The defendant, Ervin Ortiz, moves for dismissal of the accusatory instrument pursuant to Criminal Procedure Law ("CPL") §§ 30.30(1)(b) and 170.30(1)(e) based on the People's purported failure to file a valid Certificate of Compliance ("COC") and to timely discharge their discovery and speedy trial requirements pursuant to CPL §§ 245.20, 245.50(3), and 30.30(5).

Upon review and consideration of the submissions, court file, and relevant legal authority, the Court GRANTS that branch of the defendant's motion which is for dismissal pursuant to CPL § 30.30(5). The challenge to the COC is denied as academic.

On May 23, 2025, the defendant, Ervin Ortiz, was arrested and charged with Criminal Obstruction of Breathing or Blood Circulation, Assault in the Third Degree, Attempted Criminal Trespass in the Second and Third Degrees, Trespass, and Harassment in the Second Degree (PL §§ 121.11[a], 120.00[1], 110/140.15[1], 110/140.10[a], 140.05, 165.40, 240.26[1]). The defendant was arraigned on May 23, 2025, and released on his own recognizance.

The People filed their Certificate of Compliance ("COC") and Statement of Readiness ("SOR") off-calendar on August 20, 2025. On August 27, 2025, the parties appeared before the Court. The Court acknowledged the off-calendar filings of the COC and SOR, however, the defendant did not appear. A bench warrant was subsequently ordered on August 29, 2025.

While the case was on warrant status, the People filed a supplemental COC and second SOR on September 3, 2025. The defendant returned on the warrant on September 12, 2025, and the case was adjourned. On September 17, 2025, a motion schedule was set.

The Defense filed the instant motion to dismiss the accusatory instrument on September 24, 2025. The People filed their response on October 22, 2025. The Defense filed their reply on November 19, 2025, after requesting an extension due to illness.

On December 9, 2025, the Court emailed both parties requesting documents referenced in the motion papers as well as a clarification on one of the issues regarding the challenge to the [*2]COC. Both parties responded on December 12, 2025.

The Defense argues that the first SOR filed in this case on August 20, 2025, was illusory because the People had not made actual contact with the sole testifying police officer before stating ready for trial, and because it turned out the officer was on medical leave—a fact the Defense argues the People did not know until after the filing of the SOR.^[FN1] The parties agree that the officer was out on medical leave due to a car accident from some date in June until August 28, 2025—eight days after the filing of the SOR. The People note that the first date the officer replied to them with information about the case and video footage—which only this officer possessed—had been August 30, 2025.

However, the People argue that even though this officer was their preferred witness, they could have called another officer instead. The People also argue that, pursuant to the Appellate Division, First Department's decision in People v Dushain, they could have ascertained the officer's availability and requested a reasonable time for her to appear (see People v Dushain, 247 AD2d 234, 236 [1st Dept. 1998] ["The People are not required to contact their witnesses on each and every adjourned date . . . and neither statute nor case law requires that the People have the ability to produce their witnesses instantaneously in order for a statement of readiness to be valid"]).

In reply, the Defense argues that the People could have not called another officer because no other officers were listed as witnesses nor were any impeachment materials turned over for any other officer. Further, the Defense argues that Dushain does not apply because the People do not indicate when they learned the officer went on medical leave and, moreover, stated ready without ever speaking to their only officer listed as a testifying witness. Additionally, the Defense argues that the People cannot use CPL § 30.30(4)(g) at this juncture to retroactively be granted a continuance.

Pursuant to CPL § 30.30(1), an SOR requires two elements. First, it requires a communication of readiness by the People on the court record or in a written notice of readiness sent to both the Defense and the Court, which is not an issue in this case (see People v Kendzia, 64 NY2d 3331, 337 [1985]). The validity of the SOR for this case turns on the second element - whether the People "ma[de their] [SOR] when the People [were] in fact ready to proceed. The statute contemplates an indication of present readiness, not a prediction or expectation of future readiness" (Id.). To determine the People's readiness, "[t]he inquiry is whether the People have done all that is required of them to bring the case to a point where it may be tried" (People v England, 84 NY2d 1, 4 [1994], citing, People v McKenna, 76 NY2d 59 [1990]).

The People's SOR "is presumed to be accurate and truthful" (see People v Acosta, 249 AD2d 161, 161 [1st Dept 1998], citing, People v Caussade, 162 AD2d [2nd Dept 1990]). Under Dushain, as referenced, the People are not required to instantaneously produce their witness for an SOR to be valid; rather, the witness should be available to testify "on at most a few days' notice" (see Dushain, 247 AD2d at 236). However, the SOR "is a representation to the court, as an officer of the court, that, subject to scheduling, the People have their witnesses available and willing to proceed, and that they have the evidence they need to proceed (see People v Khachiyan, 194 Misc 2d 161, 165 [Crim. Ct. Kings 2002] [finding an SOR illusory where the [*3]People had not obtained IDTU footage which was necessary to proceed with a trial, however, certain days were excluded when the People represented the arresting officer was unavailable], citing, England, 84 NY2d at 4). It further "presupposes that the People's witnesses are available in that, at a minimum, the witnesses' location is known to the People' (People v Sherman, 24 Misc 3d 344, 349 [Crim. Ct. NY County 2009]).

First, the Court notes that both parties agree that the officer was on medical leave from some date in June until August 28, 2025. However, what remains unclear is when the ADA learned this information. Neither the supplemental COC filed on September 3, 2025,^[FN2] nor the People's response contain this information. Further, there is no indication that the ADA divulged this information to the Court on the next court date following the filing of the COC on August 27, 2025. It appears that the Defense did not learn of this information until September 3, 2025, with the filing of the supplemental COC. Ultimately these facts demonstrate that the ADA did not mention the medical leave to the Defense and the Court until September 3, 2025, and that the ADA may not have known the status of the People's witness until after the filing of the SOR. However, there is no definitive information on this point, which also provides support for the same conclusion because there is no record by the People asserting that they knew of the status of their witness before August 28, 2025.

The People also claim that they could have called another officer to testify in this officer's stead. However, as Defense points out and as corroborated by the COC, the officer at issue is the only officer listed as a testifying witness and the only officer for whom the People sent any impeachment information to the Defense as required by CPL § 245.50(1)(k)(iv). Therefore, at the point of August 20, 2025, the People did not provide notice to the Defense or the Court of any other police officer witnesses.

Also turning against a finding that the SOR was valid is that the People make no record that they could have proceeded with only the complaining witness. Even if this argument had been raised, the fact that Statement and Identification Notices were filed by the People demonstrate that the People intended to introduce officer testimony. At no point have these notices been revoked by the People. Additionally, the officer at issue is the only officer in this case who had relevant video footage on her phone—although the propensity value of this evidence is unclear, the People likely would require this officer's testimony to admit the video into evidence if they wished to enter it.

Ultimately, the Court agrees with the Defense that Dushain is distinguishable. Unlike Dushain, where the People had communication with the officer prior to their initial statement of readiness, and who was available and willing to testify within a few days' notice despite being [*4]transferred from the NYPD to the Nassau County Police Department, there is no record here that the People knew the location of the officer at the time of the filing of the SOR, nor do they appear to have known the officer was on medical leave before filing the SOR. It is also true that the People did not speak with the officer until August 30, 2025—ten days after the filing of the SOR. It is clear that if the People made efforts to determine the officer's location, they would have learned that the officer was unavailable to testify prior to her return from medical leave, in contrast to the officer in Dushain, who, although the ADA in that case was initially unaware of the officer's transfer, the ADA could always secure the officer's presence to testify in a reasonable amount of time because the transfer did not render the officer unavailable. Thus, when the People filed their SOR on August 20, 2025, they had not ascertained the location or availability of their only officer witness, nor had they ever spoken to that witness whose testimony is apparently necessary to proceed with a trial in this case.

Additionally, the Court agrees with the Defense that it cannot apply CPL § 30.30(4)(g) to the time period between the two SORs filed in this case. The People have not requested that the Court do so at any point during this case. In their response, the discussion about the officer is couched under the People's response to the challenge against the COC to explain the delay in turning over the video footage mentioned previously. Although the People reference that the officer's medical leave would have justified an exclusion under CPL § 30.30(4)(g), they make no request that the Court exclude certain time periods for that reason. The People also do not raise this argument when responding specifically to the Defense's motion to dismiss under CPL § 30.30. They neither allege that time should be excluded for that reason, nor do they suggest what dates should be excluded, which is the People's burden to identify once the Defense argues that the People have exceeded their time to be ready for trial (see People v Luperon, 85 NY2d 71, 78 [1995]).

In any event, the Court at this time, cannot apply CPL § 30.30(4)(g) to the time period between the two SORs filed in this case because the People have not established that they acted due diligence to ascertain or secure the necessary witness's availability. The Court of Appeals has found that the catch-all provision of CPL § 30.30(4)(g), "resulting from a continuance," is "explicitly 'not limited to' cases where a continuance has been granted" because "the unavailability of a prosecution witness may be a sufficient justification for delay" (see People v Zirpola, 57 NY2d 706, 708 [1982]).

However, for a CPL § 30.30(4)(g) exception to be granted, "the district attorney" must show that they have "exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will become available in a reasonable period" (CPL § 30.30[4][g]). Specifically, the unavailability of an important witness may only qualify as an exceptional circumstance when the "People attempted with due diligence to make the witness available" (see id., citing, People v Washington, 43 NY2d 772, 774 [1977] ["[t]he statutory exception, then, if it is to be given reasonable effect and it is to fulfill the legislative purpose, must be limited to instances in which the prosecution's inability to proceed is justified by the purposes of the investigation and credible, vigorous activity in pursuing it"]). Here, the People did not act with due diligence to secure the officer as a witness because they did not make a record of their efforts to contact the witness prior to filing the SOR, never proffered any knowledge of the officer's medical leave to the Court or to the Defense until September 3, 2025, and did not actually make any contact with the officer until August 30, 2025. Without such diligent efforts to locate the witness and ascertain the witness's general availability, CPL § [*5]30.30(4)(g) does not apply.

Therefore, for all the reasons stated above, and because the statute contemplates present readiness, the Court finds the SOR filed on August 20, 2025, illusory.

A motion to dismiss must be granted where the People are not ready for trial within "ninety days of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months, and none of which is a felony" (CPL § 30.30[1][b]; see CPL § 170.30[e]). The defendant has the initial burden to demonstrate that the prosecution failed to declare readiness for trial within the statutorily prescribed time (see Luperon, 85 NY2d at 77-78). Computation for speedy trial purposes commences on the day following the filing of an accusatory instrument (People v Stiles, 70 NY2d 765 [1987]). The burden then shifts to the prosecution to identify excludable delays (see Luperon, 85NY2d at 78).

The following time periods are deemed chargeable against the People:

May 23, 2025 — July 7, 2025. During this time period, the accusatory instrument was filed on May 23, 2025, and the defendant was arraigned on the same date. No COC or SOR was filed during this time period, and the case was adjourned to July 7, 2025. This time period totals 45 days chargeable against the People.

July 7, 2025 — August 27, 2025. During this time period, the case was adjourned to August 27, 2025. Although the COC and SOR were filed on August 20, 2025, as ruled above, the SOR was illusory and thus insufficient to stop the speedy trial clock. As noted above, the People did not request a CPL § 30.30(4)(g) exclusion, nor did they identify any periods of time that would be eligible for exclusion. This time period totals 51 days chargeable against the People.

Based on the foregoing, the Court finds that, at a minimum, 96 days are chargeable against the People, and the Court need not examine the other periods of time in this case for that reason. The Court also need not evaluate the challenge to the COC as that issue has been rendered academic.

Because the People have exceeded their statutorily allotted time to bring this case to trial, that branch of the defendant's motion which is to dismiss the accusatory instrument pursuant to CPL § 30.30 is GRANTED.

Based upon the foregoing, that branch of the defendant's motion which is to dismiss the accusatory instrument pursuant to CPL § 30.30 is GRANTED.

The challenge to the COC is denied as academic.

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