The People, Appellant,v.Earl Canady, Respondent.BriefN.Y.November 14, 2016COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against- EARL CANADY, Defendant-Respondent. LEONARD JOBLOVE ANN BORDLEY SETH M. LIEBERMAN APPELLANT'S BRIEF Assistant District Attorneys of Counsel Telephone: (718) 250-2516 Facsimile: (718) 250-2549 July 28, 2016 To be argued by: SETH M. LIEBERMAN (15 Minutes) Kings County Docket Number 2011KN009074 APL-2016-00107 KENNETH P. THOMPSON DISTRICT ATTORNEY KINGS COUNTY RENAISSANCE PLAZA 350 JAY STREET BROOKLYN, NEW YORK 11201-2908 (718) 250-2000 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES ............................................ i QUESTIONS PRESENTED ............................................. v PRELIMINARY STATEMENT ........................................... 1 SUMMARY OF FACTS AND ARGUMENT ................................... 3 STATEMENT OF FACTS .............................................. 8 Introduction ............................................... 8 The Proceedings Prior to Defendant's 30.30 Motion .......... 9 Defendant's 30. 30 Motion .................................. 15 The Motions to Reargue .................................... 20 The People's Appeal to the Appellate Term ................. 27 ARGUMENT - THE PEOPLE DID NOT VIOLATE DEFENDANT'S STATUTORY RIGHT TO A SPEEDY TRIAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 A. Introduction ......................................... 32 B. None of the 7 Days from February 23 to March 2, 2011 Was Chargeable to the People ........... 37 C. Only 6 Days (March 2 to March 8, 2011) of the 48 Days from March 2 to April 19, 2011 Were Chargeable to the People ............................. 40 D. Only 13 Days (the 7 days from November 9 to November 16, 2011, and the 6 days from January 12 to January 18, 2012) of the 106 Days from November 9, 2011 to February 23, 2012 Were Chargeable to the People ................... 51 E. None of the 11 Days from February 4 to February 15, 2013 Was Chargeable to the People ............................................... 57 F. Of the Remaining Periods of Time, at most 58 Days Were Chargeable to the People ................... 66 G. Conclusion ........................................... 70 CONCLUSION - THE ORDER OF THE APPELLATE TERM SHOULD BE REVERSED AND THE INFORMATION SHOULD BE REINSTATED ...................... 72 TABLE OF AUTHORITIES PAGES CASES People v. Aaron, 201 A.D.2d 574 (2d Dep't 1994). 62 People v. Alvarez, 117 A.D.3d 411 (1st Dep't 2014) 43 People v. Anderson, 66 N.Y.2d 529 (1985) 42, 63 People v. Bailey, 221 A.D.2d 296 (1st Dep't 1995). 43 People v. Barry, 292 A.D.2d 281 (1st Dep't 2002) 62 People v. Baumann & Sons, Inc., 6 N.Y.3d 404 (2006). 57 People v. Boumoussa, 104 A.D. 3d 863 (2d Dep't 2013). passim People v. Brown, 99 N.Y.2d 488 (2003). 60-61 People v. Camillo, 279 A.D.2d 326 (1st Dep't 2001) 43 People v. Carter, 91 N.Y.2d 795 (1998) People v. Chavis, 91 N.Y.2d 500 (1998). People v. Coker, 131 A.D.2d 585 (2d Dep't 1987). People v. Cooper, 98 N.Y.2d 541 (2002) People v. Cortes, 80 N.Y.2d 201 (1992). People v. D'Alessandro, 13 N.Y.3d 216 (2009). People v. Dean, 45 N.Y.2d 651 (1978). People v. DeJesus, 69 N.Y.2d 855 (1987) People v. Dorilas, 19 Misc. 3d 75 (App. Term 2d & 11th Jud. Dists. 2008). People v. Eulo, 63 N.Y.2d 341 (1984). People v. Goss, 87 N.Y.2d 792 (1996). 47-48 47, 49 38 32 passim 65 60 46, 49 38 63-64 passim TABLE OF AUTHORITIES (cont'd) People v. Grafton, 73 N.Y.2d 779 (1988) . . People v. Grafton, 115 A.D.2d 952 (4th Dep't 1988). People v. Hernandez, 92 A.D. 3d 802 (2d Dep't 2012). People v. Jacobs, 45 A.D.3d 883 (3d Dep't 2007) People v. Jennings, 69 N.Y.2d 103 (1986). People v. Jennings, 248 A.D.2d 265 (1st Dep't 1998) People v. Jones, 151 Misc. 2d 582 (App. Term 2d & 11th Jud. Dists. 1991). People v. Lynch, 103 A.D.3d 919 (2d Dep't 2013) People v. McCray, 238 A.D.2d 442 (2d Dep't 1997). People v. Muir, 33 A.D. 3d 1058 (3d Dep't 2006). People v. Nielsen, 306 A.D.2d 500 (2d Dep't 2003) People v. Nieves, 67 N.Y.2d 125 (1986) ... People v. Nowakowski, 49 N.Y.2d 723 (1980). People v. Osgood, 52 N.Y.2d 37 (1980) . People v. Owens, 138 A.D. 3d 1035 (2d Dep't 2016). People v. Rivera, 223 A.D.2d 476 (1st Dep't 1996). People v. Sawh, 58 A.D. 3d 760 (2d Dep't 2009). People v. Schneiderman, 136 Misc. 2d 396 (Dist. Ct. Nassau Cty. 1987). People v. Sibblies, 22 N.Y. 3d 1174 (2014). ii PAGES 61-62 61-62 43 38 65 59, 64-65 39 43 38 65 43, 49 46, 49, 56, 70 57 63 43 passim 43 61 44, 47- 50 TABLE OF AUTHORITIES (cont'd) PAGES People v. Sinistaj, 67 N.Y.2d 236 (1986) 69 People v. Stirrup, 91 N.Y.2d 434 (1998). 48-49, 67-69 People v. Urraea, 214 A.D.2d 378 (1st Dep't 1995). 43 People v. White, 73 N.Y.2d 468 (1989). . . . . . . 63 People v. Williams, 32 A.D. 3d 403 (2d Dep't 2006). 43 People v. Zirpola, 57 N.Y.2d 706 (1982). . . . . 57 People ex rel. Sykes v. Mitchell, 184 A.D.2d 466 (1st Dep' t 1992) . . . . . . 43 STATUTES, CONSTITUTIONAL PROVISIONS, AND RULES C.P.L. § 30.30. passim C. P.L. § 470.35 57 C.P.L.R. Rule 2221. 61, 65 N.Y. Canst. art. VI 2, 70 P.L. § 70.15. 32 P.L. § 120.00 32 iii TABLE OF AUTHORITIES (cont'd) PAGES OTHEK AUTHORITIES McKinney's Cons. Laws of N.Y., Book 1, Statutes§ 96 (1971) . . . . . . . . . 64 Memorandum of State Executive Dep't, Crime Control Council, 1972 N.Y. Laws 3259 .... 63 Siegel, Practice Commentaries, McKinney's Cons. Laws of N.Y., C.P.L.R. Rule 2221 (1991) ... iv Book 7B, 61 QUESTIONS PRESENTED 1. Whether, under C. P. L. § 30.30, with respect to the period from March 2 to April 19, 2011, the People were chargeable with only the 6 days from March 2 to March 8, 2011, given that before March 2, the People had announced their readiness for trial, and given that on March 2, the People requested an adjournment of only 6 days, to March 8, but the Criminal Court instead adjourned the case to April 19, 2011. 2. Whether the 10 days from February 5, 2013, when the Criminal Court first dismissed the information, to February 15, 2013, when the People filed a motion to reargue that dismissal, were excludable pursuant to C.P.L. § 30.30(4) (a) as a reasonable period of time for the People to file a motion to reargue in order to remedy the erroneous dismissal of the information. 3. Whether the 7 days from February 23 to March 2, 2011 were excludable pursuant to C.P.L. § 30.30(4) (a), given that the 21 days from February 9, 2011, when the Criminal Court adjourned the case for open file discovery, to March 2, 2011, when the People provided defendant with open file discovery, constituted a reasonable period of time for the People to provide discovery material to defendant. v 4. Whether, under C.P.L. § 30.30, with respect to the period from November 9, 2011 to February 23, 2012, the People were chargeable with only the 7 days from November 9 to November 16, 2011 and the 6 days from January 12 to January 18, 2012, given the following: a) before November 9, 2011, the People had announced their readiness for trial; b) on November 9, 2011, the People requested an adjournment of only 7 days, to November 16, 2011, but the court instead adjourned the case to January 12, 2 012; and c) on January 12, 2012, the People requested an adjournment of only 6 days, to January 18, 2012, but the court instead adjourned the case to February 23, 2012. 5. Whether the Appellate Term erred in affirming the Criminal Court's order dismissing the information pursuant to C.P.L. § 30.30, given that the People were chargeable with, at most, 77 days, which was less than the 90-day statutory limitation period applicable to defendant's case. vi COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against- EARL CANADY, Defendant-Respondent. APPELLANT'S BRIEF Kings County Docket Number 2011KN009074 APL-2016-00107 PRELIMINARY STATEMENT The People appeal from an order of the Appellate Term, Second, Eleventh, and Thirteenth Judicial Districts, dated December 31, 2015, affirming the order of the Criminal Court, Kings County (Simpson, J.), dated April 29, 2013, that, upon reargument, granted defendant's motion to dismiss the information, which charged defendant with Assault in the Third Degree ( P. L. § 120.00[1]), Menacing in the Third Degree (P.L. § 120.15), and Harassment in the Second Degree (P.L. § 240.26[1]). The Appellate Term's order is reported at 50 Misc. 3d 132 (A), 2015 N.Y. Misc. LEXIS 4779 (Dec. 31, 2015). By an order dated May 13, 2016, Judge Eugene M. Fahey granted the People's application for leave to appeal to this Court. People v. Canady, 2016 NY Slip Op 97980(0), 2016 N.Y. LEXIS 1859 (2016). Defendant is at liberty. This Court has jurisdiction pursuant to the New York Constitution, Article VI, section 3, and pursuant to C.P.L. § 470.35(1), to entertain this appeal and to review the questions raised. The issues presented on this appeal were preserved for appellate review by the papers filed by the People in connection with defendant's C.P.L. § 30.30 motion ("30.30 motion") (12-18, 37-48, 53-57) and by the Criminal Court's decisions and orders pertaining to defendant's 30.30 motion (1-4, 49-52, 60-63) . 1 1 Numbers in parentheses refer to pages of the People's appendix. 2 SUMMARY OF FACTS AND ARGUMENT In April 2010, defendant Earl Canady was arrested for physically attacking Brinzell Leggett and thereby by causing Leggett to suffer physical injuries. The People commenced a criminal action against defendant for assault and other offenses. In 2012, defendant moved to dismiss the criminal action, under C.P.L. § 30.30(1) (b), on the ground that the People had exceeded the 90-day statutory limitation period. Ultimately, in a decision and order dated April 29, 2013, the Criminal Court, Kings County, granted defendant's motion and dismissed the information. The People appealed to the Appellate Term from the Criminal Court's order dismissing the information. In their brief, the People did not dispute that they were chargeable with 77 days. But the People challenged the Criminal Court's decision to charge the People with the following additional days: the 7 days from February 23 to March 2, 2011; the 41 days froin March 8 to April 18, 2011; and the 11 days from February 4 to February 15, 2013. In a decision and order dated December 31, 2015, the Appellate Term agreed with the People that the Criminal Court had erred by charging the People with the 7 days from February 23 to March 2, 2011 and the 11 days from February 4 to February 15, 3 2013. But the Appellate Term agreed with the Criminal Court that the People were chargeable with the 41 days from March 8 to April 18, 2011, and held that, therefore, the People were chargeable with at least 118 days: the 41 days from March 8 to April 18, 2011 plus the 77 additional days that the People had conceded were chargeable to them. The Appellate Term therefore affirmed the order of the Criminal Court, on the ground that the People had exceeded the 90-day statutory limitation period. The Criminal Court and the Appellate Term were wrong in concluding that the People had violated defendant's speedy trial rights under C. P. L. § 30.30. The People were in fact chargeable with, at the most, 77 days. Contrary to the conclusion of both the Appellate Term and the Criminal Court, the 41 days from March 8 to April 18, 2011 were not chargeable to the People. Prior to March 8, 2011--on February 9, 2011--the People had announced their readiness for trial. The validity of that statement of readiness is undisputed. In court on March 2, 2011, the People requested an adjournment to March 8, 2011, but the court instead adjourned the case to April 19, 2011. Under the authority of this Court's decisions in People v. Cortes, 80 N.Y.2d 201 (1992), and People v. Goss, 87 N. Y.2d 792 (1996), in general, subsequent to the People's first valid statement of readiness, the People are chargeable only with delay that is attributable to them 4 and are not chargeable with delay that is attributable to the court (Cortes, 80 N.Y.2d at 208; Goss, 87 N.Y.2d at 797). Consequently, it necessarily follows from Cortes and Goss that, when the People make a post-readiness request for an adjournment to a specific date, but the case is adjourned to a later date, the People are chargeable only with the number of days they requested (hereinafter referred to as "the post-readiness request rule") . See People v. Boumoussa, 102 A.D.3d 863 (2d Dep't 2013); People v. Rivera, 223 A.D.2d 476 (1st Dep't 1996). In defendant's case-- because the adjournment from March 2 to April 19, 2011 was a post- readiness adjournment, and because on March 2, the People requested an adjournment only to March 8, 2011--with respect to that adjournment, the People were chargeable only with the 6 days from March 2 to March 8, 2011. The Criminal Court's rationale for holding that the 41 days from March 8 to April 18, 2011 were chargeable to the People was based on the fact that on April 18, 2011, the People filed a statement of readiness and on that court's assumption that that statement of readiness was valid. By contrast, the Appellate Term's rationale for holding that those 41 days were chargeable to the People was based on the Appellate Term's conclusion that the April 18, 2011 statement of readiness was illusory because, on the next court date, April 19, 2011, the People said that they were 5 not ready but failed to provide any explanation for their unreadiness. The Appellate Term, however, could not properly base any holding on the purported fact that the April 18, 2011 statement of readiness was illusory, because defendant never claimed in the Criminal Court that that statement of readiness was illusory. Moreover, neither rationale was correct: Neither the fact that on April 18, 2011, the People filed a statement of readiness, nor the fact that on April 19, 2011, the People-- without providing any explanation--stated that they were not ready warranted the conclusion that the post-readiness request rule was inapplicable to the adjournment from March 2 to April 19, 2011, and that therefore, with respect to that adjournment, the People were chargeable with a period of time longer than the 6-day adjournment that they requested. The Appellate Term, however, correctly held that the Criminal Court erred by charging the People with the 7 days from February 23 to March 2, 2011, and with the 11 days from February 4 to February 15, 2013. The 7 days from February 23 to March 2, 2011 were excludable pursuant to C. P.L. § 30.30 (4) (a), because that delay was part of a reasonable period of delay for discovery. The 11 days from February 4 to February 15, 2013 were excludable pursuant to C.P.L. § 30.30(4)(a), because that delay was attributable to motion practice. 6 On the appeal to the Appellate Term, defendant argued that the Criminal Court should also have charged the People with all of the 106 days from November 9, 2011 to February 23, 2012. The Appellate Term did not address that argument, but that argument was incorrect. In court on November 9, 2011, the People requested an adjournment of 7 days to November 16, 2 011, but the court instead adjourned the case to January 12, 2012; and in court on January 12, 2012, the People requested an adjournment of 6 days to January 18, 2012, but the court instead adjourned the case to February 23, 2012. Consequently, the Criminal Court--applying the post-readiness request rule to that 106-day period--correctly concluded that with respect to that period, the People were chargeable with only 13 days. In sum, because the People are chargeable with, at most, only 77 days, and therefore did not exceed the C.P.L. § 30.30 limitation period of 90 days, this Court should reverse the order of the Appellate Term affirming the Criminal Court's order dismissing the information, and should reinstate the information. 7 STATEMENT OF FACTS Introduction On April 11, 2010, at approximately 11:35 p.m., inside a building in Brooklyn, defendant Earl Canady repeatedly punched Brinzell Leggett and banged Leggett's head on the floor. As a result of defendant's attack, Leggett suffered lacerations to his mouth and chin--for which he was hospitalized and received more than seventy-five stitches--and he could not eat solid foods for almost four months. 2 For those acts, defendant was charged, by a felony complaint filed under Kings County Docket Number 2011KN009074, with two counts of Assault in the Second Degree (P.L. § 120.05[1], [2]), and one count each of Assault in the Third Degree (P.L. § 120.00[1]), Menacing in the Second Degree (P.L. § 120.14[1]), Menacing in the Third Degree (P.L. § 120.15), Criminal Possession of a Weapon in the Fourth Degree (P.L. § 265.01[2]), and Harassment in the Second Degree (P.L. § 240.26[1]). 2 This summary of defendant's conduct is based on facts set forth in the misdemeanor accusatory instrument that was ultimately filed against defendant (146) and in the People's response to defendant's 30.30 motion (37-38, 146). 8 The Proceedings Prior to Defendant's 30.30 Motion On February 4, 2011, defendant was arraigned on the felony complaint. The court adjourned the case to February 9, 2011 (1, 29, 38, 135). On February 9, 2011, on the People's motion, the court dismissed the felony counts and some of the non-felony counts (65-66) . 3 The People filed two supporting depositions and a superseding information charging defendant with Assault in the Third Degree, Menacing in the Third Degree, and Harassment in the Second Degree. The People announced that they were "ready" ( 66, 136, 146). Defendant was arraigned on the information (67-68, 72-73). The court adjourned the case to February 23, 2011 for "OFD" (open file discovery) (73). On February 23, 2011, the People did not have in the courtroom their file pertaining to this case. The prosecutor requested that defense counsel provide the People with a compact disc so that the People could provide the defense with a copy of a recording of a 911 call. Defense counsel said that he would provide a compact disc to the People. Defense counsel requested 3 The transcript for the court proceedings on February 9, 2011 is dated February 8, 2011 (64). 9 that the case be adjourned to Marcb 2, 2011 for trial. The court adjourned the case to March 2, 2011, and said that the People should serve and file open file discovery by February 28, 2011 (2, 38, 136). On March 2, 2011, the prosecutor said that the People were not ready, that the "ADA" was "engaged in trial," and that the People were requesting an adjournment to March 8, 2011. The prosecutor also said that the People were serving and filing discovery. The court adjourned the case to April 19, 2011 "for hearing and trial," stating that the People would "be charged until 3/8" (75, 77-78, 136). On April 18, 2011, the People served and filed a statement of readiness (2, 30, 38). On April 19, 2011, the People did not have in the courtroom their file pertaining to this case (30, 136). The prosecutor said that the People were not ready. The court adjourned the case to June 21, 2011 "for hearing and trial," stating that the People would be charged until they filed a statement of readiness ( 80, 82-83, 136) . On May 4, 2011, the People served and filed a statement of readiness (86, 116, 137). On June 21, 2011, the prosecutor said that on May 4, the People had filed a statement of readiness, and that on June 21, 10 the People were also ready. Defense counsel said that on May 4, the defense had received the statement of readiness. Defense counsel said that the defense was "still waiting on the 911 call," medical records, and photographs. The prosecutor said that she did not "see the 911 call" or the medical records "in the file," but that the medical records had been ordered. The court adjourned the case "for hearing and trial" to September 13, 2011 (85-86, 92, 137). On September 13, 2011, the prosecutor said that the People were ready and that the witness was "on alert." The attorney who appeared for defendant said that defendant's assigned attorney had not received either the medical records or "the 911 request." The court adjourned the case to November 9, 2011 (94-95, 137). On November 9, 2011, the prosecutor said that the People were not ready, that the arresting officer was "unavailable," and that the People were requesting "one week." The prosecutor also said that he was serving and filing additional "DBS" (discovery by stipulation) . Defense counsel said that the defense still needed the medical records and--if "the 911 call" had not been "destroyed"--a recording of the 911 call. The court adjourned the case for "hearing and trial" to January 12, 2012 (96-98, 137). On January 12, 2012, the prosecutor said that the People were not ready, and requested an adjournment to January 18, 2012 11 because "the assigned ADA was out of the office." The prosecutor also served and filed "medical records." The court adjourned the case to February 23, 2012 "for hearing and trial," stating that the People were "charged until January 18 at their request" (39, 99-100, 137). On February 23, 2012, the prosecutor said that the People were not ready because the complaining witness was not available, and that they would file a statement of readiness "off-calendar." The court asked the prosecutor, "Has he been spoken [sic]? Is he cooperative?" The prosecutor said, "Yes. The last contact looks to be in September. However, the People have spoken with the complaining witness' [s] family in February, but can't reach the complaining witness." The court adjourned the case to April 3, 2012 (101-03). 4 On March 2, 2012, the People served and filed a statement of readiness (46, 116, 138, 143). 4 According to the transcript for the proceedings on February 23, 2012, the court said that it was adjourning the case to April 13 (103). The court in fact adjourned the case to April 3, 2012 (3, 40, 138). 12 On April 3, 2012, the People were ready for trial. The court adjourned the case to May 1, 2012 for hearings and trial (3, 46, 138) . On May 1, 2012, the prosecutor said that the People were "not ready at this time," that a new prosecutor had been assigned to the case, and that the People were requesting a one-week adjournment. The attorney who appeared for defendant in court said that defendant's assigned attorney had not "received the 911." The prosecutor said that she would "reach out to the assistant and let her know." The court adjourned the case to June 19, 2012 (104-07, 138). 5 On June 19, 2012, the prosecutor said that the People were ready. The attorney who appeared for defendant in court said that the assigned defense attorney was "in the Grand Jury" and was "looking for" an adjournment to June 26 or August 15. The prosecutor said that the People were serving and filing a Sprint report and that "911 ha[d] been deleted." The court adjourned the case "for hearings and trial" to August 15, 2012 (107-09, 138). 5 According to the transcript for the proceedings on May 1, 2012, the court said that it was adjourning the case to "June 20" (106). The court in fact adjourned the case to June 19, 2012 (3, 40, 107, 138). 13 On August 15, 2012, the prosecutor said that the People were not ready, that they were requesting a two-week adjournment, and that the assigned assistant "need[ed] time to investigate further." The court adjourned the case to October 3, 2012 "for hearings and trial," stating that the People would be charged until a statement of readiness was "served" (110-13, 139). On September 6, 2012, the People served and filed a statement of readiness (117, 139, 144). On October 3, 2012, the prosecutor said that the People were not ready because the assigned prosecutor was "engaged" in another court part, "BTPl," but that the People had "served" a statement of readiness on September 6, 2012. Defense counsel acknowledged that he had received a statement of readiness on September 6 and that the defense had also received statements of readiness on 14 May 4, 2011 and March 2, 2012. 6 The prosecutor requested a one- week adjournment. The court adjourned the case to December 4, 2012, stating that the People would be charged until they served and filed a statement of readiness (114-19, 139). On October 9, 2012, the People served and filed a statement of readiness (145). Defendant's 30.30 Motion In court on December 4, 2012, the prosecutor said that the People were ready. Defense counsel said that he had a "30. 30 6 According to the transcript for the proceedings on October 3, 2012, defense counsel initially said that the defense had gotten a statement of readiness on March 2, 2012; later on in the proceedings, the court said that it had gotten a statement of readiness on "March 8"; the court then said, "So you [defense counsel] got one March 8 you said"; defense counsel responded, "Nine days, since this is a leap year"; and the court said, "Right" (116-17). Those references in the transcript to "March 8" as the date on which the court and defense counsel received a statement of readiness appear due to either misspeaking or typographical errors, given that the People had in fact served and filed a statement of readiness on March 2, 2012 (143), that defense counsel initially said that he had received a statement of readiness on March 2, and that the amount of time from the court date of February 23, 2012 to March 8, 2012 does not constitute, as defense counsel said, "[n] ine days," but that the amount of time from February 23, 2012 to March 2, 2012 constitutes 8 days (and could have been mistakenly calculated as constituting 9 days if both the first and last dates of that period were included) . 15 motion" and gave copies to the court and the prosecutor ( 4, 120-21, 139). In the motion, which was dated October 3, 2012, defendant moved to dismiss the information pursuant to C.P.L. § 30.30, contending that the People were chargeable with periods of time totaling 225 days, which exceeded the statutory time limit of 90 days (31, 34-35). Among the periods that defendant asserted were chargeable to the People were the following three periods: 1) the 7 days from February 23 to March 2, 2011; 2) the 47 days from March 2 to April 18, 2011; and 3) the 106 days from November 9, 2011 to February 23, 2012. 7 ( 31' 33, 35) . With respect to the 106-day period from November 9, 2011 to February 23, 2012, defendant asserted that although the People requested "short adjournments" on November 9, 2011 and January 12, 2012, the People should be charged with the entirety of the period from November 9, 2011 to February 23' 2012 because, according to defendant, the prosecution requested those adjournments without having had "any 7 The People are focusing those periods were in dispute Appellate Term. on those three periods, on the People's appeal 16 because to the contact with the complainant since September 2011," and because the People, therefore, were not ready during that 106-day period (31, 33, 35). In addition, in his 30.30 motion, defendant did not challenge the validity of the People's April 18, 2011 statement of readiness, he did not argue that the one day from April 18 to April 19, 2011 was chargeable to the People, and he noted that on April 19, "[t]he prosecution did not have a file and were not ready to proceed to trial" (30; see 34-35). The court directed the People to respond to the 30.30 motion by December 18, 2012. The court adjourned the case to February 5, 2013 for a decision on the motion (122, 139). On January 14, 2013, the People served and filed their opposition to defendant's 30.30 motion (10, 17, 37). In their answer, the People contended that only 70 days were chargeable to the People: 1) 6 days of the adjournment from March 2 to April 19, 2011; 2) the 15 days from April 19 to May 4, 2011; 3) 7 days of the adjournment from November 9, 2011 to January 12, 2012; 4) 6 days of the adjournment from January 12 to February 23, 2012; 5) the 8 days from February 23 to March 2, 2012; 6) 7 days of the adjournment from May 1 to June 19, 2012; 7) 14 days of the adjournment from August 15 to October 3, 2012; 17 and 8) 7 days of the adjournment from October 3 to December 4, 2012 (38-41, 43-47). In particular, the People made the following arguments: 1) the 7 days from February 23 to March 2, 2011 were excludable pursuant to C.P.L. § 30.30(4) (a), because, on February 23, the case was adjourned in part for the People to provide open file discovery to defendant (38, 44); 2) only 6 days of the adjournment from March 2 to April 19, 2011 were chargeable to the People, because on March 2, the People requested a six-day adjournment to March 8, 2011 (38, 44-45); 3) only 7 days of the adjournment from November 9, 2011 to January 12, 2012 were chargeable to the People, because on November 9, the People requested a one-week adjournment (39, 45); and 4) only 6 days of the adjournment from January 12 to February 23, 2012 were chargeable to the People, because on January 12, the People requested an adjournment to January 18, 2012 (39, 45). On February 5, 2013, the Criminal Court issued a decision and order, dated January 30, 2013, holding that the People were chargeable with periods of time totaling 111 days and granting 18 defendant's 30.30 motion (49-52, 123-24, 139). The court's decision was based, in part, on its holding that the People were chargeable with the 62 days from October 3 to December 4, 2012 because on October 3, the People were not ready, and because, according to the court, they did not file a statement of readiness at any time during that period (51). The court, however, agreed with a number of the People's claims. In particular, the court agreed that: 1) the period from February 23 to March 2, 2011 was excludable pursuant to C.P.L. § 30.30(4) (a); 2) with respect to the adjournment from March 2 to April 19, 2011, the People were chargeable with only 6 days, because on March 2, they requested a 6- day adjournment; and 3) with respect to the adjournment from January 12 to February 23, 2012, the People were chargeable with only 6 days, because on January 12, they requested a 6-day adjournment (50-51). With respect to the adjournments from March 2 to April 19, 2011, and from January 12 to February 23, 2012, the court also cited to two cases--People v. Cortes, 80 N.Y.2d 201 (1992); and People v. Ortiz, 10 Misc. 3d 136(A), 2005 N.Y. Misc. LEXIS 2905 (App. Term 2d & 11th Jud. Dists. Dec. 19, 2005)--that 19 support the conclusion that after the People have declared their readiness for trial, if the People request an adjournment to a particular date but the court adjourns the case to a later date, then the People are chargeable with only the period of delay that they request (50) . The court also cited to Cortes and Ortiz, in discussing the adjournment from November 9, 2011 to January 12, 2012, but did not charge any portion of that adjournment to the People (50). The court stayed the sealing of the record for 30 days (124, 139) . The Motions to Reargue By a motion dated February 15, 2013, the People moved to reargue defendant's 30.30 motion, "request [ing] that [the] Court find that only 56 days should be charge [d] to the People," as opposed to the 111 days that the court had held were chargeable to the People (53, 57). The People disputed the court's holding that the People were chargeable with the entire 62-day period from October 3 to December 4, 2012 (54-55). The People pointed out that--contrary to the court's assertion--the People had served and filed a statement of readiness on October 9, 2012, and they attached to their motion papers a copy of that statement of readiness (54-55, 57, 59). The People also argued that with 20 respect to the period from October 3 to December 4, 2012, they should be charged with only 7 days of that period, because on October 3, the People requested a one-week adjournment (54-55). Defendant did not file a response to the People's motion to reargue. In a decision and order dated March 5, 2013, the Criminal Court vacated its decision and order, dated January 30, 2013, denied defendant's 30.30 motion, and reinstated the information. The court held that the People were chargeable with only 55 days. The court found that the People had filed a statement of readiness on October 9, 2012, which "tolled the speedy trial clock." The court therefore held that, with respect to the period from October 3 to December 4, 2012, the People were chargeable with only 6 days, not 62 days. Based on this correction--and adhering to its holdings with respect to the remaining periods of time--the court calculated that the time chargeable to the People was only 55 days, not 111 days, as it had previously held (60-63). On March 5, 2013, defendant did not appear in court. The judge--who was different from the judge who had decided the People's motion to reargue--noted that there was a "new" decision "reversing" the decision that had granted defendant's 30.30 motion. Defense counsel said that he wanted to "reply to this because there's an issue." The court said that it would adjourn 21 the case ~for a short date for defendant to appear and to set a trial date," and that on the adjournment date, the judge who was handling defendant's 30.30 motion could ~hear argument" from defense counsel. Defense counsel requested an adjournment of ~a couple [of] weeks." The court adjourned the case to March 19, 2013 (125-28, 140). On March 19, 2013, defense counsel gave the court and the prosecutor copies of a motion, dated March 19, 2013, to reargue the Criminal Court's March 5, 2013 decision (5, 129-30, 149). In his motion, defendant contended that the Criminal Court had erred by failing to charge the People with an additional 164 days (5, 8-10). Among the arguments that defendant advanced in his motion to reargue was the argument that the court should have charged the People with the entire 120-day period from November 9, 2011 to March 8, 2012, when, according to defendant, the People filed a statement of readiness. 8 Defendant noted that neither the People nor the court had addressed the contention in his 30. 30 motion that that entire 120-day period was chargeable to the People 8 Contrary to defendant's assertion in his motion to reargue (9), the People in fact filed a statement of readiness on March 2, 2012, not March 8, 2012 (143). 22 because, on February 23, 2012, the People had admitted on the record that "they had not been in tou [ c] h with the complain [an] t since the prior September." Defendant characterized as "meaningless" the prosecution adjournment requests on November 9, 2011 and January 12, 2012. Defendant suggested that because the People had not "contest [ ed] this argument," the court had to charge the entire period to the People (8-9, 33). Defendant also contended that the court should have charged the People with the 16 days from January 30, 2013--when, according to defendant, the court dismissed the information--to February 15, 2013, when the People filed their motion to reargue (10) . 9 Defendant contended as well that the court should have charged the People with the 15 days from the court date of April 19 to May 4, 2011, when the People filed a statement of readiness, noting that on April 19, the People were not ready and did not request a particular adjournment period, and that both 9 In his motion to reargue, defendant mistakenly calculated that the period from January 30 to February 15, 2013 consisted of 15 days (10), when, in fact, that period of time consisted of 16 days. Moreover, contrary to defendant's assertion in his motion to reargue ( 10), the Criminal Court dismissed the information on February 5, 2013, not January 30, 2013 (123-24). 23 defendant and the People had informed the court that the People were chargeable with those 15 days (9-10). The court directed the People to respond to defendant's motion to reargue by April 9, 2013. The court adjourned the case to May 8, 2013 for a decision on defendant's motion (5, 130-31, 14 0) • In papers dated April 9, 2013, the People opposed defendant's motion to reargue, contending that they were chargeable with only 70 days: the 55 days that, in its decision on the People's motion to reargue, the court had held were chargeable to the People, and the 15 days from the court date of April 19, 2011 to May 4, 2011, when the People served and filed a statement of readiness (12, 14, 16-18). In response to defendant's argument that the People were chargeable with the entire 120-day period from November 9, 2011 to March 8, 2012, the People referred to the arguments that they had made in their opposition to defendant's 30. 30 motion: that with respect to the adjournments on November 9, 2011 and January 12, 2012, the People "should be charged [with] only the time they requested because they had previously announced ready for trial," and that with respect to the adjournment on February 23, 2012, the People "should be charged until they served and filed a statement of readiness, which was done on March 2, 2012." The People argued 24 as well that during the period from "November 9, 2011 to March 8, 2012," they otherwise "could have been ready for hearings and trial without speaking to the complainant recently because of the subpoena power of the District Attorney," and they cited to People v. Dushain, 247 A.D.2d 234 (1st Dep't 1998), for the propositions that the "prosecution can be 'ready' for trial when the witnesses are available within a few days if subpoenaed" and that "there is no requirement that [the] prosecution contact witnesses between every adjournment" (15-16). With respect to the 16 days from January 30, 2013--which was the date that appeared on the court's decision granting defendant's 30. 30 motion--to February 15, 2013, when the People served and filed their motion to reargue, the People asserted that the information had not been "officially dismissed on the record until February 5, 2013," and contended both that the date on which the People served and filed their motion to reargue was "within the 30 [-]day stay period leaving room for the People to appeal before sealing" and that the "time period [was] excludable motion practice [sic]" under C.P.L. § 30.30(4) (a) (17). 25 In a decision and order dated April 29, 2013, but issued on May 8, 2013, the Criminal Court again dismissed the information, holding that the People were chargeable with periods of time totaling 136 days (1, 4, 133-34, 141) . 10 The court held that the People were chargeable with periods of time totaling 81 days in addition to the 55 days that, in its decision on the People's motion to reargue, the court had held were chargeable to the People (2-4). First, the court held that the People were chargeable with the 7 days from February 23 to March 2, 2011 because on February 23, the People were supposed to provide open file discovery, but failed to do so, and because, therefore--according to the court--with respect to the adjournment 10 In its April 29, 2013 decision, the Criminal Court stated that the People were chargeable with 140 days (1, 4), but the periods of time that, according to the court, were chargeable to the People in fact totaled 136 days. The Criminal Court's error stemmed from its statement that, because the People were chargeable with the time from the initial dismissal of the information--which, according to the court, occurred on February 4, 2013--to the date on which the People filed their motion to reargue, February 15, 2013, the People were chargeable with 15 days (4). The period from February 4 to February 15, 2013, however, consisted of 11 days. Indeed, elsewhere in its decision, the court held, in effect, that--because the entire adjournment from December 4, 2012, when defendant filed his 30.30 motion, to February 5, 2013 was excludable pursuant to C. P. L. § 30.30(4) (a)--the People were not chargeable with the 1 day from February 4 to February 5, 2013 (4). 26 from February 23 to March 2, 2011, the People "were solely responsible for the delay" (1-2). Second, the court held that the People were chargeable with the 41 days from March 8 to April 18, 2011 because--while on March 2, 2011, the People requested an adjournment only to March 8, 2011--on April 18, 2011, the People filed a statement of readiness and, according to the court, thereby "indicat[ed] their actual date of readiness" (2). Third, the court held that the People were chargeable with the 7 days from November 9 to November 16, 2011, because on November 9, the People were not ready and requested a one-week adjournment (2-3). Fourth, the court held that the People were chargeable with the time from the court's dismissal of the information--which, according to the court, had occurred on February 4, 2013--through the filing of the People's motion to reargue on February 15, 2013 (4). Finally, the court held that the People were chargeable with the 15 days from April 19 to May 4, 2011 (2). The People's Appeal to the Appellate Term The People appealed to the Appellate Term, Second, Eleventh, and Thirteenth Judicial Districts, from the Criminal Court's April 29, 2013 order dismissing the information. In the Appellate Term, the People contended that they were chargeable with, at most, 77 days: 1) the 6 days from March 2 to 27 March 8, 2011; 2) the 15 days from April 19 to May 4, 2011; 3) the 7 days from November 9 to November 16, 2011; 4) the 6 days from January 12 to January 18, 2012; 5) the 8 days from February 23 to March 2, 2012; 6) the 7 days from May 1 to May 8, 2012; 7) the 22 days from August 15 to September 6, 2012; and 8) the 6 days from October 3 to October 9, 2012 (People's Main Appellate Term Brief at 29, 33, 38-39, 41, 45-51). In his Appellate Term brief, defendant claimed that the People were chargeable with at least 179 days: the 7 days from February 23 to March 2, 2011; the 47 days from March 2 to April 18, 2011; the 11 days from February 4 to February 15, 2013; and the 114 days from November 9, 2011 to March 2, 2012 (Defendant's Appellate Term Brief at 17-19, 22, 27, 33, 44). In a decision and order dated December 31, 2015, the Appellate Term affirmed the order of the Criminal Court dismissing the information (ii-iii, xiii). The Appellate Term held that the People were chargeable with at least 118 days: the 77 days that, on their appeal, the People had conceded were chargeable to them, and the additional 41 days from March 8 to April 18, 2011 (xii-xiii). The Appellate Term noted that under the post-readiness request rule, with respect to the adjournments subsequent to the People's February 2011 in-court announcement that they were ready for trial, the People 28 "ordinarily" would have been chargeable "only with the time periods of the adjournments they specifically request [ed]" and "[a] ny adjournment in excess of the time requested would [have been] excluded" (iii, x). The Appellate Term went on to conclude, however, that--even though on March 2, 2011, the People requested an adjournment to March 8, 2011, and even though the court instead adjourned the case to April 19, 2 0 11--the People were chargeable not only with the 6 days from March 2 to March 8, but also with the 41 days from March 8 to April 18, 2011 (iv, xi-xii). The Appellate Term reasoned that under the authority of People v. Sibblies, 22 N.Y.3d 1174 (2014), the People's April 18, 2011 statement of readiness was illusory because on April 19, 2011, the People said that they were not ready but failed to provide any reason for their unreadiness, and, apparently, further reasoned that, because the April 18, 2011 statement of readiness was illusory, the post-readiness request rule did not apply to the adjournment from March 2 to April 19, 2011 (ix-xi). At the same time, the Appellate Term held that the Criminal Court erred in charging the People with the 7 days from February 23 to March 2, 2011 because those 7 days, plus the 14 29 days from February 9 to February 23, constituted a reasonable period of time for the People to provide defendant with open file discovery ( ix) . 11 Moreover, the Appellate Term held that the Criminal Court erred in charging the People with the 11 days from February 4 to February 15, 2013, the date on which the People filed their motion to reargue, because the Criminal Court dismissed the information on February 5, not February 4, 2013, and because the time from the dismissal of the information to the People's filing of the motion to reargue was excludable pursuant to C.P.L. § 30.30(4) (a) as a "time for the People to make pretrial motions" (vi-vii, ix-x). The Appellate Term explicitly did not address defendant's claim that the People were chargeable with the 11 The Appellate Term asserted that February 8, 2011 was the court date immediately preceding the court date of February 23, 2011 (iii). But the court date immediately preceding February 23, 2011 was in fact February 9, 2011 (see supra at 9). Moreover, the Appellate Term held that the 7 days from February 23 to March 2, 2011 were excludable for the additional reason that on February 23, defense counsel requested that the court adjourn the case to March 2 ( i v, ix) . While the People preserved a claim that those 7 days were excludable as a reasonable period of delay for them to provide discovery material to defendant, they did not preserve any claim that those 7 days were excludable as an adjournment requested by the defense (see supra at 18-21). 30 entire 106 days from November 9, 2011 to February 23, 2012 (xiii) . 12 On May 13, 2016, the People were granted leave to appeal to this Court from the order of the Appellate Term (i). People v. Canady, 2016 NY Slip Op 97980 (U), 2016 N.Y. LEXIS 1859 (2016) (Fahey, J.). 12 The Appellate Term asserted that--given its determination that the People were chargeable with the 41 days from March 8 to April 18, 2011, and given that those 41 days plus the 77 days that the People had conceded were chargeable to them totaled 118 days-- the Appellate Term did not "need [to] reach defendant's claim that an additional 114 days of delay, from September 13, 2011 until March 2, 2012, were chargeable to the People" (xiii [emphasis added]). There were two errors in that assertion. First, the Appellate Term's reference to September 13, 2011 was a typographical error: Defendant claimed in the Appellate Term that the People were chargeable with the 114 days from November 9, 2'011 to March 2, 2012 (see Defendant's Appellate Term Brief at 34) and did not claim that the People were chargeable with any of the time from September 13 to November 9, 2011. Second, the 77 days that the People had conceded were chargeable to them included 21 of the 114 days from November 9, 2011 to March 2, 2012: 1) the 7 days from November 9 to November 16, 2011; 2) the 6 days from January 12 to January 18, 2012; and 3) the 8 days from February 23 to March 2, 2012 (see People's Main Appellate Term Brief at 41-46; People's Reply Appellate Term Brief at 6-7) . Consequently, the defense claim that the Appellate Term said it did not "need [to] reach" was actually the claim that the remaining 93 days of the 114-day period from November 9, 2011 to March 2, 2012 were also chargeable to the People. 31 ARGUMENT THE PEOPLE DID NOT VIOLATE DEFENDANT'S STATUTORY RIGHT TO A SPEEDY TRIAL. A. Introduction The Appellate Term and the Criminal Court incorrectly concluded that the People violated defendant's right to a speedy trial under C.P.L. § 30.30. The criminal action against defendant commenced with the filing of a felony complaint on February 4, 2011. On February 9, 2011, the People moved to dismiss four counts of the felony complaint, including both felony counts, and filed an information. The most serious offense charged in the information was Assault in the Third Degree (146), a misdemeanor that is punishable by a sentence of imprisonment of more than three months. P.L. §§ 70.15(1), 120.00. Hence, under C.P.L. § 30.30(5) (c), the People had to be ready for trial within 90 days of chargeable time following the filing of the information on February 9, 2011. See People v. Cooper, 98 N.Y.2d 541, 544 & n.1 (2002). Contrary to the holdings of the Criminal Court (1, 4) and the Appellate Term (xii-xiii), the People were chargeable with, at most, 77 days: 1) the 6 days from March 2 to March 8, 2011; 2) the 15 days from April 19 to May 4, 2011; 3) the 7 days from November 9 to November 16, 2011; 4) the 6 days from January 12 to 32 January 18, 2012; 5) the 8 days from February 23 to March 2, 2012; 6) the 7 days from May 1 to May 8, 2012; 7) the 22 days from August 15 to September 6, 2012; and 8) the 6 days from October 3 to October 9, 2012. Hence, the time chargeable to the People did not exceed the 90-day statutory limitation period applicable to defendant's case. With respect to the People's appeal to the Appellate Term, there were only five periods of time that ultimately were in dispute: 1) the 7 days from February 23 to March 2, 2011; 2) the 41 days from March 8 to April 18, 2011; 3) the 57 days from November 16, 2011 to January 12, 2012; 4) the 36 days from January 18 to February 23, 2012; and 5) the 11 days from February 4 to February 15, 2013 (see supra at 27-31) . The sole basis for the Appellate Term's holding that the People violated C.P.L. § 30.30 was that court's erroneous ruling that--in addition to the 77 days that the People had conceded were chargeable to them--the People were also chargeable with the 41 days from March 8 to April 18, 2011 (xii-xiii). However, before March 8, 2011--specifically, on February 9, 2011--the People first announced their readiness for trial, and on March 2, 2011, although the People requested an adjournment of only 6 days, to March 8, 2011, the Criminal Court instead adjourned the case to April 19, 2011, 42 days past the date that the People had 33 requested. Consequently, the Appellate Term's ruling that the People were chargeable with the 41 days from March 8 to April 18, 2011 was inconsistent with the principle--articulated by this Court in People v. Cortes, 80 N.Y.2d 201 (1992), and People v. Goss, 87 N.Y.2d 792 (1996)--that subsequent to the People's first valid statement of readiness, the People are chargeable only with delay that is attributable to them. That ruling was also inconsistent with a logical corollary of the principle set forth in Cortes and Goss: the post-readiness request rule that has been articulated by intermediate appellate courts (see, ~' People v. Boumoussa, 104 A.D.3d 863 [2d Dep't 2013]; People v. Rivera, 223 A.D.2d 476 [1st Dep't 1996]) and that provides that where, subsequent to a valid statement of readiness, the People request an adjournment to a particular date, and the trial court instead adjourns the case to a later date, the People are chargeable with only the number of days that they request. The Appellate Term acknowledged the validity of the post- readiness request rule, but apparently reasoned that the rule did not apply to the adjournment from March 2 to April 19, 2011 because on April 18, 2011, the People filed a statement of readiness that, according to the Appellate Term, was illusory (ix-xi). The Appellate Term, however, could not properly base any holding on the purported fact that the April 18, 2011 statement of 34 readiness was illusory, because the record did not conclusively demonstrate that that statement of readiness was illusory, and because defendant never claimed before the Criminal Court that the statement of readiness was illusory. Moreover, the Appellate Term failed to provide any explanation--and there is no reasonable explanation--why the purported fact that the April 18, 2011 statement of readiness was illusory should render a period of delay that preceded that statement of readiness (namely, the period of 41 days from March 8 to April 18, 2011) chargeable to the People. At the same time, the Appellate Term correctly held that the Criminal Court erred in charging the People with two of the four remaining disputed periods of time: 1) the 7 days from the court date of February 23, 2011 to the next court date of March 2, 2011; and 2) the 11 days from February 4 to February 15, 2013 (ix-x). The 7 days from February 23 to March 2, 2011 were excludable pursuant to C.P.L. § 30.30(4) (a), because, as the Appellate Term found ( ix) , the period from the court date immediately preceding February 23, 2011--which was February 9, 2011--to March 2, 2011 "was a reasonable amount of time [for the People] to" provide discovery material to the defense. That factual finding, which was supported by the record, is not subject to review by this Court. See Cortes, 80 N.Y.2d at 212. 35 The 11-day period from February 4, 2013--which, according to the Criminal Court ( 4) , was the date on which the court first dismissed the information--to February 15, 2013, the date on which the People filed a motion to reargue defendant's 30.30 motion, was not chargeable to the People, because, in fact, the court did not dismiss the information until February 5, 2013, and because the time from the dismissal of the information to the People's filing of the motion to reargue was excludable pursuant to C.P.L. § 30.30(4) (a) as delay attributable to motion practice. The Appellate Term made no ruling with respect to the two remaining disputed periods of time: 1) the 57 days from November 16, 2011 to January 12, 2012; and 2) the 36 days from January 18 to February 23, 2012. The record supported the Criminal Court's conclusion that, in light of the post-readiness request rule, those periods were not chargeable to the People. Defendant's argument to the Appellate Term that both of those periods were chargeable to the People was based on factual assertions that were either patently incorrect or would require a hearing to resolve. Because the time chargeable to the People did not exceed the C.P.L. § 30.30 limitation period of 90 days that was applicable to defendant's case, the Appellate Term erred in affirming the Criminal Court's order granting defendant's 30.30 motion. Hence, 36 this Court should reverse the Appellate Term's order and reinstate the information. B. None of the 7 Days from February 23 to March 2, 2011 Was Chargeable to the People. The Appellate Term correctly held that none of the 7 days from the court date of February 23, 2011 to the next court date of March 2, 2011 was chargeable to the People and that, consequently, the Criminal Court erred in charging the People with those 7 days ( ix) . 13 On February 23, 2011, the People did not bring to court their file pertaining to defendant's case. The prosecutor said that the People needed a compact disc to make a recording of a 911 call for the defense, and defense counsel said that the defense would provide a compact disc to the People. The court said that the People should serve and file open file discovery by February 28, 13 The 7-day period from February 23 to March 2, 2011 is not, by itself, dispositive of the determination of whether the People violated C. P. L. § 30.30, because those 7 days plus the 77 days that the People are conceding were chargeable to them total 84 days, which is less than the 90-day statutory limitation period applicable to this case. Both in its first decision on defendant's 30.30 motion and in its decision on the People's motion to reargue, the Criminal Court correctly held that the 7 days from February 23 to March 2, 2011 were excludable pursuant to C.P.L. § 30.30(4) (a) (49-50, 61). 37 2011. The People provided open file discovery to defendant on March 2, 2011 (see supra at 9-10). The 7 days from February 23 to March 2, 2011 were excludable pursuant to c. P. L. § 30. 30 ( 4) (a) as a reasonable period of delay for the People to provide discovery material to defendant. See People v. Jacobs, 45 A.D. 3d 883, 884 (3d Dep't 2007); People v. McCray, 238 A.D.2d 442, 444 (2d Dep't 1997); People v. Dorilas, 19 Misc. 3d 75, 76-77 (App. Term 2d & 11th Jud. Dists. 2008). The fact that on February 9, 2011, the court adjourned the case to February 23, 2011 for the People to serve defendant with open file discovery, and that on February 23, 2011, the People failed to give defendant open file discovery, does not warrant a different conclusion: The 21 days from February 9 to March 2, 2011 that the People took to provide discovery material to defendant constituted a reasonable period of delay for the People to provide that material to defendant, in part because the People needed to get a compact disc from the defense in order to make a recording of a 911 call for the defense. See, ~' McCray, 238 A.D.2d at 444 (period of 27 days was "a reasonable period of time needed to accommodate the defense counsel's request for the production of a tape recording of a telephone call to 911 and other discovery"); People v. Coker, 131 A.D.2d 585 (2d Dep't 1987) (lower court should have excluded 26 days that People took to comply with 38 defendant's discovery demand); People v. Jones, 151 Misc. 2d 582, 584 (App. Term 2d & 11th Jud. Dists. 1991) (39 days that "elapsed for the purpose of discovery" was excludable pursuant to C.P.L. § 30.30 [4) [a)). The Appellate Term's conclusion that the 7 days from February 23 to March 2, 2011 were not chargeable to the People was based, in part, on the Appellate Term's factual finding that the period from the court date immediately preceding February 23, 2011--which was February 9, 2011--to March 2, 2011 "was a reasonable amount of time [for the People) to" provide discovery material to the defense (ix) . 14 That factual finding, which was supported by the record (see supra at 9-10), is not subject to review by this Court. See Cortes, 80 N.Y.2d at 212 14 Because the transcript of the proceedings on February 9, 2011 was mistakenly dated February 8, 2011 see supra at 9), the Appellate Term mistakenly asserted both that February 8, 2011 was the court date that immediately preceded February 23, 2011, and that the People took 22 days--the 22 days from February 8 to March 2, 2011--to provide discovery material to the defense (iii, ix) . The People in fact took 21 days--the 21 days from February 9 to March 2, 2011--to provide discovery material to the defense. The Appellate Term also held that the period from February 23 to March 2, 2011 was excludable as an adjournment requested by the defense (ix). However, because the People did not preserve the claim that the period from February 23 to March 2, 2011 was excludable as an adjournment requested by the defense, they are not presenting that claim to this Court. 39 (Court of Appeals "decline [d] to follow the People's request to exclude at least some of the 90-day period between indictments as a 'reasonable time' for motion practice"; "[s] ince both [the Appellate Division and the Supreme Court, Kings County, ] held the entire 90-day period to be unreasonable, any effort by [this Court] to define a lesser 'reasonable' period for motion practice would require [this Court] to engage in fact finding-- an activity that [was] outside the scope of [this Court's] powers"). Hence, none of the 7 days from February 23, 2011 to March 2, 2011 was chargeable to the People. C. Only 6 Days (March 2 to March 8, 2011) of the 48 Days from March 2 to April 19, 2011 Were Chargeable to the People. Both the Appellate Term and the Criminal Court incorrectly held that of the 48 days from the court date of March 2, 2011 to the next court date of April 19, 2011, at least 47 days--the 47 days from March 2 to April 18, 2011--were chargeable to the People. In fact--as the Criminal Court held both in its first decision granting defendant's 30.30 motion and in its decision on the People's motion to reargue (50, 61)--with respect to the entire 48-day period, only the 6 days from March 2 to March 8, 2011 were chargeable to the People. 40 It is undisputed that, on February 9, 2011, the People made a valid statement of readiness in court. On March 2, 2011, the prosecutor said that the People were not ready, that the assistant district attorney handling the case was "engaged in trial," and that the People were requesting an adjournment to March 8, 2011. The court adjourned the case to April 19, 2011 "for hearing and trial," stating that the People would "be charged until 3/8" (1-4). ' Because the People had previously announced their readiness for trial (on February 9, 2011), because on March 2, 2011, the People requested an adjournment of only 6 days (to March 8, 2011), and because on March 2, 2011, the court instead adjourned the case to April 19, 2011, the People were chargeable with only 6 days (the 6 days from March 2 to March 8, 2011) of the 48 days from March 2 to April 19. See Cortes, 80 N.Y. 2d at 208; Goss, 87 N.Y.2d at 797; Boumoussa, 104 A.D.3d at 863; Rivera, 223 A.D.2d at 476. The conclusion--that with respect to the adjournment from March 2 to April 19, 2011, only the 6 days from March 2 to March 8, 2011 were chargeable to the People--necessarily follows from two related general principles articulated by this Court: 1) with respect to "postreadiness delays," the People are chargeable with only those "postreadiness periods of delay that 41 are actually attributable to the People and are ineligible for an exclusion,n Cortes, 80 N.Y.2d at 208; and 2) "post-readiness delay attributable to the court• or to "court congestion° is not chargeable to the People, Goss, 87 N.Y.2d at 797. See also People v. Anderson, 66 N.Y.2d 529, 536 (1985) ("with respect to postreadiness delay it is the People's delay alone that is to be considered0 ) • The conclusion--that with respect to the period from March 2 to April 18, 2011, the People were chargeable with only 6 days-- also necessarily follows from a logical corollary of the principles set forth in People v. Cortes, 80 N.Y. 2d 201 (1992), and People v. Goss, 87 N.Y.2d 792 (1996): If, on a court date subsequent to the filing of a valid statement of readiness, the People request an adjournment to a particular date, and the trial court instead adjourns the case to a later date, then the People are chargeable with only the number of days that they request (in this brief, that corollary is referred to as the "post-readiness request rulen). It is readily apparent that the post-readiness request rule is a logical corollary of the principles set forth in Cortes and Goss, given that, if, post-readiness, on a court date, the People are not ready and request a specific adjournment date, but the court instead adjourns the case to a later date, then the delay from the adjournment date that the People requested to the 42 adjournment date that the court selected is "delay attributable to the court" (see Goss, 87 N.Y.2d at 797) and is not "delay that [is] actually attributable to the People" (see Cortes, 80 N.Y. 2d at 208) . The post-readiness request rule has been repeatedly applied by the Appellate Division, First and Second Departments, for well over twenty years. See, ~' People v. Owens, 138 A.D. 3d 1035 (2d Dep't 2016); People v. Alvarez, 412 (1st Dep't 2014); Boumoussa, 104 A.D. 3d at 117 A. D. 3d 411, 863 ("[a]s to periods of delay that occur following the People's statement of readiness, any period of an adjournment in excess of that actually requested by the People is excluded"); People v. Lynch, 103 A.D. 3d 919, 920 (2d Dep't 2013); People v. Hernandez, 92 A.D. 3d 802, 803 (2d Dep't 2012); People v. Sawh, 58 A.D.3d 760, 761 (2d Dep't 2009); People v. Williams, 32 A.D.3d 403, 404-05 (2d Dep't 2006); People v. Nielsen, 306 A.D.2d 500, 501 (2d Dep't 2003); People v. Camillo, 279 A.D.2d 326 (1st Dep't 2001); Rivera, 223 A.D.2d at 476; People v. Bailey, 221 A.D.2d 296 (1st Dep't 1995); People v. Urraea, 214 A.D.2d 378 (1st Dep't 1995); People ex rel. Sykes v. Mitchell, 184 A.D.2d 466, 468 (1st Dep't 1992) ("sua sponte extensions of requested adjburnments due to court congestion following a prosecutor's announcement of readiness should be excludable") . 43 The Criminal Court and Appellate Term, however, in direct violation of the principles set forth in Cortes and Goss, and of the post-readiness request rule, held that the People were chargeable with the entire 47 days from March 2 to April 18, 2011. Each court provided a different rationale for that holding, but neither court presented a valid rationale for that holding. The Criminal Court's stated reason for charging the People with the entire 47 days from March 2 to April 18, 2011 was that the People's filing of a statement of readiness on April 18, 2011 "indicat [ed]" that April 18 was "their actual date of readiness" (2). By contrast with the Criminal Court, the Appellate Term held--on the basis of People v. Sibblies, 22 N.Y.3d 1174 (2014)-- that the People's April 18, 2011 off-calendar statement of readiness was illusory because, on April 19, 2011, when the People stated in court that they were not ready, they failed to provide any reason for their not being ready (xi-xii). The Appellate Term apparently concluded that, because the April 18, 2011 statement of readiness was, in its view, illusory, the post-readiness request rule did not apply to the period from March 2 to April 19, 2011 and therefore, the entire 47-day period from March 2 to April 18, 2011 was chargeable to the People. The holding of the Criminal Court and the Appellate Term-- that with respect to the 47 days from March 2 to April 18, 2011, 44 the People were chargeable with all 47 days, rather than with only the 6 days from March 2 to March 8, 2011--was at odds with settled law given the following: adjournment--on February 9, 1) prior to the March 2, 2011 2011--the People made a valid statement of readiness; and 2) because on March 2, 2011, the People requested an adjournment date of March 8, 2011, but the court adjourned the case to a later date, April 19, 2011, the court, not the People, bore sole responsibility for the 41-day delay from March 8 to April 18, 2011. See Goss, 87 N.Y.2d at 797; Cortes, 80 N.Y.2d at 210. Contrary to the Criminal Court's holding (see supra at 44), the fact that on April 18, 2011, the People again announced that they were ready for trial does not warrant a different conclusion. Although it is not at all clear from the record why, on April 18, 2011, the People filed a statement of readiness for trial, neither the April 18, 2011 statement of readiness nor anything else in the record suggests that on March 2, 2011, when the People requested an adjournment to March 8, 2011, they either knew or believed that they would not be ready for trial on March 8 (and therefore made that request in bad faith), or suggests that the People would not in fact have been ready to proceed to trial on March 8. Indeed, the reason that the People gave on March 2, 2011 for why they were not ready and were requesting an adjournment to March 8, 2011-- 45 that the prosecutor who was assigned to the case was "engaged in trial" (see supra at 10) --provides no reason to conclude either that the People would not have been ready for trial on March 8 or that the People did not reasonably expect that they would be ready for trial on March 8. The Appellate Term's apparent rationale for concluding that all 47 days prior to April 18, 2011 were chargeable to the People--the purported invalidity of the April 18, 2011 statement of readiness--was incorrect for two reasons. First, it was improper for the Appellate Term to make any holding based on the purported invalidity of that statement of readiness: The record does not in fact show that the April 18, 2011 statement of readiness was invalid and, because defendant never claimed in the Criminal Court that the April 18, 2011 statement of readiness was invalid, the People never had an opportunity to counter any such claim factually or legally. See People v. Nieves, 67 N.Y.2d 125, 128, 136 (1986) (on defendant's appeal, Appellate Division improperly relied on argument of People that was not presented to trial court, because "[t] he record [did] not conclusively demonstrate that [the argument was correct], and clearly the argument could have been countered by the defendant had the People raised it before the trial court"); see also People v. DeJesus, 69 N.Y.2d 855, 857 (1987) (on defendant's appeal, this Court held 46 that People's claims were •unpreserved" given that, because People failed to present claims to trial court, •there was no occasion for defendant to make a record" and trial court had "no opportunity" •to consider these matters"); cf. People v. Chavis, 91 N.Y.2d 500, 504, 506 (1998) (where People requested that this Court remit case to Appellate Division for review, in the interest of justice, of certain of their claims why defendants' 30.30 motions should not have been granted, Court held that Appellate Division was •without power to consider" those claims because the People had •wai ved these claims before the motion court," and because defendants had not had "the opportunity to counter these claims legally or factually") . Moreover, contrary to the Appellate Term's suggestion (xi-xii), the mere fact that on April 19, 2011, the People did not state on the record their reason for being unready did not warrant the conclusion that the April 18, 2011 statement of readiness was invalid. See People v. Carter, 91 N. Y .2d 795, 799 (1998) (off- calendar statement of readiness will be deemed effective •[i]n the absence of proof that the readiness statement did not accurately reflect the People's position" [emphasis added]) ; cf. People v. Sibblies, 22 N.Y.3d 1174 (2014) (validity of off-calendar statement of readiness was undermined by People's stated reason for not being ready on next court date). If anything, the record 47 is consistent with the conclusion that the statement of readiness was valid. As the Appellate Term pointed out, with respect to the court date of April 19, 2011, there was the following notation in the Criminal Court file: "IT no file" (x, 136). That notation presumably meant that on April 19, 2011, the People did not have in court their file pertaining to defendant's case. Indeed, in his 30.30 motion, defendant asserted that on April 19, 2011, "[t]he prosecution did not have a file" (30, 35). And--as defendant suggested in his 30. 30 motion ( 30, 35) --the People's failure on April 19, 2011 to bring to court their file pertaining to defendant's case apparently was the reason why, on that date, the People were not ready for trial. The fact that on April 19, 2011, the People failed to bring that file to court was entirely consistent with the People's having been ready for trial on April 18, 2011 and therefore did not undermine the validity of the People's April 18, 2011 statement of readiness. See Carter, 91 N.Y.2d at 799; cf. People v. Sibblies, 22 N.Y.3d 1174 (2014). In support of its conclusion that the People's April 18, 2011 statement of readiness was illusory, the Appellate Term quoted the following statement from this Court's decision in People v. Stirrup, 91 N.Y.2d 434 (1998): "In the postreadiness context, the People bear the burden of ensuring that the record explains the cause of adjournments sufficiently for the court to determine 48 which party should properly be charged with any delay" (xi-xii [quoting Stirrup, 91 N.Y.2d at 440 (emphasis added)]). But that statement in Stirrup, contrary to the Appellate Term's reasoning (xi-xii), has no apparent relevance to determining whether an off- calendar statement of readiness was valid, or, for that matter, whether a period of delay preceding a statement of readiness was chargeable to the People. Hence--because defendant did not argue before the Criminal Court that the People's April 18, 2011 statement of readiness was invalid, and because the People might have been able t.o counter any such argument factually--the Appellate Term improperly relied on the purported invalidity of that statement of readiness in ruling that the 41-day period from March 8 to April 18, 2011 was chargeable to the People. See Nieves, 67 N.Y.2d at 128, 136; see also DeJesus, 69 N.Y.2d at 857; cf. Chavis, 91 N.Y.2d at 504, 506. Second--even assuming that the record conclusively showed that the April 18, 2011 statement of readiness was invalid--there is no logical reason why the purported invalidity of that statement of readiness should by itself yield the conclusion that time prior to that statement of readiness was chargeable to the People. This Court's decision in People v. Sibblies, 22 N.Y.3d 1174 (2014), certainly does not warrant such a conclusion: Sibblies dealt with whether a statement of readiness was illusory 49 and whether, consequently, time subsequent to--rather than time prior to--the filing of the statement of readiness was chargeable to the People (see id. at 1178-79 [Lippman, C.J., concurring]; id. at 1179-81 [Graffeo, J., concurring]). Rather, assuming that the People's April 18, 2011 statement of readiness were illusory, the number of days during the period from March 2 to April 18, 2011 that could properly have been charged to the People should be calculated as if the People had never made that declaration of readiness, which would mean that--under Cortes, Goss, and the post-readiness request rule--with respect to that period, the People were chargeable with only the 6 days from March 2 to March 8, 2011 (see supra at 41-43). In short--under Cortes, Goss, and the post-readiness request rule--with respect to the post-readiness period from March 2 to April 18, 2011, the People were chargeable with only 6 days (the 6 days from March 2 to March 8, 2011), given that on March 2, the People requested a 6-day adjournment to March 8, 2011, but the Criminal Court instead adjourned the case to April 19, 2011. Consequently, the Appellate Term and the Criminal Court erred in holding that the People were chargeable with the 41 days from March 8 to April 18, 2011. 50 D. Only 13 Days (the 7 days from November 9 to November 16, 2011, and the 6 days from January 12 to January 18, 2012) of the 106 Days from November 9, 2011 to February 23, 2012 Were Chargeable to the People. The Criminal Court correctly held that of the 106 days from November 9, 2011 to February 23, 2012, the People were chargeable with only 13 days: the 7 days from November 9 to November 16, 2011, and the 6 days from January 12 to January 18, 2012 (2-3). On November 9, 2011, the prosecutor said that the People were not ready, that the arresting officer was "unavailable," and that the People were requesting "one week." The court adjourned the case for "hearing and trial" to January 12, 2012. On January 12, 2012, the prosecutor requested an adjournment to January 18, 2012 because the assigned assistant was "out of the office." The court adjourned the case to February 23, 2012 (see supra at 11-12). With respect to the period from November 9, 2011 to February 23, 2012, because the People had previously announced their readiness for trial, they were chargeable with only the amount of delay that they requested on November 9, 2011 and on January 12, 2012: 7 days and 6 days, respectively, for a total of 13 days (see supra at 51). That conclusion necessarily follows from the general principles regarding post-readiness delay set forth in People v. Cortes, 80 N.Y.2d 201 (1992), and People v. Goss, 87 N.Y.2d 792 (1996), and from a logical corollary of those 51 principles : the post-readiness request rule, see, ~' Boumoussa, 104 A.D.3d at 863 ; Rivera, 223 A.D.2d at 476 {see supra at 41-43) . In his motion to reargue, defendant asserted that neither the People nor the Criminal Court had addressed his contention in his 30.30 motion that the People should have been charged with the entirety of the 106-day period from November 9, 2011 to February 23, 2012 because on February 23, 2012 , the People had admitted on the record that "they had not been in tou[c]h with the complain [an] t since the prior September" (8-9). 1 5 Defendant suggested that because the People allegedly had not "contest [ed] this argument , " the court had to charge all of those 106 days to the People {9). That suggesti on of defendant was wrong. In response to defendant's 30 . 30 motion, the People i mplicitly contended, with respect to the adjournments from November 9, 2011 to January 12, 2012 and from Januar y 12 to February 23, 2012, that because , prior to November 9, they had declared their readiness for trial , they were chargeable with only 15 In his 30 . 30 motion and i n his motion to reargue, defendant claimed that the Peopl e were chargeable with all of the 120 days from November 9, 2011 to March 8 , 2012 (8 -9 , 33) , which included the 106 days from November 9 , 2011 to February 23, 2012 . 52 the delay that they requested on November 9 and January 12: 7 days and 6 days, respectively (39, 45). In its first decision on defendant's 30.30 motion and in its decision on the People's motion to reargue, the Criminal Court agreed with the People's contention, implicitly with respect to the adjournment from November 9, 2011 to January 12, 2012, and explicitly with respect to the adjournment from January 12 to February 23, 2012 (50-51, 61-62; see supra at 19-21). The factual allegation that defendant presented in support of his claim that the entire period of 106 days from November 9, 2011 to February 23, 2012 was chargeable to the People--that the People had not been in contact with the complainant "since September 2011" (see supra at 16-17, 22-23)--did not undermine the conclusion that, with respect to the period from November 9, 2011 to February 23, 2012, the People were chargeable with only the 7 days of delay that they requested on November 9 and the 6 days of delay that they requested on January 12. First--regardless of whether, as of February 23, 2012, the People had not been in contact with the complainant "since September 2011"--with respect to the period from November 9, 2011 to February 23, 2012, the People in fact bore no responsibility for any post-readiness delay beyond the 13 days of delay that they requested, because on both November 9, 2011 and January 12, 2012, 53 the court, without knowing whether the People had been in contact with the complainant, decided to adjourn the case for a period of time longer than the period of time that the People had requested. Consequently, with respect to the period from November 9, 2011 to February 23' 2012, the only delay that was attributable to the People was the 7 days of delay that the People requested on November 9 and the 6 days of delay that they requested on January 12, and therefore--with respect to the period from November 9, 2011 to February 23, 2012--only those 13 days of delay were chargeable to the People (see supra at 41-43, 51-52). See Goss, 87 N.Y.2d at 797; Cortes, 80 N.Y.2d at 208, 210; Boumoussa, 104 A.D.3d at 863; Rivera, 223 A.D.2d at 476. Second, while on February 23, 2012, the prosecutor said, nThe last contact [with the complainant) looks to be in September" (103), there is no reason to believe that the complainant in fact was unavailable on either of the adjournment dates that the People requested, November 16, 2 011 and January 18, 2012. On February 23, 2012, the prosecutor also said that nthe People [had) spoken with the complaining witness' [s) family in February, but [could not) reach the complaining witness" (103), which did not suggest, in any way, that during the adjournment from September 13 to November 9, 2011, or during the period from November 9, 2011 to the end of January 2 012, the People had tried to contact the 54 complainant but had been unable to get in touch with him, or that the complainant was not available on either November 16, 2011 or January 18, 2012. Moreover, the reasons for the People's not being ready on November 9, 2011 and on January 12, 2012-- respectively, that on November 9, 2011, the arresting officer was "unavailable," and that on January 12, 2012, the assigned assistant was "out of the office" (39, 97) --had no bearing on whether the complainant was available. In the Appellate Term, defendant also contended that the Criminal Court should have charged the People with all 106 days of that period, arguing that: 1) "the defendant [] assert [ed] in his C. P. L. 30.30 motion that the complainant was unavailable during the time in question," and, because the People did not controvert that assertion in their opposition to the motion, they conceded that the assertion was correct (Defendant's Appellate Term Brief at 36); 2) there was reason to believe that the complainant was unavailable on the two dates during that period (November 16, 2011 and January 18, 2012) that the People had requested as adjournment dates (id. at 35-36); and 3) "[g] iven the unavailability of the complainant," the People's requests on November 9, 2011 and January 12, 2012 for, respectively, a 7-day adjournment and a 6-day adjournment "were in bad faith and meaningless" (id. at 18-19, 34-35, 39-44). 55 Defendant's allegation--that "the defendant [] assert [ed] in his C.P.L. 30.30 motion that the complainant was unavailable during the time in question" (Defendant's Appellate Term Brief at 36)--was incorrect: Defendant made no such assertion in his 30.30 motion. Defendant also did not assert in his 30.30 motion that the People's request for an adjournment either on November 9, 2011 or on January 12, 2012 was in "bad faith." Because defendant made no such assertions in his motion papers, he cannot properly argue in this Court either that " [ g] i ven the unavailability of the complainant," the People's requests for adjournments on November 9, 2011 and January 12, 2012 "were in bad faith," or that those adjournment requests were in "bad faith" for any other reason (id. at 18-19, 34-35, 39-44). See Nieves, 67 N.Y.2d at 128, 134, 136 (on defendant's appeal to this Court, Court rejected argument of People that People had failed to present to trial court; People's failure to advance ground in trial court denied defendant opportunity to present evidence to counter factual theory not conclusively supported by record) . Moreover, neither the Criminal Court nor the Appellate Term made any factual findings with respect to whether the complainant was unavailable on the People's requested adjournment dates or with respect to whether the People's adjournment requests were in bad faith, and this Court does not have the authority to make its own factual 56 findings. 16 See C.P.L. § 470.35(1); Cortes, 80 N.Y. 2d at 212; see also People v. Baumann & Sons, Inc., 6 N.Y.3d 404, 406 (2006). Hence, of the 106 days from November 9, 2011 to February 23, 2012, the Criminal Court correctly held that the People were chargeable with only 13 days: the 7 days of delay that they requested on November 9, 2011 and the 6 days of delay that they requested on January 12, 2012. E. None of the 11 Days from February 4 to February 15, 2013 Was Chargeable to the People. The Appellate Term correctly found that February 5, 2013-- not, as the Criminal Court asserted, February 4, 2013 (4)--was the date on which the Criminal Court initially granted defendant's 16 In the event that this Court determines that the Appellate Term should have addressed defendant's claims regarding the 106- day period from November 9, 2011 to February 23, 2012--his claim that the complainant was unavailable on either of the People's requested adjournment dates (November 16, 2011 and January 18, 2012) or his claim that the People's adjournment requests were in bad faith--that determination, by itself, would not warrant an affirmance of the Appellate Term's order affirming the Criminal Court's dismissal of the information. Rather, that determination, by itself, would warrant a remittal of this case to the Criminal Court for a hearing to resolve the factual questions pertaining to those claims. See People v. Zirpola, 57 N.Y.2d 706 (1982) (remitting case to County Court for hearing on whether there were "exceptional circumstances" warranting an exclusion of time pursuant to C.P.L. § 30.30[4] [g]); People v. Nowakowski, 49 N.Y.2d 723 (1980) (where record was "inadequate" and "skeletal," Court remitted case to County Court for hearing on 30.30 motion). 57 30.30 motion and dismissed the information, and correctly held that the People were not chargeable with any of the time from the dismissal of the information to February 15, 2013, when the People filed their motion to reargue the 30.30 motion (vii, ix-x). Hence, the Appellate Term correctly held that the Criminal Court erred in charging the People with the 11 days from February 4 to February 15, 2013 (ix) . 17 First, February 5, 2013--not February 4, 2013--was the date on which the Criminal Court initially dismissed the information (123-24). While the docket sheet in the Criminal Court file for this case has a date stamp of "02/04/2013" with respect to the 17 The 11-day period from February 4 to February 15, 2013 is not, by itself, dispositive of the determination of whether the People violated C.P.L. § 30.30, because those 11 days plus the 77 days that the People are conceding were chargeable to them total 88 days, which is less than the 90-day statutory limitation period applicable to this case. In its decision on defendant's motion to reargue, the Criminal Court held that with respect to the period from the initial dismissal of the information to the filing of the People's motion to reargue, the People were chargeable with "15 days• (4). The court incorrectly calculated the number of days from the initial dismissal of the information to the filing of the People's motion to reargue. Even assuming that the court was correct in stating that the date of the initial dismissal was February 4, 2013, the period from that date to February 15, 2013--when the People filed their motion to reargue--consisted of 11 days, not 15 days. And the period from the actual date of the initial dismissal of the information--February 5, 2013--to February 15, 2013 consisted of 10 days, not 15 days. 58 court proceedings during which the court first dismissed the information (139), the transcript of those proceedings states that the date of those proceedings was February 5, 2013 (123-24) . And, in fact, February 5, 2013 was the date that, on the previous court date--December 4, 2012--the court selected both as the next adjournment date and as the date on which it would issue a decision on defendant's 30.30 motion (122, 139). Moreover, the entire period of 10 days from the Criminal Court's erroneous dismissal of the information on February 5, 2013 to the filing of the People's motion to reargue on February 15, 2013 was excludable, pursuant to C.P.L. § 30.30(4) (a), as a reasonable period of time for the People to prepare and file the motion to reargue. See People v. Jennings, 248 A.D.2d 265, 267 (1st Dep' t 199B) ("the 21 day period from the date the indictment [was] erroneously dismissed until it was reinstated was properly excluded because that time was used for the prosecution to move to vacate the erroneous dismissal and the court to decide that motion") . There are three reasons why--in a case where, after a court dismisses an accusatory instrument, the People file a motion to reargue the dismissal--a reasonable period of time for the People to file the motion should be excludable pursuant to C.P.L. § 30.30(4)(a). 59 First, the language of C.P.L. § 30.30(4) (a) supports the exclusion of the time from the dismissal of an accusatory instrument to the filing of a motion to reargue the dismissal, and not just the time from the filing of the motion to reargue to a court's decision on the motion. The period from the filing of such a motion to the decision on the motion is excludable because that period constitutes "the period during which [the motion was] under consideration by the court." See C.P.L. § 30.30(4)(a). Criminal Procedure Law§ 30.30(4) (a), however, does not limit the exclusion regarding a motion only to the period during which the motion is "under consideration by the court," but also excludes, more broadly, "a reasonable period of delay resulting from" the motion. The "period of delay resulting from" a motion to reargue the dismissal of an accusatory instrument includes the period during which a prosecutor prepares the motion, as well as the period during which the motion is under consideration by the court, because the entire period from the dismissal of an accusatory instrument to a court's decision on a motion to reargue the dismissal constitutes a "delay" that "result [ed] from" the People's effort to remedy the dismissal. See People v. Dean, 45 N.Y.2d 651, 656-57 (1978) (under C.P.L. § 30.30[4], delay "was excused, it being devoted to the preparation, argument, and consideration of defendant's motion") ; cf. People v. Brown, 99 60 N.Y. 2d 488, 4 91-92 (2003) (trial court properly excluded, under C.P.L. § 30.30(4) (a), period of 47 days that "occurred when the trial court adjourned the case after defense counsel announced her intention to file a pretrial motion" in a separate case against defendant, even though defense counsel never filed motion). Second, a motion to reargue the dismissal of an accusatory instrument is closely analogous to an appeal from the dismissal of an accusatory instrument: Reargument and appeal both seek the remedy of reinstating the dismissed accusatory instrument, and both seek that remedy through essentially the same means, which is the presentation to a court of a legal argument why the dismissal was erroneous. See Siegel, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, C.P.L.R. Rule 2221, at 183 (1991) (motion to reargue is "a process akin to what an appeal can do"); People v. Schneiderman, 136 Misc. 2d 396, 400 (Dist. Ct. Nassau Cty. 1987) ("the nature of a motion to reargue is akin to an appeal") . If the People seek to remedy the dismissal of an accusatory instrument by taking an appeal instead of by filing a motion to reargue, then a reasonable period of time for the People to perfect the appeal would be excludable pursuant to C.P.L. § 30.30(4)(a). See People v. Grafton, 73 N.Y.2d 779 (1988) (affirming Appellate Division's holding in People v. Grafton, 115 A.D.2d 952 [4th Dep't 1988], that period of more than six months 61 from date on which notice of appeal was filed to date on which appeal was perfected was excludable pursuant to C.P.L. § 30.30[4] [a]); People v. Barry, 292 A.D.2d 281 (1st Dep't 2002) (People's delay in perfecting appeal was excludable under C.P.L. §30.30[4][a]); People v. Aaron, 201 A.D.2d 574,575 (2d Dep't 1994) ("the People's perfection of their prior appeal within the time fixed by the rules of this court constituted a reasonable delay within the meaning of" C.P.L. § 30.30[4] [a]). Given that a motion to reargue the dismissal of an accusatory instrument is closely analogous to an appeal from the dismissal of an accusatory instrument, there is no reason why a motion to reargue should be treated any differently: a reasonable period of time for the People to file a motion to reargue the dismissal of an accusatory instrument should also be excludable pursuant to C.P.L. § 30.30(4)(a). Third, a holding that the People are chargeable with the time that they take to file a motion to reargue the dismissal of an accusatory instrument would create an incentive for the People to remedy the dismissal of an accusatory instrument by appealing from the dismissal (as opposed to moving to reargue the dismissal), would thereby lead to delay in the remedying of erroneous dismissals of accusatory instruments, and hence would frustrate the purpose of C.P.L. § 30.30, which is "[t]o promote prompt 62 trials for defendants in criminal cases." See Memorandum of State Executive Dep' t, Crime Control Council, 1972 N.Y. Laws 3259; see also Anderson, 66 N.Y.2d at 535 & n.l. An appeal from the dismissal of an accusatory instrument ordinarily would result in delay far greater than the delay that would result from a motion to reargue the dismissal. But if, under C. P. L. § 30. 30, the People were chargeable with the time that they take to file a motion to reargue the dismissal of an accusatory instrument, then the People would have a strong incentive to appeal from, rather than to move to reargue, the dismissal, because, under C.P.L. § 30.30 (4) (a), the time to perfect an appeal would be excludable (see supra at 61-62), while the time to "perfect" a motion to reargue would not be excludable. Criminal Procedure Law § 30.30 "was not intended to provide rewards or incentive for delay," People v. Osgood, 52 N.Y.2d 37, 45 (1980), but adoption of the Criminal Court's interpretation of the statute in defendant's case would yield precisely that result. Consequently, the Appellate Term correctly rejected the Criminal Court's holding that the People were chargeable with the time they took to file the motion to reargue. See People v. White, 7 3 N.Y.2d 468, 473-74 (1989) (in interpreting statute, "the spirit and purpose of the act and the objects to be accomplished" must be considered); People v. Eulo, 63 N. Y.2d 341, 354 (1984) (term in 63 statute must be read in accordance with apparent purpose of statute); McKinney's Cons. Laws of N.Y., Book 1, Statutes§ 96, at 203, 205 (1971) (words of statute should be construed with reference to object of statute, and "construction is to be preferred which furthers the object, spirit and purpose of the statute") . In addition--in concluding that the 10 days from the first dismissal of the information to the filing of the People's motion to reargue was excludable pursuant to C.P.L. § 30.30(4) (a) as a "time for the People to make pretrial motions" ( ix-x) --the Appellate Term implicitly made a factual finding that that 10-day period was a reasonable period of time for the People to file the motion to reargue. See C. P.L. § 30.30 (4) (a) (among the periods that "must be excluded" is "a reasonable period of delay resulting from other proceedings concerning the defendant," including "pre- trial motions" [emphasis added]). That implicit factual finding is not subject to review by this Court. See Cortes, 80 N.Y.2d at 212. And, in fact, it is apparent that, in defendant's case, the 10 days from the first dismissal of the information to the filing of the People's motion to reargue was a reasonable period of time for the People to file that motion. See Jennings, 248 A.D.2d at 267 (21 days from erroneous dismissal of indictment to 64 reinstatement of indictment were properly excluded, because "that time was used for the prosecution to move to vacate the erroneous dismissal and the court to decide that motion"). After all, the 10-day period from the first dismissal of the information in defendant's case to the filing of the People's motion to reargue was much shorter than the 30-day period for filing a motion to reargue that is specified in C.P.L.R. Rule 2221(d) (3). Cf. People v. Muir, 33 A.D.3d 1058, 1059-60 (3d Dep't 2006) (lower court properly dismissed indictment pursuant to C. P. L. § 30.30, given that People's delay in perfecting appeal was "patently unreasonable," in part because People failed to perfect appeal within time limits imposed by Appellate Division's rules or to request an extension of time to perfect appeal); see also People v. D'Alessandro, 13 N.Y.3d 216, 219 (2009) (Court cited to C.P.L.R. Rule 2221 in ruling on whether Appellate Division properly characterized defendant's application as motion to reargue); People v. Jennings, 69 N.Y.2d 103, 113-14 (1986) (Court cited to C.P.L.R. Rule 2221 in ruling on claim that motion should have been referred to a particular judge). In sum, because February 5, 2013--not February 4, 2013--was the date on which the Criminal Court initially dismissed the information, February 15, and because the 10 days from February 5 to 2013 were excludable pursuant to C.P.L. 65 § 30.30(4) (a), the Appellate Term correctly concluded that none of the 11 days from February 4 to February 15, 2013 was chargeable to the People. F. Of the Remaining Periods of Time, at most 58 Days Were Chargeable to the People. With respect to the remaining periods of time--which were not subject to dispute on the People's appeal to the Appellate Term-- the Criminal Court correctly held that the People were chargeable with periods of time totaling no more than 58 days: 1) the 15 days from April 19 to May 4, 2011; 2) the 8 days from February 23 to March 2, 2012; 3) the 7 days from May 1 to May 8, 2012; 4) the 22 days from August 15 to September 6, 2012; and 5) the 6 days from October 3 to October 9, 2012. Apart from those 58 days, none of the remaining time was chargeable to the People, for the following reasons: 1) none of the 14 days from the court date of February 9, 2011 to the next court date of February 23, 2011 was chargeable, because on February 9, the People announced in court their readiness for trial, and because the adjournment to February 23 was for the People to provide discovery material to defendant (see supra at 9) (see Cortes, 80 N.Y.2d at 210; see also C.P.L. § 30.30[4] [a]); 66 2) none of the 48 days from May 4, 2011 to the next court date of June 21, 2011 was chargeable, because on May 4, the People served and filed, off calendar, a statement of readiness (see supra at 10-11) (see Stirrup, 91 N.Y.2d at 440; 3) none of the 53 days from the court date of June 21, 2011 to the next court date of September 13, 2011 was chargeable, because on June 21, the People announced in court their readiness for trial see supra at 10-11) see Cortes, 80 N.Y.2d at 210); 4) none of the 57 days from the court date of September 13, 2011 to the next court date of November 9, 2011 was chargeable, because on September 13, the People announced in court their readiness for trial (see supra at 11) (see Cortes, 80 N. Y .2d at 210); 5) none of the 32 days from March 2, 2012 to the next court date of April 3, 2012 was chargeable, because on March 2, the People served and filed, off calendar, a statement of readiness (see supra at 12-13) (~ Stirrup, 91 N.Y.2d at 440); 6) none of the 28 days from the court date of April 3, 2012 to the next court date of May 1, 2012 was chargeable, because on April 3, the People announced in 67 court their readiness for trial (see supra at 13) (see Cortes, 80 N.Y.2d at 210); 7) none of the 42 days from May 8, 2012 to the next court date of June 19, 2012 was chargeable, because on May 1, 2012--the court date immediately preceding May 8--the People requested a one-week adjournment, but the court instead adjourned the case to June 19, 2012, and because, before May 1, the People had announced their readiness for trial (see supra at 13, 41-43) see Goss, 87 N.Y.2d at 797; Cortes, 80 N.Y.2d at 208, 210; Boumoussa, 104 A. D. 3d at 863; Rivera, 223 A. D. 2d at 4 7 6) ; 8) none of the 57 days from the court date of June 19, 2012 to the next court date of August 15, 2012 was chargeable, because on June 19, the People announced in court their readiness for trial see supra at 13) (see Cortes, 80 N.Y.2d at 210); 9) none of the 27 days from September 6, 2012 to the next court date of October 3, 2012 was chargeable, because on September 6, the People served and filed, off calendar, a statement of readiness (see supra at 14) (see Stirrup, 91 N.Y.2d at 440); 68 10) none of the 56 days from October 9, 2012 to the next court date of December 4, 2012 was chargeable, because on October 9, the People served and filed, off calendar, a statement of readiness (see supra at 14-15) (see Stirrup, 91 N.Y.2d at 440); 11) none of the 63 days from the court date of December 4, 2012 to the next court date of February 5, 2013 was chargeable, because on December 4, 2012, defendant served and filed his 30.30 motion, which the court decided on February 5, 2013 (see supra at 15-16, 18) (see C.P.L. § 30.30[4] [a]; People v. Sinistaj, 67 N.Y.2d 236, 240 n.3 [1986]); Dean, 45 N.Y.2d at 658 [period during which 30. 30 motion was being considered by court was excludable]); and 12) none of the 18 days from February 15, 2013 to the next court date of March 5, 2013 was chargeable to the People, because on February 15, the People served and filed their motion to reargue the 30. 30 motion, which the court decided on March 5 (see supra at 20-21) 69 (see C.P.L. § 30.30[4] [a]; Sinistaj, 67 N.Y.2d at 240 n.3).1B In sum, with respect to the remaining periods of time--which were not subject to dispute on the People's appeal to the Appellate Term--the Criminal Court correctly held that the People were chargeable with periods of time totaling no more than 58 days. G. Conclusion In sum, the Criminal Court's dismissal of the information on C.P.L. § 30.30 grounds was erroneous because the People were chargeable with, at most, only 77 days, which is less than the 90- day statutory limitation period applicable to defendant's case. Consequently, the Appellate Term's order affirming the Criminal 18 Defendant's motion to reargue, the People's response to that motion, and the Criminal Court's decision on defendant's motion to reargue did not address the period of time from March 5, 2013, when defense counsel requested an adjournment of "a couple [of] weeks" and conveyed that he wanted to make a motion to reargue the Criminal Court's decision denying defendant's 30. 30 motion, to May 8, 2013, when the Criminal Court issued its decision on defendant's motion to reargue and again dismissed the information (see supra at 21-22, 25-26). Consequently, any claims based on that period are not subject to review by this Court. See C.P.L. § 470.05(2); N.Y. Const. art. VI; Nieves, 67 N.Y.2d at 128, 136. Hence, this brief does not address whether that period was chargeable to the People. 70 Court's dismissal of the information should be reversed, and the information should be reinstated. 71 CONCLUSION THE ORDER OF THE APPELLATE TERM SHOULD BE REVERSED AND THE INFORMATION SHOULD BE REINSTATED. Dated: Brooklyn, New York July 28 , 2016 LEONARD JOBLOVE ANN BORDLEY SETH M. LIEBERMAN Assistant District Attorneys of Counsel Respectfully submitted, KENNETH P. THOMPSON District Attorney Kings County 72
