S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4052
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 31, 2019
                                ___________
 
 Introduced  by M. of A. AUBRY -- read once and referred to the Committee
   on Codes
 
 AN ACT to amend the criminal procedure law, in relation  to  the  timely
   scheduling of criminal trials
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section 1. Section 30.30 of the criminal procedure law,  as  added  by
 chapter  184  of  the  laws  of  1972, paragraph (a) of subdivision 3 as
 amended by chapter 93 of the laws of 2006, paragraph (a) of  subdivision
 4 as amended by chapter 558 of the laws of 1982, paragraph (c) of subdi-
 vision 4 as amended by chapter 631 of the laws of 1996, paragraph (h) of
 subdivision 4 as added by chapter 837 of the laws of 1986, paragraph (i)
 of  subdivision 4 as added by chapter 446 of the laws of 1993, paragraph
 (j) of subdivision 4 as added by chapter 222 of the laws of 1994,  para-
 graph  (b)  of  subdivision  5  as amended by chapter 109 of the laws of
 1982, paragraphs (e) and (f) of subdivision 5 as added by chapter 209 of
 the laws of 1990, is amended to read as follows:
 § 30.30 Speedy trial; time limitations.
   1. Except as otherwise provided in subdivision [three]  FOUR  OF  THIS
 SECTION,  a  motion made pursuant to paragraph (e) of subdivision one of
 section 170.30 OF THIS CHAPTER or paragraph (g) of  subdivision  one  of
 section  210.20 OF THIS CHAPTER must be granted where the people are not
 ready for trial within:
   (a) six months of the commencement of  a  criminal  action  wherein  a
 defendant is accused of one or more offenses, at least one of which is a
 felony;
   (b)  ninety  days  of  the commencement of a criminal action wherein a
 defendant is accused of one or more offenses, at least one of which is a
 misdemeanor punishable by a sentence of imprisonment of more than  three
 months and none of which is a felony;
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD05619-01-9
              

 A. 4052                             2
 
   (c)  sixty  days  of the commencement of a criminal action wherein the
 defendant is accused of one or more offenses, at least one of which is a
 misdemeanor punishable by a sentence of imprisonment of  not  more  than
 three  months  and  none of which is a crime punishable by a sentence of
 imprisonment of more than three months;
   (d)  thirty  days of the commencement of a criminal action wherein the
 defendant is accused of one or more offenses, at least one of which is a
 violation OR A VEHICLE AND TRAFFIC LAW INFRACTION and none of which is a
 crime.
   2. Except as provided in subdivision [three]  FOUR  OF  THIS  SECTION,
 where  a defendant has been committed to the custody of the sheriff in a
 criminal action he OR SHE must be released on bail or on his OR HER  own
 recognizance, upon such conditions as may be just and reasonable, if the
 people are not ready for trial in that criminal action within:
   (a)  ninety days from the commencement of his OR HER commitment to the
 custody of the sheriff in a criminal action  wherein  the  defendant  is
 accused of one or more offenses, at least one of which is a felony;
   (b)  thirty days from the commencement of his OR HER commitment to the
 custody of the sheriff in a criminal action  wherein  the  defendant  is
 accused  of one or more offenses, at least one of which is a misdemeanor
 punishable by a sentence of imprisonment of more than three  months  and
 none of which is a felony;
   (c) fifteen days from the commencement of his OR HER commitment to the
 custody  of  the  sheriff  in a criminal action wherein the defendant is
 accused of one or more offenses, at least one of which is a  misdemeanor
 punishable  by  a sentence of imprisonment of not more than three months
 and none of which is a crime punishable by a sentence of imprisonment of
 more than three months;
   (d) five days from the commencement of his OR HER  commitment  to  the
 custody  of  the  sheriff  in a criminal action wherein the defendant is
 accused of one or more offenses, at least one of which is a violation OR
 A VEHICLE AND TRAFFIC LAW INFRACTION and none of which is a crime.
   3. WHENEVER PURSUANT TO THIS SECTION A PROSECUTOR STATES OR  OTHERWISE
 PROVIDES  NOTICE  THAT  THE  PEOPLE ARE READY FOR TRIAL, THE COURT SHALL
 MAKE INQUIRY ON THE RECORD AS  TO  THEIR  ACTUAL  READINESS.  IF,  AFTER
 CONDUCTING  ITS  INQUIRY,  THE  COURT DETERMINES THAT THE PEOPLE ARE NOT
 READY TO PROCEED TO TRIAL, THE PROSECUTOR'S STATEMENT OR NOTICE OF READ-
 INESS SHALL NOT BE VALID FOR PURPOSES OF THIS SECTION.
   3-A. ANY STATEMENT OF READINESS FILED BY THE PEOPLE ON A DAY NOT SCHE-
 DULED FOR TRIAL OR OTHER PROCEEDING SHALL BE  FILED  BY  AFFIDAVIT.  ANY
 EXCLUSION  WHEN  A  STATEMENT OF UNREADINESS HAS FOLLOWED SUCH AFFIDAVIT
 MADE BY THE PEOPLE MUST BE ACCOMPANIED BY SUPPORTING FACTS AND  APPROVED
 BY  THE  COURT.  THE COURT SHALL INQUIRE ON THE RECORD AS TO THE REASONS
 FOR THE PEOPLE'S UNREADINESS.
   4. (a) Subdivisions one and two do not  apply  to  a  criminal  action
 wherein  the  defendant  is  accused  of  an offense defined in sections
 125.10, 125.15, 125.20, 125.25, 125.26 and 125.27 of the penal law.
   (b) A motion made pursuant to subdivisions one or two upon  expiration
 of the specified period may be denied where the people are not ready for
 trial  if the people were ready for trial prior to the expiration of the
 specified period and their present unreadiness is  due  to  some  excep-
 tional  fact  or circumstance, including, but not limited to, the sudden
 unavailability of evidence material  to  the  people's  case,  when  the
 district  attorney  has  exercised due diligence to obtain such evidence
 and there are reasonable grounds to  believe  that  such  evidence  will
 become available in a reasonable period.

 A. 4052                             3

   (c)  A  motion  made pursuant to subdivision two OF THIS SECTION shall
 not:
   (i)  apply  to any defendant who is serving a term of imprisonment for
 another offense;
   (ii) require the release from custody of any  defendant  who  is  also
 being  held  in  custody  pending trial of another criminal charge as to
 which the applicable period has not yet elapsed;
   (iii) prevent the redetention of or otherwise apply to  any  defendant
 who,  after  being  released  from  custody  pursuant to this section or
 otherwise, is charged with another crime or violates the  conditions  on
 which  he  OR  SHE has been released, by failing to appear at a judicial
 proceeding at which his OR HER presence is required or otherwise.
   [4.] 5. In computing the time within which the people  must  be  ready
 for  trial  pursuant  to  subdivisions  one and two OF THIS SECTION, the
 following periods must be excluded:
   (a) a reasonable period of  delay  resulting  from  other  proceedings
 concerning  the defendant, including but not limited to: proceedings for
 the determination of competency and the period during which defendant is
 incompetent to stand trial; demand to produce; request  for  a  bill  of
 particulars; pre-trial motions; appeals; trial of other charges; and the
 period  during  which such matters are under consideration by the court;
 or
   (b) the period of delay resulting from a continuance  granted  by  the
 court at the request of, or with the consent of, the defendant or his OR
 HER  counsel.  The  court  must  grant  such a continuance only if it is
 satisfied that postponement is in the interest of justice,  taking  into
 account  the  public  interest  in  the  prompt dispositions of criminal
 charges. A  defendant  without  counsel  must  not  be  deemed  to  have
 consented  to  a  continuance  unless  he OR SHE has been advised by the
 court of his OR HER rights under these rules and the effect  of  his  OR
 HER consent; or
   (c) (i) the period of delay resulting from the absence or unavailabil-
 ity of the defendant. A defendant must be considered absent whenever his
 OR  HER  location is unknown and he OR SHE is attempting to avoid appre-
 hension or prosecution, or his OR HER location cannot be  determined  by
 due  diligence.  A defendant must be considered unavailable whenever his
 OR HER location is known but his OR HER presence  for  trial  cannot  be
 obtained by due diligence; or
   (ii) where the defendant has either escaped from custody or has failed
 to appear when required after having previously been released on bail or
 on  his  OR  HER  own recognizance, and provided the defendant is not in
 custody on another matter, the period extending from the day  the  court
 issues  a  bench  warrant  pursuant  to  section  530.70 OF THIS CHAPTER
 because of the defendant's failure to appear in court when required,  to
 the  day  the  defendant subsequently appears in the court pursuant to a
 bench warrant or voluntarily or otherwise; or
   (d) a reasonable period of delay when  the  defendant  is  joined  for
 trial with a co-defendant as to whom the time for trial pursuant to this
 section  has  not  run and good cause is not shown for granting a sever-
 ance; or
   (e) the period of delay resulting from detention of the  defendant  in
 another  jurisdiction  provided  the  district attorney is aware of such
 detention and has been diligent  and  has  made  reasonable  efforts  to
 obtain the presence of the defendant for trial; or

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   (f)  the  period during which the defendant is without counsel through
 no fault of the court; except when the defendant is proceeding as his OR
 HER own attorney with the permission of the court; or
   (g)  other  periods  of delay occasioned by exceptional circumstances,
 including but not limited to, the  period  of  delay  resulting  from  a
 continuance  granted  at  the  request of a district attorney if (i) the
 continuance is granted because of the unavailability of evidence materi-
 al to the people's case, when the district attorney  has  exercised  due
 diligence  to  obtain  such evidence and there are reasonable grounds to
 believe that such evidence will become available in a reasonable period;
 or (ii) the continuance is granted to allow the district attorney  addi-
 tional  time  to prepare the people's case and additional time is justi-
 fied by the exceptional circumstances of the case.
   (h) the period during which an action has been  adjourned  in  contem-
 plation  of  dismissal pursuant to sections 170.55, 170.56 and 215.10 of
 this chapter[.]; OR
   (i) [The] THE period prior to the defendant's  actual  appearance  for
 arraignment  in  a situation in which the defendant has been directed to
 appear by the district attorney pursuant to subdivision three of section
 120.20 or subdivision three of section 210.10[.] OF THIS CHAPTER; OR
   (j) the period during which a family offense is before a family  court
 until  such  time  as  an  accusatory  instrument or indictment is filed
 against the defendant alleging a crime constituting a family offense, as
 such term is defined in section 530.11 of this chapter.
   6. AT EACH COURT APPEARANCE DATE PRECEDING THE COMMENCEMENT  OF  TRIAL
 IN  A  CRIMINAL  ACTION, THE COURT, WHENEVER IT IS PRACTICABLE TO DO SO,
 SHALL RULE ON WHETHER THE ADJOURNMENT PERIOD IMMEDIATELY FOLLOWING  SUCH
 COURT  APPEARANCE DATE IS TO BE INCLUDED OR EXCLUDED FOR THE PURPOSES OF
 COMPUTING THE TIME WITHIN WHICH THE PEOPLE MUST BE READY FOR TRIAL WITH-
 IN THE MEANING OF THIS SECTION; PROVIDED THAT SUCH RULING SHALL  NOT  BE
 BINDING  ON A DETERMINATION OF A MOTION MADE PURSUANT TO SUBDIVISION ONE
 OR TWO OF THIS SECTION. THE COURT'S RULING SHALL BE NOTED IN  THE  COURT
 FILE.
   7.  WHERE THE PEOPLE STATE NOT READY FOR TRIAL AND SEEK AN ADJOURNMENT
 FOR A SPECIFIC DATE, UPON REQUEST  OF  THE  DEFENDANT  THE  COURT  SHALL
 ADJOURN  THE  MATTER  FOR THE DATE REQUESTED BY THE PEOPLE OR A DATE NOT
 MORE THAN TEN DAYS THEREAFTER, UNLESS DOING  SO  WOULD  NOT  BE  IN  THE
 INTEREST OF JUSTICE.
   8.  WHERE THE PEOPLE AND DEFENDANT STATE READY FOR TRIAL ON THE RECORD
 IN OPEN COURT AND THE COURT IS NOT ABLE TO ACCOMMODATE  COMMENCEMENT  OF
 THE TRIAL IMMEDIATELY, THE COURT SHALL NOT ADJOURN FOR A DATE LATER THAN
 TEN  DAYS  THEREAFTER,  UNLESS  DOING SO WOULD NOT BE IN THE INTEREST OF
 JUSTICE.
   9. WHERE THE PEOPLE FILE A STATEMENT OF TRIAL READINESS ON A  DAY  NOT
 SCHEDULED  FOR  TRIAL OR OTHER PROCEEDING, UPON REQUEST OF THE DEFENDANT
 AND WITH NOTICE TO THE PEOPLE, THE COURT SHALL PLACE THE MATTER  ON  THE
 COURT  CALENDAR  WITHIN  TEN DAYS OF SUCH REQUEST TO SCHEDULE A DATE FOR
 TRIAL.
   [5.] 10. For purposes of this section, (a) where the defendant  is  to
 be  tried  following  the  withdrawal  of the plea of guilty or is to be
 retried following a mistrial, an order for a new trial or an  appeal  or
 collateral attack, the criminal action and the commitment to the custody
 of the sheriff, if any, must be deemed to have commenced on the date the
 withdrawal  of  the  plea  of guilty or the date the order occasioning a
 retrial becomes final;

 A. 4052                             5
 
   (b) where a defendant has been served with an appearance  ticket,  the
 criminal action must be deemed to have commenced on the date the defend-
 ant first appears in a local criminal court in response to the ticket;
   (c)  where  a  criminal  action is commenced by the filing of a felony
 complaint, and thereafter, in the course of  the  same  criminal  action
 either the felony complaint is replaced with or converted to an informa-
 tion,  prosecutor's  information  or  misdemeanor  complaint pursuant to
 article [180] ONE HUNDRED EIGHTY  OF  THIS  CHAPTER  or  a  prosecutor's
 information  is  filed  pursuant  to section 190.70 OF THIS CHAPTER, the
 period applicable for the purposes of subdivision one  OF  THIS  SECTION
 must  be  the  period  applicable  to  the charges in the new accusatory
 instrument, calculated from the date of the filing of such new accusato-
 ry instrument; provided, however, that when the aggregate of such period
 and the period of time, excluding the periods  provided  in  subdivision
 [four] FIVE OF THIS SECTION, already elapsed from the date of the filing
 of  the felony complaint to the date of the filing of the new accusatory
 instrument exceeds six months, the period applicable to the  charges  in
 the  felony  complaint must remain applicable and continue as if the new
 accusatory instrument had not been filed;
   (d) where a criminal action is commenced by the  filing  of  a  felony
 complaint,  and  thereafter,  in  the course of the same criminal action
 either the felony complaint is replaced with or converted to an informa-
 tion, prosecutor's information  or  misdemeanor  complaint  pursuant  to
 article  [180]  ONE  HUNDRED  EIGHTY  OF  THIS CHAPTER or a prosecutor's
 information is filed pursuant to section 190.70  OF  THIS  CHAPTER,  the
 period  applicable  for  the purposes of subdivision two OF THIS SECTION
 must be the period applicable to  the  charges  in  the  new  accusatory
 instrument, calculated from the date of the filing of such new accusato-
 ry instrument; provided, however, that when the aggregate of such period
 and  the  period  of time, excluding the periods provided in subdivision
 [four] FIVE OF THIS SECTION, already elapsed from the date of the filing
 of the felony complaint to the date of the filing of the new  accusatory
 instrument  exceeds ninety days, the period applicable to the charges in
 the felony complaint must remain applicable and continue as if  the  new
 accusatory instrument had not been filed.
   (e)  where a count of an indictment is reduced to charge only a misde-
 meanor or petty offense and  a  reduced  indictment  or  a  prosecutor's
 information  is  filed pursuant to subdivisions one-a and six of section
 210.20 OF THIS CHAPTER, the period applicable for the purposes of subdi-
 vision one of this section must be the period applicable to the  charges
 in the new accusatory instrument, calculated from the date of the filing
 of  such  new  accusatory  instrument;  provided, however, that when the
 aggregate of such period and the period of time, excluding  the  periods
 provided  in  subdivision  [four]  FIVE of this section, already elapsed
 from the date of the filing of the indictment to the date of the  filing
 of the new accusatory instrument exceeds six months, the period applica-
 ble to the charges in the indictment must remain applicable and continue
 as if the new accusatory instrument had not been filed;
   (f)  where a count of an indictment is reduced to charge only a misde-
 meanor or petty offense and  a  reduced  indictment  or  a  prosecutor's
 information  is  filed pursuant to subdivisions one-a and six of section
 210.20 OF THIS CHAPTER, the period applicable for the purposes of subdi-
 vision two of this section must be the period applicable to the  charges
 in the new accusatory instrument, calculated from the date of the filing
 of  such  new  accusatory  instrument;  provided, however, that when the
 aggregate of such period and the period of time, excluding  the  periods

 A. 4052                             6

 provided  in  subdivision  [four]  FIVE of this section, already elapsed
 from the date of the filing of the indictment to the date of the  filing
 of  the new accusatory instrument exceeds ninety days, the period appli-
 cable  to  the  charges  in  the  indictment  must remain applicable and
 continue as if the new accusatory instrument had not been filed.
   [6.] 11. The procedural rules prescribed in subdivisions  one  through
 seven  of  section  210.45  OF  THIS CHAPTER with respect to a motion to
 dismiss an indictment are also applicable to a motion made  pursuant  to
 subdivision two OF THIS SECTION.
   § 2. Subdivision 6 of section 180.85 of the criminal procedure law, as
 added by chapter 518 of the laws of 2004, is amended to read as follows:
   6.  The  period  from  the filing of a motion pursuant to this section
 until entry of an order disposing of such motion shall not, by reason of
 such motion, be considered a period of delay for purposes of subdivision
 [four] FIVE of section 30.30 OF THIS CHAPTER, nor shall such period,  by
 reason  of  such  motion, be excluded in computing the time within which
 the people must be ready for trial pursuant to such section 30.30.
   § 3. This act shall take effect on the sixtieth  day  after  it  shall
 have become a law.