Opinion
2007KN050438.
Decided October 6, 2009.
Defendant is currently charged with Resisting Arrest (PL § 205.30), 3 counts of Assault in the Third Degree (PL § 120.00), and 3 counts of Harassment in the Second Degree, (PL § 240.26), the top count being a class A misdemeanor. He moves to dismiss the accusatory instrument pursuant to CPL § 30.30. For the reasons that follow, that motion is denied.
The Parties' Contentions
Defendant argues in large part that the People's declaration of readiness was illusory because: 1) at the November 13, 2007 court appearance, the People announced ready when they did not have their file in court; and 2) the People failed to provide defense counsel with outstanding discovery and Rosario material for an extended period of time, despite being requested to do so on numerous court appearances. Accordingly, defendant asserts that the People should be charged with as much as 244 days of post-readiness delay.
The People contend that they properly stated ready for trial in each instance, that they were diligent in complying with defendant's discovery requests as the material became available to them, and that they should only be charged with 49 days of delay.
Analysis
Pursuant to CPL § 30.30(1), the applicable speedy trial time is determined based on the highest charge in the accusatory instrument ( see People v Walton, 165 Misc 2d 672, 674 [Crim Ct, Richmond County 1995]). Where the highest charge against a defendant is a class A misdemeanor, the People are ordinarily required to state their readiness for trial within 90 days of commencing the criminal action (CPL § 30.30[b]; PL § 70.15). In this case, however, the original accusatory instrument also charged defendant with Assault in the Second Degree (PL § 120.05), a felony. CPL § 30.30(5)(c), requires that "[w]here a felony complaint is replaced with a new accusatory instrument charging a class A misdemeanor, the People must be ready for trial within 90 days from the filing of the new instrument or six months from the filing of the felony complaint — whichever is shorter" ( People v Spector, 181 Misc 2d 522, 523 [Crim Ct, New York County, 1999], lv denied, 96 NY2d 942).
In this case, the felony charge was dismissed and the charges reduced on September 11, 2007, 61 days from the date when the felony complaint was filed. Here, the 90 day period running from the filing of the misdemeanor complaint is shorter than the six month (184 day) period running from the felony arraignment. Thus, pursuant to CPL § 30.30(5)(c), the speedy trial clock was reset when the misdemeanor complaint was filed, and the People had 90 days from September 11, 2007 to be ready for trial.
To prevail in the instant motion, Defendant must demonstrate a delay in excess of 90 days from the filing of the misdemeanor complaint ( see People v Santos, 68 NY2d 859, 861; People v Khachiyan, 194 Misc 2d 161, 166 [Crim Ct, Kings County, 2002]). Once he has made such a showing, the burden shifts to the People to establish that certain periods within that time should be excluded ( see People v Santos, 68 NY2d at 861; People v Khachiyan, 194 Misc 2d at 166).
The Court of Appeals has held that "ready for trial" within the meaning of CPL § 30.30(1) requires both "a communication of readiness which appears in the trial court's record" and that the prosecutor "make the statement of readiness when the People are in fact ready to proceed." ( People v. Kendzia, 63 NY2d 331 (1985). The question of whether the People are "in fact ready to proceed" involves an "inquiry . . . whether the People have done all that is required of them to bring the case to the point where it may be tried." ( People v. England, 84 NY2d 1, 4 (1994). Thus, defendant's need for discovery or Rosario material may keep the defense from being ready for trial, but it does not impede the People from commencing their case or prevent them from announcing ready ( see e.g. People v. Anderson, 66 NY2d 529, 537, 543).
Calculating Includable and Excludable Time
The description of the facts discussed in this decision are derived from the official court file, the affirmations submitted by Samuel A. Bernstein, attorney for defendant, and A.D.A. Lisa M. Vellucci, as well as the minutes of the June 23, 2007 and July 8, 2009 proceedings, attached as exhibits to the People's reply brief.
The Period from July 6, 2007 to September 11, 2007
Defendant was arraigned on the felony complaint on July 6, 2007. The case was adjourned to August 15, 2007 for grand jury action. On August 15, 2007, the case was adjourned to September 11, 2007, for reduction of the charges. As previously discussed, this 61 day period from the felony arraignment to the reduction of the charges and filing of the misdemeanor complaint is excluded from the speedy trial calculus by operation of law ( see CPL § 30.30[c]). Accordingly, as of September 11, 2007, the People are charged with 0 days of delay.
The Period from September 11, 2007 to September 25, 2007
On September 11, 2007, the felony charge was dismissed, the charges reduced and the People filed three supporting depositions, thereby converting the misdemeanor complaint to an information. Pursuant to CPL 30.30(5)(c), on this date the speedy trial clock was reset and the People had 90 days to be ready for trial. The case was then adjourned to September 25, 2007 for discovery by stipulation (DBS). Pursuant to CPL 30.30(4)(a), adjournments for DBS are excluded from speedy trial calculations, irrespective of the People's readiness for trial ( see People v. Caussade, 162 AD2d 4, 8 [2d Dept] lv. denied, 76 NY2d 984; People v. Saunders , 8 Misc 3d 214 [Crim. Ct., Kings County 2005]). The court notes that the defendant does not argue in his moving papers that the people should be charged with any time for this adjournment. Accordingly, as of September 25, 2007, the People are charged with 0 days of delay.
The Period from September 25, 2007 to November 13, 2007
On September 25, the People served and filed DBS, and announced that they were ready for trial. Defense counsel requested additional discovery including medical records for all three police officer complainants, copies of 911/Sprint and memo book entries for all three complainants as well as the arresting officer. The court instructed the People to provide the additional discovery and the case was adjourned to November 13, 2007 for hearings and trial. This period is excluded. The People are entitled to a reasonable period of time to prepare for hearings and trial (CPL § 30.30[a]; People v Lang, 5 Misc 3d 1021[A], ***2 [Crim Ct, Kings County 2004] [adjournment for the People to prepare for trial is excludable]; People v Reed , 19 AD3d 312 [1st Dept], lv. denied, 5 NY3d 832). The court notes that the defendant does not argue in his moving papers that the people should be charged with any time for this adjournment. Accordingly, as of November 13, 2007, the People are charged with 0 days of delay.
The Period from November 13, 2007 to January 31, 2008
On November 13, 2007, before Judge Pickett in AP-4, the People again announced ready for trial. Defense counsel maintains that the purported declaration of readiness on November 13, 2007, was illusory and of no legal effect because the People did not have their file in court, and had not supplied the additional discovery and Rosario material requested by defense counsel at the prior adjournment (Deft's Br. at 4). Thus, defense counsel asserts that the People should be charged with the 71 day period of this adjournment.
The People argue that they properly announced ready for trial and that while they did not have their file, they sent an "outcard" to court replicating the necessary information and indicating their readiness (People's Mem at 9). Furthermore, the People correctly contend that outstanding discovery or Rosario material does not affect the People's readiness for trial (People's Mem at 10; People v. Anderson, 66 NY2d 529, 537, 543).
The court file action sheet reflects the People's status as "ready", and not having the complete file immediately in court does not constitute a "legal impediment" to the commencement of the People's case ( see People v. England, 84 NY2d 1, 4).Furthermore, the Court of Appeals has held that a defendant's need for discovery or Rosario material does not impede the People from commencing their case ( see People v. Anderson, 66 NY2d 529, 537, 543). Thus, a delay in responding to a discovery demand does not render a statement of readiness "illusory."
The Court of Appeals has also held that "the purposes motivating enactment of CPL 30.30 do not mandate postreadiness dismissal when a lesser sanction is available. Thus, the failure to make Rosario material available as required by CPL 240.45 may result under CPL 240.70 in discovery, a continuance, a protective or preclusion order or any other appropriate action[. . .]" In this instance preclusion of the outstanding discovery or Rosario material (if necessary) would have been the appropriate lesser available sanction, not outright dismissal of the case ( see People v. Anderson, 66 NY2d 529, 537, 543; People v. Caussade, 162 AD2d 4, 560 NYS2d 648 [2d Dept 1990] [a seven month delay by the prosecution in complying with defendant's discovery demands did not serve to vitiate an otherwise valid statement of readiness]). In fact, defense counsel did make such a motion to preclude on June 10, 2008, which was denied by Judge Pickett on September 9, 2008 ( see infra). Accordingly, as of January 31, 2008, the People are charged with 0 days of delay.
The Period from January 31, 2008 to March 18, 2008
On January 31, 2008, the People again announced ready for trial and served and filed additional discovery including the police officer memo book. Defense counsel submitted a blank CD to the People to provide a copy of the recording of any 911 calls. The court turned over the medical records subpoenaed by the People for redaction. The case was adjourned to March 18, 2008, for hearings and trial and the People were instructed to serve and file the additional discovery requested by defense counsel, including the redacted medical records, when it became available. The court notes that the defendant does not argue in his moving papers that the people should be charged with any time for this adjournment. For the reasons explained more fully above, this period is excluded. ( See People v Lang, 5 Misc 3d 1021[A], ***2 [Crim Ct, Kings County 2004]; People v Reed , 19 AD3d 312 [1st Dept], lv. denied, 5 NY3d 832). Accordingly, as of March 18, 2008, the People are charged with 0 days of delay.
The Period from March 18, 2008 to April 15, 2008
On March 18, 2008, before Judge Mondo in Jury 1, the People again announced that they were ready for trial but informed the court that the medical records they had received from the court at the prior court appearance were not the correct medical records. The People indicated that they initially believed that the complaining witness police officers were treated at Coney Island Hospital and issued a subpoena to that hospital. However, upon receiving the incorrect medical records on the previous court date, the People learned that the officers were in fact treated at Lutheran Hospital. The People indicated that they had issued another subpoena to Lutheran Hospital for the correct medical records. The case was adjourned to April 15, 2008, for hearings and trial and the People were instructed to turn over the correct medical records to defense counsel when they became available.
The court finds that, despite the initial mistake in subpoenaeing the incorrect medical records, the People were diligent and acted reasonably in seeking to provide defense counsel with the additional discovery. Once the medical records were subpoenaed, any subsequent delay was attributable to the hospital, not the People. ( See People v. Hueston, 171 AD2d 812, NYS2d 614 [2d Dept 1991] [by ordering requested court minutes the People acted diligently and reasonably and subsequent delays in obtaining the minutes were not chargeable to People]). Furthermore, as previously noted, outstanding discovery does not affect the People's ability to answer ready for trial ( see People v. Anderson, 66 NY2d 529, 537, 543). The defendant does not argue in his moving papers that the people should be charged with any time for this adjournment. Thus, this period is excluded. Accordingly, as of April 15, 2008, the People are charged with 0 days of delay.
The Period from April 15, 2008 to June 10, 2008
On April 15, 2008, before Judge Miller in Jury 1, the People again announced that they were ready for trial. The court had not received the subpoenaed medical records, and the People were again instructed to provide the medical records to defense counsel as soon as they became available. The case was adjourned to June 10, 2008 for hearings and trial. The defendant does not argue in his moving papers that the people should be charged with any time for this adjournment. This period is excluded.( See People v. Anderson, 66 NY2d 529, 537, 543). Accordingly, as of June 10, 2008, the People are charged with 0 days of delay.
The Period from June 10, 2008 to June 30, 2008
On June 10, 2008, before Judge Pickett in TP-3, the People announced that they were ready for trial. The court received the subpoenaed medical records and turned them over to the People. At this point defense counsel filed a motion to preclude the introduction of the medical records, the Police Officer memo books and sprint/911 data as evidence at trial. The court set a motion schedule and the case was adjourned to June 30, 2008 for decision on the motion. Adjournments made for the purpose of defense motions are generally excluded from the speedy trial calculus ( see CPL 30.30[a]; People v. Brown, 99 NY2d 488, 491-92). The defendant does not argue in his moving papers that the people should be charged with any time for this adjournment. Thus, this period is excluded. Accordingly, as of June 30, 2008, the People are charged with 0 days of delay.
The Period from June 30, 2008 to September 9, 2008
On June 30, 2008, before Judge Pickett in TP-3, the People served and filed their response to the defense motion to preclude. The case was adjourned to September 9, 2008 for decision on the motion. The defendant does not argue in his moving papers that the people should be charged with any time for this adjournment. This period is excluded. (CPL § 30.30(4)(a)). Accordingly, as of September 9, 2008, the People are charged with 0 days of delay.
The Period from September 9, 2008 to October 24, 2008
On September 9, 2008, before Judge Pickett in TP-3, the court issued its decision denying the defense motion to preclude, noting that the People had turned the medical records over to defense counsel on June 19, 2008, and finding that the People had adequately complied with their ongoing obligation to comply with discovery requests under CPL 240.60. This decision reinforces the court's conclusion that the People were diligent in providing discovery and Rosario material requested by defense counsel as it became available and, thus, are not charged for the periods during which such discovery was outstanding. Furthermore, the People indicated on this date that there were no 911 calls related to this case. No prejudice resulted from the People's failure to turn over a piece of discovery which did not exist.
The People also noted in their Affirmation in Opposition to Defendant's Motion to Preclude, that they had turned over copies of the only Police Officer memo book they had in their possession and that they would serve and file all additional memo book entries as soon as they became available. Furthermore, CPL 240.45 requires that Rosario material, such as the Police Officer memo books, be made available to the defendant only after the jury has been sworn and before the People's opening address. Because the trial has yet to commence, the People are still within their time for providing missing discovery materials. The case was adjourned to October 24, 2008 for hearings and trial.
The period from the date of a court's decision on a motion to the next adjourn date is excludable. The People are entitled to a reasonable period after the court renders its decision to prepare for trial ( see People v. Scott, 172 Misc 2d 594). The defendant does not argue in his moving papers that the people should be charged with any time for this adjournment. Thus, this period is excluded. Accordingly, as of October 24, 2008, the People are charged with 0 days of delay.
The Period from October 24, 2008 to November 19, 2008
On October 24, 2008, before Judge Yearwood in TP-3, the People announced ready for trial. The case was adjourned to November 19, 2008 for hearings and trial. Post-readiness delays attributable to the court are not chargeable to the People ( see People v. Gross, 87 NY2d 792; People v. Cortes, 80 NY2d 201, 210). The defendant does not argue in his moving papers that the people should be charged with any time for this adjournment. This period is excluded. Accordingly, as of November 19, 2008, the People are charged with 0 days of delay.
The Period from November 19, 2008 to November 25, 2008
On November 19, 2008, before Judge Yearwood, the People announced ready for trial. The case was adjourned to January 6, 2009 for possible disposition. Adjournments to allow defendant to consider plea offers are excludable ( see CPL § 30.30[b]; People v. Rodriguez, 189 AD2d 317 [1st Dept], lv den 80 NY2d 909). The defendant does not argue in his moving papers that the people should be charged with any time for this adjournment. This period is excluded. Accordingly, as of November 25, 2008, the People are charged with 0 days of delay.
The Period from November 25, 2008 to January 6, 2009
On November 25, 2008, before Judge Yearwood in TP-3 there was no disposition. The case was adjourned to January 6, 2009 for hearings and trial. The defendant does not argue in his moving papers that the people should be charged with any time for this adjournment. This period is excluded. ( See People v. Cortes, 80 NY2d 201, 210). Accordingly as of January 6, 2009, the People are charged with 0 days of delay.
The Period from January 6, 2009 to January 16, 2009
On January 6, 2009, before Judge Yearwood in TP-3, the People announced ready for trial. The court file indicates that defense counsel was not ready and requested an adjournment. The case was adjourned to January 16, 2009 for hearings and trial. The court notes that the defendant does not argue in his moving papers that the people should be charged with any time for this adjournment. This period is excluded. ( See People v. Cortes, 80 NY2d 201, 210 [adjournments due to court congestion are excludable]; People v. Forbes , 7 AD3d 473 [1st Dept], appeal denied, 3 NY3d 674 [in general, adjournment requests initiated by the defense are excluded]). Accordingly, as of January 16, 2009, the People are charged with 0 days of delay.
The Period from January 16, 2009 to February 6, 2009
On January 16, 2009, the People were not ready for trial. A new ADA had just been assigned to the case. The People requested a two week adjournment. After having announced ready, the People are only charged with the time they requested. ( People v Bruno, 300 AD2d 93, 95 [1st Dept], lv. denied, 100 NY2d 641; People v. B., 4 Misc 3d 1005[A], *2 [Crim. Ct., New York County 2004]). The People are charged with the 14 days they requested. Accordingly, as of February 6, 2009, the People are charged with 14 days of delay.
The Period from February 6, 2009 to February 26, 2009
On February 6, 2009, before Judge Yearwood in TP-3, the People were not ready for trial. The assigned ADA was on trial. The People requested February 17, 2009 (11 days). The case was adjourned to February 26, 2009. However, the People are charged only with the 11 days they requested. ( See People v Bruno, 300 AD2d 93, 95 [1st Dept], lv. denied, 100 NY2d 641; People v. B., 4 Misc 3d 1005[A], *2 [Crim. Ct., New York County 2004]). Accordingly, as of February 26, 2009, the People are charged with 25 days of delay.
The Period from February 26, 2009 to March 6, 2009
On February 26, 2009, before Judge Yearwood in TP-3, the People were not ready for trial. The People requested March 6, 2009 (8 days). The case was adjourned to March 6, 2009 for hearings and trial. The People are charged with 8 days.( See People v Bruno, 300 AD2d 93, 95 [1st Dept], lv. denied, 100 NY2d 641). Accordingly, as of March 6, 2009, the People are charged with 33 days of delay.
The Period from March 6, 2009 to March 24, 2009
On March 6, 2009 before Judge Yearwood in TP-3, the People announced not ready for trial. The assigned ADA had just finished a trial the night before. The People requested March 12, 2009 (6 days). The case was adjourned to March 24, 2009 for hearings and trial. The People are charged only with the 6 days they requested. ( See People v Bruno, 300 AD2d 93, 95 [1st Dept], lv. denied, 100 NY2d 641). Accordingly, as of March 24, 2009, the People are charged with 39 days of delay.
In their brief the People indicate that they requested seven days. However, upon review of the court record the Court finds that the People requested March 12, 2009 which means that only six days were chargeable to the People.
The Period from March 24, 2009 to April 23, 2009
On March 24, 2009, before Judge Yearwood, the People announced not ready for trial. The Arresting Officer was on vacation. The People requested 3 days. The case was adjourned to April 23, 2009 for hearings and trial. The People are charged with the 3 days they requested. ( See People v Bruno, 300 AD2d 93, 95 [1st Dept], lv. denied, 100 NY2d 641). Accordingly, as of April 23, 2009, the People are charged only with 42 days of delay.
The Period from April 23, 2009 to May 29, 2009
On April 23, 2009, before Judge Yearwood in TP-3, the People announced not ready for trial. The People requested 5 days. The case was adjourned to May 29, 2009 for hearings and trial. The People are charged with the 5 days they requested. ( See People v Bruno, 300 AD2d 93, 95 [1st Dept], lv. denied, 100 NY2d 641).
Defense counsel argues that the People should be charged with all of the time from January 16, 2009 to May 29, 2009 because the People announced "not ready" on six consecutive court appearances (Deft's Br. at 8). A request for an adjournment on a subsequent date will not necessarily invalidate a prior statement of readiness. ( See People v. Anderson, 66 NY2d 529). Defense counsel must cite specific facts supporting the contention that the People's statement of readiness is illusory in order to overcome the presumption that a statement of readiness in the record is valid. ( See People v. Rodriguez, 2002 Slip Op 50035[U], [Crim. Ct., Kings County 2002] [Allman, J.]). In this case, the People provided adequate explanations for requesting the adjournments and, thus, they are only chargeable with the time they requested. ( See People v Bruno, 300 AD2d 93, 95 [1st Dept], lv. denied, 100 NY2d 641). Accordingly, as of May 29, 2009, the People are charged with 47 days of delay.
The Period from May 29, 2009 to June 23, 2009
On May 29, 2009, before Judge Green in TP-3, the People announced ready for trial. The case was adjourned to June 23, 2009 for hearings and trial. Defense counsel argues that the people should be charged with this entire adjournment because their statement of readiness was illusory. Defense counsel claims that the People were not actually ready, but announced ready because they were aware that no trial parts would be available due to a Judicial Conference.
A statement of readiness by the People "is presumed to be accurate and truthful"( see People v Acosta 249 AD2d 161 [1st Dept], lv denied, 92 NY2d 892), and the good faith of such is not negated by the People's subsequent requests for adjournments ( see People v Camillo, 279 AD2d 326 [1st Dept 2001]; People v Douglas, 264 AD2d 671 [1st Dept], lv denied, 94 NY2d 862; People v Acosta, 249 AD2d at 161). Defense counsel must state specific facts to support the allegation that a statement of readiness is illusory in order to overcome the presumption that a statement of readiness in the record is valid ( see People v. Rodriguez, 2002 Slip Op. 50035[U] [Crim Ct, Kings County 2002]). Defense counsel's unsupported speculation that the People only announced ready because they knew no court parts would be available is not sufficient to overcome the presumption of validity accompanying a statement of readiness by the People. Furthermore, as previously noted, adjournments due to court congestion are not chargeable to the People ( see People v. Cortes, 80 NY2d 201, 210). Thus, this period is excluded. Accordingly, as of May 29, 2009, the People are charged with 47 days of delay.
The Period from June 23, 2009 to July 8, 2009
On June 23, 2009, before Judge Green in TP-3, the People announced ready for trial at the morning calendar call. However, when the case was second called in the afternoon the People announced not ready because the Arresting Officer was not present. The court minutes reflect that the People were unsure when all of their witnesses would be available to testify. Defense counsel maintains that the People should be charged with the full period of the adjournment because they represented that all their witnesses would not be available until July 8, 2009 (Deft's Br. at 8). However, the record reflects that while there was some debate between the People and the court over when the People would be ready for trial, the ADA did not affirmatively request a specific date on the record because she was unsure of the availability of all her witnesses in the immediate days ahead (Mins of 6/23/09 at pp 2 — 4). The minutes reflect, at one point the ADA stated that she could have all of her witnesses available June 29th to July 1st. However, after some negotiation, it was the court that recommended the case be adjourned to July 8, 2009, and the People consented. The People then served and filed a Statement of Readiness off calendar on June 24, 2009.
The Court of Appeals has held that "a notice of readiness is the kind of record commitment to proceed which satisfies the People's duty to be ready for trial, and serves to toll the speedy trial clock' from running for the remainder of that adjournment period."( see People v. Stirrup, 91 NY2d 434, 440). Furthermore, a certificate of readiness "is presumed to be accurate and truthful" ( People v Acosta 249 AD2d 161 [1st Dept], lv denied, 92 NY2d 892), and the good faith of such a certificate is not negated by the People's subsequent requests for adjournments ( People v Camillo, 279 AD2d 326 [1st Dept 2001]; People v Douglas, 264 AD2d 671 (1st Dept), lv denied, 94 NY2d 862 (1999); People v Acosta, 249 AD2d at 161. Some courts have held that in postreadiness situations, where the People affirmatively request a specific period of time, they should be charged with that amount of time even if they serve an intervening statement of readiness. See People v. Anderson, 252 AD3d 399 (1st Dept) appeal denied, 92 NY2d 1027 (1998); People v. Rodriguez, 1 Misc 3d 908(A) (Crim Ct NY Co 2004) reversed on other grounds, 12 Misc 3d 132(A) (App Term 1st Dept) appeal denied, 7 NY3d 817 (2006). However, it appears from the court minutes that in this instance the People did not request a specific adjourn date precisely because they were unsure when all of their witnesses would be available for trial. (Mins of 6/23/09 at pp 2 — 4). Rather, it appears that the People consented to the adjourn date suggested by the court and then filed a statement of readiness the following day. (Mins of 6/23/09 at pp 2 — 4).
The court finds, that the People's statement of readiness was sufficient to toll the speedy trial clock, and thus, the People are charged with only 1 day of postreadiness delay. Furthermore, even if the People were charged with the full 15 day adjournment, they would still only be chargeable with 63 days of postreadiness delay, well short of the 90 day allowance. However, if, as the case progresses, speedy trial time again becomes an issue, a hearing may be required to determine whether the People should be charged with more than 1 day for this adjournment. Accordingly, as of July 8, 2009, the People are charged with 48 days of delay.
The Period from July 8, 2009 to September 8, 2009
On July 8, 2009, the defendant served and filed the instant § 30.30 motion. The court set the People's reply date for August 10, 2009, and the case was adjourned to September 8, 2009 for the court's decision. Adjournments for motion practice are generally excludable (CPL § 30.30 [a]). As the defendant points out in his Reply Affirmation in Support of his Motion to Dismiss, the People submitted their reply on August 20, 2009, after the August 10, deadline. In some instances, the People may be charged for a delay if they miss a court deadline to submit their response ( see e.g. People v. Delosanto, 307 AD2d 298 [2d Dept], appeal denied, 100 NY2d 641). However, if the People seek additional time, the court may excuse the delay, if reasonable, and exclude the time ( see People v. Anderson, 216 AD2d 309, 309 [2d Dept 1995]). In this case, the delay in the People's response was caused by confusion regarding the location of the court's file due to the re-assignment of this motion. Despite diligent attempts by the People, they were unable to access the court's file in order to prepare their motion until after the August 10 deadline. Therefore, this entire period is excluded (CPL § 30.30[a]). Accordingly, as of September 8, 2009, the People are charged with 48 days of delay.
The Period From September 8, 2009 to October 8, 2009
On September 8, 2009, before Judge Jeong in TP-3, the People were ready and defense counsel served a Reply in Support of his Motion to Dismiss on Speedy Trial Grounds. The case was adjourned to October 8, 2009, for decision on the motion. This period is excluded as a "reasonable period of delay" as the time required by the court to decide the Defendant's motion to dismiss dated July 8, 2009 (CPL 30.30[a]; see also People v. Douglas, 209 AD2d 161 [App Div 1st Dept 1994] lv denied 85 NY2d 908 citing People v. Worley, 66 NY2d 523, 527 and People v. Moorhead, 61 NY2d 851). Accordingly, as of October 8, 2009, the People will be charged with 48 days of delay.
Conclusion
Upon calculating all of the speedy trial time periods applicable to this matter, the court finds that forty-eight (48) days are charged to the People. Accordingly, defendant's motion to dismiss for a CPL § 30.30 violation is denied.
This constitutes the decision and order of this Court.