AD1 order dated March 17, 2015, affirming judgment of conviction. Decision below: 126 AD3d 516, 7 NYS3d 19. Stein, J., granted leave June 17, 2015.

ISSUE PRESENTED: CPL 30.30 & People v. Sibblies, 22 NY3d 1174 (2014); how to analyze the People’s subsequent statement of unreadiness following an off-calendar certificate of readiness. The Sibblies Court was split 3-3 in two plurality opinions. (Leave was also granted in People v. Terrence Young, 2015 WL 824564, with a similar issue.) (Assigned counsel: Danielle Muscatello, c/o Robert Didio & Associates, 80-02 Kew Gardens Road, Suite 307, Kew Gardens, NY 11415.)

Issue before the Court: CPL 30.30 - Where the People file an off-calendar certificate of readiness (COR), and then come in on the next adjourn date and say they are not ready, under what circumstances is the delay between the COR and the adjourn date chargeable to the People?

 

Held: There is a presumption that the People’s statement of readiness is accurate.  It is the defendant’s burden to show that the COR was illusory; however, it is the People’s obligation, either contemporaneously or in response to a 30.30 motion, to explain for the record why the People were ready at the time of the COR but became unready as of the following adjourn date.

 

CAL Observes: This was an issue left open in People v. Sibbles, 22 NY3d 1174.  The Brown Court chose the analysis most favorable to the People, i.e., the presumption of accuracy.  But Brown makes clear what was implicit in Sibbles– that the People have the obligation to explain the reason for the change in readiness in these circumstances.   Where the People pull this maneuver, defense counsel should immediately and on the record ask the People to provide an explanation for the change in readiness, and then argue that the COR was “illusory.”