Arguing that she has been denied her right to a speedy trial pursuant to Criminal Procedure Law (CPL) §§ 30.30 and 30.20 and alleging that (i) the felony complaint was not properly reduced pursuant to CPL § 180.50 (and, consequently, that the accusatory instrument continues to be a felony complaint), and (ii) over 183 days have elapsed that are chargeable as non-excludable time pursuant to CPL § 30.30, the defendant has moved to dismiss the pending charges.^[FN1] The critical issue before the court is whether three supporting depositions, two of [*2]which were executed prior to the date that the superseding information was executed, convert the pending charges. The court concludes that they do and, for the reasons set forth below, the defendant's motion is denied.

The defendant was arraigned pursuant to an accusatory instrument that was signed by Police Officer Joshua Gregory, Shield 03884 of the 078 Command (the Felony Complaint) on December 19, 2014 and charged with three counts Criminal Possession of a Forged Instrument in the Second Degree (Penal Law (PL) § 170.25), one count of Grand Larceny in the Fourth Degree (PL § 155.30), one count of Identity Theft in the Second Degree (PL § 190.79[1]), three counts of Criminal Possession of a Forged Instrument in the Third Degree (PL § 170.20), one count of Criminal Impersonation in the Second Degree (PL § 190.25[1]), one count of Identity Theft in the Third Degree (PL § 190.78) and two counts of Unlawful Possession of Personal Identification Information in the Third Degree (PL § 190.81). The Felony Complaint provides in relevant part:

THE DEPONENT IS INFORMED BY ELVIN OFTIZ THAT, AT THE ABOVE TIME AND PLACE, THE INFORMANT DID OBSERVE THE DEFENDANT IN POSSESION OF A NEW YORK STATE DRIVER'S LICENSE UNDER THE NAME JACLYN MASCARENAS IN THAT THE DEFENDANT DID HAND INFORMANT SAID LICENSE UPON INFORMANT'S REQUEST FOR DEFENDANT'S IDENTIFICATION, THAT DEFENDANT DID APPLY FOR A LINE OF CREDIT FROM GUITAR CENTER UNDER THE NAME JACLYN MASCARENAS, AND THAT DEFENDANT DID RECEIVE A LINE OF CREDIT IN THE AMOUNT OF 1500 USC UNDER THE NAME JACLYN MASCARENAS.

DEPONENT IS INFORMED BY JACLYN MASCARENAS THAT THE DEFENDANT DID NOT HAVE PERMISSION OR AUTHORITY TO USE INFORMANT'S PERSONAL INFORMATION OR TO OPEN A LINE OF CREDIT UNDER INFORMANT'S NAME AT GUITAR CENTER.

The matter was adjourned until December 22, 2014 to the Screening and Treatment Enhancement Part (STEP) for evaluation, on which date a treatment offer was made to the defendant which the defendant declined, and the case was further adjourned until February 26, 2015 to Part AP1F for grand jury action.

On February 26, 2015, the People indicated that they had not presented, and did not intend to present, the case to a grand jury and, instead, dismissed the three felony charges (Criminal Possession of a Forged Instrument in the Second Degree [PL § 170.25], Grand Larceny in the Fourth Degree [PL § 155.30] and Identity Theft in the Second Degree [PL § 190.79(1)]). The AP1F judge entered notations on the Felony Complaint by (i) striking through the dismissed felony charges, (ii) indicating by stamp "Dismissed by the People", (iii) indicating by stamp the date of such dismissal as "February 26, 2015" and (iii) handwriting across the Felony Complaint "SSI" to indicate that the accusatory instrument was no longer a felony complaint and that the [*3]people were simultaneously filing a superseding information. During that same appearance, the People did simultaneously serve and file a superseding information (the Replacement SSI), signed by Assistant District Attorney, Yasmine Meyer, dated January 7, 2015 which provides in relevant part that:

THE DEPONENT IS INFORMED BY THE SWORN STATEMENT (emphasis added) OF ELVIN OFTIZ THAT, AT THE ABOVE TIME AND PLACE, THE INFORMANT DID OBSERVE THE DEFENDANT IN POSSESION OF A NEW YORK STATE DRIVER'S LICENSE UNDER THE NAME JACLYN MASCARENAS IN THAT THE DEFENDANT DID HAND INFORMANT SAID LICENSE UPON INFORMANT'S REQUEST FOR DEFENDANT'S IDENTIFICATION, THAT DEFENDANT DID APPLY FOR A LINE OF CREDIT FROM GUITAR CENTER UNDER THE NAME JACLYN MASCARENAS, AND THAT DEFENDANT DID RECEIVE A LINE OF CREDIT IN THE AMOUNT OF 1500 USC UNDER THE NAME JACLYN MASCARENAS.

DEPONENT IS INFORMED BY THE SWORN STATEMENT (emphasis added) OF JACLYN MASCARENAS THAT THE DEFENDANT DID NOT HAVE PERMISSION OR AUTHORITY TO USE INFORMANT'S PERSONAL INFORMATION OR TO OPEN A LINE OF CREDIT UNDER INFORMANT'S NAME AT GUITAR CENTER.

DEPONENT IS INFORMED BY THE SWORN STATEMENT OF JOSHUA GREGORY SHIELD NO. 03884, OF 078 COMMAND, THAT THE INFORMANT DID RECOVER THE ABOVE-MENTIONED NEW YORK STATE DRIVER'S LICENSE FROM ELVIN ORTIZ, DID PHYSICALLY EXAMINE SAID LICENSE, DID OBSERVE THE MATERIAL, TEXTURE, AND PRINT FACE ON SAID CARD TO BE INCONSISTENT WITH THOSE OF AN OFFICIAL NEW YORK STATE DRIVER'S LICENSE, AND DID OBSERVE THAT THE BARCODE OF THE BACK OF SAID LICENSE COULD NOT BE SCANNED.

DEPONENT IS FURTHER INFORMED BY THE SWORN STATEMENT OF POLICE OFFICER JOSHUA GREGORY THAT INFORMANT CONSULTED THE OFFICIAL RECORDS OF THE DEPARTMENT OF MOTOR VEHICLES WHICH ARE KEPT IN THE ORDINARY COURSE OF BUSINESS, DEPONTENT OBSERVED THE CLIENT ID, NAME AND ADDRESS ON SAID LICENSE TO CORRESPOND TO A VALID NEW YORK STATE DRIVER'S LICENSE, AND DEPONENT OBSERVED THAT THE HEIGHT OF THE INDIVIDUAL LISTED IN THE DMV ABSTRACT TO BE DIFFERENT FROM THE HEIGHT LISTED ON SAID LICENSE.

THE DEPONENT IS FURTHER INFORMED BY THE SWORN STATEMENT OF POLICE OFFICER JOSHUA GREGORY THAT INFORMANT DID RECOVER A CALIFORNIA STATE DRIVER'S LICENSE UNDER THE NAME ANN GRIFFIN FROM DEFENDANT'S PERSON, AND DID OBSERVE THAT THE BARCODE ON THE BACK OF SAID LICENSE COULD NOT BE SCANNED.

DEPONENT IS FURTHER INFORMED BY THE SWORN STATEMENT OF POLICE OFFICER JOSHUA GREGORY THAT INFORMANT CONSULTED THE OFFICIAL RECORDS OF THE DEPARTMENT OF MOTOR VEHICLES WHICH ARE KEPT IN THE ORDINARY COURSE OF BUSINESS, DEPONENT OBSERVED THE CLIENT ID TO CORRESPOND TO AN EXPIRED CALIFORNIA STATE DRIVER'S LICENSE UNDER THE NAME DANIEL MCGREGOR, AND DEPONENT OBSERVED THAT THE NAME AND ADDRESS OF THE INDIVIDUAL LISTED IN THE DMV DATABASE TO BE DIFFERENT THAN THOSE LISTED ON SAID LICENSE.

THE DEPONENT IS FURTHER INFORMED BY THE SWORN STATEMENT OF POLICE OFFICER JOSHUA GREGORY THAT THE DEPONENT DID RECOVER A CHASE VISA CARD, BEARING THE ACCOUNT NUMBER 4147180108745452 AND THE NAME JACLYN MASCARENAS FROM THE DEFENDANT'S PERSON.

DEPONENT IS FURTHER INFORMED LISA FAUX, AN EMPLOYEE IN THE CHASE LAW ENFORCEMENT NATIONAL SUPPORT DEPARTMENT THAT, ACCORDING TO THE OFFICIAL RECORDS OF CHASE BANK KEPT IN THE ORDINARY COURSE OF BUSINESS, THE ACCOUNT NUMBER OF THE ABOVE DESCRIBED VISA CARD WAS LINKED TO A WELLS FARGO ACCOUNT, NOT A CHASE ACCOUNT.

DEPONENT IS FURTHER INFORMED BY THE SWORN STATEMENT OF POLICE OFFICER JOSHUA GREGORY THAT HE HAS HAD PROFESSIONAL TRAINING AS A POLICE OFFICER IN THE IDENTIFICATION OF FORGED DOCUMENTS, HAD PREVIOUSLY MADE ARRESTS FOR THE CRIMINAL POSSESSION OF FORGED DOCUMENTS, AND IN THE DEPONENTS OPINION, THE NEW YORK STATE DRIVER'S LICENSE, CALIFORNIA STATE DRIVER'S LICENSE AND CHASE VISA CARD IN THIS CASE ARE FORGED.

The People also filed the supporting depositions of (i) Elvin Ortiz (the Ortiz Supporting Deposition), dated December 23, 2014, (ii) Jaclyn Mascarenas (the Mascarenas Supporting Deposition), dated December 23, 2014, and (iii) Lisa Faux (the Faux Supporting Deposition), dated January 7, 2015. The Ortiz Supporting Deposition, the Mascarenas Supporting Deposition and the Faux Supporting Deposition each provide that the signatory to each such supporting deposition has read the accusatory instrument in the action and that the "facts stated in the instrument to be on information furnished by me are true upon my personal knowledge (emphasis added)." The AP1F judge deemed the Replacement SSI an information ^[FN2] and adjourned the matter until April 28, 2015 to All Purpose Part 2 (AP2) for Discovery by Stipulation (DBS).

On April 28, 2015 in AP2, the People served and filed DBS and the matter was further adjourned until June 12, 2015 for any necessary hearings and trial. However, on June 12, 2015, the People indicated that they were not ready to proceed to trial because the arresting officer was on a regularly scheduled day-off (RDO) and requested a six day adjournment until June 18, 2015. The court adjourned the matter until July 28, 2015 for hearings and trial.

On July 28, 2015, the People indicated that, because the assigned assistant district attorney was engaged on trial in Trial Part 2 (TP2), the People were not ready to proceed to trial. Noting that the People would be charged for speedy trial purposes with the time from then until a statement of readiness (SOR) was served and filed, the court adjourned the matter until October 13, 2015 for hearings and trial. Off-calendar, on July 31, 2015, the people served and filed a SOR.

On October 13, 2015, the People again indicated that they were ready to proceed to trial. The defendant however indicated that she was not ready to proceed, and the matter was further adjourned until November 18, 2015.

On November 18, 2015, the defendant served and filed the instant motion, the court instructed the People to file any opposition papers by December 3, 2015 and adjourned the matter until January 20, 2016 to Trial Part 1 for the court's decision on the defendant's motion and any necessary hearings and trial.

The defendant argues that proper reduction of a felony charge requires strict compliance with the requirements set forth in CPL § 180.50 and, of course, this court would agree.^[FN3] The defendant further argues that because the Ortiz Supporting Deposition and the Mascarenas Supporting Deposition were signed prior to the Replacement SSI, the People were required to serve and file replacement supporting depositions and that because the People did not file replacement supporting depositions, the Replacement SSI remains unconverted, the felony charges were not properly reduced, and the court must dismiss the instrument as violating the defendant's speedy trial rights. The court simply does not agree.

A felony charge is reduced from a felony offense to a non-felony offense by replacing the [*4]felony complaint with, or converting it, or a copy thereof, into an information by notations upon or attached thereto which make the necessary and appropriate changes in the title of the instrument and in the names of the offense or offenses charged. See CPL § 180.50(a)(3)(iii). This is exactly what the AP1F judge did on February 26, 2015 in part AP1F.

As described above, and as supported by the record herein, pursuant to, and in strict compliance with CPL § 180.50(a)(3)(iii), the AP1F Judge properly and clearly made notations on the Felony Complaint by (i) crossing out all of the felony charges that appeared on the Felony Complaint, indicating that such charges had been dismissed, (ii) stamping the accusatory instrument adjacent to the crossed out felony charges "Dismissed by the People", (iii) indicating by stamp the date of such dismissal as "February 26, 2015" and (iii) handwriting across the Felony Complaint "SSI" to indicate that the accusatory instrument was no longer a felony complaint and that the people were simultaneously filing a superseding information. Simultaneously therewith, the People did in fact serve and file the Replacement SSI, three supporting depositions all of which were signed after the Felony Complaint was executed by Officer Gregory and two of which (i.e., the Ortiz Supporting Deposition and the Mascarenas Supporting Deposition) were signed prior to the execution of the Replacement SSI. The Replacement SSI charges the defendant only with class A misdemeanor charges and no felony charges, to wit: (a) Criminal Possession of a Forged Instrument in the Third Degree (3 counts) (PL §170.20), (b) Criminal Impersonation in the Second Degree (PL § 190.25(1), (c) Identity Theft in the Third Degree (PL § 190.78(1)), and (d) Unlawful Possession of Person Identification Information in the Third Degree (2 counts) (PL §190.81). Inasmuch as no felony charges appear on the Replacement SSI, it is axiomatic that it is not a felony complaint. The Replacement SSI indicates that the deponent is informed by the "sworn statement" of Officer Gregory (i.e., the Felony Complaint), the "sworn statement" of Elvin Ortiz, (i.e., the Oritz Supporting Deposition), the "sworn statement" of Jaclyn Mascarenas (i.e., the Mascarenas Supporting Deposition) and the "sworn statement" of Lisa Faux (i.e., the Faux Deposition). The facts set forth in the Felony Complaint (which facts Mr. Ortiz corroborated to Officer Gregory when he executed the Ortiz Supporting Deposition that provides that the facts set forth in the Felony Complaint are true and based on information provided by Mr. Ortiz) are identical to the facts set forth in the Replacement SSI. Similarly, the facts set forth in the Felony Complaint (which facts Ms. Mascarenas corroborated to Officer Gregory when she executed the Mascarenas Supporting Deposition that provides that the facts set forth in the Felony Complaint are true and based on information provided by Ms. Mascarenas) are identical to the facts set forth in the Replacement SSI. To require the People to file replacement supporting depositions would (i) contradict the express language of the Replacement SSI which language indicates that the deponent is relying on the pre-existing sworn statements of Mr. Ortiz and Ms. Mascarenas that the facts which appear in the accusatory instrument are true and based on information provided to Officer Gregory, (ii) be an exercise in form over substance in the extreme and find uncorroborated hearsay where simply none exists and (iii) controvert the purpose of the corroboration [*5]requirement.^[FN4] Inasmuch as the Replacement SSI was fully converted into an information and the requirements of CPL § 180.50(a)(3)(iii) were otherwise satisfied, the charges were properly reduced.

Pursuant to CPL § 30.30(1), the applicable speedy trial time is determined based on the highest charge in the accusatory instrument. People v Walton, 165 Misc 2d 672, 674 (Crim Ct, Richmond County 1995). Where a criminal action is commenced by the filing of a felony complaint, which is replaced by a misdemeanor complaint, the period applicable for determining the amount of time in which the People must be ready for trial on the new charges is calculated from the date the first instrument is replaced, or six months from the filing of the felony complaint, whichever is shorter. CPL § 30.30(5)(c); People v Cooper, 98 NY2d 541 (2002).

The People cannot be ready for trial until they have converted a misdemeanor complaint into an information. People v Caussade, 162 AD2d 4, 8 (2d Dept 1990). In order for a misdemeanor complaint to be converted into an information, the factual portion of the instrument must contain "non-hearsay allegations that establish, if true, every element of the crime charged and defendant's commission thereof." CPL § 100.40(1)(c); People v Alejandro, 70 NY2d 133 (1987).

The defendant has the initial burden of showing, through sworn allegations of fact, that there has been an inexcusable delay beyond the time allotted by the statute. People v Santos, 68 NY2d 859, 861 (1986). Once the defendant has made that showing, the People bear the burden of demonstrating sufficient excludable time in order to withstand the motion to dismiss. Id.

As discussed above, the defendant was arraigned on December 19, 2014 pursuant to the Felony Complaint and on February 26, 2015, (i) the felony charges were properly reduced pursuant to CPL § 180.50(a)(3)(iii) and (ii) the People filed the Replacement SSI which is an information. Pursuant to CPL § 30.30(5)(c), the period applicable to the charges in the new accusatory instrument is calculated from the date of filing of such new accusatory instrument. Therefore, for CPL § 30.30 purposes, the time from December 19, 2014 until February 26, 2015 is excludable time.

2. For CPL § 30.30 purposes, no time is chargeable from February 26, 2015 until April 28, 2015

In Kings County, DBS is in lieu of motion practice, and adjournments for DBS are [*6]excluded from speedy trial calculations irrespective of whether the People are ready for trial. CPL § 30.30(4)(a); People v Dorilas, 19 Misc 3d 75, 76-77 (App Term, 2d Dept 2008); People v Khachiyan, 194 Misc 2d 161, 166 (Crim Ct, Kings County 2002). As discussed above, on February 26, 2015, the AP1F judge adjourned the matter until April 28, 2015 for DBS. Accordingly, for CPL § 30.30 purposes the time period from February 26, 2015 until April 28, 2015 is excludable time.

The People are entitled to a reasonable adjournment to prepare for hearings and trial, See People v Greene, 223 AD2d 474 (1st Dept), appeal denied 88 NY2d 879 (1996); People v Hernandez, 268 AD2d 344 (1st Dept), lv denied 95 NY2d 253 (2000); People v Lucas, 25 Misc 3d 1213(A), (Crim Ct, Kings County 2009). As discussed above, on April 28, 2015, the People served DBS and the court adjourned the matter until June 12, 2015 for any necessary hearings and trial. Therefore for CPL § 30.30 purposes the time period from April 28, 2015 until June 12, 2015 is excludable time.

Post-readiness delays can be chargeable to the People only if they become unready. People v Anderson, 66 NY2d 529 (1985). When a case is in a post-readiness posture, for CPL § 30.30 purposes, specific adjournments requested by the People are chargeable as non-excludable time, but adjournments that extend beyond the specific adjournment requested by the People are excluded time. People v Bruno, 300 AD2d 93, 95 (1st Dept), lv denied 100 NY2d 641 (2003); People v Dushain, 247 AD2d 234, 236 (1st Dept), appeal denied 91 NY2d 1007 (1998). As discussed above, on June 12, 2015, the People were not prepared to proceed because the arresting officer was RDO and the People requested a six day adjournment. Therefore, notwithstanding that the court adjourned the case until July 28, 2015, for CPL § 30.30 purposes, only the six day period actually requested by the People is chargeable as non-excludable time.

There is a presumption that a statement of readiness is truthful and accurate. See People v Sibblies, 22 NY3d 1174 (2014, Graffeo, J., concurring) citing People v Miller, 113 AD3d 885, 887 (3d Dept, 2014), People v Acosta, 249 AD2d 161, 161 (1st Dept, 2012) and People v Bonilla, 94 AD3d 633 (1st Dept, 2012). On June 28, 2015, the People indicated that they were not ready to proceed because the assigned ADA was already engaged in TP2 on another matter. The court indicated that the People would be charged until an SOR was filed and further adjourned the matter until October 13, 2015. On July 31, 2015, the People served and filed an SOR. Therefore, for CPL § 30.30 purposes, only the three days between July 28, 2015 and July 31, 2015 is chargeable as non-excludable time.

On October 13, 2015, as indicated above, the People were ready to proceed to trial, the defendant however was not prepared to proceed and the court adjourned the matter until November 18, 2015. Therefore, for CPL § 30.30 purposes, no time is chargeable as non-excludable time.

An adjournment for motion practice and the period during which the motion is "under consideration by the court" is excludable time. CPL § 30.30(4)(a); People v Stewart, 57 AD3d 1312, 1314 (3rd Dept, 2008).^[FN5] As discussed above, the defendant filed the instant motion on November 18, 2015 and the matter was adjourned until January 20, 2016 for the court's decision on the defendant's motion. Therefore, for CPL § 30.30 purposes, the time period from November 18, 2015 until January 20, 2016 is excludable time.

8. CONCLUSION

In total, therefore, the court finds that only nine days of non-excludable time is chargeable pursuant to CPL § 30.30 and accordingly, the defendant's motion to dismiss pursuant to CPL § 30.30 is denied.

A defendant's right to a speedy trial is also guaranteed by the United States Constitution, the New York State Constitution, and CPL § 30.20. Taylor, 189 Misc 2d 313 (2nd Dept, 2001). When analyzing a constitutional speedy trial claim, "the term speedy trial' must be evaluated in the context of a sensitive balancing of several factors, with no one factor being dispositive of a violation, and with no formalistic precepts by which a deprivation of the right can be assessed." Doggett v United States, 505 US 647, 651 (1992); People v Taranovich, 37 NY2d 442, 444-445 (1975). The New York State Court of Appeals set forth the following five factors (i.e., the Taranovich factors) a court must consider in determining whether a defendant has been denied his constitutional right to a speedy trial: (1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charges; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay. Taranovich, 37 NY2d at 445. Inasmuch as the defendant has not [*8]plead that any of the Taranovich factors favor dismissal and only nine days (emphasis added) of non-excludable time is chargeable pursuant to CPL § 30.30, the defendant has not been deprived of her constitutional right to a speedy trial. Accordingly, the defendant's motion to dismiss pursuant to CPL § 30.20 is denied.

The foregoing constitutes the decision and order of the court.