People v. Gonzalezyunga

• Decision Date: 21 April 2021
• Docket Number: CR-009711-20NA
• Citation: 2021 NY Slip Op 50346 (U)
• Parties: The People of the State of New York, v. Michelle Gonzalezyunga, Defendant.
• Court: New York District Court

2021 NY Slip Op 50346(U)

The People of the State of New York, v. Michelle Gonzalezyunga, Defendant.

CR-009711-20NA

District Court of Nassau County, First District

Decided on April 21, 2021

Papers Submitted:

Notice of Motion 1

Affirmation in Support 2

Affirmation in Opposition 3

Reply Affirmation 4

Andrew M. Engel, J.

On July 17, 2020, the Defendant was arraigned on the charges of driving while intoxicated, refusing to submit to a preliminary breath test and failing to maintain her lane, in violation of VTL §§ 1192(3), 1194(1)(b) and 1128(a), respectively.

The Defendant presently moves to dismiss this matter, pursuant to CPL § 170.30(1)(e), alleging "the People have failed to be ready for trial in this matter within ninety (90) days of the commencement of the criminal action." (Miller Affirmation 1/17/21, ¶ 3)

The People's obligation to be ready for trial in accordance with the time limits set out in CPL § 30.30(1) "is purely a statutory 'readiness rule'. It was enacted to serve the narrow purpose of insuring prompt prosecutorial readiness for trial, and its provisions must be interpreted accordingly (see, People v. Anderson, 66 NY2d 529, 535, 498 N.Y.S.2d 119, 488 N.E.2d 1231; People v. Worley, 66 NY2d 523, 527, 498 N.Y.S.2d 116, 488 N.E.2d 1228; Bellacosa, Practice Commentary, McKinney's Cons. Law of NY, Book 11A, CPL 30.30, pp. 148—149; compare CPL 30.20)." People v. Sinistaj, 67 NY2d 236, 239, 510 N.Y.S.2d 793, 794 (1986)

Upon bringing this motion, the Defendant has the initial burden of demonstrating that the People have exceeded the speedy trial limits set out in CPL § 30.30(1). "Once a defendant sufficiently alleges that the People were not ready within the statutory period, 'the People [have] the burden of showing their entitlement to a statutory exclusion' (People v. Luperon, 85 NY2d 71, 81, 623 N.Y.S.2d 735, 647 N.E.2d 1243 [1995]; see People v. Santos, 68 NY2d 859, 861, 508 N.Y.S.2d 411, 501 N.E.2d 19 [1986] )." People v. Brown, 28 NY3d 392, 403, 45 N.Y.S.3d 320, 326 (2016)

Where, as here, the top charge is a misdemeanor punishable by a sentence of imprisonment of more than three months, the People must be ready within ninety (90) days, plus any excludable time. CPL § 30.30(1)(b), People v. Young, 46 Misc 3d 142(A), 13 N.Y.S.3d 852 (App. Term 2nd, 11th & 13th Jud. Dists. 2015)

The Defendant alleges, without contradiction, that at no time between July 17, 2020, the date of his arraignment, and February 8, 2021, did the People declare themselves ready for trial. Specifically, the Defendant alleges that, "The period of time between October 5, 2020 and January 8, 2021 exceeded the statutory required time constraints." (Miller Affirmation 1/17/21) With this allegation, the Defendant has met his initial burden of demonstrating that the People have exceeded the ninety (90) days provided by CPL § 30.30(1)(b). Given the fact that the Defendant only relies upon the time between October 5, 2020 and January 8, 2021, the Court will only address that period.

The People acknowledge that they did not file a Statement of Readiness ("SOR") until January 8, 2021. They argue, however, "that only zero (0) days are chargeable to the People as the adjournments between October 5, 2020 through January 8, 2021, are excludable as administrative adjournments, because of exceptional circumstances surrounding the Covid-19 Pandemic, and the suspension of CPL 245." (Bold in original) (Massimino Affirmation 3/8/21, ¶ 17)

On March 20, 2020, the Governor issued Executive Order Number 202.8, (9 NYCRR 8.202.8), which provided, in pertinent part:

WHEREAS, on March 7, 2020, I issued Executive Order Number 202, declaring a State disaster emergency for the entire State of New York;

NOW, THEREFORE, I, Andrew M. Cuomo, Governor of the State of New York, by virtue of the authority vested in me by Section 29-a of Article 2-B of the Executive Law hereby temporarily suspend or modify, for the period from the date of this Executive Order through April 19, 2020 the following:

• In accordance with the directive of the Chief Judge of the State to limit court operations to essential matters during the pendency of the COVID-19 health crisis, any specific time limit for the , filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, is hereby tolled from the date of this executive order until April 19, 2020

It is widely agreed that Executive Order 202.8 (9 NYCRR 8.202.8) tolled the time limits of CPL § 30.30, along with other statutory time periods spelled out in the Criminal Procedure Law. See: People v. Hines, 70 Misc 3d 1212(A), 137 N.Y.S.3d 678 (Family Ct. Bronx Co. 2021); People v. Pealo, supra.; People v. Mosely, 70 Misc 3d 1214, 2021 NY Slip Op. 50063(U) (Crim. Ct. Kings Co. 2021); People ex rel. Nevins v. Brann, 67 Misc 3d 638, 122 N.Y.S.3d 874 (Sup. Ct. Queens Co. 2020); People ex re. Hamilton v. Brann, 67 Misc 3d 1205(A), 126 N.Y.S.3d 313 (Sup. Ct. Bronx Co. 2020) It is likewise recognized that, with some modifications not germane to this motion, this tolling was continued by subsequent Executive Orders 202.14, issued on April 7, 2020, through 202.60, issued on September 4, 2020.¹ See: People v. Gillson, 69 Misc 3d 1203, 131 N.Y.S.3d 532 (Crim Ct. Kings Co. 2020); People v. Cada, 69 Misc 3d 882, 133 N.Y.S.3d 425 (Crim. Ct. Bronx Co. 2020); People v. Otero, 70 Misc 3d 526, 135 N.Y.S.3d 621 (City Ct. Albany 2020); People v. Davis, 70 Misc 3d 467, 134 N.Y.S.3d 620 (Crim. Ct. Bronx Co. 2020)

On October 4, 2020 the Governor issued Executive Order 202.67, (9 NYCRR 8.202.67), which, in pertinent part:

continue[d] the suspensions and modifications of law, and any directives not superseded by a subsequent directive contained in Executive Orders 202 up to and including 202.21, and 202.27, 202.28, 202.29, 202.30, 202.38, 202.39, 202.40, 202.48, 202.49, 202.50, 202.55 and 202.55.1, as extended, and Executive Order 202.60 for another thirty days through November 3, 2020, except:

ø The suspension and modification of Section 30.30 of the criminal procedure law, as continued and modified in EO 202.60, is hereby no longer in effect, except for felony charges entered in the counties of New York, Kings, Queens, Bronx, and Richmond, where such suspension and modification continues to be effective through October 19, 2020; thereafter for these named counties the suspension is no longer effective on such date or upon the defendant's arraignment on an indictment, whichever is later, for indicted felony matters, otherwise for these named counties the suspension and modification of Section 30.30 of the criminal procedure law for all criminal actions proceeding on the basis of a felony complaint shall no longer be effective, irrespective, 90 days from the signing of this Executive order on January 2, 2021.

This, by its plain language, has been recognized to end the tolling of the time limits in CPL § 30.30 and to re-commence the running of the speedy trial clock. See: People v. Quinlan, 2021 NY Slip Op. 21020, 2021 WL 417125, (Crim. Ct. Bronx Co. 2021); People v. Mosley, supra., People v. Hines, supra., People v. Davis, supra.

The People argue that the Governor's Executive Orders effectuated and continued, to date, a omplete "suspension of CPL 245." (Massimino Affirmation 3/8/21, ¶ 17) Based thereon, the lifting of the toll on CPL § 30.30 notwithstanding, the People assert that they have no obligation to provide discovery or to file a Certificate of Compliance ("COC") and SOR. The court respectfully disagrees.

As can be seen, by its clear terms, what Executive Order 202.8 (9 NYCRR 8/202/8) suspended was, inter alia, "any specific time limit for the , filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law " (Bold added). Notably, Article 245 does not provide a time limit for the filing of a COC, or for the timeliness of the People's declaration of readiness.

Effective January 1, 2020, CPL Article 245 "links the new discovery requirements to CPL § 30.30 speedy trial provisions (CPL § 245.50[3] and 30.30[5])." People v. Pealo, 71 Misc 3d 337, 2021 NY Slip Op. 21033; (Justice Ct. Town of Penfield 2020) "The provisions of CPL § 245.50 and 30.30 interlace discovery compliance and trial readiness, such that discovery compliance is a condition precedent to a valid announcement of readiness for trial, absent 'exceptional circumstances' on a particular case. (CPL § 245.50[3])." People v. Lobato, 66 Misc 3d 1230(A), 122 N.Y.S.3d 492 (Crim. Ct. Kings. Co. 2020); See also: People v. Mishiyach, 70 Misc 3d 456, 135 N.Y.S.3d 610 (Crim Ct. Kings Co. 2020) While intertwined, however, the People's discovery obligations, pursuant to CPL §§ 245.10 and 245.20, and their speedy trial readiness requirements pursuant to CPL § 30.30 are not the same thing.

The People's initial discovery obligations are found in CPL § 245.20. Their initial discovery obligations, with some exceptions, must be fulfilled within the time limits set forth in CPL § 245.10(1). Neither section addresses the time within which a COC or SOR is to be filed. In fact, there is no specific statutory time limit for the filing of a COC. The only limitations thereon can be found in CPL § 245.50(1) and CPL § 30.30(1) and (5).

CPL § 245.50(1) provides, in pertinent part, "When the prosecution has provided the discovery required by subdivision one of section 245.20 of this article, [with some exception], it shall serve upon defendant and file with the court a certificate of compliance." This is "[t]he only condition precedent to the prosecutor's ability to file a COC ." People v. Napolitano, 67 Misc 3d 1241(A), 2020 NY Slip Op. 50802(U) (Crim. Ct. NY Co. 2020) It has also been observed that the "only practical purpose" served by a COC is that, "It is a necessary...