ALTHEA E. DRYSDALE, J.
The defendant is charged under a misdemeanor complaint with (1) one count of Criminal Possession of Stolen Property in the Fifth Degree (Penal Law ["PL"] § 165.40), (2) one count of Resisting Arrest (PL § 205.30), (3) one count of Criminal Possession of a Controlled Substance in the Seventh Degree (PL § 220.03), and (4) two counts of Criminally Using Drug Paraphernalia in the Second Degree (under PL §§ 220.50[2] and 220.50[3]). The defendant moves to dismiss on the ground that he has been denied his statutory right to a speedy trial because more than than ninety (90) days are chargeable to the People ( see Criminal Procedure Law ["CPL"] 30.30[2]).
Pursuant to CPL 30.30(1)(b), the People must be ready for trial within ninety (90) days of commencement of a criminal action charging a defendant with a misdemeanor punishable by a sentence of imprisonment of more than three (3) months. Although a criminal action commences when the accusatory instrument is filed, counting for speedy trial purposes starts the following day (see People v Stiles, 70 N.Y.2d 765 [1987]).
The defendant was arraigned on the misdemeanor complaint on September 12, 2014. The People were ready as to counts two, three, four and five. The People were not ready as to count one and the Court adjourned the matter for the People to file and serve the supporting deposition of Aura Sanchez to convert that charge. Off-calendar, on October 1, 2014, the People converted count one by filing and serving the supporting deposition. Therefore, as to count one, twenty (20) days are chargeable to the People for the period between September 12, 2014 and October 1, 2014 (see People v Giordano, 56 N.Y.2d 524, 525 [1982]). Zero (0) days are chargeable to the People for the remaining charges.
On October 20, 2014, the Court adjourned this matter to December 8, 2014 for open file discovery and a hearing. The adjournment is excludable as a period of delay for discovery by stipulation (see People v Thomas, 26 Misc.3d 144[A] [App Term 2d, 11th and 13th Jud Dists 2010]).
On December 8, 2014, the People declared that they were not ready for the hearing. The People did not provide a reason for delaying the hearing. The Court adjourned the matter to January 22, 2015 for the hearing. The People stated they would "try to make it work" (see Court Minutes from December 8, 2014, page 3). On December 9, 2014, the People filed a certificate of readiness.
On January 22, 2015, the People declared that they were not ready for the hearing because "the officer didn't show" (see Court Minutes from January 22, 2015, page 3). The Court adjourned the matter to February 26, 2015 for the hearing. On February 6, 2015, the People filed a certificate of readiness.
On February 26, 2015, the People declared that they were not ready for the hearing because "the officer hasn't checked in for the hearing yet" (see Court Minutes from February 26, 2015, page 2). The Court adjourned the matter to April 26, 2014 for the hearing. On March 3, 2014, the People filed a certificate of readiness.
On April 26, 2015, the defendant filed the instant motion. The presiding judge, Judge Gia L. Morris, inquired as to the People's prior certificates of readiness. The record indicates the detective's cooperation had become an issue and the People were attempting to utilize subpoena power to compel the detective to appear for the hearing. During her inquiry Judge Morris said: "... from what I can tell, and my guess is if you are telling me he had to subpoena the detective, which is not normally the way police officers are brought to court, but that that police officer for whatever reason or detective, is not being cooperative" (See Court Minutes from April 16, 2015, page 3).
The primary issue in this case is whether the period of delay after the People filed the off-calendar notices of readiness on December 9, 2014, February 6, 2015 and March 3, 3015 respectively, should be charged to them since they were not ready for trial on the following adjournment date. Relying on People v Sibblies, 22 N.Y.3d 1174 (2014) (Lippman, J. concurring), the defendant contends that, absent an exceptional circumstance to justify their subsequent unreadiness, the People's off-calendar notices of readiness were illusory. In response, the People argue that Sibblies does not apply to this case where witness availability is the primary issue. Specifically, they argue that unexpected witness unavailability should not be charged to the People because such a circumstance does not invalidate a prior and otherwise proper statement of readiness (see People v Robinson, 171 A.D.2d 475, 476 [1st Dept 1991]).
Readiness for trial "is not an empty declaration that the People are prepared to present their direct case" (People v England, 84 N.Y.2d 1, 4 [1994]). The People "must in fact be ready to proceed" when they announce ready for trial (People v Chavis, 91 N.Y.2d 500, 505 [1998]). To be ready for trial, the People must "have done all that is required of them to bring the case to a point where it may be tried" (id.). At a minimum, the People must have a valid accusatory instrument, have complied with their obligation to produce the defendant and have complied with all pretrial proceedings (see People v Caussade, 162 A.D.2d 4, 8 [2d Dept 1990]).
While a statement of readiness made "at a time when [they] are not actually ready is illusory" (England, 84 NY2d at 4), the People's statement of readiness is presumed to be accurate and truthful unless there is an indication that it does not accurately reflect their position (Sibblies, 22 NY3d at 1180 [Graffeo, J., concurring]). The People are not required to "affirmatively prove that [they are] in fact ready for trial when [they make] that announcement" (id.). However, once the defendant shows a delay in excess of the speedy trial ninety day limit, the burden shifts to the People to establish that certain periods within that time should be excluded (see People v Santos, 68 N.Y.2d 859, 861 [1986]).
The Court agrees with the People's assertion that "the filing of a statement of readiness may be subsequently found illusory if, on the next date, the People ask for a further adjournment and that adjournment is for a reason that casts doubt on the truth of the prior statement of readiness" (see People's Response to Defendant's Motion to Dismiss on Speedy Trial Grounds, page 2). Here, review of the court record as a whole raises questions about the truth of the People's prior certificates of readiness. Since issues of fact must be resolved1, the Court orders a hearing to determine the truthfulness of the certificates of readiness filed by the People.The foregoing constitutes the opinion and order of the court.
