Failure to Certify Readiness & Criminal Case Dismissal

New York Speedy Trial now requires a certification requirement under the Criminal Procedure Law (CPL), Section 30.30(5-a). When accused of a crime, statutory speedy trial (CPL) and constitutional speed trial rights attach.

Here, "the People's certificate of readiness filed on March 2, 2020 failed to comply with the certification requirements of CPL 30.30 (5-a), necessitating dismissal of the charges for violation of the speedy trial statute..." It may seem like a harsh remedy but New York Criminal Defense Attorneys and, here, New York City Criminal Defense Attorneys know that this failure of the people, the prolonged time between charges and prosecution, allows witness memory to fade, may result in the loss of evidence and harms the accused in making his or her defense.

Here, the Defendant was charged with Forcible Touching [PL §§ 130.52(1) and (2)], one count of Sexual Abuse in the Third Degree [PL § 130.55], and one count of Public Lewdness [PL § 245.00(a)]. Those accused of certain sexual crimes, forcible touching, rape, etc., may be required to register as a Sex Offender after conviction. The stakes are high in this criminal defense matter and both parties zealously represent their clients.

One may recall that the law requires that the People be ready to prosecute the accusation, that "The People could not be ready for trial until they had converted all charges of the misdemeanor complaint to an information. See People v Caussade, 162 AD2d 4 (2d Dept 1990); see also CPL § 30.30(5-a)," together with its requirement to provide discovery to the Defendant. Amendments require the People to provide a meaningful certification to the accused that the People, the prosecutor, has complied with the law. This, however, does not ameliorate police misconduct or prosecutorial misconduct that appears to be rife in the news and on the minds of certain persons accused of rape, sexual assault and other serious crimes.

In 2019, New York amended its speedy trial statute with the addition of CPL 30.30 (5-a), which provides:

"Upon a local criminal court accusatory instrument, a statement of readiness shall not be valid unless the prosecuting attorney certifies that all counts charged in the accusatory instrument meet the requirements of sections 100.15 and 100.40 of this chapter and those counts not meeting the requirements of sections 100.15 and 100.40 of this chapter have been dismissed."

Long after the statutory time for which the People were to prosecute these allegations, the People did not file an appropriate certificate of compliance. The Criminal Case is Dismissed on Speedy Trial Grounds, here statutory speedy trial encompassed in Criminal Procedure Law Article Thirty.

The Court here cites persuasive and excellent secondary authority explaining this subsection of law

The Supplementary Practice Commentary to CPL 30.30 (5-a) by William Donnino notes that this new subsection was added to abrogate the practice of partial conversion, whereby some counts of an accusatory instrument have been deemed converted, while at the same time leaving other existing counts unconverted on the same accusatory instrument. Therefore, the enactment of CPL 30.30 (5-a) was a response to critics of the practice of partial conversion and to provide a bright-line rule as to when the People can answer ready for purposes of speedy trial.

The Criminal defense attorney sought dismissal on speedy trial grounds. "A motion to dismiss, pursuant to CPL 30.30 and CPL 210.20(1)(g), must be granted where the People are not ready for trial within 90 days of the commencement of the action, where the top count of the information is a class A misdemeanor. CPL 30.30 (1)(b). Because the total includable time here amounts to 150 days, exceeding the allowable time of 90 days, the information must be dismissed." The calculation seems straightforward enough but requires an experienced criminal defense attorney versed in this area of motion practice as there is a host of time that may be excluded from the CPL 30.30, the statutory speedy trial analysis.

The case is People v. Rivera, 2021 N.Y. Slip Op 50347 (Crim. Ct. 2021) and the Court holds that "CPL 30.30 (5-a), certification requires the People to attest in a "COR": (1) that all counts of an accusatory instrument are facially sufficient in compliance with CPL 100.15 and 100.40 and (2) that those counts not meeting the requirements for facial sufficiency have been dismissed, before they can "answer ready" and toll the speedy trial clock."

What I like most about the conclusion of this case is the Court's finding that "This requirement does not place an additional burden on the People."

Cory H. Morris, Esq. New York and Florida, Injury, Addiction, Accident, Call the Law Offices of Cory H. Morris, 631-450-2515 (NYS) (954) 998-2918 (FLA) if you are facing any accusation, need a criminal defense attorney, criminal appellate attorney or have other complex litigation matters.