Some delays are caused by the court; some by the People; and, some by defense counsel. Most are beyond anyone’s control. In People v Joseph, a case out of New York County Criminal Court, Judge Melissa A. Crane would not apply Judge Lippman’s requirement in People v McLeod, __ NYS2d __, 2014 WL 1716183 that the People demonstrate an “exceptional fact or circumstance” to explain situations where the People file a COR and then answer not ready at the next court date.
The criminal court noted that “Judge Lippman’s approach in McLeod would require the People to answer ready repeatedly or risk exceeding 30.30 time.” The court determined that “This is not only unfair to the People, but would also cause police officers to be taken off their non-court related duties on multiple occasions, with concomitant adverse effects on the public’s safety and wallet.”
To be successful on a motion to dismiss pursuant to CPL 30.30, the defendant bears the burden of demonstrating by a preponderance of the evidence that there is a delay in excess of 90 days. Once the defendant has made this showing, the burden shifts to the People to establish that certain portions of time within those periods of delay are excludable. If the defendant argues that the People, in an effort to carry their burden, relied upon statements of readiness that were not made in good faith (i.e. illusory), the burden then shifts back to the defendant to establish that any such statements were illusory by a preponderance of the evidence.