint was filed on July 6 until the six-month cutoff on January 6 comprises one hundred and eighty-four days. The Prosecution stated ready on the same day they filed the SSI reducing the case to a misdemeanor information. They have accrued a total of one hundred and seventy-five days out of their statutorily permissible one hundred and eighty-four. Accordingly, Defendant's motion to dismiss is denied (CPL §30.30[7][c]).

This constitutes the decision and order of the Court.