Issue before the Court: Whether the accusatory instrument should be dismissed pursuant to CPL 30.30, where the People’s off-calendar certificate of readiness (COR) was followed by their statement at the next court appearance that they were no longer ready.

 

Held: The accusatory instrument should have been dismissed pursuant to CPL 30.30, as the People’s COR was illusory.

 

Cal Observes: Because Judge Abdus-Salaam took no part, and there were two three-judge plurality concurring opinions, neither Judge Lippman’s nor Judge Graffeo’s concurring opinion represents a majority holding.  The controlling law is thus not clear to litigants and judges.  Judge Lippman “would hold” that, in this circumstance, the time period between the COR and the statement of unreadiness at the next calendar call “may not be [excludable] unless the People’s unreadiness is occasioned by an exceptional fact or circumstance.”  Judge Graffeo “would decide” the case (with the same result) on a “narrower basis.”  In her view, “there is a presumption that [the COR] is truthful and accurate,” which presumption is overcome if there is “proof that the [COR] did not accurately reflect the People’s position.”  Judge Lippman’s language reflects his frustration as an administrator that the Legislature’s intent in enacting CPL §30.30 to speed the criminal process has been thwarted through various prosecutorial loopholes, the use of which the intermediate appellate courts have not discouraged.  We believe that Judge Lippman’s opinion is the better of the two, if for no other reason that it recognizes (as Judge Graffeo’s does not) that the issue is governed by CPL §30.30(3)(b), which covers post-readiness delay.  What is not stated by either opinion, but what might be determinative in future cases, is that, when it comes to post-readiness delay, “it is the People’s burden to ensure, in the first instance, that the record of proceedings ... is sufficiently clear to enable the court considering the subsequent CPL 30.30 motion to make an informed decision as to whether the People should be charged.”  People v. Cortes, 80 N.Y.2d 201 215-216 (1992).  In many cases, therefore, the People will have failed, “in the first instance,” to have satisfied either Judge Lippman or Judge Graffeo.  In any event, with Sibblies, the prosecutors will have to rethink what had become a standard practice, and judges will have to readjust their attitudes toward it.  Defense attorneys, meanwhile, would do best to argue that the time period is includable because it does not pass even Judge Graffeo’s more tolerant smell test.  And, of course, everyone will have to wait for several years for the Court of Appeals to finally resolve the question.