The People of the State of New York, Appellant, v. Franchelis Mendoza, Respondent. (2023)

ORDERED that the order is affirmed.

Insofar as is relevant to this appeal, on February 5, 2019, defendant was charged in an accusatory instrument with assault in the third degree (Penal Law § 120.00 [1]) and harassment in the second degree (Penal Law § 240.26 [1]); defendant was arraigned thereon; and the People announced ready for trial. On December 17, 2019, the People requested a one-day adjournment to December 18th and the court adjourned the matter to January 29, 2020. On January 29th, the court adjourned the matter to March 17, 2020 for the People to file a certificate of compliance (CoC) (see CPL 245.50 [1]). On February 3, 2020, the People filed off-calendar a CoC and a statement of readiness (SoR) that did not include a CPL 30.30 (5-a) certification of the facial sufficiency of the accusatory instrument. Due to the COVID-19 pandemic, the matter was not called on March 17, 2020 and was administratively adjourned to December 15, 2020. In the interim, statutory speedy trial time was tolled from March 20 until October 4, 2020 pursuant to executive orders from the Governor's office in response to the 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]).

By notice of motion dated April 6, 2021, defendant moved to dismiss the accusatory instrument on the ground that her CPL 30.30 statutory right and CPL 30.20 constitutional right to a speedy trial had been violated, arguing, among other things, that the People's February 3, 2020 SoR was invalid because it lacked the CPL 30.30 (5-a) certification. The People opposed. In an order dated May 11, 2021, the Criminal Court (Mary L. Bejarano, J.) granted defendant's motion after finding 152 chargeable days, consisting of the one-day period from December 17 to 18, 2019, the 33-day period from January 1 to February 3, 2020, the 46-day period from February 3 to March 20, 2020, and the 72-day period from October 4 to December 15, 2020.

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 NY2d 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]), because the People did not file a CPL 30.30 (5-a) certification before the expiration of their statutory speedy trial time, the Criminal Court correctly granted defendant's motion to dismiss the accusatory instrument on statutory speedy trial grounds (see generally People v King, 216 AD3d 1400 [4th Dept 2023]; People v Brown, 214 AD3d 823 [2d Dept 2023]; cf. People v Robbins, 206 AD3d 1069 [3d Dept 2022]).

Accordingly, the order is affirmed.

TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk

Decision Date: September 8, 2023