Opinion
2010-225 N CR.
Decided April 1, 2011.
Appeal from an order of the District Court of Nassau County, First District (Robert H. Spergel, J.), dated November 9, 2009. The order, insofar as appealed from, upon granting the People's motion for leave to reargue defendant's prior motion to dismiss the accusatory instruments, adhered to the court's prior determination granting the motion.
ORDERED that the order, insofar as appealed from, is reversed, on the law, upon reargument, defendant's motion to dismiss the accusatory instruments is denied, the accusatory instruments are reinstated and the matter is remitted to the District Court for all further proceedings.
PRESENT: TANENBAUM, J.P., MOLIA and LaCAVA, JJ.
On April 15, 2007, the People filed two simplified traffic informations charging defendant with failing to drive on the right side of the roadway (Vehicle and Traffic Law § 1120 [a]) and driving while intoxicated per se (Vehicle and Traffic Law § 1192), respectively. Defendant subsequently moved to dismiss the accusatory instruments on the ground that she was denied her statutory right (CPL 30.30 [b]) and constitutional right ( see CPL 30.20) to a speedy trial. The District Court granted defendant's motion and dismissed the accusatory instruments. The People moved for leave to reargue. By order dated November 9, 2009, insofar as appealed from, the District Court, upon granting leave to reargue, adhered to the prior determination.
The People were required to be ready for trial within 90 days of the commencement of the action ( see CPL 30.30 [b]). It should be noted at the outset that defendant takes issue only with the time period from March 20, 2008 through November 18, 2008. The record contains a certificate of readiness which was date-stamped by the court on March 20, 2008 at 2:14 P.M. It is uncontroverted that that was the first time that the People had declared readiness after the commencement of the action. Defendant argues that this certificate of readiness was illusory since at the time it was made, the People's witness was in upstate New York and the People were not ready on the next five adjourned dates because their witness was unavailable.
The minutes of March 20, 2008 reflect that the People were not ready because the arresting officer was not present. The People requested a two-day adjournment, but, due to court congestion, the court adjourned the case to May 1, 2008. Later that afternoon, the People filed a certificate of readiness and noted therein that after learning that the arresting officer had been transferred to upstate New York, they had spoken to him and he had informed them that he was available to testify.
It is well settled that a statement of readiness must be made when the People are in fact ready to proceed ( see People v Wilson, 86 NY2d 753; People v England, 84 NY2d 1; People v Kendzia, 64 NY2d 331). "The statute contemplates an indication of present readiness, not a prediction or expectation of future readiness" ( Kendzia, 64 NY2d at 337 [emphasis added]). "The test is whether the People are able to present their case and do so immediately . . . [and] [t]he statement must be made in good faith and reflect an actual, present state of readiness" ( People v Robinson, 171 AD2d 475, 477 [internal citations omitted]). The People are not required to contact their witnesses on every adjourned date ( see People v Camillo, 279 AD2d 326; Robinson, 171 AD2d 475), nor do they have to instantaneously present their witnesses in order for a statement of readiness to be valid ( see Camillo, 279 AD2d 326; People v Dushain, 247 AD2d 234). Furthermore, the fact that the People are not ready on subsequent adjourned dates, after they have filed a certificate of readiness, does not render their certificate of readiness illusory ( see People v Anderson, 105 AD2d 38, affdain 66 NY2d 529; see also Robinson, 171 AD2d 475). In view of the foregoing, we are of the opinion that the People's certificate of readiness was not illusory. However, since the People were not ready on the morning of March 20, 2008 and filed their statement of readiness at 2:14 P.M., when their witness was in upstate New York, we find that the People should be charged with that one day of the 42-day adjournment of March 20, 2008 to May 1, 2008 ( see People v Farrell , 21 Misc 3d 579 [Sup Ct, Bronx County 2008]).
On the next adjourned date of May 1, 2008, defense counsel requested an adjournment and the case was adjourned to June 20, 2008. Since this adjournment was made at defendant's request, it is not chargeable to the People ( see CPL 30.30 [b]; People v Rodriguez , 27 Misc 3d 135 [A], 2010 NY Slip Op 50753[U] [App Term, 9th 10th Jud Dists 2010]). On the next five adjourned dates of June 20, 2008, July 8, 2008, August 21, 2008, September 18, 2008 and October 15, 2008, the People were not ready because the arresting officer was unavailable and, on each occasion, the People requested either a two, four or seven-day adjournment. However, defense counsel was never available on the dates that the People requested and, as a result, on each occasion, defense counsel requested a specific date to which to adjourn the case. The court adjourned the case each time to the date specifically requested by defense counsel. When the People request an adjournment after declaring readiness, they are only chargeable with the actual number of days that they request ( see People v Williams , 32 AD3d 403; People v Nielsen, 306 AD2d 500). Thus, the People are only chargeable with a total of 24 days, the number of days requested by them, with respect to the aforementioned adjournments.
On January 19, 2009, defendant moved to dismiss the accusatory instruments on the ground that the she had been denied both her statutory and constitutional right to a speedy trial ( see CPL 30.30, 30.20). We note that defendant has asserted no arguments in her motion papers as to why the accusatory instruments should be dismissed on the basis of a denial of her constitutional right to a speedy trial ( see People v Taranovich, 37 NY2d 442, 445; see also Rodriguez, 27 Misc 3d 135[A], 2010 NY Slip Op 50753[U]). Since the People are only chargeable with a total of 25 days, the District Court improperly granted defendant's motion to dismiss the accusatory instruments.
In view of the foregoing, the order is reversed, upon reargument, defendant's motion to dismiss the accusatory instruments is denied, the accusatory instruments are reinstated and the matter is remitted to the District Court for all further proceedings thereon.
Tanenbaum, J.P., Molia and LaCava, JJ., concur.