People v. Rodriguez

Judgment, Supreme Court, New York County (Michael J. Obús, J., at speedy trial motion; Michael R. Sonberg, J., at jury trial and sentencing), rendered March 11, 2013, convicting defendant of criminal possession of a weapon in the third degree and criminal trespass in the second and third degrees, and sentencing him, as a second felony offender, to an aggregate term of 2 to 4 years, reversed, on the law, and the indictment dismissed.

Defendant is entitled to dismissal on speedy trial grounds because the certificates of readiness that the People filed on August 30, 2011 and February 7, 2012 were illusory under the principles that the Court of Appeals discussed in People v Sibblies (22 NY3d 1174 [2014]), which was decided after defendant’s conviction. The chargeable time, added to the time the court properly charged to the People, totals 295 days, well over the 184 days within which the People should have been ready for trial.

First, the People provided no explanation why, after filing and serving the certificate of readiness on August 30, 2011, *588shortly after defendant’s arraignment on August 25, 2011, they answered not ready at the next court date on September 7, 2011 (see People v Bonilla, 94 AD3d 633, 633 [1st Dept 2012]). Nothing in the record, express or inferred, explains their change in status from ready to not ready. As the People “gave no explanation for the change in circumstances between the initial statement of readiness and the subsequent admission that the People were not ready to proceed,” and the statement of readiness thus “did not accurately reflect the People’s position,” the People should have been charged with the entire period, a total of 70 days (Sibblies, 22 NY3d at 1181 [Graffeo, J., concurring]; see People v Brown, 126 AD3d 516, 517-518 [1st Dept 2015], lv granted 25 NY3d 1160 [2015]; see also People v England, 84 NY2d 1, 4-5 [1994]). The People argue that the court did not ask for any reason, but the burden rests on the People to clarify, on the record, the basis for the adjournment (People v Salgado, 27 AD3d 71, 75 [1st Dept 2006], lv denied 6 NY3d 838 [2006]).

Second, after the People answered not ready on January 31, 2012, because the prosecutor was on trial in another case, the matter was adjourned to March 20, 2012. On February 7, 2012, the People filed and served a certificate of readiness. At the next court date, March 20, 2012, however, they again answered not ready because the prosecutor was on trial in another case. The court properly deemed the entire period chargeable to the People, “notwithstanding” the February 7, 2012 certificate of readiness, but should have also charged subsequent adjournments to the People. If the prosecutor was on trial at the prior and subsequent adjournments, it is unclear why the People filed and served an off-calendar certificate of readiness, or whether the prosecutor was on trial in the same or a different case. As a result, the February 7, 2012 certificate of readiness was illusory, and the entirety of subsequent adjournment periods (not merely the number of days the People requested), until the People next announced that they were ready, should have been charged to them. Specifically, the 50 days from March 20, 2012 until May 9, 2012, 61 days from May 9, 2012 to July 9, 2012, and 52 days from July 9, 2012, until August 30, 2012, when the People validly declared their readiness, should have been charged.

The dissent appears to confine the People’s illusory statements of readiness in Sibblies to a later need for further investigation or to obtain additional records for trial. However, even though Judge Graffeo’s concurrence required some proof that the readiness statement did not accurately reflect the *589People’s position, because the People “gave no explanation for the change in circumstances between the initial statement of readiness and [the admitted later inability] to proceed” (22 NY3d at 1181), the decision is broader and applies to the excuses in this appeal as well.

In view of the foregoing, we find it unnecessary to reach any other issues. Concur — Sweeny, J.P., Acosta and Moskowitz, JJ.