Opinion
No. 2021-559 Q CR
08-04-2023
The People of the State of New York, Appellant, v. Luis Rivera, Respondent.
Queens County District Attorney (Johnnette Traill, John M. Castellano, Sharon Y. Brodt and Ronald Eniclerico of counsel), for appellant. New York City Legal Aid Society (Hilary Dowling of counsel), for respondent.
Unpublished Opinion
Queens County District Attorney (Johnnette Traill, John M. Castellano, Sharon Y. Brodt and Ronald Eniclerico of counsel), for appellant.
New York City Legal Aid Society (Hilary Dowling of counsel), for respondent.
PRESENT:: WAVNY TOUSSAINT, P.J., CHEREÉ A. BUGGS, LOURDES M. VENTURA, JJ
Appeal from an order of the Criminal Court of the City of New York, Queens County (Mary L. Bejarano, J.), dated July 13, 2021. The order granted defendant's motion to dismiss the accusatory instrument on statutory speedy trial grounds and denied, as moot, the People's motion for a remedy or sanction pursuant to CPL 245.80.
ORDERED that the order is affirmed.
Insofar as is relevant to this appeal, on May 21, 2019, the People filed an accusatory instrument charging defendant with assault in the third degree (Penal Law § 120.00 [1]), criminal mischief in the fourth degree (Penal Law § 145.00 [1]), criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [2]), and harassment in the second degree (Penal Law § 240.26 [1]). On May 22, 2019, defendant was arraigned on the accusatory instrument and the matter was adjourned to July 2, 2019 for the People to file a supporting deposition. On May 31, 2019, the People filed off-calendar a supporting deposition and a statement of readiness (SoR). At a January 16, 2020 calendar call, the People answered not ready and the matter was adjourned to February 28, 2020 for the People to file a certificate of compliance (CoC) (see CPL 245.50 [1]). On February 28th, the People handed up a CoC and stated ready on the record without certifying the facial sufficiency of the accusatory instrument pursuant to CPL 30.30 (5-a). At defense counsel's request, the matter was adjourned to March 26, 2020 to allow defense counsel to review discovery provided by the People. Beginning March 20, 2020, statutory speedy trial time was tolled until October 4, 2020 pursuant to executive orders from the Governor's office in response to the COVID-19 pandemic (see Executive Order [A. Cuomo] No. 202.8 [9 NYCRR 8.202.8]; Executive Order [A. Cuomo] No. 202.67 [9 NYCRR 8.202.67]). Due to the pandemic, the matter was not called on March 26, 2020 and was administratively adjourned to January 12, 2021.
By notice of motion dated June 1, 2021, defendant moved to dismiss the accusatory instrument on statutory speedy trial grounds, arguing, among other things, that the People's February 28, 2020 SoR was invalid because it lacked a CPL 30.30 (5-a) certification. The People opposed, asserting that their February 28th SoR was valid and that, in any event, post-February 28th time was excludable pursuant to CPL 30.30 (4) (a) or (b). In addition, by notice of motion dated June 22, 2021, the People moved for an order pursuant to CPL 245.80 excluding post-February 28, 2020 time as a sanction or remedy for defendant's alleged noncompliance with his discovery obligations. By order dated July 13, 2021, the Criminal Court (Mary L. Bejarano, J.) granted defendant's motion after finding 153 chargeable days, consisting of the 10-day period from May 21 to 31, 2019, the 43-day period from January 16 to February 28, 2020, and the 100-day period from October 4, 2020 to January 12, 2021. The court also denied, as moot, the People's motion for a remedy or sanction pursuant to CPL 245.80.
Since the most serious offense charged in the accusatory instrument is a class A misdemeanor, the People were required to be ready for trial within 90 days of the commencement of the action (see CPL 30.30 [1] [b]; see also People v Lomax, 50 N.Y.2d 351, 356 [1980]). For the reasons stated in People v Ward (79 Misc.3d 129 [A], 2023 NY Slip Op 50688[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2023]), the People's February 28, 2020 SoR did not stop the speedy trial clock (see generally People v King, 216 A.D.3d 1400 [4th Dept 2023]; People v Brown, 214 A.D.3d 823 [2d Dept 2023]; cf. People v Robbins, 206 A.D.3d 1069 [3d Dept 2022]). Moreover, the People failed to establish their entitlement to an exclusion of the 100-day period from October 4, 2020 to January 12, 2021 pursuant to CPL 30.30 (4) (a) (see People ex rel. Ferro v Brann, 197 A.D.3d 787, 787-788 [2021]) or CPL 30.30 (4) (b) (see People v Liotta, 79 N.Y.2d 841, 843 [1992]). Consequently, the Criminal Court correctly granted defendant's motion to dismiss the accusatory instrument on statutory speedy trial grounds.
Accordingly, the order is affirmed.
TOUSSAINT, P.J., BUGGS and VENTURA, JJ., concur.