The opinion of the court was delivered by: Elisa S. Koenderman, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
The defendant, Rodney Sherman, is charged with one count of Criminal Possession of Marihuana in the Fifth Degree (PL 221.10 ). The defendant has moved in an omnibus motion for dismissal on the ground that he has been denied his right to a speedy trial pursuant to CPL 30.30 (1) (c), alleging that more than sixty days have elapsed since his arraignment; suppression of identification and physical evidence; preclusion of identification or statement evidence for which proper notice has not been given; preclusion of prior bad acts; and discovery and a bill of particulars. The motion is decided as follows.
CPL 30.30 is not a speedy trial statute in the constitutional sense. Rather, it was enacted to enforce prosecutorial readiness and is intended only to address delays occasioned by prosecutorial inaction (see People v McKenna, 76 NY2d 59, 63 ; People v Sinistaj, 67 NY2d 236, 239 ; People v Anderson, 66 NY2d 529, 535 ). As such, a defendant's right to a speedy trial under the statute is separate and distinct from his right to a dismissal on the ground that he has been denied his constitutional right to a speedy trial (see Sinistaj, 67 NY2d at 239; People v Brothers, 50 NY2d 413, 416 ; People ex rel Franklin v Warden, 31 NY2d 498 ).
Because CPL 30.30 is not a constitutional speedy trial statute but a prosecutorial readiness statute, it demands only that the prosecutor be ready for trial, not that court facilities also be available (see Brothers, 50 NY2d at 416; Franklin,31 NY2d at 501-502). Accordingly, once the People have declared their readiness for trial, they are not chargeable with any delay in proceeding due to court congestion (see People v Chavis, 91 NY2d 500 ). Once the People have announced their readiness to proceed to trial they have satisfied their obligation under the statute (see People v Giordano, 56 NY2d 524 ). They therefore are not required to reiterate their readiness and are chargeable only with delay they have caused which "directly implicates their ability to proceed to trial" (see People v Cortes, 80 NY2d 201 ). In contrast, where the People have not yet announced their readiness to proceed to trial, court congestion will not excuse their failure to be ready (see Smith, 82 NY2d at 678; Brothers, 50 NY2d at 417 ["While court congestion may prevent a trial, in no sense does it operate to prevent the District Attorney from being ready for trial"]).
Whether the People have satisfied their obligation to be ready under CPL 30.30 is generally determined by calculating the time between the filing of the first accusatory instrument and the People's declaration of readiness, then subtracting statutorily excludable periods of delay and finally adding any additional delays that transpire after readiness has been declared, when such delays are attributable to the People and are ineligible for any exclusions under the statute (see Cortes, 80 NY2d at 208).
The defendant was arraigned on the class B misdemeanor of Criminal Possession of Marihuana in the Fifth Degree (PL 221.20) on September 6, 2008. Pursuant to CPL 30.30 (1) (c) the People must be ready for trial within sixty (60) days of commencement of a criminal action charging a defendant with a class B misdemeanor. Although a criminal action commences with the defendant when the accusatory instrument is filed, counting for speedy trial purposes starts the next day (see People v Stiles, 70 NY2d 765 ).
The instant complaint alleges that the deponent police officer was informed by Police Officer Maximo Diaz that at about 5:22 p.m. on September 5, 2008 "at 547 West 144th Street" in New York County, Officer Diaz observed the defendant "holding two bags of marihuana in a public place and open to public view" and that Officer Diaz recovered the marihuana from defendant's pants pocket. Although a field-test report confirming that the substance which Officer Diaz recovered from the defendant was positive for marihuana was filed and served at arraignment, a supporting deposition from Officer Diaz was not filed. Thus, the case was adjourned to November 10, 2008 for the People to file and serve a supporting deposition from Officer Diaz. Off-calendar, on September 22, 2008, the People filed and served a supporting deposition from Officer Diaz with a certificate of readiness stating that "the People are ready for trial in the above-entitled action."
Defendant argues that the certificate of readiness filed in this case should be deemed "illusory" because conversion of the accusatory instrument to an information is "not the same as being ready for trial." He contends that the "frequency and regularity" of this practice suggests "a misunderstanding of the law and of what is required to be ready for trial." He asserts that, "at a minimum," the prosecution must show that all of its witnesses were available to appear in court on the date on which the prosecution announced their trial readiness. Thus, he claims that the certificate of readiness in this case is invalid and failed to stop the speedy trial clock. Accordingly, calculating 65 days chargeable to the People, he asks that the case be dismissed pursuant to CPL 30.30 (1) (c). In response, the People argue that because their witness was available and they did all that was necessary to prepare the case for trial, they should only be charged with the days in between arraignment and the filing of the certificate of readiness.
For the People to be "ready for trial" under CPL 30.30, they must meet two requirements. First, they must communicate their readiness either on the record in open court, or by a written notice simultaneously sent to defense counsel and filed with the court clerk (see People v Kendzia, 64 NY2d 331, 337 ). Second, the People must declare their readiness only when they are, in fact, presently ready to proceed to trial (id.). A statement of readiness for a hearing or a statement of future readiness will not satisfy their obligation under the statute (see People v Chavis, 91 NY2d 500, 505 . Neither will an affirmation that they were ready at some point in the past suffice (see People v Hamilton, 46 NY2d 932 ).
Trial readiness means that "the People have done all that is required of them to bring the case to a point where it may be tried" (People v England, 84 NY2d 1, 4 ). Trial readiness is established when "the People have a valid accusatory instrument upon which the defendant may be brought to trial, where the People have complied with their obligation to produce for trial a defendant in their custody, and where the People have complied with all pending proceedings required to be decided before trial can commence" (citations omitted) (People v Caussade, 162 AD2d 4, 8 [2d Dept 1990]). Thus, where the People possess a valid accusatory instrument and have produced the defendant, the People's statement that they "have been in contact with the victim" and that their "intentions are to go forward" sufficiently indicates their readiness for trial (see People v Wilson, 86 NY2d 753, 755 ).
The People are not presently ready for trial where they fail to provide Grand Jury minutes necessary for resolution of a motion to dismiss (see People v McKenna, 76 NY2d 59, 64 ) or where they fail to secure the presence of an incarcerated defendant (see People v Jones, 66 NY2d 529, 539-540 ). "[R]eadiness is not defined simply by an empty declaration that the People are prepared to present their case" (People v England, 84 NY2d 1, 4 ). Thus, in England, a notice of readiness filed and served with an indictment returned on the last day of the speedy trial period, although facially sufficient, was illusory. Since arraignment - "the process by which the court acquires jurisdiction over a defendant . . . an elemental prerequisite to trial readiness" - within the statutory speedy trial period was impossible due to the People's laxity in securing the indictment, the People's notice of readiness was meaningless (see England, 84 NY2d at 4).
Nevertheless, actual readiness for trial does not require the prosecution to physically produce their witnesses each and every time they assert trial readiness, because "[a]side from its impracticality, such a requirement would be unduly burdensome and vexing to witnesses" (People v Robinson, 171 AD2d 475 [1st Dept, 1991]). Trial readiness does not mean that the People are able to instantaneously produce their witnesses at the very moment they assert readiness (see People v Dushain, 247 AD2d 234 [1st Dept, 1998]; see also People v Camillo, 279 AD2d 326 [1st Dept, 2001]). Nor does a ...