People v Lawry

District Court of Nassau County, First District

Decided on May 6, 2026

Docket No. CR-022568-25NA

Jaclene Agazarian, J.

PAPERS CONSIDERED:

Defendant's Notice of Motion, Affirmation in Support 1

People's Affidavit and Memorandum in Opposition 2

Defendant's Affirmation in Reply to People's Opposition 3

PRELIMINARY STATEMENT

The issue before this Court is whether an adjournment, during which period the Court stayed the issuance of a warrant, is chargeable to the People where the Defendant's nonappearance was due to his having a court appearance in court in another jurisdiction and the Court advised it would remove the stay of the warrant upon proof of same. Under the facts, circumstances, and record presented in this case, the Court finds it is. Accordingly, the People have exceeded their statutory time to be ready for the trial and the instant matter must be dismissed.

BACKGROUND

The Defendant, charged with PL §120.00(1), Assault in the Third Degree, was arraigned on November 5, 2025. The matter was then adjourned until November 24, 2025, for the People to comply with their discovery obligations.

On November 24, 2025, the Defendant did not physically appear and his attorney informed the Court that Defendant, who was in communication with her, was not present because he was required to appear in court in Kings County that same day. Defense counsel then asked that the Defendant's appearance be waived. The presiding Judge responded: "Warrant ordered and stayed. Court and counsel to notify defendant to appear December 19th." The presiding Judge went on to state "...you can bring in proof on the next court date that he was actually in Brooklyn and if you give me that I will strike the marking." The record was then silent as to who would be charged the time and the People did not answer ready for trial.

On December 19, 2025, the Defendant appeared as directed, with written proof from the Court Clerk at Brooklyn Criminal Court that he was, in fact, present in Brooklyn Criminal Court on November 24, 2025. The presiding Judge then stated:"The file will be changed to indicate that your appearance was waived on November 24th, and I will strike out the warrant ordered stayed." The People did not object or otherwise take any position as to speedy trial time. They did not answer ready for trial and indicated they were "still investigating" the case. The matter was adjourned until January 20, 2026, for the People to comply with their discovery obligations with the Court noting "time chargeable to the People."

On February 4, 2026, the People filed their Certificate of Compliance ("COC") and Certificate of Readiness for Trial ("COR").

Defendant now moves by Notice of Motion dated March 11, 2026, seeking an Order dismissing the charges against the Defendant pursuant to CPL §170.30(1)(e) and CPL §30.30(1)(b). The People oppose the motion.

ARGUMENTS

The defense asserts that the People failed to be ready for trial within the statutorily required 90 days by filing their COC and COR on the 91st day. The defense maintains that they did not consent to any adjournments from the time of the Defendant's arraignment, and that February 4, 2026, marked the 91st day.

In opposition, the People argue that the adjournment from November 24, 2025 until December 19, 2025, should not be charged to them. The People assert that because the Defendant was not present and the Court stayed the issuance of a warrant, that adjournment is excludable pursuant to CPL §30.30(4)(c)(i). The People maintain that the Defendant was "unavailable" on November 24, 2025. They also claim the time is excludable pursuant to CPL §30.30(4)(a), arguing that Defendant's absence should be deemed "a reasonable period of delay resulting from other proceedings." The People outline the voluminous discovery they provided and set forth their efforts to obtain same before filing their COC and COR on February 4, 2026.

In reply, the defense notes that they never requested an adjournment or asked for a warrant to be stayed on November 24, 2025. They further assert that it was made clear by the Judge that the Defendant could bring proof of his other court appearance in order to "strike" the warrant stayed marking. As set forth in the transcript provided, on December 19, 2025, upon proof that Defendant had been in Brooklyn Criminal Court on November 24, 2025, the Court removed the warrant ordered stayed marking and waived the Defendant's appearance on the November 24, 2025 date.

DISCUSSION

The burden of proof is on the People to show that periods are excludable for speedy trial purposes (People v. Kendzia, 64 NY2d 331 (1985). There is no dispute that the People were not yet ready for trial and had not yet certified the case when the matter was adjourned from November 24, 2025 to December 19, 2025. All prereadiness delay is chargeable to the People unless they "satisfy their burden of proving entitlement to an exclusion" (People v. Cortes, 80 NY2d 201 [1992]). Here, they have failed to do so.

The defense neither requested nor consented to the subject adjournment^FN1. Rather, the defense asked that Defendant's appearance be waived."Adjournments consented to by the defense must be clearly expressed to relieve the People of the responsibility for that portion of the delay" (People v. Smith, 82 NY2d 676 [1993]). The Court stayed a warrant until December 19, 2025, and the record is otherwise silent as to consent or to whom the time is chargeable. Where there is no waiver by the defendant, a sua sponte adjournment period is properly charged to the People (People v. Meierdiercks, 68 NY2d 613 [1986]).

In this case, the People were specifically put on notice of the Court's intention to "strike the marking" of the stay of the warrant on the next appearance date. The People were also on notice when the Court stated on December 19, 2025, that the Defendant's appearance would be deemed waived for the November 24, 2025 appearance. The People were present and had an opportunity to be heard on both occasions. Furthermore, "calendar notations alone do not suffice to prove that the periods marked 'excluded' do in fact come within the ambit of the statutory exclusions." People v. Berkowitz, 50 NY2d 333 (1980).

It is well established that "Judges have considerable discretion to control their own calendars, of which granting adjournments and excusing appearances is a corollary. (People v. Coppez, 93 NY2d 249 [1999])" People v. Acosta, 76 Misc 3d 868, 870—71 (N.Y.Crim.Ct., 2022). The decision of the presiding Judge, to allow the Defendant an opportunity to provide proof of his appearance in another jurisdiction before waiving his appearance, was within her discretion. This was all done on the record, without surprise to the People, and had no impact on their ability to answer ready for trial.

Because of this, and because there was no delay in the proceedings occasioned by the Defendant not being physically present on November 24, 2025, neither CPL §30.30(4)(a) nor CPL §30.30(4)(c)(i) applies. There is nothing in the record to suggest that Defendant's failure to physically appear on November 24, 2025, caused any delay in the People's ability to answer ready for trial.

In addition, pursuant to CPL §30.30(4)(c)(i), for the period of delay to be excludable, it must be the result of the defendant's absence or unavailability. A defendant is considered "absent" if "his location is unknown and he is attempting to avoid apprehension or prosecution," or if "his location cannot be determined by due diligence." A defendant is considered "unavailable" if his location is known but his presence for trial cannot be obtained by due diligence. In this case, the Defendant was not "absent," as his location was known, and he was not "unavailable," as his presence for trial was easily obtainable.

"The right to a speedy trial 'is not dependent in any way on whether the defendant has expressed his readiness for trial' (People v. Hamilton, 46 NY2d 932, 933—934)." People v. Liotta, 79 NY2d 841 [1992]. The People are not excused from their obligation to be ready for trial when the court's adjournment at issue did not interfere with their ability to be ready for trial (People v. [*2]Brothers, 50 NY2d 413 [1980]; People v. Barden, 27 NY3d 550 [2016]).

A motion made pursuant to CPL §170.30 must be granted when the People are not ready for trial within 90 days of the commencement of a criminal action where, as here, "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). It is well settled that speedy trial time begins to run on the day following commencement of the criminal action (see People v Stiles, 70 NY2d 765 [1987]). Here, defendant was arraigned on November 5, 2025. Thus, the speedy trial time commenced on November 6, 2025, and the People are required to be ready within 90 days thereof, less excludable periods. The People answered ready 91 days later, on February 4, 2026.

Under these facts, the Defendant cannot be denied his constitutional right to a speedy trial. He remained in contact with his attorney, he notified her of the legitimate scheduling conflict, he followed the Court's directives by producing written documentation to excuse his appearance, and nothing he or the Court did or failed to do had any impact on People's ability to prosecute this case or timely answer ready for trial.

For these reasons, Defendant's motion to dismiss pursuant to CPL §170.30(1)(e) and CPL §30.30(1)(b) is GRANTED.

This constitutes the decision and order of this Court.

SO ORDERED.

HON. JACLENE AGAZARIAN

District Court Judge

Dated: May 6, 2026