CRIMINAL PROCEDURE LAW SECTION 30.30 (1) MANUAL

CRIMINAL PROCEDURE LAW

SECTION 30.30 (1) MANUAL

Spring, 2020 Edition

(Including 2020 amendments)

DREW R. DuBRIN

PECIAL ASSISTANT PUBLIC DEFENDER

PPEALS SECTION

ONROE COUNTY PUBLIC DEFENDER’S OFFICE

 IN GENERAL: Criminal Procedure Law § 30.30, also known as “statutory

speedy trial,” requires the prosecution to establish its readiness for trial on an

“offense” within a specific codified time period after the commencement of a

criminal action (which occurs, generally, by the filing of the initial

accusatory). If the prosecution is not ready for trial within the time required,

the defendant may be entitled to dismissal of the accusatory instrument,

pursuant to CPL 30.30 (1), or release pending trial, pursuant to CPL 30.30 (2).

The statute excludes certain designated periods from the time calculation.

o Rights Afforded

 This statute does not afford the defendant the right to a “speedy

trial.” That right is provided by CPL 30.20, the Sixth and

Fourteenth Amendments to the United States Constitution, and

Article I, Section Six (the due process clause) of the New York

State Constitution. (See United States v Tigano, 880 F3d 602 [2d

Cir 2018]; People v Wiggins, 31 NY3d 1 [2018]; People v Singer,

44 NY2d 241 [1978]); People v Portorreal, 28 Misc 3d 388

[Crim Ct, Queens County 2010].)

 The statute does not require the People to speedily commence a

criminal action (i.e., file an accusatory) after the commission of

a crime (People v Faulkner, 36 AD3d 1009 [3d Dept 2007]).

 A defendant’s rights under this statute are not dependent in any

way on whether he or she is ready for trial (People v Hall, 213

AD2d 558 [2d Dept 1995]).

 Under 30.30 (1), the prosecution’s failure to establish its

readiness within the designated time period entitles the defendant

to dismissal of the accusatory instrument upon which the

defendant is being prosecuted – whether it is an indictment, an

information, a simplified information (i.e., a simplified traffic

information, a simplified parks information, or a simplified

environmental conservation information), a prosecutor’s

information, or a misdemeanor complaint (see CPL 1.20 [1], [4]

[5] [b]; CPL 170.30 [1] [e]; CPL 210.20 [g]).

• Felony complaints are not subject to dismissal pursuant to

CPL 30.30 (1).

o Interpreting CPL 30.30

 In determining whether a defendant’s 30.30 rights have been

violated, one must look to the statute’s provisions, as well as case

law interpreting the provisions (see e.g. People v Parris, 79

NY2d 69 [1992]; People v Sturgis, 38 NY2d 625 [1976]).

o Scope

 “Offense” requirement: An accusatory is subject to dismissal

pursuant to CPL 30.30 (1) only if it charges an “offense,” a

felony, misdemeanor, violation, or traffic infraction (CPL 30.30

[1] [a-d]; Penal Law § 55.10 [1-4]).

• An “offense” is “conduct for which a sentence to a term of

imprisonment or to a fine is provided by any law of [New

York], or by any order, rule or regulation of any

governmental instrumentality authorized by law to adopt

the same” (Penal Law § 10.00 [1]).

 “Felony,” “Misdemeanor,” or “Violation” requirement: An

accusatory instrument will be subject to 30.30 dismissal only

where the defendant has been charged at some point during the

“criminal action” with a felony, misdemeanor, or violation.

 Traffic infractions *NEW*: Subdivisions one and two of 30.30

have been amended to provide that for 30.30 purposes, “the term

offense shall include vehicle and traffic infractions.” This is in

line with Penal Law § 55.10 (4), which defines a traffic infraction

as an “offense,” but not “a violation or a misdemeanor by virtue

of the sentence prescribed therefor.” Thus -- though a traffic

infraction is not a felony, misdemeanor, or violation offense

(Penal Law §§ 10.00 [3], 55.10 [3] [a], [4]) -- a simplified traffic

information may be dismissed on 30.30 grounds where the

defendant was also charged at some point in the same criminal

action with a felony, misdemeanor, or violation (see CPL 30.30

[1] [a-d]).

 Municipal ordinances: A breach of a municipal ordinance may

constitute a “violation” “offense,” even where punishable only

by fine (People v Lewin, 8 Misc 3d 99 [App Term 2005]). Penal

Law § 10.00 (1) defines an “offense” in part as “conduct for

which a sentence to a . . . fine is provided by any . . . ordinance

of a political subdivision of this state . . . .” Penal Law

§ 55.10 (3) defines a “violation” to include an offense not

defined by the Penal Law for which “the only sentence provided

therein is a fine.” Trial level courts writing on the issue are split

as to whether a violation of a municipal ordinance for which no

imprisonment may be imposed may be subject to 30.30 dismissal

(see People v Kleber, 168 Misc 2d 824 [Muttontown Just Ct

1996] [concluding that ordinances imposing only a fine are not

subject to CPL 30.30 dismissal]; People v Vancol, 166 Misc 2d

93 [Westbury Just Ct 1995] [determining that all ordinances are

subject to CPL 30.30]; People v Olsen, 37 Misc 3d 862

[Massapequa Park Just Ct 2012] [observing, in footnote,

analytical error in Kleber decision]).

 Homicide Exception: Pursuant to 30.30 (3) (a), 30.30 is not

applicable where the defendant is charged with murder in the first

degree (Penal Law § 125.27), murder in the second degree (Penal

Law § 125.25), aggravated murder (Penal Law § 125.26),

manslaughter in the first degree (Penal Law § 125.20),

manslaughter in the second degree (Penal Law § 125.15), or

criminally negligent homicide (Penal Law § 125.10). It should

be noted that if the defendant is not charged with any of these

particular homicide offenses and is instead charged with

aggravated manslaughter in the first or second degree (Penal Law

§§ 125.22, 125.21), aggravated criminally negligent homicide,

(Penal Law § 125.11), or any vehicular manslaughter offense

(Penal Law §§ 125.12, 125.13, 125.14), the accusatory may be

subject to dismissal pursuant to CPL 30.30 (1).

• Non-homicide charges that are joined: The homicide

exception applies even if a non-homicide charge is joined

(People v Ortiz, 209 AD2d 332, 334 [1st Dept 1994]).

• Severance: A defendant is not entitled to severance of

non-homicide counts for the purposes of subjecting the

non-homicide counts to 30.30 dismissal (People v Ortiz,

209 AD2d at 334). And it has been held that the homicide

exception applies to non-homicide charges severed from

homicide charges on the theory that "there can be only one

criminal action for each set of criminal charges brought

against a particular defendant” (People v Steele, 165 Misc

2d 283 [Sup Ct 1995]; see also People v Lomax, 50 NY2d

351 [1980]).

• Attempted homicides: The homicide exception does not

apply to the mere attempt to commit any of the enumerated

homicides (see People v Ricart, 153 AD3d 421 [1st Dept

2017]; People v Smith, 155 AD3d 977 [2d Dept 2017]).

• Dismissal or reduction of homicide charges: Courts

have not yet resolved whether 30.30 (3) (a) is applicable

to non-homicide charges in a criminal action in which the

defendant initially faced both homicide and non-homicide

charges and the homicide charge is later dismissed

outright or reduced to a non-homicide charge. However,

courts have held that in the 30.30 context, there can be just

one criminal action for each set of charges brought against

a defendant and that, generally, the rights that apply are

those applicable to the highest level offense ever charged

in the criminal action (Lomax, 50 NY2d 351; People v

Cooper, 98 NY2d 541 [2002]; People v Tychanski, 78

NY2d 909 [1991]).

 TIME PERIODS

o In General: With limited statutory exception, the time period within

which the prosecution must be ready for trial is determined by the

highest level offense ever charged against the defendant in the criminal

action (see CPL 30.30 [1] [a], [b], [c]; Cooper, 98 NY2d 541;

Tychanski, 78 NY2d 909).

 Felony: When the highest level offense ever charged is a felony,

the prosecution must establish its readiness within six months

(which is not necessarily 180 days) of the commencement of the

criminal action (see e.g. People v Cox, 161 AD3d 1100, 1100 [2d

Dept 2018]).

 “A” misdemeanor: When the highest level offense ever charged

is an “A” misdemeanor, the prosecution must demonstrate that it

is ready within 90 days.

 “B” Misdemeanor: When the highest offense ever charged is a

“B” misdemeanor, the prosecution must establish its readiness

within 60 days.

 Violations: And when the highest offense ever charged is just a

violation, the prosecution must demonstrate its readiness for trial

within 30 days.

o Multi-count accusatory instruments: With respect to multi-count

accusatory instruments, the controlling time period is the one applying

to the top count (Cooper, 98 NY2d at 543).

o Multiple accusatory instruments: Where the criminal action results

in multiple accusatory instruments, the general rule is that the

applicable time period is the one that applies to the highest level offense

ever charged (Tychanski, 78 NY2d 909). Exceptions to this general rule

exist under CPL 30.30 (5) (c), (d), and (e).

o Reduced charges: Although there are statutory exceptions (see below),

generally speaking, the most serious charge ever brought against the

defendant determines which time period applies, regardless of whether

that charge is ultimately reduced (Cooper, 98 NY2d 541; Tychanski,78

NY2d 909]; People v Cooper, 90 NY2d 292 [1997]).

 Examples: Where an A misdemeanor is reduced to a B

misdemeanor, the 90 day period applies (Cooper, 98 NY2d 541).

Where a felony complaint is later superseded by a misdemeanor

indictment, the six month period applies (Tychanski, 78 NY2d

909).

 Statutory Exceptions:

• Where a felony complaint has been replaced by, or

converted to, a misdemeanor complaint or

misdemeanor information (and not a misdemeanor

indictment): Unless otherwise provided, the applicable

time period is the one applying to the highest level offense

charged in the new accusatory (CPL 30.30 [7] [c]).

o Inapplicability of exception: This exception does

not apply if “the aggregate of [the period applicable

to the new accusatory instrument] and the period of

time, excluding periods provided in [30.30 (4)],

already elapsed from the date of the filing of the

felony complaint to the date of the filing of the new

accusatory instrument exceeds six months.” In such

circumstances, the original, six month time period

applies (CPL 30.30 [7] [c]).

• Where a felony count of the indictment has been

reduced to a petty offense on legal insufficiency

grounds and as a result, a reduced indictment or

prosecutor’s information has been filed: Unless

otherwise provided, the applicable time period is the one

applying to the highest level offense charged in the new

accusatory (CPL 30.30 [7] [e]).

o Inapplicability of exception: This exception does

not apply if the period of time between the filing of

the indictment and the filing of the new accusatory

(less any 30.30 [4] excludable time) plus the period

applicable to the highest level offense charged in the

new accusatory exceeds six months. If that period

does exceed six months, then the time period

applicable remains six months (CPL 30.30 [7] [e]).

o Increased charges: Where the original charge is subsequently elevated

to a more serious charge, the applicable time period is the one applying

to the more serious charge (Cooper, 90 NY2d 292).

o Calculating time period

 Whether to count day the criminal action commenced:

• Where the prosecution must be ready within 90, 60, or

30 days: To determine the date by which the People must

be ready when the time period is being measured by days

(where the highest level offense charged is a misdemeanor

or violation), the day on which the action commenced is

to be excluded from the time calculation (People v Stirrup,

91 NY2d 434, 438 n 2 [1998]; People v Page, 240 AD2d

765 [2d Dept 1997]). For example, in a case in which the

criminal action commenced on January 1 with the filing of

a complaint charging only a violation, the first day counted

in the calculation is January 2 and the prosecution must be

ready by the end of the 30

day, which is January 31.

• Where the prosecution must be ready within six

months: Where the time period is to be measured in terms

of months (when the highest level offense charged is a

felony), the day the criminal action commenced is not

excluded from the calculation. For example, where the

criminal action commenced with the filing of a felony

complaint on July 19, the prosecution must be ready by

end of the day on January 19 (see People v Goss, 87 NY2d

792, 793-794 [1996]).

 Expiration date falling on a non-business day: The Third

Department has extended the People’s time to establish their

readiness to the next business day where the expiration date falls

on the weekend or a holiday (see People v Mandela, 142 AD3d

81 [3d Dept 2016]; see also People v Powell, 179 Misc 2d 1047

[App Term 1999]).

 Six-month time period measured in calendar months: Where

six months is the applicable time period (where the highest level

offense charged is a felony), the period is computed in terms of

calendar months and, thus, the applicable felony time period may

be longer than 180 days (People v Delacruz, 241 AD2d 328 [1st

Dept 1997]).

 COMMENCING THE 30.30 CLOCK

o Commencement of criminal action: The time period starts when the

criminal action has commenced.

 General rule: It is the general rule that the criminal action is

deemed to commence with the filing of the very first accusatory

instrument (People v Stiles, 70 NY2d 765 [1987]; People v

Sinistaj, 67 NY2d 236 [1986]; People v Brown, 23 AD3d 703

[3d Dept 2005]; People v Dearstyne, 215 AD2d 864 [3d Dept

1995]; see CPL 1.20 [17] [defining commencement of the

criminal action as the filing of the first accusatory]).

• Dismissal of original charges: Unless otherwise

provided, this rule governs even if the original charges are

dismissed (People v Osgood, 52 NY2d 37 [1980]).

• This rule applies even if the very first accusatory is a

simplified traffic information since, under the 2020

amendment, is an offense subject to 30.30 dismissal (CPL

30.30 [1] [e]; see People v May, 29 Misc 3d 1 [App Term

2010] [holding that prior to the January 1, 2020 amendments,

a simplified traffic information does not commence a criminal

action for 30.30 purposes because of the inapplicability of

30.30 to traffic violations]; but see CPL 30.30 [7] [c]

[criminal action commences with first appearance on

appearance ticket]).

• Superseding accusatory: Unless otherwise provided, this

rule applies even if the original accusatory is “superseded”

by a new accusatory (People v Sanasie, 238 AD2d 186 [1st

Dept 1997]).

• Different charges: Unless otherwise provided, this rule

applies even if the new charges replacing the old charges

allege a different crime, so long as the new accusatory

directly derives from the incident charged in the initial

accusatory. Once a criminal action commences, the action

includes the filing of any new accusatory instrument

directly deriving from the initial one. (CPL 1.20 [16];

People v Farkas, 16 NY3d 190 [2011]; see People v

Chetrick, 255 AD2d 392 [2d Dept 1998] [acts “so closely

related and connected in point of time and circumstance of

commission as to constitute a single criminal incident”];

see also People v Nelson, 68 AD3d 1252 [3d Dept 2009]

[“To the extent that ‘the felony complaint and

subsequently filed indictment allege[d] separate and

distinct criminal transactions, the speedy trial time clock

commence[d] to run upon the filing of the indictment with

respect to the new charges’”]; People v Bigwarfe, 128

AD3d 1170 [3d Dept 2015] [counts two and three of the

superseding indictment should not be dismissed as they

allege a separate and distinct drug transaction from the one

alleged in the felony complaint; count one, however, was

required to be dismissed as it did directly derive from the

felony complaint].)

• Jurisdictionally defective accusatory: Unless otherwise

provided, this rule governs even if the first accusatory is

jurisdictionally defective (People v Reyes, 24 Misc 3d 51

[App Term 2009]).

• Sealed indictment: Unless otherwise provided, the filing

of a sealed indictment, as the first accusatory, commences

the criminal action.

o Statutory exceptions to the first accusatory instrument rule:

 Appearance ticket: If the defendant has been issued an

appearance ticket, the criminal action is said to commence when

the defendant first appears in court, not when the accusatory

instrument is filed (CPL 30.30 [7] [b]; Parris, 79 NY2d 69).

• Incarceration: The date that the defendant first appears in

court controls, regardless of whether the defendant is

detained on an unrelated charge and was consequently

unable to appear in court on the date specified on the

appearance ticket or whether the prosecution failed to

exercise due diligence to locate the incarcerated defendant

(Parris, 79 NY2d 69).

• No accusatory filed: The date the defendant first appears

in court controls, even if no accusatory instrument is filed

at the time of the defendant’s first court appearance

(People v Stirrup, 91 NY2d 434 [1998]).

• No judge: The date the defendant first appears in court is

determinative regardless of whether he actually appears

before a judge (Stirrup, 91 NY2d 434).

• Appearance ticket issued by judge in lieu of a bench

warrant: Where a judge directs that an “appearance

ticket” be issued upon a defendant’s failure to appear in

court, in lieu of a bench warrant, the notice to appear

should not be deemed an appearance ticket for 30.30

purposes, as an appearance ticket is defined by the CPL as

a notice to appear issued by a law enforcement officer, not

a judge, and before, not after, the accusatory has been filed

(CPL 1.20 [26], 150.10). Thus, where the judge directs

that an appearance ticket be filed to secure the defendant’s

presence upon his failure to appear in court as previously

scheduled, the criminal action will be deemed to have

commenced with the filing of the initial accusatory, not

upon the defendant’s appearance on the judicially directed

“appearance ticket.”

 Felony complaint converted to an information, prosecutor’s

information, or misdemeanor complaint: The criminal action

(i.e., 30.30 clock) commences with the filing of the new

accusatory, with the applicable time period being that which

applies to the most serious offense charged in the new accusatory

(CPL 30.30 [7] [c]).

• Inapplicability of exception. This is true unless “the

aggregate of [the period applicable to the new accusatory

instrument] and the period of time, excluding periods

provided in [30.30 (4)], already elapsed from the date of

the filing of the felony complaint to the date of the filing

of the new accusatory instrument exceeds six months.”

Under such circumstances, the criminal action commences

with the filing of the felony complaint and the six month

time period applies (CPL 30.30 [7] [c]).

• Misdemeanor indictments: Where a felony complaint is

later superseded by a misdemeanor indictment, the

criminal action is deemed to commence with the filing of

the felony complaint and the six month period continues

to apply (People v Tychanski, 78 NY2d 909 [1991]).

 Felony indictment reduced to a misdemeanor or petty

offense, resulting in a reduced indictment or misdemeanor

information being filed: A criminal action commences with the

filing of the new accusatory, with the applicable time being that

applying to the most serious offense charged in the new

accusatory (CPL 30.30 [7] [e]).

• Inapplicability of exception: This rule applies unless the

period of time between the filing of the indictment and the

filing of the new accusatory (less any excludable time [see

30.30 (4)]) plus the period applicable to the highest level

offense charged in the new accusatory exceeds six months.

If that period does exceed six months, then the criminal

action will be deemed to have commenced as if the new

accusatory had not been filed (typically with the filing of

the first accusatory) and the period applicable is that which

applies to the indicted (felony) charges, i.e., six months

(CPL 30.30 [7] [e]).

 Withdrawn guilty pleas: Clock commences when the guilty

plea is withdrawn (CPL 30.30 [7] [a]).

 Withdrawn pleas of not responsible by reason of mental

disease or defect: Time period commences upon withdrawal of

plea (People v Davis, 195 AD2d 1 [1st Dept 1994]).

 New trial ordered: When a new trial has been ordered, the time

period begins when the order has become final (CPL

30.30 [7] [a]; People v Wilson, 86 NY2d 753 [1995]; People v

Wells, 24 NY3d 971 [2014]).

• Motion for reargument: Where the prosecution has

moved for reargument of an appeal it has lost, the order of

the appellate court directing a new trial becomes final

when the appellate court has denied the prosecution’s

motion (People v Blancero, 289 AD2d 501 [2d Dept

2001]).

• Pre-order delay: Periods of delay occurring prior to the

new trial order are not part of the computations (People v

Wilson, 269 AD2d 180 [1st Dept 2000]).

o Proving when an accusatory was filed: The time stated on arrest

warrant indicating when the original complaint was filed is generally

sufficient proof of when the original complaint was filed (People v

Bonner, 244 AD2d 347 [2d Dept 1997]).

o Indictment deriving from multiple felony complaints filed on

different days and involving separate incidents: Where different

counts of an indictment derive from different felony complaints filed

on separate days and involving distinct incidents, there will be multiple

criminal actions having distinct time periods. Counts deriving from

such separate felony complaints must be analyzed separately, possibly

resulting in the dismissal of some but not all counts of an indictment

(People v Bigwarfe, 128 AD3d 1170 [3d Dept 2015]; People v Sant,

120 AD3d 517 [2d Dept 2014]).

 ESTABLISHING READINESS

o Introduction: The prosecution will be deemed ready for trial only

where (1) it has made an effective announcement of readiness; (2) it is

in fact ready (it has done everything required of it to bring the case to

trial); (3*NEW*) it has provided a certification of compliance with

disclosure requirements under CPL Article 245; (4 *NEW*) in local

court accusatory cases, it has provided a certification of compliance

with local court accusatory instrument requirements; and (5 *NEW*)

the court has conducted an inquiry “on the record” as to the

prosecution’s actual readiness.

o Announcement of readiness: The prosecution will be deemed ready

for trial only if it has announced it is ready – either in open court with

counsel present or by written notice to defense counsel and the court

clerk (People v Kendzia, 64 NY2d 331, 337 [1985]).

 On-the-record: Off-the-record assertions of readiness are

insufficient (Kendzia, 64 NY2d at 337).

• Recorded: This means that in-court assertions of

readiness must be recorded by either the court reporter or

the court clerk (Kendzia, 64 NY2d at 337).

 Present readiness: Statement must be of present readiness, not

future readiness. A prosecutor’s assertion, “I’ll be ready next

Monday," for example, is invalid.” (Kendzia, 64 NY2d at 337.)

 Contemporaneous: The assertion of readiness must be

contemporaneous with readiness. It is insufficient for the

prosecution to assert for the first time in an affirmation in

opposition to a 30.30 motion that it was ready for trial on an

earlier date (Kendzia, 64 NY2d at 337, People v Hamilton, 46

NY2d 932, 933 [1979]).

 Court congestion: Delays caused by pre-readiness court

congestion do not excuse the prosecution from timely declaring

its readiness for trial (People v Chavis, 91 NY2d 500 [1998]).

 Defendant’s presence in court: The defendant need not be

present for the statement of readiness to be effective (People v

Carter, 91 NY2d 795 [1998]).

 New accusatory: Where a new accusatory has been filed,

following the dismissal of the original accusatory, the

prosecution is required to announce its readiness upon the filing

of the new accusatory, irrespective of whether it announced its

readiness with respect to the original accusatory (People v

Cortes, 80 NY2d 201, 214-215 [1992]).

 New trial ordered: When a new trial has been ordered, the

prosecution cannot be ready until it has re-announced their

readiness (People v Wilson, 86 NY2d 753 [1995]; People v

Dushain, 247 AD2d 234 [1st Dept 1998]).

 Off-calendar statement of readiness (a.k.a. Kendzia letter):

To be effective, the written statement of readiness must be filed

with the court clerk within the statutory period and served on the

defendant “promptly” thereafter (Chavis, 91 NY2d at 506;

People v Smith, 82 NY2d 676, 678 [1993]).

• Proper service:

o Service of declaration of readiness after

expiration of time period: It has been held that the

prosecution is not required to have served the

statement of readiness within the statutory period so

long as service takes place “promptly” after a timely

filing of the statement of readiness (see People v

Freeman, 38 AD3d 1253 [4th Dept 2007]).

o Service on former counsel: Service of statement of

readiness on defendant’s former counsel found to be

ineffective (People v Chu Zhu, 171 Misc 2d 298

[Sup Ct 1997], revd on other grounds, 245 AD2d

296 [2d Dept 1997]).

o Service on counsel at wrong address: A court has

found service of statement of readiness on counsel

at incorrect address may still be effective if the

People “did not have actual notice that the address

was incorrect prior to service of the” statement of

readiness (People v Tejada, 59 Misc 3d 422, 424

[Crim Ct, Bronx County 2018]).

o Certification of compliance with disclosure requirements (CPL

30.30 [5]) *NEW*: Unless the defendant has waived CPL 245.20

disclosure requirements or the court has made an individualized finding

of “special circumstances,” the prosecution will not be considered

ready for trial unless its statement of readiness is (1) “accompanied or

preceded by a certification of good faith compliance with the disclosure

requirements of [CPL 245.20] and (2) the defense has been “afforded

an opportunity to be heard on the record as to whether the disclosure

requirements have been met.” (CPL 30.30 [5]; CPL 245. 50 [3].)

 Exempted material: The prosecution may certify good faith

compliance despite the fact that it has not provided certain lost

or destroyed material or material subject to a protective order

(CPL 245.50 [1]).

 Questions concerning new provision’s application: CPL

245.50 (1) provides that the certificate of compliance “shall

identify the items provided.” It further provides that “[n]o

adverse consequences to the prosecution or the prosecutor shall

result from the filing of a certificate in good faith . . . .” The

question arises whether the prosecution will be deemed not to

have effectively announced its readiness where it has filed a

certificate of compliance that has inadvertently omitted an item

it has provided.

o Certification of compliance with local court accusatory instrument

requirements (CPL 30.30 [5-a]) *NEW*: Where the defendant is

being prosecuted by a local court accusatory instrument, the

prosecution will not be considered ready for trial unless the prosecution

has certified that all counts of the accusatory meet the statutory

requirements for a local court accusatory instrument under CPL 100.15

and 100.40 (CPL 30.30 [5-a]).

o Court inquiry into prosecution’s actual readiness (CPL 30.30 [5])

*NEW*: The prosecution will not be deemed ready upon its statement

of readiness unless the court has inquired “on the record” as to the

prosecution’s actual readiness.

 Questions about application: There are number of unsettled

questions about the new provision’s application, such as the (1)

depth of the inquiry required; (2) whether the People will be

deemed unready if the inquiry is not sufficiently probing; and (3)

whether the failure to object to lack of inquiry or to the depth of

the inquiry will waive the inquiry requirement. As the third

point, it should be argued that given the provision’s mandatory

language – “shall make an inquiry” – makes the inquiry

requirement not waivable by silence (see People v Rudolph, 21

NY3d 497, 501 [2013]).

o Actual readiness: The prosecution must be actually ready for trial for

its announcement of readiness to be effective (People v Brown, 28

NY3d 392 [2016]).

 Readiness defined: The prosecution will be deemed ready

where it has done all that is required of it to bring the case to a

point where it can be tried “immediately” (People v Robinson,

171 AD2d 475, 477 [1st Dept 1991]; People v England, 84 NY2d

1, 4 [1994]; People v Kendzia, 64 NY2d 331, 337 [1985]). The

prosecution will be ready for trial if the case cannot go to trial

due to no fault of its own (People v Goss, 87 NY2d 792 [1996]).

 Presumption: Unless shown otherwise, the prosecution’s

statement of readiness will sufficiently demonstrate its actual

readiness (People v McCorkle, 265 AD2d 736 [3d Dept 1999]).

The announcement of readiness will be presumed to be accurate

and truthful (Brown, 28 NY3d at 399-400; People v Bonilla, 94

AD3d 633, 633 [1st Dept 2012]).

 Compliance with CPL Article 245 disclosure requirements

*NEW*: It is evident that it is the intent of the legislature for

the 2020 amendment to require with not only that the prosecution

file and serve a certificate stating and demonstrating that it has

complied with its disclosure obligations, but to also require that

the statement be accurate and truthful – i.e., to condition

readiness on fulfillment of discovery obligations. CPL 245.50

(1) explicitly allows the prosecution to file and serve its

certificate of compliance only “[w]hen the prosecution has

provided the discovery.” CPL 30.30 (5) and CPL 245.50 (4)

explicitly give the defendant an opportunity to challenge in court

that the prosecution has in fact provided the required discovery.

And CPL 245.50 (3) implicitly expresses that the prosecution

cannot be ready unless it has provided discoverable material by

expressly carving out an exception to that rule: “A court may

deem the prosecution ready for trial pursuant to section 30.30 of

this chapter where information that might be considered

discoverable under this article cannot be disclosed because it has

been lost, destroyed, or otherwise unavailable as provided by

paragraph (b) of subdivision one of section 245.80 of this article,

despite diligent and good faith efforts, reasonable under the

circumstances.

 Pre-arraignment: The prosecution can be ready for trial prior

to the defendant’s arraignment on the indictment, as arraigning

the defendant is the court’s function (England, 84 NY2d 1;

People v Price, 234 AD2d 973 [4th Dept 1997]). However,

where the prosecution has secured an indictment so late in the

statutory period that it is impossible to arraign the defendant

within the period, the statement of readiness prior to arraignment

is but illusory (People v Goss, 87 NY2d 792 [1996]).

• Two day rule: Defendant can be arraigned within the

prescribed period only if the indictment was filed at least

two days before expiration of the period (CPL 210.10 [2]).

Therefore, for the prosecution’s pre-arraignment

announcement of readiness to be effective, the prosecution

must have indicted the defendant at least two days before

the time period has expired (Carter, 91 NY2d 795];

People v Freeman, 38 AD3d 1253 [4th Dept 2007];

People v Gause, 286 AD2d 557 [3d Dept 2001]).

 Subsequent statement of not ready: After the prosecution has

announced ready, its subsequent statement that it is not ready for

trial does not necessarily mean that it was not previously ready

for trial, as it had claimed. Indeed, a statement of readiness is

presumed to be accurate and truthful (see People v Bonilla, 94

AD3d 633, 633 [1st Dept 2012]). Generally, it can be said that

the prosecution was not previously ready only if it is shown that

its announcement of readiness was made in bad faith or did not

reflect an actual present state of readiness (People v Santana, 233

AD2d 344 [2d Dept 1996]; People v South, 29 Misc 3d 92 [App

Term 2010]).

 Off-calendar declaration of readiness and a request for an

adjournment at next court appearance: Such an off-calendar

declaration of readiness is to be “presumed truthful and

accurate,” though such a presumption “can be rebutted by a

defendant’s demonstration that the People were not, in fact ready

at the time the statement was filed.” (Brown, 28 NY3d at 399-

400).

• People’s burden: “If the People announce that they are

not ready after having filed an off-calendar statement of

readiness, and the defendant challenges such statement —

at a calendar call, in a CPL 30.30 motion, or both — the

People must establish a valid reason for their change in

readiness status to ensure that a sufficient record is made

for the court to determine whether the delay is

excludable.” (Brown, 28 NY3d at 399-400.)

• Defendant’s burden: “The defendant then bears the

ultimate burden of demonstrating, based on the People’s

proffered reasons and other relevant circumstances, that

the prior statement of readiness was illusory” (Brown, 28

NY3d at 400).

 Subsequent unavailability of evidence: If, after the

announcement of readiness, the prosecution requests an

adjournment to obtain additional evidence, the statement of

readiness will be considered illusory unless the prosecution can

show that, at the time of its statement of readiness, the evidence

was available or its case, at the time, did not rest on the

availability of the additional evidence (see People v Sibblies, 22

NY3d 1174, 1181 [2014] [Graffeo, J., concurring]; People v

Bonilla, 94 AD3d 633, 633 [1st Dept 2012]).

 Impediments to actual readiness:

• Court determination that prosecution is not in fact

ready *NEW* (CPL 30.30 [5]): The prosecution will be

deemed unready for trial if the court determines, after

conducting the statutorily required inquiry, that the

prosecution is not ready for trial.

• Failure to meet disclosure requirements of CPL Article

245 *NEW* (CPL 30.30 [5]; CPL 245.50).

• Local court accusatory instrument’s lack of

compliance with the misdemeanor accusatory

instrument requirements of CPL 100.15 and 100.40

(CPL 30.30 [5-a]): The prosecution will not be ready for

trial where local court accusatory contains a count that

does not comply with the misdemeanor accusatory

instrument requirements of CPL 100.15 and 100.40 unless

such count has been dismissed.

• Indictment not yet filed: The prosecution is not ready

for trial when the indictment has been voted by the grand

jury but has not yet been filed with the clerk of the court

(People v Williams, 32 AD3d 403 [2d Dept 2006]; People

v Gause, 286 AD2d 557 [3d Dept 2001]).

• Failure to provide grand jury minutes for inspection:

The prosecution can’t be ready for trial where it has failed

to provide grand jury minutes necessary to resolve a

motion to dismiss (People v McKenna, 76 NY2d 59

[1990]; People v Harris, 82 NY2d 409 [1993]; see also

People v Miller, 290 AD2d 814 [3d Dept 2002] [the time

chargeable to prosecution, attributable to post-readiness

delay in producing grand jury minutes, commences with

date defendant moved for inspection of grand jury

minutes]).

• Failure to produce an incarcerated defendant: The

prosecution is not ready for trial when it has failed to

produce a defendant incarcerated in another county or

state (People v England, 84 NY2d 1, 4 [1994]).

• Failure to file a valid accusatory: The prosecution

cannot be ready for trial if the accusatory is invalid, for the

defendant may not be tried on an invalid accusatory,

unless the defendant has waived his right to be tried on a

valid accusatory instrument (see People v Weaver, 34

AD3d 1047, 1049 [3d Dept 2006]; People v

McCummings, 203 AD2d 656 [3d Dept 1994]; see also

People v Ramcharran, 61 Misc 3d 234, 237 [Crim Ct,

Bronx County 2018] [accusatory failed to allege correct

location of offense]; People v Reyes, 60 Misc 3d 245, 250

[Crim Ct, Bronx County 2018 [prosecution not ready

because it failed to serve a certificate of translation of

deposition of non-English speaking complainant]; People

v Friedman, 48 Misc 3d 817 [Crim Ct, Bronx County

2015] [prosecution unready because information failed to

state non-hearsay allegations establishing each element];

People v Walsh, 17 Misc 3d 480 [Crim Ct, Kings County

2007] [prosecution not ready because of absence of the

docket number on the complainant’s corroborating

affidavit converting the misdemeanor complaint to a

misdemeanor information; the failure to include the docket

number is a facial, as opposed to a latent, defect]).

o Misdemeanor complaints: The prosecution cannot

be ready for trial until the misdemeanor complaint

has been properly converted to an information,

unless prosecution by information has been waived

(People v Gomez, 30 Misc 3d 643, 651 [Sup Ct

2010]; People v Gannaway, 188 Misc 2d 224 [Crim

Ct, Broome County 2000] [field tests conducted

were insufficient to convert complaint into a

prosecutable information and thus the People were

not ready for trial]; People v Peluso, 192 Misc 2d

33 [Crim Ct, Kings County 2002] [it has been held

that the prosecution cannot be ready where it has

converted some but not all of the charges of a

misdemeanor complaint into a misdemeanor

information]).

o Jurisdictionally defective accusatory: A

defendant does not waive his or her right to be

prosecuted by jurisdictionally valid accusatory (i.e.

one that alleges each element of the offense charged

[see People v Casey, 95 NY2d 354, 366 (2000)])

simply by failing to move to dismiss the accusatory

on the ground that the accusatory is jurisdictionally

defective (see People v Hatton, 26 NY3d 364

[2015], revg 42 Misc 3d 141 [A] [App Term

2014]). This means that the prosecution cannot be

ready on a jurisdictionally defective accusatory

regardless of whether a motion to dismiss on

defectiveness grounds has been made.

o Accusatory with non-jurisdictional defect: A

trial level court has ruled that the prosecution’s

announcement of readiness on an accusatory having

a non-jurisdictional defect (one resting upon

hearsay allegations) can be effective where the

defendant failed to move to dismiss the information

as defective, reasoning that by failing to make the

motion to dismiss, the defendant thereby “waived”

his right to be prosecuted by information supported

by non-hearsay allegations (see People v Davis, 46

Misc 3d 289 [Ontario County Ct 2014]; see also

People v Wilson, 27 Misc 3d 1049 [Crim Ct, Kings

County 2010] [defendant cannot lie in wait, first

raising a challenge to the accusatory instrument in

the 30.30 motion, after the time period has

expired]). The soundness of the ruling is subject to

debate, however. It relies upon People v Casey (95

NY2d 354 [2000]) to support the notion that a

defendant’s failure to move to dismiss the

accusatory serves as a waiver of the right to be

prosecuted by information supported by non-

hearsay allegations. Casey, however, held only that

by failing to move to dismiss the accusatory, the

defendant “waived” appellate review of his

complaint that the accusatory rested upon hearsay

allegations; in other words, the defendant failed to

preserve the issue for appellate review (see CPL

470.05 [2], 470.35). Casey does not appear to have

held that the defendant literally waived (or

knowingly relinquished) his right to be prosecuted

by an information resting on non-hearsay

allegations.

• Unawareness of key witness’s whereabouts: the

prosecution is not ready for trial when it is unaware of the

whereabouts of an essential witness and would be unable

to locate and produce the witness on short notice (People

v Robinson, 171 AD2d 475 [1st Dept 1991]).

 Non-impediments to readiness:

• Prosecution’s inability to make out a prima facie case

on some – but not all – counts: The prosecution can be

ready for trial if it can make out a prima facie case on one

or some, but not all, of the charged offenses (see e.g.

People v Sibblies, 98 AD3d 458 [1st Dept 2012], revd on

other grounds 22 NY3d 1174 [2015]; People v

Bargerstock, 192 AD2d 1058 [4th Dept 1993]

[prosecution ready despite unavailability of lab results of

rape kit]; People v Hunter, 23 AD3d 767 [3d Dept 2005]

[same]; People v Cole, 24 AD3d 1021 [3d Dept 2005]

[prosecution ready for trial despite its motion for a buccal

swab of defendant for DNA analysis]; People v Carey, 241

AD2d 748 [3d Dept 1997] [prosecution ready despite the

unavailability of drug lab results]; People v Terry, 225

AD2d 306 [1st Dept 1996] [prosecution can be ready for

trial when unavailable evidence is necessary proof for

some but not all charged offenses]; but see People v

Mahmood, 10 Misc 3d 198 [Crim Ct, Kings County 2005]

[criminal charge subject to dismissal where the

prosecution not ready on the criminal charge but ready on

traffic infractions charged in the same accusatory]).

 Court congestion: The prosecution can be ready for trial if its

only impediment to proceeding to trial is court congestion

(People v Smith, 82 NY2d 676 [1993]; People v Figueroa, 15

AD3d 914 [4th Dept 2005]).

 Unawareness of witness’s current location: It has been held

that the prosecution can be ready for trial even though it is

unaware that its key witness has changed jobs, so long as it could

readily learn of the witness’s whereabouts and secured his

attendance at trial within a few days; the prosecution is not

required to contact its witnesses on each adjourned date or be

able to produce its witnesses at a moment’s notice (People v

Dushain, 247 AD2d 234 [1st Dept 1998])

 Failure to move to consolidate indictments: the prosecution

can be ready for trial notwithstanding that it hasn’t yet moved to

consolidate indictments (People v Newman, 37 AD3d 621 [2d

Dept 2007]).

 Amendment of indictment: The fact that the prosecution has

moved to amend the indictment does not render the prior

announcement of readiness illusory (People v Niver, 41 AD3d

961 [3d Dept 2007]).

 The superseding of a valid indictment: The mere fact that an

indictment has been superseded does not mean that the original

indictment was invalid or that the prosecution was not ready for

trial until the filing of the new indictment (People v Stone, 265

AD2d 891 [4th Dept 1999]).

 EXCLUDABLE TIME

o In general: Certain periods – identified by statute (CPL 30.30 [4]) –

are excluded from the time calculation. Only those periods falling

within the specified exclusions qualify. Any period during which the

30.30 clock is ticking will be considered in determining excludable

time. Therefore, where the action commences with the filing of an

accusatory that is subsequently replaced by a new accusatory, the

period to be considered for exclusion begins with the filing of the

original accusatory, so long as the new accusatory directly derives from

the initial one. This is true even if the new accusatory alleges different

charges (People v Farkas, 16 NY3d 190 [2011]; People v Flowers, 240

AD2d 894 [3d Dept 1997]).

o Delay “resulting from” requirement: Many – but not all – of the

excludable time provisions will permit exclusion of periods of delay

only when the delay at issue “results from” a particular circumstance

(e.g. other proceedings concerning the defendant, the defendant’s

absence or unavailability, the detention of the defendant in another

jurisdiction, or “exceptional circumstances”). By their express

language, those excludable time provisions do not allow for exclusion

of time where the particular circumstance at issue (e.g. the defendant’s

absence or unavailability) does not cause the prosecution to be unready

(see People v Sturgis, 38 NY2d 625 [1976] [partially abrogated by

legislative amendment]; People v Callender, 101 Misc 2d 958, 960

[Crim Ct, New York County 1979] [“The Sturgis case therefore stands

for the proposition that, in order for time to be excludable as resulting

from the defendant’s conduct, such conduct must have contributed to

the failure of the People to answer that they were ready for trial”]).

 Example: Where the prosecution’s delay in preparedness is due

only to the defectiveness of an accusatory (and is no fault of the

defendant), exclusion of periods of delay should not be permitted

under any of the excludable time provisions requiring that the

delay in readiness “result from” a particular circumstance.

o Where causal relationships not required: There are a number of

excludable time provisions that permit exclusion of periods due to a

particular circumstance without regard to whether the particular

circumstances caused the delay at issue (see 30.30 [4] [c] [ii], [d], [h],

[i], [j]; see also People v Bolden, 81 NY2d 146, 151-152 [1993]

[partially abrogated by legislative amendment]; People v Kanter, 173

AD2d 560, 561 [2d Dept 1991] [some periods during which a

jurisdictionally defective accusatory is in place may be excludable];

People v Flowers, 240 AD3d 894 [3d Dept 1997] [same]).

 Requested or consented to adjournments exception: The

Court of Appeals has held that where the defendant has requested

or consented to an adjournment, the defendant waives charging

the prosecution with the delay, regardless of whether the

adjournment causes the prosecution’s delay in readiness. That is

to say, the Court of Appeals has held that the 4 (b) excludable

time provision rests on the theory of estoppel or waiver. (People

v Worley, 66 NY2d 523 [1985]; see also People v Kopciowski,

68 NY2d 615, 617 [1986] [Where adjournments are allowed at

defendant’s request, those periods of delay are expressly waived

in calculating the prosecution’s trial readiness, without the need

for the People to trace their lack of readiness to defendant’s

actions].)

o Excludable time provisions

 “Other proceedings” (30.30 [4] [a]): Periods of “reasonable”

delay “resulting” from “other proceedings” concerning the

defendant, including pretrial motions, are excludable. It should

be noted that the prosecution may be able to exclude a time

period during which another proceeding is pending, even if the

“other proceeding” doesn’t necessarily prevent the prosecution

from becoming ready, if it can be shown that the prosecution

might have been wasting time or resources by getting ready for

trial during the pendency of the “other proceeding” (People v

Dean, 45 NY2d 651, 658 [1978]).

• “Resulting from” requirement: The period during

which other proceedings are pending is excludable only to

the extent that the prosecution’s delay in readiness results

from the other proceeding (see e.g. People v Roscoe, 210

AD2d 1003, 1004 [4th Dept 1994] [where the People were

not ready because they failed to provide grand jury

minutes to the court for inspection, the period during

which the defendant’s Wade motion was pending was not

excludable as it did not cause the delay in the People’s

readiness]; People v Rodriguez, 214 AD2d 1010, 1010

[4th Dept 1995]).

o Motion to challenge to the certification of

compliance with discovery obligations (CPL

245.50 [4]). Where the prosecution is unready

because it has failed to comply with its discovery

obligations, any period associated with a motion

brought to challenge the prosecution’s certificate of

compliance with discovery obligations should not

be excludable. That motion does not “result” in the

day. Rather, the converse is true. The delay (the

period during which the prosecution has failed to

comply with the discovery obligations) results in

the motion.

• Trial on another case: Reasonable delay resulting from

trial of defendant on another indictment is excludable

(People v Oliveri, 68 AD3d 422 [1st Dept 2009]; People v

Hardy, 199 AD2d 49 [1st Dept 1993]).

• Pretrial motions: The prosecution is entitled to exclude

from the time calculation reasonable delay associated with

the filing of pretrial motions. In some instances, the

prosecution is entitled to exclude delay caused by the

defendant’s mere expressed intention to file a motion

(People v Brown, 99 NY2d 488 [2003]). The time

excluded is “the period during which such matters are

under consideration”; however, only delay that is

reasonable may be excluded (30.30 [4] [a]; People v

Inswood, 180 AD2d 649 [2d Dept 1992]).

• Motions to terminate prosecution pursuant to CPL

180.85: The period during which such motions are

pending is not excludable (see CPL 180.85 [6]).

• Grand jury minutes: The prosecution may exclude a

reasonable period necessary to obtain and inspect grand

jury minutes (People v Beasley, 69 AD3d 741 [2d Dept

2010], affd on other grounds, 16 NY3d 289 [2011]; People

v Del Valle, 234 AD2d 634 [3d Dept 1997]).

o Unreasonable delay: It has been held that a four-

month delay in providing grand jury minutes is

unreasonable and thus not entirely excludable

(People v Johnson, 42 AD3d 753 [3d Dept 2007]).

• Motions to dismiss/reduce: The period from defendant’s

filing of omnibus motion seeking dismissal of indictment

until date of dismissal is excludable except to the extent

that resolution of the motion was unreasonably delayed

(People v Roebuck, 279 AD2d 350 [1st Dept 2001]).

o Prosecution’s affirmation to reduce felony

charge: It has been held that such affirmation is not

a pretrial motion and its filing does not result in

excludable time pursuant to CPL 30.30 (4) (c)

(People v Thomas, 59 Misc 3d 64 [App Term

2018]).

• 30 day period following indictment dismissal: 30 days

following the issuance of an order dismissing an

indictment or reducing a count of the indictment may be

excludable since the effect of the order is stayed for 30

days following the entry of that order (see CPL 210.20

[6]).

• Discovery: Reasonable period of time needed to

accommodate defense counsel’s request for production of

discovery, such as a recording of a telephone call to 911,

is excludable (People v McCray, 238 AD2d 442 [2d Dept

1997]).

• Suppression Motions: Reasonable delay resulting from

defendant’s motion to suppress is excludable as delay

resulting from “other proceedings” (People v Hernandez,

268 AD2d 344 [4th Dept 2000]). Nevertheless, it can be

argued that a motion to suppress will not result in

reasonable delay, and thus the period during which the

motion is under consideration is not excludable, where the

motion to suppress does not prevent the prosecution from

both preparing for the suppression motion and getting

ready for trial or where, in light of the nature of the

evidence sought to be suppressed, it would not be a waste

of the prosecution’s time to simultaneously prepare for the

suppression motion and get ready for trial.

• Prosecution’s motions: Excludable time includes period

of reasonable delay resulting from the prosecution’s

pretrial motions (People v Sivano,174 Misc 2d 427 [App

Term 1997]; People v Kelly, 33 AD3d 461 [1st Dept 2006]

[period during which prosecution’s motion to consolidate

is pending held to be excludable]).

• Codefendant’s motions: Periods of delay resulting from

motions made by codefendant may be excludable (People

v Durette, 222 AD2d 692 [2d Dept 1995]).

• Defendant’s motions in unrelated case: Delay due to

defendant’s motion in unrelated case against defendant, or,

in some instances, mere announced intention to file

motion, may be excludable (People v Brown, 99 NY2d

488 [2003]).

• Additional time necessary to prepare for trial as a

result of the decision on the motion: Such period may

also be excludable (People v Patel, 160 AD3d 530, 530

[1st Dept 2018] [excludable period included “reasonable

time to prepare after the court’s decision on defendant’s

pretrial motion, where the court had dismissed, with leave

to re-present, the second count of the indictment and

adjourned for a control date”]; People v Davis, 80 AD3d

494 [1st Dept 2011] [additional time needed to prepare as

the result of the granting of a consolidation motion];

People v Ali, 195 AD2d 368, 369 [1st Dept 1993] [“With

regard to the 39-day adjournment granted to the People to

prepare for trial after the denial of defendant’s

first CPL 30.30 motion, inasmuch as the present case

involved numerous defendants and has some evidentiary

peculiarities, such period, while arguably too

lengthy, cannot be said to have been unreasonable”).

• Reasonableness requirement: The prosecution cannot

exclude delay caused by their “abject dilatoriness” in

responding to the defendant’s motion and in preparing for

hearing (People v Reid, 245 AD2d 44 [1st Dept 1997]).

o Examples

 Delay of over a year in making motion to

reargue suppression motion unreasonable

and not excludable (People v Ireland, 217

AD2d 971 [4th Dept 1995]).

 Approximately half of the two month delay

resulting from the prosecution’s preparation

for a suppression hearing was held to be

unreasonable (People v David, 253 AD2d

642 [1st Dept 1998]).

 Only 35 of 54 days of delay associated with

the defendant’s pretrial motions were

excludable since the 14 of the days it took the

prosecution to respond to pretrial motions

was reasonable and only 21 of the days it took

the court to decide the motion was reasonable

delay (People v Gonzalez, 266 AD2d 562 [2d

Dept 1999]).

• Appeals: Reasonable delay associated with appeals,

whether the defendant’s or the prosecution’s, is excludable

under CPL 30.30 (4) (a).

o Period to be excluded: Period between the

prosecution’s filing notice of appeal from an order

dismissing indictment and appellate ruling

reinstating that indictment is excludable, but the

period between dismissal and the filing of the notice

of appeal is not necessarily excludable (People v

Holmes, 206 AD2d 542 [2d Dept 1994]; People v

Vukel, 263 AD2d 416 [1st Dept 1999]).

o Reasonableness of the delay: The prosecution

may not exclude the entire period of delay due to its

appeal if it’s dilatory in perfecting the appeal

(People v Muir, 33 AD3d 1058 [3d Dept 2006];

People v Womak, 263 AD2d 409 [1st Dept 1999]).

It has been held that the delay in perfecting an

appeal to await a decision of the Court of Appeals

that would resolve the issue on appeal is excludable

as “reasonable” (People v Barry, 292 AD2d 281

[1st Dept 2002]).

o The period following an order granting a new

trial has become final will not automatically be

excludable: Pursuant to CPL 30.30 (5) (a), a new

criminal action will be said to have commenced

when the intermediate appellate court’s order

granting a new trial has become final, typically

when a judge of the Court of Appeals has denied the

People leave to appeal (see People v Wells, 24

NY3d 971 [2014]). The period immediately

following the commencement of this new criminal

action will not be automatically excluded as a

period of delay associated with the defendant’s

appeal. It will only be excluded if the prosecution

establishes on the record justification for the post-

appeal delay. (Wells, 24 NY3d 971.)

• Psychiatric evaluation of defendant: The period of delay

resulting from the prosecution’s psychiatric evaluation of

a defendant raising an insanity defense is excludable as

delay resulting from “other proceedings” (People v

Jackson, 267 AD2d183 [1st Dept 1999]).

• Defendant’s testimony before grand jury: Reasonable

delay resulting from need to accommodate defendant’s

request to testify before grand jury is excludable (People

v Casey, 61 AD3d 1011 [3d Dept 2009]; People v Merck,

63 AD3d 1374 [3d Dept 2009]).

 Defense requested or consented to continuances (30.30 [4]

[b]): This provision renders excludable delay resulting from a

continuance granted by the court at the request, or with the

consent, of the defendant or his counsel. The provision permits

exclusion only if the court has granted the continuance “satisfied

that the postponement is in the interest of justice, taking into

account the public interest in the prompt dispositions of criminal

charges.”

• Court ordered: Adjournments are excludable only if

court ordered (People v Suppe, 224 AD2d 970 [4th Dept

1996]). Thus, the period under which plea negotiations are

ongoing is not excludable under this subdivision unless the

court has ordered the case continued for that purpose

(People v Dickinson, 18 NY3d 835 [2011]).

• Interests of justice: Adjournments are excludable only if

ordered in the interests of justice. (CPL 30.30 [4] [b] [“The

court may grant such a continuance only if it is satisfied

that the postponement is in the interest of justice”]; People

v Rivas, 78 AD3d 739 [2d Dept 2010] [holding that an

adjournment was not excludable for 30.30 purposes,

though court-ordered and expressly consented to by the

defendant, because, as the trial court found, the

adjournment had not been ordered to further the interests

of justice]).

• Consent or request: Adjournments are excludable only if

consented to or requested by the defendant or counsel

(Suppe, 224 AD2d 970; see also People v Coxon, 242

AD2d 962 [4th Dept 1997] [adjournment not excludable

where defendant initially requested adjournment for

mental health evaluation; trial court stated that it would

grant adjournment only on condition that defendant waive

presentment before grand jury; defendant was unwilling to

waive that right; and court adjourned the matter without

setting another appearance date]).

o Clearly expressed: The defendant will be deemed

to have consented to or requested the adjournment

only if the request or consent was “clearly expressed

by the defendant or defense counsel” (People v

Liotta, 79 NY2d 841 [1992]; People v Collins, 82

NY2d 177 [1993]). It is not enough for the

prosecution to make the unsubstantiated claim that

the adjournment was “agreed” or “understood”

(People v Smith, 110 AD3d 1141, 1143 [3d Dept

2013]).

o Failure to object: The defendant’s failure to object

to adjournment does not equate to consent (People

v Liotta, 79 NY2d 841 [1992]; People v Collins, 82

NY2d 177 [1993]).

o Assertions approving the particular adjourn

date: Defense counsel’s statement to the court that

a particularl adjournment date was “fine” does not

constitute consent to the adjournment (People v

Barden, 27 NY3d 550 [2016]; People v Brown, 69

AD3d 871 [2d Dept 2010]; People v Nunez, 47

AD3d 545 [1st Dept 2008]; cf. New York v Hill, 528

US 110 [2000]).

• On the record: Defendant’s request for or consent to the

adjournment, and the basis for the adjournment, must be

on the record (People v Liotta, 79 NY2d 841 [1992];

People v Bissereth, 194 AD3d 317, 319 [1st Dept 1993]).

The onus is upon the prosecution to ensure that the record

reflects that the defendant requested or consented to the

adjournment on the record (People v Robinson, 67 AD3d

1042 [3d Dept 2009]).

• Defense request for adjournments beyond that initially

requested by the prosecution: Where the prosecution

initially requests an adjournment to a specific date, and

defense counsel does not expressly consent to that

adjournment but, because of counsel’s unavailability on

that date, requests a later date, the period between the

adjourn date requested by the prosecution and the date

requested by defense counsel will be excludable if defense

counsel does more than state that he or she is unavailable

and instead requests additional time and explains why

additional time is needed (Barden, 27 NY3d at 554-555).

• Adjourn dates set beyond the date requested by either

the prosecution or the defense: Where the court sets the

next court date beyond the adjourn date requested by either

the prosecution or the defendant, the period beyond the

date requested will not be excludable unless defense

counsel has clearly expressed consent to the entire

adjourned period. Defense counsel’s ambiguous statement

in response to the adjourn date set by the court – “that’s

fine” – will not be sufficient to charge the defendant with

that additional period. (Barden, 27 NY3d at 555-556).

• Dismissed case: Defendant is without power to consent to

an adjournment of a case that has been terminated by an

order of dismissal (People v Ruparelia, 187 Misc 2d 704

[Poughkeepsie City Ct 2001]).

• Defendant-requested delay of indictment: It has been

held that where defense counsel’s request to delay filing

of indictment directly affected the prosecution’s readiness,

the period is excludable as an adjournment requested by

defendant (People v Greene, 223 AD2d 474 [1st Dept

1996]). That holding cannot be reconciled with the plain

language of the statute, stating that only delay resulting

from a continuance “granted by the court” is excludable

(Suppe, 224 AD2d 970 [4th Dept 1996]; see also

Dickinson, 18 NY3d 835).

• Co-defendant’s request: Adjournment requested by co-

defendant is excludable where the defendant and co-

defendant are tried jointly (People v Almonte, 267AD2d

466 [2d Dept 1999]).

• Defendant who is without counsel: “A defendant who

is without counsel must not be deemed to have consented

to a continuance unless he has been advised by the court

of his [30.30] rights . . . and the effect of his consent” (CPL

30.30 [4] [b]).

o Such advisement “must be done on the record in

open court” (id.).

• No resulting delay required: While this statutory

provision states that the prosecution is entitled to

exclusion of “delay” “resulting” from the continuance, the

Court of Appeals has held that the prosecution is not

required under this provision to show that the continuance

actually delayed its readiness for trial. The Court of

Appeals has held that where the defendant has requested

or consented to an adjournment, the defendant waives

chargeability of the delay, regardless of whether there is a

causal link between the adjournment and the prosecution’s

lack of readiness: the 4 (b) excludable time provision rests

generally on theories of estoppel or waiver (People v

Worley, 66 NY2d 523 [1985]; see also People v

Kopciowski, 68 NY2d 615, 617 [1986] [“Where

adjournments are allowed at defendant’s request, those

periods of delay are expressly waived in calculating the

People’s trial readiness, without the need for the People to

trace their lack of readiness to defendant’s actions”]).

 Delay due to the defendant’s failure to appear (30.30[4] [c]):

The clock will stop ticking during the period of delay resulting

from the defendant’s failure to appear if it is shown that the

defendant was “unavailable” or “absent.”

• Absent: “Absent” means that the prosecution is unaware

of the defendant’s location and the defendant is attempting

to avoid apprehension or prosecution or that the

prosecution is unaware of the defendant’s location and his

location cannot be determined with due diligence (CPL

30.30 [4] [c] [i]).

o Avoiding apprehension or prosecution: The

defendant’s use of a different name in a subsequent

arrest or flight to another jurisdiction may evince an

intent to “avoid apprehension” (People v Motz, 256

AD2d 46 [1st Dept 1998]; People v Williams, 78

AD3d 160 [1st Dept 2010]; People v Button, 276

AD2d 229 [4th Dept 2000]).

o Incarcerated defendant: A defendant may be

“absent” due to his unknown incarceration, if the

prosecution has exercised due diligence to locate

him or if the defendant, while incarcerated on the

other matter, continues to avoid prosecution (CPL

30.30 [4] [c] [i]). However, a defendant is not

“absent” if the prosecution is aware of the

defendant’s incarceration or could have been made

aware had it exercised due diligence (People v

Lesley, 232 AD2d 259 [1st Dept 1996]).

 Incarceration under false name: Where

the defendant is incarcerated under a false

name but the People have enough

information to locate him despite his use of

an alias, the defendant will not be considered

“absent,” assuming that the defendant, by

giving the false name, was not attempting to

avoid apprehension or prosecution (Lesley,

232 AD2d 259).

• Unavailability: A defendant is considered unavailable

whenever his location is known and his presence cannot

be secured even with due diligence.

• Due diligence: Due diligence means to exhaust all

reasonable investigative leads (People v Petrianni, 24

AD3d 1224 [4th Dept 2005]; People v Grey, 259 AD2d

246 [3d Dept 1999]; People v Walter, 8 AD3d 1109 [4th

Dept 2004]; see also People v Devino, 110 AD3d 1146,

1149 [3d Dept 2013] [police obligated to diligently utilize

“available law enforcement resources” and cannot exclude

the delay by relying on implicit "resource-allocation

choices”]).

o Applicability: The due diligence question comes

into play when the prosecution seeks to exclude

delay resulting from the defendant’s absence or

unavailability. If the prosecution has timely

established its readiness for trial within the statutory

period, and does not seek to have a period excluded

because of the defendant’s absence or

unavailability, it does not matter whether the

prosecution has exercised due diligence to locate or

produce the defendant (People v Carter, 91 NY2d

795, 799 [1998]).

o Examples of due diligence:

 authorities sent letters to defendant’s last

known address, repeatedly sought assistance

of out-of-state authorities to locate the

defendant in that state, and frequently sought

information from New York and out-of-state

DMV (People v Petrianni, 24 AD3d 1224

[4th Dept 2005]);

 authorities tried to locate defendant, who was

known to spend time in both Canada and

Plattsburgh, by placing defendant’s name in

customs’ computer (and thereby notified all

points of entry); distributed defendant’s

photo to custom officials, border patrol,

Plattsburgh police department, and Canadian

authorities; obtained the help of elite squads

of police to help locate defendant in

Plattsburgh; looked for defendant in motels,

malls, and bars known to be frequented by

defendant; contacted defendant’s relatives in

the Plattsburgh area; and used a ruse to lure

defendant into a bingo hall (People v

Delarounde, 201 AD2d 846 [3d Dept 1994]);

 authorities made visits to defendant’s last

known address, contacting defendant’s

relatives and neighbors, and thoroughly

investigated all leads (People v Garrett, 171

AD2d 153 [2d Dept 1991]);

 authorities repeatedly visited defendant’s last

known address, leaving cards with family

members when informed that defendant was

living on the street, and circulated wanted

posters (People v Lugo, 140 AD2d 715 [2d

Dept 1988]); and

 law enforcement went to defendant’s last

known home address repeatedly, twice

visited defendant’s aunt, looked for the

defendant at locations he frequented,

contacted defendant’s last known employer,

and checked with the DMV and social

services (People v Hutchenson, 136 AD2d

737 [2d Dept 1988]).

o Examples of due diligence lacking:

 authorities failed to check with the

Department of Probation though the

defendant was on probation (People v Hill,

71 AD3d 692 [2d Dept 2010]);

 authorities failed to look for defendant at his

mother’s home, where he was known to

spend nights (In re Yusef B., 268 AD2d 429

[2d Dept 2000]);

 law enforcement failed to locate the

defendant who was incarcerated in a state

facility under same name and NYSID

number (People v Ramos, 230 AD2d 630 [1st

Dept 1996]);

 the government made sporadic computer

checks while failing to check defendant’s last

known address (People v Davis, 205 AD2d

697 [2d Dept 1994]); and

 the State Police confined their efforts to

locate the defendant to within the assignment

zone of their investigating unit and made

unspecified efforts to locate the defendant

through governmental agencies, including

support collection (People v Devino, 110

AD3d at 1149).

• Automatic exclusion provision: Regardless of whether

diligent efforts have been used to locate the defendant or

whether the defendant’s absence has caused the delay at

issue, the defendant’s absence will be excludable where

the defendant has either escaped from custody or has

failed to appear after being released on bail or his own

recognizance, provided that the defendant is not held in

custody on another matter and a bench warrant has been

issued. The time excluded is the entire period between the

day the bench warrant is issued and the day the defendant

appears in court (CPL 30.30 [4] [c] [ii]; People v Wells, 16

AD3d 174 [1st Dept 2005]).

o In custody on another matter: Pursuant to the

plain and unambiguous language of this provision,

there is no automatic exclusion during any period in

which the defendant is being held in custody on

another matter. However, that period will be

excludable if the prosecution can show that it

exercised due diligence to secure the incarcerated

defendant’s presence (People v Bussey, 81 AD3d

1276 [4th Dept 2011]; People v Newborn, 42 AD3d

506 [2d Dept 2007]; People v Mane, 36 AD3d 1079

[3d Dept 2007]; see also CPL 30.30 [4] [e]

[excludable time includes “the period of delay

resulting from detention of the defendant in another

jurisdiction provided the district attorney is aware

of such detention and has been diligent and has

made reasonable efforts to obtain the presence of

the defendant for trial”]).

 Contrary holdings: Some courts have held

otherwise and have interpreted the “in

custody on another matter” language more

narrowly. They have interpreted it to allow

automatic exclusion of the period during

which the defendant was incarcerated on

another matter so long as the defendant was

not in custody at the time he first failed to

appear and a bench warrant was issued. If

the defendant was not in custody at the time

the bench warrant was issued and was later

taken into custody on another matter, the

entire period between the issuance of the

bench warrant and the defendant’s eventual

appearance in court is to be automatically

excluded, even the time during which the

defendant is in custody on the other matter

(see People v Mapp, 308 AD2d 463 [2d Dept

2003]; People v Howard, 182 Misc 2d 549,

551-553 [Sup Ct 1999]; People v Penil, 18

Misc 3d 355 [Sup Ct]).

• Knowledge of custody status: It has

been further held, however, that when

authorities (either the police or he

District Attorney) learn of the

defendant’s subsequent incarceration,

the automatic exclusion provision no

longer applies (and due diligence to

secure the defendant’s presence must

be shown to establish the defendant’s

unavailability), whether or not the

defendant was incarcerated at the time

he first failed to appear and the bench

warrant was issued (see Mapp, 308

AD2d at 464).

 Delay resulting from defendant’s incarceration in another

jurisdiction: Also excludable is the period of delay resulting

from the defendant’s detention in another jurisdiction, provided

the People are aware of the defendant’s detention and the People

have been “diligent” and have “made reasonable efforts to obtain

the presence of the defendant for trial” (CPL 30.30 [4] [e]). Such

period of time may also be excludable due to the defendant’s

“unavailability” (CPL 30.30 [4] [c] [i]).

• Diligent and reasonable efforts requirement: The

prosecution may exclude delay under this provision only

if it shows that the defendant’s presence could not be

secured with due diligence. The prosecution, for instance,

will not be permitted to exclude the delay if it merely filed

a detainer to secure the defendant’s presence (People v

Billups, 105 AD2d 795 [2d Dept 1984]).

o Futile steps: However, the due diligence

requirement does not mandate that the prosecution

seek the defendant’s presence where the use of the

available procedures is shown to be futile. For

instance, it has been held that the due diligence

requirement is satisfied were the defendant is held

in federal custody in another state, though the

prosecution failed to secure defendant’s presence

through the use of a writ of habeas corpus, where it

was shown that the federal government would not

relinquish custody of the defendant until the

defendant was sentenced (People v Mungro, 74

AD3d 1902 [4th Dept 2010], affd 17 NY3d 785

[2011]).

o Defendant held on pending charges in another

jurisdiction: It has been held that the prosecution

is not expected to request that the defendant be

released to New York while charges are still

pending in the other jurisdiction. It is enough that

the prosecution is in regular contact with the other

jurisdiction while the charges are still pending there.

(People v Durham, 148 AD3d 1293 [3d Dept

2017]).

• Federal custody: Delay associated with the defendant’s

incarceration in a federal prison is excludable where it is

shown that the defendant cannot be produced even with

due diligence (People v Clark, 66 AD3d 1415 [4th Dept

2009]).

o Due diligence requirement: Adjournments caused

by the prosecution’s repeated failure to produce

defendant from federal custody are not excludable

where the prosecution failed to pursue statutorily

prescribed methods for securing the defendant’s

presence (People v Scott, 242 AD2d 478 [1st Dept

1997]).

 Writ of habeas corpus ad prosequendum:

The prosecution will not be said to have

acted diligently and have used reasonable

effort to secure a defendant in federal custody

where it has not sought his production by way

of a writ of habeas corpus ad prosequendum,

pursuant to CPL 580.30 (People v Scott, 242

AD2d 478 [1st Dept 1997]), unless it shows

that use of that procedure would have been

futile due to the federal government’s

unwillingness to allow defendant’s

production (People v Gonzalez, 235 AD2d

366 [1st Dept 1997]).

 Exceptional Circumstances (30.30 [4] [g]): Delay caused by

“exceptional circumstances” may be excluded:

• Court inquiry required “when a statement of

unreadiness has followed a statement of readiness”

*NEW*: Under the 2020 amendment, “when a statement

of unreadiness has followed a statement of readiness,” the

period of unreadiness delay may be excluded as

exceptional circumstance only where the court has

inquired “as to the reasons for the … unreadiness” and

there has been a showing “of sufficient supporting facts.”

• Unavailability of a witness: Delay due to the

unavailability of a witness will be excludable; however, it

is so only if the prosecution can show that it has exercised

due diligence in securing the witness (People v Douglas,

47 Misc 3d 1218 [Crim Ct, Bronx County 2015]; People v

Zimny, 188 Misc 2d 600 [Sup Ct 2001]).

o Disappearance of witness: delay due to the

prosecution’s inability to locate a witness is

excludable as an exceptional circumstance if the

prosecution has exercised due diligence to locate

the witness (People v Thomas, 210 AD2d 736 [3d

Dept 1994]; see e.g. People v Figaro, 245 AD2d

300 [2d Dept 1997] [period of delay due to the

complainant’s disappearance was not excludable,

where the prosecution, in an attempt to locate the

complainant, made a single visit to the

complainant’s home and only a “few” phone calls]).

o Witness’s departure to another country: Delay

associated with a witness’s departure to another

country will be excludable if the prosecution has

demonstrated due diligence to secure the witness's

attendance – that is to say, “vigorous activity to

make the witness available” (People v Belgrave,

226 AD2d 550 [2d Dept 1996]; see e.g. People v

Hashim, 48 Misc 3d 532 [Crim Ct, Bronx County

2015] [prosecution failed to show that due diligence

was exercised where the “complainant made no

plans to come back to the United States until the

[prosecution] gave him a ‘firm’ trial date”; the

prosecution did not show it was unable, despite its

best efforts, to schedule trial before the witness’s

departure or to secure his return; and on “more than

one occasion . . . the [prosecution] could have told

the witness either not to leave or to return to the

United States in anticipation of one of the trial

dates”]).

o Deployment of witness in overseas military

service: Unavailability of key witness due to

military deployment is excludable upon a showing

of due diligence (People v Onikosi, 140 AD3d 516,

517 [1st Dept 2016]; People v Williams, 293 AD2d

557 [2d Dept 2002]).

o Injury or illness of prosecution witness: The

injury or illness of a prosecution witness, rendering

the witness unavailable, is an exceptional

circumstance (People v Womak, 229 AD2d 304 [1st

Dept 1996], affd 90 NY2d 974 [1997] [period

during which arresting officer was unavailable due

to maternity leave is excludable delay]; People v

McLeod, 281 AD2d 325 [1st Dept 2001] [large and

cumbersome cast in which officer’s right arm was

encased constituted a sufficiently restricting injury

to qualify officer as medically unable to testify];

People v Sinanaj, 291 AD2d 513 [2d Dept 2002]

[witness unavailability due to emotional trauma

brought on by the crime is an exceptional

circumstance]).

o Police witness’s unavailability due to

participation in mandatory training: Period

during which the police witness is participating in a

mandatory training program is excludable only if

the prosecution has demonstrated due diligence to

make the witness available. Thus, in People v

Friday (160 AD3d 1052 [3d Dept 2018]), it was

held that such a period could not be excluded as the

prosecution made no effort to learn whether the

witness could switch to another training program

that did not conflict with the trial.

 Prosecution’s burden: “Although the

prosecutor’s representation is typically

sufficient to establish the witness’s

unavailability due to medical reasons, due

diligence is not satisfied when the

prosecution merely states a naked (albeit

valid) reason for the unavailability or rely on

hearsay information from family members

that the witness is unavailable” (People v

Douglas, 47 Misc 3d 1218 [Crim Ct, Bronx

County 2015]).

• Defendant’s mental incompetency: Delay caused by

defendant’s commitment after being declared incompetent

to stand trial is excludable as an exceptional circumstance;

the People have no obligation to monitor competency

status (People v Lebron, 88 NY2d 891 [1996]).

• Special Prosecutor: The appointment of a special

prosecutor is an exceptional circumstance such that the

associated delay is excludable (People Crandall, 199

AD2d 867 [3d Dept 1993]; People v Morgan, 273 AD2d

323 [2d Dept 2000]).

• Obtaining evidence from defendant: Delay associated

with obtaining blood and saliva samples from defendant,

performing DNA tests, and obtaining results has been held

to be excludable as stemming from an exceptional

circumstance (People v Williams, 244 AD2d 587 [2d Dept

1997]).

o DNA testing delay: Delay associated with

obtaining DNA results is not necessarily excludable

as an exceptional circumstance. The prosecution

may exclude the period only if it shows that the

evidence was unavailable during that period despite

the exercise of due diligence (see People v Clarke,

28 NY3d 48 [2016] [no reasonable excuse for the

prosecution’s delay in seeking court order for

defendant’s DNA exemplar]; People v Huger, 167

AD3d 1042 [2d Dept 2018] [prosecution failed to

demonstrate due diligence in obtaining DNA

results]; People v Gonzalez, 136 AD3d 581 [1st

Dept 2016] [same]; People v Wearen, 98 AD3d 535

[2d Dept 2012] [same]).

 Example: “[A]s a result of the People’s

inaction in obtaining defendant’s DNA

exemplar, the 161-day period of delay to test

the DNA and to produce the DNA report was

not excludable from speedy trial computation

as an exceptional circumstance” (Clarke, 28

NY3d at 53).

• People’s unawareness of charges: The delay between

the date a complaint is filed and the date the prosecution

first receives notice of the filing has been held to be

excludable where the court clerk or police delay giving the

prosecution notice of the filing (People v Smietana, 98

NY2d 336 [2002] [the delay between the date of filing of

the misdemeanor information by police and the

defendant’s arraignment on that information is excludable

under the “exceptional circumstances” provision, where

the police prepared the information without knowledge or

involvement of prosecutor, and police did not inform the

prosecutor of the charges until the arraignment date]; see

also CPL 110.20 [requiring that a copy of the accusatory

instrument filed in local court be promptly transmitted to

the District Attorney]; People v Snell, 158 AD3d 1067,

1068 [4th Dept 2018]; People v La Bounty, 104 AD2d 202

[4th Dept 1984]).

o Failure of local criminal court to transmit

divestiture documents not an exceptional

circumstance: The time during which the local

criminal court failed to transmit the order, felony

complaint and other documents pursuant to CPL

180.30 (1) to County Court is not excludable time

under the exceptional circumstances provision as it

does not prevent the prosecution from presenting

case to the grand jury (People v Amrhein, 128 AD3d

1412 [4th Dept 2015]).

• Adjournments to await appellate decision resolving

dispositive legal issue: Such delay has been held not to

be occasioned by an exceptional circumstance (People v

Price, 14 NY3d 61 [2010]).

• Disaster: Delay resulting from a natural disaster has been

found to be an exceptional circumstance (People v

Sheehan, 39 Misc 3d 695 [Crim Ct, New York County

2013] [Hurricane Sandy]).

 No counsel: The period defendant is without counsel through no

fault of the court, except where the defendant proceeds pro se, is

excludable (30.30 [4] [f]; People v Sydlar, 106 AD3d 1368, 1369

[3d Dept 2013]).

• Definition of “without counsel” includes not having

counsel present: The phrase “without counsel” has been

given a broader definition than not having an attorney. It

includes not having counsel present at the court

proceeding (People v DeLaRrosa, 236 AD2d 280, 281 [1st

Dept 1997]; People v Bahadur, 41 AD3d 239 [1st Dept

2007]; People v Lassiter, 240 AD2d 293 [1st Dept 1997];

People v Corporan, 221 AD2d 168 [1st Dept 1995]).

o Prosecution’s fault: it has been held that the

defendant is not “without counsel” where counsel’s

absence is the prosecution’s fault, for example,

where counsel does not appear because the

prosecution failed to comply with its obligation to

produce incarcerated defendant (People v Brewer,

63 AD3d 402 [1st Dept 2009]).

• Codefendant: Period during which codefendant is

without counsel is excludable (People v Rouse, 12 NY3d

728 [2009]).

• Newly assigned counsel: A defendant is not “without

counsel” within the meaning of the statute when he is

recently assigned counsel, even though the lawyer knows

nothing about case (Rouse, 12 NY3d 728).

• No showing of delay required: All periods during which

the defendant is without counsel through no fault of the

court must be excluded, regardless of whether the

defendant’s lack of representation actually impeded the

People’s progress (People v Huger, 167 AD3d 1042 [2d

Dept 2018]; People v Aubin, 245 AD2d 805 [3d Dept

1997]; see e.g. People v Rickard, 71 AD3d 1420 [4th Dept

2010] [court excluded period between defendant’s

arraignment (when court faxed to the Public Defender an

assignment order) and the Public Defender’s first

appearance in court (when the Public Defender advised the

District Attorney that the defendant was waiving his

preliminary hearing)]).

• Assigned Counsel Program’s failure: Assigned Counsel

Program’s failure to provide counsel to the defendant may

be deemed the fault of the court, depending upon the

relationship and connection between the court and the

program (People v Cortes, 80 NY2d 201, 209 [1992]; see

e.g. People v Danise, 59 Misc 3d 829, 831 [City Ct 2018]

[“Since it remains the court’s responsibility to supervise

the assignment of counsel to eligible indigent defendants,

the pre-readiness delay caused by the unavailability of a

public defender at arraignment, is considered a fault of the

court, and therefore, the People will be charged with this

delay”]).

 Where the District Attorney has directed the defendant to

appear for arraignment pursuant to CPL 120.20 (3) or CPL

210.10 (3) in lieu of an arrest warrant or a summons issued

by the court (CPL 30.30 [4] [i]): To be excluded from the 30.30

calculation is the period “prior to the defendant’s actual

appearance for arraignment in a situation in which the defendant

has been directed to appear by the district attorney” in lieu of an

arrest warrant or a summons issued by the court.

o Plea bargaining: The period of delay resulting from plea bargaining

is not excludable on that basis alone (People v Dickinson, 18 NY3d 835

[2011]). That period may be excludable, however, if the defendant

expressly waived his 30.30 rights. It should be noted, however, that

mere silence in the face of an adjournment request for purposes of plea

negotiations is not sufficient to waive 30.30 time (Dickinson, 18 NY3d

at 836; People v Leubner, 143 AD3d 1244, 1245 [4th Dept 2016];

People v Waldron, 6 NY3d 463 [2006]). A plea bargaining period may

also be excludable if the defendant requested or consented to a court-

ordered adjournment during that period (People v Wiggins, 197 AD2d

802 [3d Dept 1993]).

o Waiver: A period may also be excluded if the defendant or his counsel

waived any objection to the delay, either by letter or an in-court

declaration (Waldron, 6 NY3d 463; People v Jenkins, 302 AD2d 978

[4th Dept 2003]; People v Dougal, 266 AD2d 574 [3d Dept 1999]).

 Clarity requirement: The waiver will be effective only if it is

unambiguous; waiver will not be inferred from silence

(Dickinson, 18 NY3d 835; Leubner, 143 AD3d at 1245). The

Court of Appeals has repeatedly advised that prosecutors obtain

unambiguous written waivers (Dickinson, 18 NY3d at 836).

 Rescinding the waiver: It has been held that defendant’s

expressed revocation of a plea offer, by itself, does not rescind

30.30 waiver where the waiver agreement expressly requires that

any revocation of the waiver be done in writing (People v

Hammond, 35 AD3d 905 [3d Dept 2006]).

 Counsel’s waiver: Counsel can effectively waive his client’s

30.30 rights (People v Wheeler, 159 AD3d 1138, 1141 [3d Dept

2018]; People v Moore, 32 AD3d 1354 [4th Dept 2006]).

o Executive Order: It has been held that a period may be excluded

where there is in effect governor’s executive order directing that time

be tolled due to a disaster or other emergency (People v Sheehan, 39

Misc 3d 695 [Crim Ct, New York County 2013] [Hurricane Sandy]).

 POST-READINESS DELAY

o Defined: Dismissal may be warranted even where the prosecution has

established its readiness within the statutory period if the prosecution

subsequently becomes unready and the aggregate of the pre-readiness

and post-readiness delay exceeds the prescribed period (People v

McKenna, 76 NY2d 59 [1990]; People v Anderson, 66 NY2d 529

[1985]).

 The prosecution must have caused the delay: The prosecution

will be charged with post-readiness delay only to the extent that

it is responsible for the delay (People v Dushain, 247 AD2d 234

[1st 1998]; Cortes, 80 NY2d 201 [1992]).

 Test: The test is whether the prosecution is no longer in fact

ready for trial – i.e., whether the prosecution has not done

everything required of it to bring the case to a point it can be tried

(People v England, 84 NY2d 1 [1994]; People v Robinson, 171

AD2d 471, 477 [1st Dept 1991]; People v Kendzia, 64 NY2d 331

[1985]).

o Adjournments: Where the prosecution requests an adjournment, the

entire adjourned period constitutes post-readiness delay unless the

prosecution re-announces its readiness during the adjourned period or

the prosecution had requested an adjournment for a date certain and the

adjournment exceeded the period requested (People v Betancourt, 217

AD2d 462 [1st Dept 1995]; People v Barden, 27 NY3d 550, 554-556

[2016]).

 Re-announcement of readiness: The prosecution may re-

announce its readiness during the adjourned period by filing a

notice of readiness and thereby avoid being charged with the

entire adjourned period (People v Stirrup, 91 NY2d 434 [1998]).

*NEW* But for such a re-announcement to be effective, the

court must conduct an inquiry into the prosecution’s actual

readiness (CPL 30.30 [5]).

 Adjourned period beyond what is requested by the

prosecution: Where the court has granted the prosecution’s

request for an adjournment, but sets the next court date beyond

the adjourned period requested by the prosecution due to court

congestion, the prosecution will be considered unready only for

the adjourned period requested (People v Alvarez, 117 AD3d 411

[1st Dept 2014]; Barden, 27 NY3d at 554-555).

• Prosecution’s burden: The prosecution bears the burden

of showing that it had requested a shorter adjournment

than that ordered by the court (People v Miller, 113 AD3d

885, 887 [3d Dept 2014]).

o Impediments to readiness:

 Failure to produce incarcerated defendant: Post-readiness

delay exists where the prosecution has failed to produce the

defendant incarcerated in the same jurisdiction (Anderson, 66

NY2d 529). However, that period may be excludable due to the

defendant’s unavailability if the defendant is not produced

despite the prosecution’s diligent efforts to obtain the

defendant’s presence (People v Newborn, 42 AD3d 506 [2d Dept

2007]).

 Inability to produce the complainant: Post-readiness delay

exists if the prosecution is unable to secure the attendance of the

complainant (People v Cole, 73 NY2d 957 [1989]).

 Failure to provide grand jury minutes: Post-readiness delay

will be charged to the prosecution where it fails to provide grand

jury minutes needed for a decision on a motion to dismiss

(People v McKenna, 76 NY2d 59 [1990]; People v Johnson, 42

AD3d 753 [3d Dept 2007]).

 Failure to provide copy of search warrant: Post-readiness

delay will be charged to the prosecution where it fails to provide

a copy of search warrant, rendering it impossible for the

defendant to move against the search warrant (People v Daley,

265 AD2d 566 [2d Dept 1999]).

 Failure to fulfill disclosure requirements under CPL Article

245 *NEW* (CPL 30.30 [5]; CPL 245.50).

o Non-impediments to readiness:

 Delay caused by court stenographer not under the

prosecution’s control: Delay caused by court stenographer’s

failure to timely provide relevant minutes is not chargeable to the

prosecution (People v Lacey, 260 AD2d 309 [1st Dept 1999]).

 A non-incarcerated defendant’s failure to appear: Delay due

to the defendant’s failure to appear, regardless of whether due

diligence is exercised to locate him, is not chargeable to the

People (People v Myers, 171 AD2d 148 [2d Dept 1991]; People

v Carter, 91 NY2d 795 [1998]).

 Court congestion delay: Post-readiness delay due to court

congestion is not chargeable to the prosecution, as the

prosecution is not the cause of such delay (People v Cortes, 80

NY2d 201 [1992]).

o Applicability of CPL 30.30 (4)’s excludable time provisions: The

prosecution’s post-readiness delay will not necessarily be “charged” to

the prosecution, as periods of post-readiness delay, just like pre-

readiness delay, are subject to the excludable time provisions of CPL

30.30 (4) (People v Kemp, 251 AD2d 1072 [4th Dept 1998]).

 *NEW* Any post-readiness exclusion due to an exceptional

circumstance “must be evaluated by the court after inquiry on the

record as to the reasons for the [P]eople’s unreadiness and shall

only be approved upon a showing of sufficient supporting facts”

(CPL 30.30 [g]).

o Exceptional fact or circumstance (CPL 30.30 [3] [b]): the court is

not required to dismiss an indictment due to post-readiness delay

(although it may) where the post-readiness delay is occasioned by

“some exceptional fact or circumstance, including, but not limited to,

the sudden unavailability of evidence material to the prosecution’s case,

when the district attorney has exercised due diligence to obtain such

evidence and there are reasonable grounds to believe that such evidence

will become available in a reasonable period” (CPL 30.30 [3] [b]).

Note, there is an incongruence between this subdivision, which,

through its use of the permissive term “may,” seems to allow a court to

dismiss an indictment due to post-readiness delay occasioned by an

exceptional fact or circumstance and CPL 30.30 (4) (g), which requires

exclusion of delay resulting from an exceptional fact or circumstance.

 Unavailability of prosecutor: An adjournment requested by the

prosecutor due to his own personal unavailability for trial is

chargeable to the prosecution where the prosecution fails to show

that it would not have been onerous to reassign the case to

another prosecutor (People v DiMeglio, 294 AD2d 239 [1st Dept

2002]).

 PRETRIAL RELEASE

o In general: The defendant is entitled to be released on “just and

reasonable bail” or his own recognizance if the prosecution fails to

become ready within certain time periods (CPL 30.30 [2]). “Just and

reasonable bail” is bail within reach of the defendant (People ex rel.

Chakwin on Behalf of Ford v Warden, N.Y. City Corr. Facility, 63

NY2d 120 [1984]).

o Commencement of time period: time clock generally commences

from date defendant is committed to custody of sheriff (CPL 30.30

[2]), though statutory exceptions do exist (CPL 30.30 [7]).

o Time periods: The applicable time periods, set forth under subdivision

two, are shorter than those that apply under the motion to dismiss

provisions of CPL 30.30 (1).

o Excludable time: The excludable time provisions of 30.30 (4) apply

to a CPL 30.30 (2) motion for pretrial release.

o Written motion, sworn allegations, and notice not required *NEW*

(CPL 30.30 [8]): “The procedural rules prescribed in [CPL 210.45 (1-

7)] with respect to a motion to dismiss an indictment are not applicable

to a motion made pursuant to” CPL 30.30 (2), the pretrial release

provision.

o Prompt hearing required *NEW* (CPL 30.30 [8]): “If, upon oral

argument, a time period is in dispute, the court must promptly conduct

a hearing in which the [P]eople must prove that the time period is

excludable.” Note that this provision, by its expressed terms,

contemplates the prosecution avoiding chargeability by proving that the

periods at issue are “excludable.” It does not contemplate the

prosecution avoiding chargeability by demonstrating at the hearing its

actual readiness.

 PROCEDURE

o Court’s duty upon announcement of readiness *NEW*: Upon any

statement of readiness the court must conduct and on the record inquiry

as to the actual readiness of the prosecution (CPL 30.30 [5]).

o Application of 2020 amendments to criminal actions commencing

prior to 2020 but continuing past the January 1, 2020 effective date:

“Legislative amendments that take effect during the pendency of a case

apply to subsequent proceedings (see Simonson v Internat'l Bank, 14

NY2d 281, 289 [1964], but do not serve to invalidate prior proceedings,

see Berkovitz v Arbib & Houlberg, Inc., 230 NY 261, 270;

Charbonneau v State, 148 Misc 2d 891, [Ct. Cl. 1990]). Therefore, the

changes in the law that took effect on January 1, 2020 do not invalidate

the People’s previous statements of readiness. However, beginning on

January 1, 2020, the People reverted to a state of unreadiness and could

not be deemed ready until filing the proper certificate of compliance

required by CPL 245.50.” (People v Nge, – Misc 3d –, 2020 NY Slip

Op 20084, *3 [2020] [internal citations altered].)

o Motion Practice

 Defendant’s burden

• Written motion to dismiss before trial: To invoke 30.30

(1) rights, the defendant must make a written motion to

dismiss, pursuant to CPL 170.30 (1) (e) or 210.20 (1) (g),

before trial commences (People v Woody, 24 AD3d 1300

[4th Dept 2005]; People v Lawrence, 64 NY2d 200

[1984]).

o Waiver of objection to oral motion: The

prosecution waives the writing requirement by

failing to object at the time of oral motion (People

v Brye, 233 AD2d 775 [3d Dept 1996]).

• Timing of motion: At least with respect to prosecutions

in which the highest level offense charged is either a

felony or misdemeanor (where the applicable time period

is 6 months, 90 days, or 60 days), CPL 255.20’s general

requirement that pretrial motions be made within 45 days

after arraignment does not apply to CPL 30.30 motions.

This is so because the time period within which the People

must be ready extends beyond the 45 day period.

• Content of papers: Motion papers must contain “sworn

allegations that there has been unexcused delay in excess

of the statutory maximum” (People v Beasley, 16 NY3d

289, 292 [2011]; People v Santos, 68 NY2d 859 [1986]).

o Facial sufficiency: Papers submitted must on

their face indicate entitlement to dismissal (People

v Lusby, 245 AD2d 1110 [4th Dept 1997]).

o Allegation of lack of readiness: If the prosecution

fails to announce its readiness within the required

period, the defendant must allege that fact in his

motion papers (People v Jackson, 259 AD2d 376

[1st Dept 1999]). If the prosecution announced its

readiness, but was not actually ready, the defendant

must alleged in motion papers the specific time

periods that the prosecution wasn’t ready and how

the prosecution wasn’t ready during the alleged

periods (Jackson, 259 AD2d at 376).

o Disputing excludable time: The defendant’s

initial burden does not require him to allege that

certain periods are not excludable (Beasley, 16

NY3d at 292). It is the prosecution’s burden to

identify the excludable time (Beasley, 16 NY3d at

292-293; People v Luperon, 85 NY2d 71, 81-82

[1995]). Only if the prosecution raises excludable

time does the defendant have the obligation to refute

that the period is excludable (Beasley, 16 NY3d at

292-293; Luperon, 85 NY2d at 81-82).

o The failure to dispute alleged excludable time:

Defendant’s motion papers must dispute excludable

time alleged in the prosecution’s responding papers;

otherwise the defendant will be deemed to have

conceded that the periods are excludable (see

People v Notholt, 242 AD2d 251 [1st Dept 1997]

[period during which, according to the

prosecution’s papers, defendant requested and

consented to adjournment, is excludable, despite the

failure of prosecutor to supply minutes in support of

contention, where the defendant did not deny the

prosecution’s contentions]). Therefore, if the

alleged excludable time is not disputed in the

defendant’s initial papers, it will be necessary for

the defendant to dispute the allegations with

supplemental sworn allegations (Beasley, 16 NY3d

at 292-293; People v Daniels, 36 AD3d 502 [1st

Dept 2007]).

• Notice: Defendant must give the prosecution reasonable

notice of motion as required by CPL 210.45 (1) (People v

Woody, 24 AD3d 1300 [4th Dept 2005]; People v Mathias,

227 AD2d 907 [4th Dept 1996]; see People v Baxter, 216

AD2d 931 [4th Dept 1995] [motion to dismiss indictment

served and made returnable on first day of trial does not

provide reasonable notice]).

 Prosecution’s Burden

• Demonstrating excludable time: Once the defendant has

alleged an unexcused delay greater than the statutory

maximum, the prosecution must demonstrate that there is

sufficient excludable time (People v Berkowitz, 50 NY2d

333 [1980]). It is incumbent upon the prosecution to

“submit” “papers” setting forth the “particular dates [it]

claim[s] should be excluded and the factual and statutory

basis for each exclusion” (Santos, 68 NY2d at 861

[emphasis supplied]). A determination on whether the

prosecution met that burden must rest solely on the motion

papers, and accompanying documentary evidence, and the

evidence presented at the hearing on the motion, if one is

held; a determination – whether by the trial court or the

reviewing appellate court – must not be based upon

documentary evidence, including the minutes of the

proceeding, which were not included as part of the motion

papers or introduced at the hearing (CPL 30.30 [1]; CPL

210.20 [1] [g]; CPL 210.45 [1], [2], [3], [4], [5], [6]; see

also People v Contrearas, 227 AD2d 907 [4th Dept 1996]

[it is documentary proof “submitted” to the lower court

that is to be considered in determining whether a period is

to be excluded for 30.30 purposes]).

o The prosecution’s failure to meet its burden:

Where the prosecution fails to meet this burden, the

defendant’s motion to dismiss must be granted

summarily, i.e., without a hearing (Santos, 68 NY2d

859).

o Concession of allegations: The prosecution will be

deemed to have conceded what it does not deny in

its answering affirmation (Berkowitz, 50 NY2d

333).

o Hearing: Where the motion papers raise a factual dispute (for

example, as to when the accusatory was filed, whether the prosecution

announced ready within the designated period, whether the prosecution

was in fact ready within the prescribed period, or whether a certain

period is excludable) a hearing is necessary so long as the dispute is

dispositive of the motion (People v Sydlar, 106 AD3d 1368, 1370 [3d

Dept 2013]; People v Smith, 245 AD2d 534 [2d Dept 1997]).

 Hearing not required: A hearing will not be necessary where

the issue in dispute can be resolved by “unquestionable

documentary proof” submitted with the motion papers (see

People v Allard, 113 AD3d 624, 626-627 [2d Dept 2014] [the

prosecution can defeat a 30.30 claim without a hearing when it

can demonstrate with “unquestionable documentary proof” that

the claim has no merit]).

• Example: A transcript or a letter of the defense counsel

showing that the defendant consented to an adjournment

may be “unquestionable documentary proof” of such

consent (People v Matteson, 166 AD3d 1300, 1302 [3d

Dept 2018]).

• Example: “Calendar and file jacket notations” do not

constitute unquestionable proof to meet the prosecution’s

“burden of demonstrating sufficient excludable time,” for

“such notations represent simply one person’s

interpretation of the proceedings” (Matteson, 166 AD3d at

1302).

 Defendant’s hearing burden: The defendant has the burden of

proving that the prosecution failed to establish readiness within

the designated period, if that issue is in dispute (Beasley, 16

NY3d at 292). Thus, the defendant will be required to prove by

a preponderance of the evidence when the criminal action

commenced, the prosecution’s failure to announce its readiness

within the designated time period, and the illusory nature of the

announcement of readiness, to the extent the issues are in dispute

(see People v Brown, 114 AD2d 418 [2d Dept 1985]; People v

O’Neal, 99 AD2d 844, 845 [2d Dept 1984]).

 The prosecution’s hearing burden: The prosecution bears the

burden of proving that certain periods are excludable (People v

Figaro, 245 AD2d 300 [2d Dept 1997]; see People v Martinez,

268 AD2d 354 [1st Dept 2000] [the prosecution must prove that

a witness was indeed “unavailable” for trial, such that the delay

occasioned by his unavailability is excludable as an exceptional

circumstance]; People v Valentine, 187 Misc 2d 582 [Sup Ct

2001] [where motion papers create a factual dispute over whether

the defendant had consented to an adjournment, it is incumbent

upon the prosecution to submit relevant supporting

documentation from its records and court records]).

o Pro se motions: Since a defendant has no constitutional right to hybrid

representation, a trial court is not required to entertain a pro se 30.30

motion when the defendant is represented by counsel. Whether to entertain

such a motion rests within the sound discretion of the court (People v

Rodriguez, 95 NY2d 497 [2000]).

o Appeal

 CPL 30.30 (6) * New *: “An order finally denying a [30.30] motion

to dismiss . . . shall be reviewable upon an appeal from an ensuing

judgment of conviction notwithstanding the fact that such judgment

is entered upon a plea of guilty.”

 Guilty plea *NEW*: As a result of this 2020 amendment,

appellate review of 30.30 claims are no longer forfeited by

guilty plea.

 Waiver of appeal *NEW*: The mandatory language “shall

be reviewable” reflects a legislative intent to confer

unqualified reviewability of 30.30 claims, like constitutional

speedy trial claims, and thus makes 30.30 claims reviewable

on appeal regardless of whether an appeal waiver has been

executed (see People v Rudolph, 21 NY3d 497, 501 [2013]

[use of obligatory language reflected policy choice to make

consideration of a youthful offender adjudication mandatory

and non-waivable]; compare CPL 710.70 [2] [from which

CPL 30.30 [6] was modeled, stating that suppression claims

“may be reviewed” from an ensuing judgment]).

 Effective date of new reviewability rules: A defendant is

entitled to the of benefit this new reviewability review so long

as the case is not yet final before the effective date of the

amendment (January 1, 2020) – that is to say, so long as the

appeal is not finally decided prior to the effective date of the

amendment (see People v Sullivan, 18 AD2d 1066 [1st Dept

1963] and People v Rosen, 24 AD2d 1009 [2d Dept 1965]

[holding that defendants who pleaded guilty prior to the

effective date of the statutory amendments making

suppression claims reviewable upon a guilty plea were

entitled to the benefit of the new reviewability rules because

their appeals were not decided until after the effective date of

the amendments]).

o Preservation for appeal: A defendant on appeal may raise only those

30.30 contentions argued in the lower court in initial motion papers, reply

papers, or at the hearing or those which the lower court addressed in its

decision (People v Allard, 28 NY3d 41, 46-47 [2016]; People v Goode, 87

NY2d 1045 [1996]). The appellate court can agree with the defendant that

certain periods are not excludable only if the defendant, in the lower court,

argued with specificity that the periods were not excludable or the lower

court expressly addressed the excludability of those periods upon the

defendant’s motion. For example, if a defendant argued that from January

to July is not excludable because the prosecution’s delay in responding to

the omnibus motion was “unreasonable,” the appellate court will consider

only whether that entire period was not excludable. It will not consider, for

example, the alternative argument that the shorter period from May to July

was not excludable because that particular delay was unreasonable

(Beasley, 16 NY3d 289). If the prosecution contends in its answering

papers that a specific period is excludable, the defendant will have

preserved his or her argument that the period is not excludable only to the

extent that the prosecution’s particular arguments were addressed in the

defendant’s original motion or reply papers (Allard, 28 NY3d at 46-47;

People v Rosa, 164 AD3d 1182, 1183 [1st Dept 2018]; People v Cox, 161

AD3d 1100, 1100-1101 [2d Dept 2018]; People v Henderson, 120 AD3d

1258 [2d Dept 2014]).

 Decision required: The defendant’s 30.30 claim will be preserved

only if the court expressly decides the 30.30 motion (CPL

470.05 [2]; People v Green, 19 AD3d 1075 [4th Dept 2005]; see

also CPL 30.30 [6] [requiring for reviewability “[a]n order finally

denying” motion]).

o Reviewable grounds for affirmance: An appellate court may affirm a

CPL 30.30 ruling only on those grounds that were the basis for the trial

court’s determination (People v Concepcion, 17 NY3d 192 [2011]).

o Ineffective assistance of counsel: Where defense counsel has failed to

make a meritorious 30.30 motion for dismissal, the defendant will be

denied effective assistance of counsel (People v Devino, 110 AD3d 1146

[3d Dept 2013]; People v Sweet, 79 AD3d 1772 [4th Dept 2010]; People

v Manning, 52 AD3d 1295 [4th Dept 2008]; People v Grey, 257 AD2d

685 [3d Dept 1999]; People v Miller, 142 AD2d 970 [4th Dept 1988]).

 Merit Requirement: It has been held that there will be no IAC

claim where the record is unclear that the 30.30 claim that counsel

failed to pursue actually had merit (see People v Younges, 101 AD3d

1589 [4th Dept 2012]; People v Brunner, 16 NY3d 820 [2011]

[counsel’s failure to make a 30.30 motion did not deny defendant

effective assistance counsel where there was negative precedent and

applicability of exclusions was debatable]; but see People v

Clermont, 22 NY3d at 934 [court found counsel ineffective for not

vigorously pursuing suppression claim, noting that it was not

necessary for the court to resolve whether the motion to suppress

actually had merit; it was enough that substantial arguments for and

against suppression could be made and the question, which involved

“complex DeBour jurisprudence,” was a close one]).