The Defendant, charged with one count of driving while intoxicated (Vehicle and Traffic Law § 1192 [3]), and other related charges, moves to dismiss on the ground that he has been denied his statutory right to a speedy trial (CPL 170.30 [1] [e]; 30.30 [1] [b]). In opposition, the People assert that a critical period of delay attributable to them should be excluded based on exceptional circumstances. Having reviewed the underlying pleadings, and all documents contained within the court file, the Defendant's motion to dismiss pursuant to CPL 170.30 (1) (e) and 30.30 (1) (b) is GRANTED.

Where, as here, the top count charged on an accusatory instrument is a misdemeanor punishable by a sentence of imprisonment which exceeds three months, the People are required to be ready for trial within 90 days of the commencement of the action (CPL 30.30 [1] [b]; Vehicle and Traffic Law § 1193 [1] [b] [i]; see People v Cooper, 98 NY2d 541, 543 [2002]). Except for periods of excludable delay, the prescribed period within which the People must be ready for trial continues to run until the People state their present readiness for trial (see CPL 30.30 [4]; People v Price, 14 NY3d 61 [2010]; People v Cortes, 80 NY2d 201, 208 [1992]; People v Kendzia, 64 NY2d 331 [1985]). Once asserted, "[t]he People have a duty to maintain readiness" (People v Labate, 42 NY3d 184, 196 [2024]). Thus, where there is a change in their readiness status, the People bear the burden to clarify the basis for the adjournment to enable the court "to determine whether the delay is excludable" (id., quoting People v Liotta, 79 NY2d 841, 843 [1992] and People v Brown, 28 NY3d 392, 400 [2016]). A defendant has the initial burden of asserting that the People have exceeded the statutorily allotted time period within which they must announce their trial readiness (People v Clark, 152 AD3d 618 [2d Dept 2017]; see People v Allard, 28 NY3d 41, 45 [2016]). Thereupon, the burden shifts to the People to demonstrate that [*2]certain periods within that time should be excluded pursuant to statutorily enumerated exemptions under CPL 30.30 (4) (People v Santos, 68 NY2d 859, 861 [1986]).

Turning to the merits of the instant motion, Defendant seeks dismissal pursuant to CPL 170.30 (1) (e) and asserts that because the People are not entitled to a claimed exclusion, more than 90 days are charged against them, resulting in a violation of his right to a speedy trial (CPL 30.30 [1] [b]). As procedurally relevant, on October 15, 2025, following submission of Defendant's first motion alleging, inter alia, a violation of his right to a speedy trial, this Court issued a decision denying that motion and finding that 75 days of includable speedy trial time were assessed against the People (Whitehair, J., Decision and Order, October 15, 2025). The People concede that thereafter, on December 3, 2025, by their unreadiness for the pretrial hearing, they incurred an additional nine days of chargeable time, totaling 84 chargeable days. The disputed — and critical — period is the delay from December 12, 2025 until December 30, 2025.

On December 12, 2025, the People informed the court that they were again not ready for the pretrial hearing as their officer was on FMLA leave (tr at 2). The People provided no additional details and averred that they would be ready on December 30, 2025 (tr at 2). In their opposition, the People contend for the first time that this contested period of delay should be excluded pursuant to CPL 30.30 (4) (g) (ii) as a continuance granted at their request to "allow the district attorney additional time to prepare the people's case" and that the "additional time is justified by the exceptional circumstances of the case" (People's Opposition at 2, citing CPL 30.30 [4] [g] [ii]). In their written opposition, the People likewise fail to provide any additional details regarding the "exceptional circumstances of the case" and how those circumstances justify the resulting delay (cf. CPL 30.30 [4] [g] [ii]).

As a threshold matter, there is no evidence before this Court that the People ever sought a continuance based on this purported exceptional circumstance (see People's Exhibit A; People v Price, 61 AD3d 127, 130 [2d Dept 2009], affd 14 NY3d 61 [2010]). The People's failure to seek the application of this exclusion during the December 12th court appearance contravenes the statute's plain text, amended in 2019 to address scenarios such as the one presented here. In 2019, CPL 30.30 (4) (g) (ii) was amended to require that, in the postreadiness context, the People preemptively request the application of this exclusion by seeking a continuance that "must be evaluated by the court after inquiry on the record as to the reasons for the people's unreadiness and shall only be approved upon a showing of sufficient supporting facts" (id.; William C. Donnino, Practice Commentaries [McKinney's Cons Laws of NY, CPL 30.30, Excludable Delay, Subdivision [4] [g]; see Labate, 42 NY3d at 198 [finding that this amendment codified the People's burden to ensure a sufficient record enabling the court to determine whether the delay is excludable]).^[FN1] Here, while the People provided a basis for their unreadiness, their failure to proactively seek a continuance based on the officer's unavailability precluded the court from [*3]conducting an inquiry to determine whether the People's entitlement to the exclusion was justified by sufficient supporting facts. The People's failure to preemptively seek a continuance from the court based on the application of this exclusion precludes its retroactive application.

Moreover, while there is "no precise definition of what constitutes an exceptional circumstance under CPL 30.30 (4) (g)," the application of the exclusion "is limited by the dominant legislative intent informing CPL 30.30, namely, to discourage prosecutorial inaction" (Price, 14 NY3d at 64 [2010] [internal citations omitted]). In furtherance of this principle, its application is permitted "only when the People for practical reasons beyond their control cannot proceed with a legally viable prosecution" (id.). While the unavailability of a material witness due to medical leave can constitute an exceptional circumstance, the People must first demonstrate that the officer's testimony is "material to the People's case" and that they "attempted with due diligence to make the witness available" (see People v Blacks, 153 AD3d 720, 723 [2d Dept 2017], lv denied 30 NY3d 1017 [2017]). The People must also substantiate their claim that the witness is indeed unavailable (id. [finding that the People sufficiently demonstrated the parole officer's unavailability through submission of NYS Division of Parole paperwork regarding the officer's sanctioned leave]).

In this case, the People failed to establish the materiality of the officer's testimony, provided no details of any efforts undertaken to secure the officer's appearance, and supplied the court with no substantiating documents regarding the officer's medical unavailability. Indeed, without any additional information regarding this officer's leave, the diligence of the People's actions cannot be determined. Assuming materiality were established, if, for example, this officer's leave was predetermined, the People's failure to preemptively advise the court and consider proceeding with an alternative witness is precisely the prosecutorial inaction that CPL 30.30 seeks to thwart (Price, 14 NY3d at 64). To the contrary, if this officer's leave was sudden and unanticipated, the analysis may be different. In either situation, the utility of proactively seeking a continuance from the court, which would enable judicial exploration of these issues prior to the adjournment, is clear.

As a result of their failure to preemptively seek a continuance from the court based on the exclusion within CPL 30.30 (4) (g) (ii), the requisite court inquiry to determine the excludability of that period was neither triggered nor conducted. Furthermore, since the People repeatedly failed to provide any explanation as to how this officer's absence constituted "exceptional circumstances" that "justified" and necessitated "additional time to prepare the people's case," the People failed to establish their entitlement to the application of this exclusion (see CPL 30.30 [4] [g] [ii]). Accordingly, the 18-day period of delay from December 12, 2025 until December 30, 2025 is included in the speedy trial calculation, totaling 102 chargeable days (Brown, 28 NY3d at 404 [in postreadiness context, "any period of an adjournment in excess of that actually requested by the People is excluded"]). As this exceeds the 90 days permitted under CPL 30.30 (1) (b), the Defendant's motion to dismiss is GRANTED.

Accordingly, this Court finds that 102 days are included in the speedy trial calculation. As this exceeds the 90 days permitted under CPL 30.30 (1) (b), the Defendant's motion to dismiss pursuant to CPL 170.30 (1) (e) and 30.30 (1) (b) is GRANTED; sealing is stayed for 30 [*4]days.

This constitutes the Decision and Order of the Court.