Upon the following papers read on these motions for dismissal

ORDERED that this motion to dismiss by the defendant is decided as follows: The defendant's motion to dismiss the accusatory instrument based upon an alleged violation of his statutory and constitutional speedy trial rights is DENIED.

On November 7, 2020, the defendant was arrested and charged with a violation of New York State Vehicle and Traffic Law ("VTL") § 1192.4-A [Driving Under the Combined Influence of Alcohol and/or Drugs and Drugs], an unclassified misdemeanor.

By motion dated March 30, 2022,^[FN1] the defendant now moves this court for an order dismissing the accusatory instrument based upon an alleged violation of his statutory and constitutional speedy trial rights, pursuant to CPL §§ 170.30 and 30.30 and the U.S. Constitution.

Pursuant to CPL § 30.30(1)(b), with respect to the misdemeanor charge, the People were required to make an effective statement of their readiness for trial within 90 days of the commencement date of the within criminal actions, taking into account all excludable time periods. The within criminal action was commenced on November 7, 2020. The People turned over discovery to the defendant and filed their Certificate of Compliance ["CoC"] and Statement of Readiness ["SoR"] on November 27, 2020.

The gravamen of the defendant's speedy trial motion is that the People's CoC/SoR was invalid due to the People's failure to certify the facial sufficiency of all counts in the accusatory instrument prior to filing their CoC/SoR. (See Def.'s Aff. (3/30/2022) at ¶ 11 & Exhibit B). Accordingly, the defendant contends that all time from the date of arraignment on November 7, 2020 until the date the court set a motion schedule for the instant motion, August 30, 2021, or 296 days, is chargeable to the People. (See Def.'s Aff. (3/30/2022) at ¶ 23).

This Court finds that the defendant has met his initial burden on a CPL § 30.30 motion by alleging that the prosecution failed to declare readiness within the statutorily- prescribed time period. (See People v Goode, 87 NY2d 1045 [1996]). The ultimate burden of proving that certain time periods should be excluded falls upon the People. (See People v Berkowitz, 50 NY2d 333 [1980]).

In their opposition, the People argue (1) that the defendant's motion is untimely (see [*2]People's Aff. in Opp. (5/19/2022) at Point I) and (2) under CPL § 30.30(5-a), there is no requirement that certification be contemporaneous with the filing of the CoC/SoR (see People's Aff. in Opp. (5/19/2022) at Point II).

This Court finds that the defendant's motion, while ostensibly a motion to dismiss, is a motion challenging the validity of the CoC. As such, it is untimely. The statute governing challenges to CoCs that was in effect at the time of the filing of the CoC (and of the filing of the defendant's motion), CPL § 245.50, was silent as to when such challenges must be brought.^[FN2] See CPL § 245.50(4) [2021] ["[c]hallenges to, or questions related to a certificate of compliance shall be addressed by motion."]. Accordingly, courts have routinely applied the time limit set forth in CPL § 255.20, which states, in pertinent part, "all pre-trial motions shall be served or filed within forty-five days after arraignment or before commencement of trial, or within such additional time as the court may fix upon application of the defendant made prior to entry of judgment." Therefore, although motions to dismiss based on speedy trial grounds may be brought any time under CPL § 30.30, the defendant's motion challenging the validity of the CoC should have been made within forty-five (45) days from the filing or the receipt of the CoC.

Here, the People filed the CoC on November 27, 2020, and the defendant initially filed his motion on September 20, 2021, some two hundred and ninety-seven (297) days later; thus, more than forty-five days have elapsed since the filing of the CoC. Accordingly, the defendant's motion is denied.

The Court also finds that, had the motion been timely, the motion would be denied on an additional ground. CPL § 30.30(5-a),^[FN3] which governs the certification requirement as to sufficiency of the accusatory instrument, is silent as to when and how the People must certify that each count is legally sufficient.

As this Court explained in People v Lenio, Docket Nos. CR-020394-20SU and CR-020417-20SU [Dist Ct, Suffolk Cnty, August 30, 2021], the People's contention, made in their opposition papers, that the accusatory instrument meets the requirements of CPL § 100.15 and § [*3]100.40, is retroactive. See Lenio, at p. 2/3 [citing People v Aviles, 72 Misc 3d 423, 148 NYS3d 659 [Crim Ct, Kings Cnty 2021] and People v Kupferman, 71 Misc 3d 1232(A), 146 NYS3d 770 [Sup Ct, Kings Cnty 2021]]. It is the opinion of this Court that such a statement is retroactive, particularly where there has been no change in the People's case since the time of the initial CoC, i.e., no additional disclosures. In such case, the failure to certify is merely ministerial. Therefore, the CoC filed in this case on November 27, 2021 is valid and the speedy trial clock stopped when it was filed.

Accordingly, even assuming all of the time from arraignment until the filing of the CoC/SoR were chargeable to the People, there are only a maximum of twenty (20) days elapsed on the speedy trial clock. Therefore, the defendant's motion to dismiss based on an alleged violation of his statutory speedy trial rights is denied.

The defendant has moved to dismiss on the alternate ground that his federal constitutional rights were violated by the People's delay, specifically, his Speedy Trial Right under the Sixth Amendment to the U.S. Constitution. (See Def.'s Notice of Motion (3/30/2022) at ¶ 1).

The right to a speedy trial guaranteed by the Sixth Amendment to the United States Constitution is "a fundamental right applicable in State prosecutions as well as Federal prosecutions." Klopfer v North Carolina, 386 US 213 [1967]. In determining the proper scope of this right, both this Court and the Supreme Court have held that "excessive delay between institution of the prosecution—whether by felony information or complaint, detainer warrant or indictment—and the trial" constitutes a violation of an accused person's right to a speedy trial. (People v White, 32 NY2d 393, 397, 345 NYS2d 513 [1973], citing United States v Marion, 404 US 307, 320 [1971]).

In evaluating whether a defendant's speedy trial rights have been violated under the Sixth Amendment, courts consider the following factors: (1) length of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) the extent of pretrial incarceration; and (5) whether the defense was impaired by the delay. See People v Taranovich, 37 NY2d 442 [1975].

Courts have held that the first factor, the length of delay, operates as a "threshold inquiry." United States v Cabral, 979 F3d 150, 157 [2d Cir 2020]. Courts will only consider the other Barker factors once the defendant makes a showing that "that the interval between accusation and trial has crossed the threshold dividing ordinary from 'presumptively prejudicial' delay." United States v Ghailani, 733 F3d 29, 43 [2d Cir 2013]. Once a court has determined that the delay is presumptively prejudicial, "the burden is upon the government to prove that the delay was justified and that [the defendant's] speedy trial rights were not violated." United States v New Buffalo Amusement Corp, 600 F2d 368, 377 [2d Cir 1979].

Here, the defendant is not incarcerated prior to trial. Nor has the defendant demonstrated prejudice by any alleged delay. Accordingly, the Defendant's contention that the People have violated his constitutional speedy trial rights under the Sixth Amendment is denied.

By reason of the foregoing, the defendant's motion to dismiss the accusatory instrument on statutory and constitutional speedy trial grounds is DENIED in its entirety.