People v Burnett

City Court of Mount Vernon

Decided on May 12, 2026

Docket No. CR-05472-25

Nichelle A. Johnson, J.

Defendants are charged by misdemeanor information with one count of Petit Larceny (P.L. § 155.25.) under Docket #CR-05472-25 and one count of Petit Larceny (P.L. § 155.25.) under Docket #CR-05473-25. Defendant Burnett now moves to dismiss both accusatory instruments on speedy trial grounds pursuant to C.P.L. § 30.30.

The People oppose the motion.

Pursuant to CPL § 30.30(1)(b), the People in this case are required to be ready for trial within ninety (90) days of the commencement of the criminal action, where as here, the charges carry the potential sentence of more than three months. Petit Larceny is a Class A misdemeanor, not a violation, as asserted by the defense. The point of commencement of an action for speedy trial purposes is the filing of the first accusatory instrument, in this case an information (CPL §100.05; People v Lomax, 50 NY2d 351[1980]; see also People v Stirrup, 91 NY2d 434 [1998]. The actual date of filing is not includable in the calculation (People v Stiles, 70 NY2d 765 [*2][1987]).

The defendant contends that the charges should be dismissed on speedy trial grounds because the People failed to announce readiness within 90 days of the commencement of the action. Defendant argues that the case was commenced on October 14, 2025 with the filing of the first accusatory instrument but that defendant was not arraigned until January 21, 2026. Defendant also affirms that the police never informed her that there was a warrant for her arrest. This is simply not the case in this matter. Defendant assertions about the facts of this case are wholly inaccurate. In this matter defendant was arraigned on both accusatory instruments on October 14, 2025, the same day the accusatory instruments were filed and there was no warrant issued for her arrest. The cases tracked the same calendar.

The People affirm that a total of 70 days are chargeable to the People.

"[A] defendant bears the initial burden of alleging that the People were not ready for trial within the statutorily prescribed time period" (People v Allard, 28 NY3d 41, 45 [2016]). The People then bear the burden of proving their entitlement to statutory speedy trial exclusions for pre-readiness delays (People v Luperon, 85 NY2d 765 [1995]. CPL § 30.30 (4) exclusions are still available in the pre-readiness context (People v LaClair, 188 NYS 3d 850 (citing People v Barden, 27 NY3d 550, 553 [2016]; People v Cortes, 80 NY2d 201[1992]; Matter of People ex rel. LaBrew v Vance, 192 AD3d 645, 645, [2021]; People v Cox, 161 AD3d 1100, 1101 [2018]), and when defendant triggers one of these exceptions, the People's unreadiness is irrelevant (People v Cambridge, 230 AD2d 649, 650, 646 N.Y.S.2d 673 [1st Dept 1996], citing People v Cortes, 80 NY2d at 210).

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.

Pursuant to CPL§ 30.30 (4) (a), the period of delay resulting from pre-trial motions is excluded from the computation of time within which the people must be ready for trial (see People v. Worley, 66 NY2d 523 [1985]).

The above misdemeanor informations were filed on October 14, 2025. Defendant was arraigned the same day and released on her own recognizance. Counsel Hawkins was assigned as her counsel and the matter was adjourned to November 6, 2025 at the People's request.

The court file reflects the following:

October 14, 2025 — November 6, 2025 (23 days)

Two misdemeanor informations were filed against the defendant on October 14, 2025, each charging one count of Petit Larceny. Defendant was arraigned the same day and the matters were adjourned to November 6, 2025 at the People's request. This period of 23 days is chargeable to the People.

November 6, 2025 — November 25, 2025 (19 days)

According to the Court file defendant's appearance was waived on November 6, 2025. Defendant argues that her appearance was waived due to a medical emergency with her fiancé and that the time is still chargeable to the People. The People counter that the defendant was [*3]absent from court and that this period is excludable. In the reply papers, defendant filed a letter from Montefiore Hospital who confirmed that defendant was seen in the hospital with her husband, a patient, from November 4, 2025 through November 6, 2025. Per the file, a notice letter was issued directing the defendant to appear on November 25, 2025 and the matters were marked adjourned at the People's request for discovery.

"Judges have considerable discretion to control their own calendars, of which granting adjournments and excusing appearances is a corollary" (People v Lawry, Slip Copy 2026 WL 1262790 [Dist Ct. Nassau 2026] (citing People v Coppez, 93 NY2d 249 [1999]; People v Acosta, 7 Misc 3d 868, 870 [Crim Ct. NY 2022]).

It is common practice that courts may permit defendants to waive their right to be present for certain routine court appearances, with an expectation that the speedy trial time under CPL §30.30 continues to run normally (People v. Ghaonbalha, 66 Misc 3d 1214(A), 2020 WL 466138 [Crim. Ct. NY County 2020] [holding that since defendant's appearance was excused by the court, a bench warrant could not be issued and no exclusion under CPL § 30.30 [4][c][ii] is triggered]; see also People v Lawry, supra (holding defendant's waived and excused appearance was time chargeable to the People where the failure to physically appear caused no delay in the People's ability to answer ready for trial).

In this case, during this time period, the defendant was not "absent," as her location was known, and she was not "unavailable," as her presence for trial was easily obtainable. She remained in contact with her attorney, she notified him of the legitimate scheduling conflict, she produced written documentation to excuse her, and nothing she 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 (People v Lawry, supra) This period of 19 days is chargeable to People.

November 25, 2025- January 12, 2026 (48 days)

Defendant appeared on November 25, 2025. The matters were adjourned to December 10, 2025 and January 12, 2026 for discovery at the People's request. The This period of 48 days is chargeable to the People.

January 12, 2026 to January 21, 2026 (0 days)

Defendant failed to appear on January 12, 2026. The court file reflects that a notice letter was issued directing defendant to appear on January 21, 2026 and the matters were adjourned to January 21, 2026 at the People's request for discovery. On this motion, the People argue that this period of time should be excluded.

The Court reviewed the transcripts for this calendar call and the December 10, 2025 calendar call. On January 12, 2026 defense counsel represented to the Court that he believed the defendant's appearance had been waived. The prosecution requested issuance of either a bench warrant or warrant letter; the Court instead directed that a notice letter issue and adjourned the matter. The court file nor the transcripts reflect that defendant requested a waiver of her appearance on January 12, 2026. During the calendar call, the Court advised defense counsel to confirm with the stenographer if the defendant's appearance was waived and that the Court would verify whether or not the defendant's appearance was waived. Defendant's appearance was not waived.

Staying issuance of a bench warrant and excusing the defendant's appearance are mutually exclusive determinations (People v Ghaonbalha, supra.).

When a defendant who has been released on their own recognizance or on bail fails to appear for a required court date, the court may issue a bench warrant (see CPL § 510.50; CPL § 530.70 [1]). In such cases, the period from the issuance of the bench warrant to the defendant's subsequent appearance, whether by arrest on the warrant or voluntarily, is excluded from the calculation of the time within which the People must be ready for trial, provided the defendant is not in custody on another matter (CPL 30.30 [4] [c] [ii]). Alternatively, the court may stay the issuance of a bench warrant. When a warrant is stayed, the resulting period is considered to benefit the defendant and is not chargeable to the People (People v Medina, 198 AD2d 146 [1st Dept 1993], lv denied 83 NY2d 807 [1994]). Thus, whether a bench warrant is issued or its issuance is stayed, the adjournment period is excludable.

As previously stated, if the defendant's appearance has been excused, the defendant is no longer required to appear, and a bench warrant cannot properly be issued (People v. Ghaonbalha, 66 Misc 3d 1214[A]). Likewise, staying the issuance of a bench warrant is not appropriate. In such circumstances, because neither a warrant is issued nor its issuance stayed, no exclusion under CPL 30.30 (4) (c) (ii) is triggered (Id.). Accordingly, in a pre-readiness context, if the defendant's appearance is waived and the People are not ready for trial, chargeable time continues to accrue absent another basis for exclusion.

Here, after reviewing the transcripts and court file subsequent to the calendar call, the Court determined that defendant's appearance on January 12, 2026 had not been excused or waived. Accordingly, defendant was required to appear and her failure to do so rendered her absent within the meaning of CPL § 30.30[4[c]. Although the Court did not issue a bench warrant and instead directed that a notice letter issue, the exclusion is not defeated by the absence of a formally issued warrant or warrant letter (People v Parker, 186 AD2d 593 [2d Dept 1992]; lv denied 81 NY2d 845; 611 NE2d 783; 595 NYS2d 744 [1993]). In People v Parker, the Westchester County Court delayed issuance of the bench warrant for three days as an accommodation to permit the defendant to appear voluntarily. The defendant, however absconded, failed to appear and a bench warrant was issued. Defendant filed a motion to dismiss on speedy trial grounds. The county court charged this three day "grace period" to the People, "reasoning that any exclusion could commence, at the earliest, only upon the formal issuance of a warrant" (Id; see also People v Woodward, 219 AD2d 837 [4th Dept 1995] (speedy trial exclusion triggered when non-appearing defendant is deemed absent/unavailable and a bench warrant issues). The Appellate Division Second Department, however, reversed the county court's findings. The appellate court held that this three-day grace period should have been excluded from speedy trial calculations, even though the county court had not issued a bench warrant. The court stated that "[i]nasmuch as the defendant was clearly 'absent' with the meaning of CPL 30.30.(4)(c), the three days which elapsed between his failure to appear and the formal issuance of the warrant should also have been excluded. To hold otherwise would be to reward the defendant for flouting the court's attempt to accommodate him and to unfairly penalize the People who in no sense contributed to the brief delay".

The Second Department is the appellate court with immediate authority over this court. To the extent other appellate courts and lower court decisions suggest exclusion cannot begin before formal warrant issuance, this Court is constrained by Parker, which holds otherwise where a defendant is plainly absent and the delay in issuing the warrant results from the court's [*4]accommodation. Consistent with Parker, this Court finds that the nine-day period from January 12, 2026 to January 21, 2026 is excluded. Although no bench warrant or warrant letter was issued, defendant's appearance had not been excused or waived. Rather, the Court afforded defense counsel an opportunity to verify whether defendant's appearance had previously been waived before determining whether issuance of a bench warrant or warrant letter was appropriate. Under these circumstances, charging this period to the People would improperly penalize the prosecution for a delay attributable neither to the People nor to any finding that defendant's appearance was excused.

January 21, 2026 to February 20, 2026 (0 days)

Defendant failed to appear on January 21, 2026. A warrant letter was issued directing the defendant to appear on February 20, 2026. Defense counsel filed the instant motion on January 21, 2026, thereby tolling the speeding trial clock.

Accordingly, 90 days are charged to the People. To be deemed ready for trial, the People must file their SOR and "serve upon the defendant and file with the court a certificate of compliance," certifying that they have complied with their discovery obligations (CPL 245.50 [1]; 245.50 [3]).To date, the People have not filed a certificate of compliance or statement of readiness. Accordingly, the motion to dismiss on speedy trial grounds is granted.

This constitutes the Decision and Order of this Court.

Dated: May 12, 2026

HON. NICHELLE A. JOHNSON

City Judge of Mount Vernon