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SUPREME COURT OF THE STATE OF NEW YORK,
CRIMINAL DIVISION, COUNTY OF THE BRONX
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PEOPLE OF THE STATE OF NEW YORK
EX REL. Hannah Rosenthal, Esq.
On behalf of Jeremy Maisonave,
Petitioner, VERIFIED PETITION FOR A
WRIT OF HABEAS
CORPUS
-against-
Index No.___________
Indictment No. 71029-21
LOUIS A. MOLINA
Commissioner of the New York City
Dep’t Of Corrections,
And
ANYONE HAVING CUSTODY OF PETITIONER,
Respondents.
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THE PEOPLE OF THE STATE OF NEW YORK, upon the relation of Hannah Rosenthal, Esq.,
respectfully states:
1. I am the attorney for Petitioner herein.
2. I make this petition on behalf of the above-named Petitioner
3. Petitioner is currently unlawfully detained and restrained of liberty, on the basis
of the Honorable Justice McCormack’s denial of Mr. Maisonave’s C.P.L. § 30.30(2)(a) speedy
trial release motion, in violation of statute and constitutional mandate.
FACTS AND PROCEDURAL HISTORY
4. Jeremy Maisonave was arrested on November 2, 2021 and charged with Attempted
Murder in the Second Degree and related charges. The prosecution against him
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commenced on November 9, 2021, under docket CR-017001-21BX, when he was
arraigned via hospital arraignment in Bronx Criminal Court and bail was set in the
amount of $25,000 cash, bond, or partially secured bond.
5. On November 2, 2021, Mr. Maisonave was shot at least 3 times and suffered gunshot
wounds to the leg and buttocks, requiring his hospitalization.
6. On November 12, 2021, defense counsel waived time pursuant to C.P.L. § 30.30 and §
180.80 in order to speak with Mr. Maisonave about his C.P.L. §190.50 rights. The case
was adjourned to part FB for Grand Jury Action.
7. On November 19, 2021, defense counsel withdrew C.P.L. § 190.50 notice and
informed the assigned district attorney [hereinafter ADA] that Mr. Maisonave would
not be testifying. That same day, a true bill was voted by the grand jury.
8. On November 22, 2021, the case was heard in part FB. As of this date, an indictment
had not been filed with the court. Mr. Maisonave was not produced--defense was told
that he was hospitalized and could not be physically brought to court. The case was
adjourned to December 16, 2021 for Supreme Court Arraignment. As of this date, the
prosecution was not ready for trial.
9. On information, an indictment was filed with the court on or around November 26,
2021. The prosecution did not file a valid statement of readiness [hereinafter “SOR”]
along with the indictment, nor did the prosecution suggest they were ready for trial.
They could not have been ready, as no Certificate of Compliance [hereinafter “COC”]
had been filed pursuant to C.P.L. § 245.50(3).
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10. On December 16, 2021, Mr. Maisonave was not produced for court and was therefore
not arraigned on the indictment. On this date, the prosecution did not state ready, or
file an SOR or COC. The case was adjourned to January 12, 2022 for SCAR.
11. On January 12, 2022 Mr. Maisonave was produced to court and arraigned on
indictment 71029-21. On that date the prosecution had not yet filed an SOR or COC.
A motion schedule was set over defense's objection and the case was adjourned to
March 1, 2022 for decision on the motions.
12. Defense filed their omnibus motion on January 25, 2022. The prosecution filed its
reply on February 10, 2022.
13. On March 1, 2022, the case was heard in part 77. The court indicated that it needed
more time to issue a decision and the case was adjourned to March 21, 2022.
14. On March 21, 2022, the court issued a decision granting defense Mapp, Wade, and
Dunaway hearings. When asked about discovery compliance, the prosecution claimed
she had filed some discovery on February 16, 2022 and that she planned to file a COC
“today.” No discovery was shared with defense on February 16, 2022. The court
adjourned the case for “conference” and the prosecution's COC. Defense indicated on
the record that we were not waiving any time pursuant to C.P.L. § 30.30. The case was
adjourned to April 28, 2022.
15. The prosecution shared some discovery with defense on March 22, 2022 via
OneDrive. Included in this disclosure was video surveillance of the incident (which
had been in the prosecution’s possession since arraignment), as well as grand jury
minutes. Since this discovery was shared on March 22, 2022, no additional discovery
has been provided to defense.
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16. On April 28, 2022, the case could not be called in part 77 as the Judge McCormack
was out sick. Defense counsel requested that the case be called in SCA for the purpose
of a C.P.L. § 30.30(2)(a) application and bail application. Both defense counsel and
ADA Cook were present for the application. Judge Villegas denied the defense’s §
30.30(2)(a) application but granted a bail reduction to $10,000 cash or bond. As of this
date, the prosecution had not stated ready for trial, filed an SOR, or a COC. The case
was adjourned to Part 77 on May 31, 2022.
a. In response to the defense’s assertion that there were 91 days charged, ADA Cook
responded that she calculated 63 days of chargeable time. See Transcript, 4/28/22,
attached as Ex. A, at 9:14
17. Between April 28, 2022 and May 31, 2022 no additional discovery was disclosed. The
prosecution did not file a COC or SOR or otherwise state ready for trial.
18. On May 31, 2022, the prosecution was not ready for trial. Defense once again made an
oral argument for Mr. Maisonave’s release pursuant to C.P.L. §30.30(2)(a) before
Judge McCormack. The Court gave assigned district attorney Clorissa Cook until
Friday, June 3, 2022 to appear in court and make arguments at 9:30AM.
19. On June 3, 2022, ADA Cook did not appear in part 77. At approximately 10:01AM
she did send a letter to the court detailing her arguments. See Letter from ADA Cook,
attached as Ex. B. Defense argued that there were at least 100 days chargeable to the
prosecution. The prosecution argued that there were only 8, or in the alternative 46
chargeable days. After hearing arguments from both sides, Judge McCormack ruled
that there were fewer than 90 chargeable days. Although there were at least 4
adjournments in contention, Judge McCormack based his ruling on just one--the
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adjournment between November 22, 2021 and December 16, 2021, and did not reach
the other issues.
20. Counsel now files this writ seeking Mr. Maisonave’s release as he is being held in
violation of C.P.L. § 30.30(2)(a). As of the filing of this motion, the prosecution has
not stated ready in this matter, filed an SOR, or filed a COC. No additional disclosures
have been made since March 22, 2022.
ARGUMENT
A habeas corpus review is appropriate when a statutory or constitutional violation causes
the Defendant’s incarceration. See C.P.L.R. §§ 7001, 7002(a) and (b)(1); People ex rel. Kaplan
v. Commissioner of Correction, 60 N.Y.2d 648 (1983). A prisoner may bring a writ of habeas
corpus to challenge the denial of a pretrial motion for release pursuant to C.P.L. § 30.30(2)(a)
because a violation of C.P.L. § 30.30(2) “will result in the defendant's release, either by a fixing
of bail at an amount which the defendant can post or by release of the defendant on his own
recognizance.” People ex rel. Chakwin v. Warden, 63 N.Y.2d 120, 123, 125 (1984); see also
Donnino, Practice Commentaries, McKinney's Cons. Laws of NY, Book 11A, C.P.L. § 30.30
annot. p. 169 (McKinney 2020).
Even where a C.P.L. § 30.30(2) claim requires a concurrent court to assume jurisdiction
for review, the Chakwin court found that habeas corpus “would still be proper in light of our
decisions allowing the use of that writ to challenge a wrongful denial of bail or excessive bail.”
Id. at 125-6 (citations omitted). “While a defendant may bring a pretrial motion to seek release
based on a violation of C.P.L. § 30.30(2), he has no way to effectively appeal an adverse ruling.
Obviously, once the defendant's case is tried the legality of his pretrial detention is mooted and
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the relief guaranteed by C.P.L. § 30.30(2) would be academic on a direct appeal from a judgment
of conviction. Thus, the present situation is one where ‘[d]eparture from traditional orderly
proceedings, such as appeal, should be permitted […] by reason of practicality and necessity.’”
People ex rel. Chakwin v. Warden, 63 N.Y.2d 120, 123 (1984) (citing People ex rel. Keitt v.
McMann, 18 N.Y.2d 257, 262 (1966).
Mr. Maisonave is being unlawfully incarcerated pursuant to C.P.L. § 30.30(2)(a). Under
the law, a defendant incarcerated on one or more felony charges “must be released on bail or on
his or her own recognizance. . . if the people are not ready for trial in” 90 days. C.P.L. §
30.30(2);(2)(a). The case against Mr. Maisonave commenced on November 9, 2022, when he
was arraigned in Bronx Criminal court and held in on bail. Since that date, 218 days have passed,
and the prosecution has never stated ready for trial. For over 6 months, therefore, Mr. Maisonave
has been held at Rikers Island on unaffordable bail; he has awaited receipt of the relevant
materials to which he is plainly entitled under C.P.L. § 245, which would help him evaluate his
case and prepare his defense; he has awaited the prosecution’s statement of readiness so that he
may have his day in court. Yet in over 6 months the prosecution has never stated ready or been
ready for trial. More than 90 of these days are chargeable to the prosecution.1
Pursuant to C.P.L. § 30.30(8), the prosecution bears the burden of establishing that a
contested period of time is excludable. Based on arguments made before Judge Villegas and
McCormack, it is the prosecution’s position that numerous adjournments are excludable under
C.P.L. § 30.30(4)(a) and (c)—due to Mr. Maisonave’s medical condition which prevented his
production to court, reasonable time to prepare for trial after a decision on the omnibus motion,
or the unavailability of the Judge due to illness. However, the prosecution is unable to explain
1
Defense does not concede that any of these adjournments are excludable. However, for the purpose of this writ we
will focus on the adjournments and issues that were raised by defense in its § 30.30(2)(a) application.
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how any of these issues contributed to their inability to state or be ready for trial, or how any of
these issues contributed to delay. They cannot meet this burden because the delay in this case is
entirely attributable to the prosecution—to their failure to disclose materials required under
C.P.L § 245 and state ready for trial. Since more than 90 days have passed since the
commencement of this case in which the prosecution has not stated ready for trial, and since the
prosecution cannot establish sufficient excludable adjournments, Mr. Maisonave must be
released pursuant to C.P.L. § 30.30(2)(a).
A. The 3 days between Mr. Maisonave’s November 9, 2021 arraignment and defense
counsel's 30.30 waiver on November 12, 2021 are chargeable to the prosecution as the
prosecution was not ready for trial. (3 days)
Time is chargeable where the prosecution is not ready for trial. In this case, Mr.
Maisonave was arraigned in criminal court on November 9, 2021. On November 12, 2021
defense informed the assigned District Attorney that they would be waiving time pursuant to
C.P.L. §30.30 and §180.80 until November 22, 2021. Accordingly, the three days between
November 9 and November 12, 2021 are chargeable to the prosecution. 3 days.
C. The 24 days between November 22, 2021 and December 16, 2021 is chargeable to the
prosecution since the prosecution was not ready for trial and that delay was not
attributable to Mr. Maisonave’s absence. (24 days)
Time is chargeable to the prosecution where the prosecution is not ready for trial and they
cannot claim any valid exclusion. More specifically, the time following indictment, but before a
defendant has been arraigned on the indictment, is chargeable to the prosecution in the absence
of a statement of readiness. See People v. Correa, 77 N.Y.2d 930, 931, (1991) (“Delays between
indictment and the arraignment, like other court congestion, do not prevent the People from
being ready for trial. Such delays are, therefore, not excludable under CPL 30.30”); People v.
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Jaquez, 71 Misc. 3d 1110, 1112 (N.Y. Sup. Ct. 2021). The prosecution is therefore “charged the
entire period of delay prior to asserting their readiness unless there is a specific exclusion of the
time under C.P.L. § 30.30(4) that prevents the People from being able to assert their readiness.”
People v. Morris, 63 Misc. 3d 626, 629 (Crim.Ct. N.Y. Co 2018), citing People v. Cotes, 80
N.Y.2d 201, 213 (1992). Since here the prosecution was not ready for trial between November
22, 2022 and December 16, 2022, and because they cannot validly claim any C.P.L. § 30.30
exclusion, these 24 days are chargeable to the prosecution.
This full adjournment is chargeable to the prosecution as the delay is attributable to the
prosecution’s failure to state ready for trial. The case against Mr. Maisonave was indicted on
November 19, 2021. The case was heard in part FB on November 22, 2022 and a §190.50
certificate was filed that day. As of November 22, 2021 the indictment had not been filed. As of
November 22, 2021 the prosecution had not stated ready for trial or filed a statement of
readiness. Nor was the prosecution was ready for trial on the adjourn date of December 16, 2021.
Had the prosecution been ready for trial, they could have filed a COC and SOR off-calendar,
prior to Mr. Maisonave’s arraignment on the indictment. People v. Goss, 87 N.Y.2d 792 (1996);
People v. McFaline, Ind. No. 2122-2021 (Sup. Ct. N.Y. Co. Scherzer, J) (April 26, 2022)
(unpublished), attached as Ex. C (“the People were not barred from filing a COC and a statement
of readiness prior to the Supreme Court arraignment.”). In fact, it is the common practice of the
Bronx DA’s office to file SORs off-calendar in such situations. See, e.g., Redacted Off-Calendar
SOR, attached as Ex. D. Here, the prosecution did not file an SOR prior to Mr. Maisonave’s
arraignment, because they were not and could not have been ready for trial. The delay was
therefore attributable to the prosecution, and they should be charged for this full adjournment.
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That the indictment was filed on or around November 26, 2022, does not affect the
calculation. The filing of the indictment, in the absence of a statement of readiness, does not stop
the clock.2 McFaline, at C. (“The filing of an indictment and the scheduling of the Supreme
Court arraignment are not events that toll speedy trial time.”) Since no SOR or COC had been
filed at the time of the filing of the indictment, the speedy trial clock was still ticking.
Mr. Maisonave’s absence in court on November 22, 2022 (for medical reasons) also does
not render this an excludable adjournment. The prosecution’s position is that this entire
adjournment should be excludable pursuant to C.P.L. § 30.30(4)(c), which excludes “the period
of delay resulting from the absence of unavailability of the defendant.” C.P.L. § 30.30(4)(c).
However, this exclusion does not apply. The plain language of the statute states that time is
excluded when the “delay result[s] from the absence or unavailability of the defendant.” Id.
(emphasis added) The law is not that time is excluded any time a defendant is absent. In People
v. Tukshaitov, for instance, the defendant did not appear for his Supreme Court Arraignment, but
his lawyer indicated that she had been in touch him. (Ind. 71674-21, Sup. Ct. Kings Co. Sciarrino
, M) (March 22, 2022) (unpublished), attached as Ex. E. The court stayed a bench warrant and
adjourned the case for ten days. Id. The court held that, since the prosecution was not ready for
trial, these 10 days were chargeable to the prosecution and reasoned that a bench warrant stay
does not automatically entitle the prosecution to a § 30.30 exclusion. Id. At 2 (distinguishing the
facts from People v. Parker, 186 A.d.2D 593 (2d. Dept. 1992), where defendant absconded and
thus 3030 exclusion was proper). Here, the prosecution’s readiness was not dependent on Mr.
Maisonave’s availability or production to court. Rather, to be ready, the prosecution needed to
2
Judge McCormack ruled, on June 3, 2022, that at least a portion of this adjournment was excludable, but
did not specify which or how many dates.
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gather and disclose evidence, be in touch with their witnesses, file a COC, and communicate
their readiness to the court. Had Mr. Maisonave been produced that day, they would not have
been able to state ready. Therefore, the delay in this case was in no way due to Mr. Maisonave’s
absence.
C. The 27 days between December 16, 2021 and January 12, 2022 is chargeable to the
prosecution since the prosecution was not ready for trial and that delay was not
attributable to Mr. Maisonave’s absence. (27 days)
On December 16, 2021, Mr. Maisonave was not produced to court. The parties were told
he was receiving medical attention and could not be brought. Therefore, Mr. Maisonave was not
arraigned on the indictment on this date. Between December 16, 2021 and January 12, 2022 the
prosecution did not file a COC or SOR, or otherwise state ready for trial. For the same reasons
discussed above, and because Mr. Maisonave’s absence did not prevent the prosecution from
stating ready for trial, this time is chargeable to the prosecution.
D. January 12, 2022 to March 21, 2022.
Defense does not concede that this period—during which motions were filed and a
decision was rendered—is excludable in the absence of a valid COC and SOR. However, defense
did not raise this adjournment in its § 30.30(2)(a) application.
E. The 38 days between March 21, 2022 and April 28, 2022 are chargeable to the
prosecution since the prosecution had not filed a statement of readiness, defense did not
waive time, and because any delay was attributable solely to the prosecution’s failure to
disclose discovery and state ready for trial. (38 days)
On March 21, 2022, the court issued a decision on defenses' omnibus motion. As of that
date, the prosecution had not filed a COC or SOR, or otherwise stated ready for trial. The case
was adjourned for the prosecution’s COC and for conference. The case was not adjourned for
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hearing and trial. Defense counsel expressly stated that she was not waiving time pursuant to
C.P.L. § 30.30. Transcript, 3/21/22: 5:19-23, attached as Ex. F. The adjournment between the
date of decision on March 21, 2022 and the next adjourn date of April 28, 2022 is therefore
chargeable to the prosecution.
Since the prosecution had not filed a COC and was therefore not in a position to proceed
to trial, this adjournment is not excludable under C.P.L. § 30.30(4)(a). The prosecution will
argue that this adjournment is excludable pursuant to C.P.L. § 30.30(4)(a) as a reasonable time to
prepare for trial. Defense acknowledges that many courts prior to the enactment of C.P.L. § 245,
tolled speedy trial time between the date of decision on motions and the first hearing date for this
reason. People v. Green, 90 A.D.2d 705, 705–06(1982); See People v. Kastner, 132 A.D.3d 420
(2015). However, these cases pre-dated the enactment of C.P.L. § 245, which tied trial readiness
to the filing of a valid COC. C.P.L. § 245.50(3).
Although the new law did not undo or repeal C.P.L. § 30.30(4)(a), it nevertheless affects
the reasoning behind the exclusion, and the situations in which that exclusion applies. Under the
new statutory framework, a case cannot be adjourned for hearing, and the prosecution cannot be
ready, unless and until they file a COC. Where the prosecution has not filed a COC, a case is
adjourned for discovery conference/COC instead of trial. Where a case is adjourned for the
prosecution’s COC, the prosecution cannot claim a § 30.30(4)(a) exclusion based on the need to
prepare for trial. To allow an exclusion here would contradict the logic of C.P.L. § 30.30.
There is no binding case law addressing whether a § 30.30(4)(a) exclusion ‘to prepare for
trial’ is appropriate following a decision on an omnibus motion, where the people are not ready
for trial due to failure to comply with C.P.L. § 245.50(3). The Court of Appeals has not yet
addressed the issue. Nor has any Appellate Division department resolved this specific issue.
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While at first glance the First Department case ex rel LaBrew v. Vance appears to have ruled on
this issue, a closer look at that decision reveals that it is readily distinguishable. 192 A.D.3d 645
(1st Dept. 2021). Most importantly, in that case the adjournment in question—between decision
on the omnibus and the date the case was adjourned for trial—took place in 2019, before the new
law went into effect3. The case does not, therefore, address if and how C.P.L. § 245 impacts the
logical soundless of a § 30.30(4)(a) exclusion. In addition, the case does not make clear if the
prosecution was ready for trial by the time the decision was handed down. Therefore, this case
does not directly address the question at issue here. Another First Department case, People v.
Torres, held that the adjournment following a decision on a protective order was excludable
where the prosecution was ready and had complied with its C.P.L. § 245 obligations. People v.
Torres, No. 1158/18, 2022 WL 1549553, at *2 (N.Y. App. Div. 1st Dept. May 17, 2022). This
issue, therefore, has not been settled by any binding authority.
At least one lower court has found this adjournment to be attributable to the prosecution.
In People v. Tukshaitov, attached as Ex. E, a Kings county court charged the prosecution for the
30 days following date of decision where no COC/SOR had been filed. In People v Weissinger
the court explained that the prosecution can only claim this exemption where the motion
schedule in fact impairs their readiness. 74 Misc 3d 1225(A) (Just. Ct. Monroe Co. 2022)
Allowing an excludable adjournment to prepare for hearings when the prosecution is
otherwise not ready for trial would contradict the logic of 30.30 caselaw. Whereas here, the
prosecution is not ready for trial because they had not filed a COC, the delay is attributable to the
3
Per the decision, the case against Mr. Hayes commenced in 2019, and was indicted in 2019. Defense contacted the
attorney for Mr. Hayes who confirmed that the decision on the omnibus was handed down October 28, 2019, and the
case was adjourned until December 3, 2019 for trial. Therefore, this case does not address the effect of CPL 245, on
the applicability of 30.30 exclusions.
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prosecution. It would defy common sense to permit the prosecution to take an excludable
adjournment to prepare for trial in this situation.4
G. The adjournment between April 28, 2022 and May 31, 2022 is chargeable to the
prosecution because the prosecution was not ready for trial, and any delay was attributable
solely to the prosecution’s failure to state ready for trial (33 Days).
On April 28, 2022, the prosecution had still not filed an SOR, COC, or otherwise stated
ready for trial. That day, the case was not heard in Part 77 because the judge was out sick. The
case would have been administratively adjourned. However, defense counsel wished to make a
bail application, and had the case called in part SCA. All parties were present for this
application. This adjournment is chargeable to the prosecution because the prosecutor was not
ready for trial, and the delay is attributable to the prosecution.
This adjournment is not excludable pursuant to any section of C.P.L. § 30.30. For many
of the same reasons discussed in Part F, supra, this adjournment is not excludable under C.P.L §
30.30(2)(a). Nor is it excludable under any other subsection. Had the prosecution been ready for
trial, a post-readiness delay caused by an administrative adjournment would be excludable.
People v. Goss, 87 N.Y.2d 792, 797 (1996). However, where the prosecution has never been
ready for trial, and the impediment to their readiness is within their control, an administrative
adjournment is not excludable under any section.
H. The 4 days between May 31, 2022 and June 3, 2022 are chargeable to the
prosecution as they were not ready for trial and defense’s oral § 30.30(2)(a) application did
not stop the clock. (4 days)
4
This adjournment is also not excludable as a consent adjournment. If the People rely on consent under C.P.L.
30.30(4)(b), they must establish that such consent was ‘clearly expressed by defendant or defense counsel.’ (People
v. Liotta, 79 N.Y.2d 841, 843 (1992); see also People v. Dickinson, 18 N.Y.3d 835 (2011).” People v. Lewins, 151
A.D.3d 575, 576 (1st Dept. 2017).
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On May 31, 2022, the prosecution was still not ready for trial and had not filed a COC or
SOR. Defense’s oral application for § 30.30(2)(a) release did not stop the clock. The case was
adjourned until June 3, 2022 for additional arguments. On that day the people were still not ready
for trial. These 4 days are chargeable to the prosecution.
I. The 12 days between June 3, 2022 and the filing of this writ are chargeable to the
prosecution as the prosecution is not ready for trial. (12 days)
Since June 3, 2022 the prosecution has not been ready for trial and has not filed a COC or
SOR. Therefore, these 12 days are chargeable to the prosecution.
CONCLUSION
Over 90 days have elapsed since the commencement of this action in which the
prosecution has not been ready for trial. He therefore must be released pursuant to C.P.L. §
30.30(2)(a).
WHEREFORE, to enforce Petitioner’s rights under C.P.L. §§ 30.30(2)(a) and (8) and the
New York and Federal Constitution, this Court should grant the instant writ of habeas corpus on
behalf of the Petitioner held in violation of C.P.L. §§ 30.30(2)(a), and should order Petitioner’s
release, or, in the alternative, set bail in an amount and form that Petitioner can make.
Dated: Bronx, New York
June 14, 2022
____________________
Hannah Rosenthal, Esq.
Bronx Defenders
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VERIFICATION
Hannah Rosenthal, an attorney admitted to practice law before the courts of this state, affirms
that he is the relator, that he has read the foregoing Petition and that the same is true to his
knowledge, except for those portions stated on information and belief, which are based on police
records and court records which he believes to be true.
Dated: Bronx, New York
June 14, 2022
_____________________
Hannah Rosenthal, Esq.
360 East 161st Street
Bronx, NY 10451
(347) 842-1392
15 of 15
Preview
FILED: BRONX COUNTY CLERK 06/14/2022 12:36 PM INDEX NO. 808901/2022E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/14/2022 SUPREME COURT OF THE STATE OF NEW YORK, CRIMINAL DIVISION, COUNTY OF THE BRONX -----------------------------------------------------------------x PEOPLE OF THE STATE OF NEW YORK EX REL. Hannah Rosenthal, Esq. On behalf of Jeremy Maisonave, Petitioner, VERIFIED PETITION FOR A WRIT OF HABEAS CORPUS -against- Index No.___________ Indictment No. 71029-21 LOUIS A. MOLINA Commissioner of the New York City Dep’t Of Corrections, And ANYONE HAVING CUSTODY OF PETITIONER, Respondents. ------------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, upon the relation of Hannah Rosenthal, Esq., respectfully states: 1. I am the attorney for Petitioner herein. 2. I make this petition on behalf of the above-named Petitioner 3. Petitioner is currently unlawfully detained and restrained of liberty, on the basis of the Honorable Justice McCormack’s denial of Mr. Maisonave’s C.P.L. § 30.30(2)(a) speedy trial release motion, in violation of statute and constitutional mandate. FACTS AND PROCEDURAL HISTORY 4. Jeremy Maisonave was arrested on November 2, 2021 and charged with Attempted Murder in the Second Degree and related charges. The prosecution against him 1 of 15 FILED: BRONX COUNTY CLERK 06/14/2022 12:36 PM INDEX NO. 808901/2022E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/14/2022 commenced on November 9, 2021, under docket CR-017001-21BX, when he was arraigned via hospital arraignment in Bronx Criminal Court and bail was set in the amount of $25,000 cash, bond, or partially secured bond. 5. On November 2, 2021, Mr. Maisonave was shot at least 3 times and suffered gunshot wounds to the leg and buttocks, requiring his hospitalization. 6. On November 12, 2021, defense counsel waived time pursuant to C.P.L. § 30.30 and § 180.80 in order to speak with Mr. Maisonave about his C.P.L. §190.50 rights. The case was adjourned to part FB for Grand Jury Action. 7. On November 19, 2021, defense counsel withdrew C.P.L. § 190.50 notice and informed the assigned district attorney [hereinafter ADA] that Mr. Maisonave would not be testifying. That same day, a true bill was voted by the grand jury. 8. On November 22, 2021, the case was heard in part FB. As of this date, an indictment had not been filed with the court. Mr. Maisonave was not produced--defense was told that he was hospitalized and could not be physically brought to court. The case was adjourned to December 16, 2021 for Supreme Court Arraignment. As of this date, the prosecution was not ready for trial. 9. On information, an indictment was filed with the court on or around November 26, 2021. The prosecution did not file a valid statement of readiness [hereinafter “SOR”] along with the indictment, nor did the prosecution suggest they were ready for trial. They could not have been ready, as no Certificate of Compliance [hereinafter “COC”] had been filed pursuant to C.P.L. § 245.50(3). 2 of 15 FILED: BRONX COUNTY CLERK 06/14/2022 12:36 PM INDEX NO. 808901/2022E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/14/2022 10. On December 16, 2021, Mr. Maisonave was not produced for court and was therefore not arraigned on the indictment. On this date, the prosecution did not state ready, or file an SOR or COC. The case was adjourned to January 12, 2022 for SCAR. 11. On January 12, 2022 Mr. Maisonave was produced to court and arraigned on indictment 71029-21. On that date the prosecution had not yet filed an SOR or COC. A motion schedule was set over defense's objection and the case was adjourned to March 1, 2022 for decision on the motions. 12. Defense filed their omnibus motion on January 25, 2022. The prosecution filed its reply on February 10, 2022. 13. On March 1, 2022, the case was heard in part 77. The court indicated that it needed more time to issue a decision and the case was adjourned to March 21, 2022. 14. On March 21, 2022, the court issued a decision granting defense Mapp, Wade, and Dunaway hearings. When asked about discovery compliance, the prosecution claimed she had filed some discovery on February 16, 2022 and that she planned to file a COC “today.” No discovery was shared with defense on February 16, 2022. The court adjourned the case for “conference” and the prosecution's COC. Defense indicated on the record that we were not waiving any time pursuant to C.P.L. § 30.30. The case was adjourned to April 28, 2022. 15. The prosecution shared some discovery with defense on March 22, 2022 via OneDrive. Included in this disclosure was video surveillance of the incident (which had been in the prosecution’s possession since arraignment), as well as grand jury minutes. Since this discovery was shared on March 22, 2022, no additional discovery has been provided to defense. 3 of 15 FILED: BRONX COUNTY CLERK 06/14/2022 12:36 PM INDEX NO. 808901/2022E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/14/2022 16. On April 28, 2022, the case could not be called in part 77 as the Judge McCormack was out sick. Defense counsel requested that the case be called in SCA for the purpose of a C.P.L. § 30.30(2)(a) application and bail application. Both defense counsel and ADA Cook were present for the application. Judge Villegas denied the defense’s § 30.30(2)(a) application but granted a bail reduction to $10,000 cash or bond. As of this date, the prosecution had not stated ready for trial, filed an SOR, or a COC. The case was adjourned to Part 77 on May 31, 2022. a. In response to the defense’s assertion that there were 91 days charged, ADA Cook responded that she calculated 63 days of chargeable time. See Transcript, 4/28/22, attached as Ex. A, at 9:14 17. Between April 28, 2022 and May 31, 2022 no additional discovery was disclosed. The prosecution did not file a COC or SOR or otherwise state ready for trial. 18. On May 31, 2022, the prosecution was not ready for trial. Defense once again made an oral argument for Mr. Maisonave’s release pursuant to C.P.L. §30.30(2)(a) before Judge McCormack. The Court gave assigned district attorney Clorissa Cook until Friday, June 3, 2022 to appear in court and make arguments at 9:30AM. 19. On June 3, 2022, ADA Cook did not appear in part 77. At approximately 10:01AM she did send a letter to the court detailing her arguments. See Letter from ADA Cook, attached as Ex. B. Defense argued that there were at least 100 days chargeable to the prosecution. The prosecution argued that there were only 8, or in the alternative 46 chargeable days. After hearing arguments from both sides, Judge McCormack ruled that there were fewer than 90 chargeable days. Although there were at least 4 adjournments in contention, Judge McCormack based his ruling on just one--the 4 of 15 FILED: BRONX COUNTY CLERK 06/14/2022 12:36 PM INDEX NO. 808901/2022E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/14/2022 adjournment between November 22, 2021 and December 16, 2021, and did not reach the other issues. 20. Counsel now files this writ seeking Mr. Maisonave’s release as he is being held in violation of C.P.L. § 30.30(2)(a). As of the filing of this motion, the prosecution has not stated ready in this matter, filed an SOR, or filed a COC. No additional disclosures have been made since March 22, 2022. ARGUMENT A habeas corpus review is appropriate when a statutory or constitutional violation causes the Defendant’s incarceration. See C.P.L.R. §§ 7001, 7002(a) and (b)(1); People ex rel. Kaplan v. Commissioner of Correction, 60 N.Y.2d 648 (1983). A prisoner may bring a writ of habeas corpus to challenge the denial of a pretrial motion for release pursuant to C.P.L. § 30.30(2)(a) because a violation of C.P.L. § 30.30(2) “will result in the defendant's release, either by a fixing of bail at an amount which the defendant can post or by release of the defendant on his own recognizance.” People ex rel. Chakwin v. Warden, 63 N.Y.2d 120, 123, 125 (1984); see also Donnino, Practice Commentaries, McKinney's Cons. Laws of NY, Book 11A, C.P.L. § 30.30 annot. p. 169 (McKinney 2020). Even where a C.P.L. § 30.30(2) claim requires a concurrent court to assume jurisdiction for review, the Chakwin court found that habeas corpus “would still be proper in light of our decisions allowing the use of that writ to challenge a wrongful denial of bail or excessive bail.” Id. at 125-6 (citations omitted). “While a defendant may bring a pretrial motion to seek release based on a violation of C.P.L. § 30.30(2), he has no way to effectively appeal an adverse ruling. Obviously, once the defendant's case is tried the legality of his pretrial detention is mooted and 5 of 15 FILED: BRONX COUNTY CLERK 06/14/2022 12:36 PM INDEX NO. 808901/2022E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/14/2022 the relief guaranteed by C.P.L. § 30.30(2) would be academic on a direct appeal from a judgment of conviction. Thus, the present situation is one where ‘[d]eparture from traditional orderly proceedings, such as appeal, should be permitted […] by reason of practicality and necessity.’” People ex rel. Chakwin v. Warden, 63 N.Y.2d 120, 123 (1984) (citing People ex rel. Keitt v. McMann, 18 N.Y.2d 257, 262 (1966). Mr. Maisonave is being unlawfully incarcerated pursuant to C.P.L. § 30.30(2)(a). Under the law, a defendant incarcerated on one or more felony charges “must be released on bail or on his or her own recognizance. . . if the people are not ready for trial in” 90 days. C.P.L. § 30.30(2);(2)(a). The case against Mr. Maisonave commenced on November 9, 2022, when he was arraigned in Bronx Criminal court and held in on bail. Since that date, 218 days have passed, and the prosecution has never stated ready for trial. For over 6 months, therefore, Mr. Maisonave has been held at Rikers Island on unaffordable bail; he has awaited receipt of the relevant materials to which he is plainly entitled under C.P.L. § 245, which would help him evaluate his case and prepare his defense; he has awaited the prosecution’s statement of readiness so that he may have his day in court. Yet in over 6 months the prosecution has never stated ready or been ready for trial. More than 90 of these days are chargeable to the prosecution.1 Pursuant to C.P.L. § 30.30(8), the prosecution bears the burden of establishing that a contested period of time is excludable. Based on arguments made before Judge Villegas and McCormack, it is the prosecution’s position that numerous adjournments are excludable under C.P.L. § 30.30(4)(a) and (c)—due to Mr. Maisonave’s medical condition which prevented his production to court, reasonable time to prepare for trial after a decision on the omnibus motion, or the unavailability of the Judge due to illness. However, the prosecution is unable to explain 1 Defense does not concede that any of these adjournments are excludable. However, for the purpose of this writ we will focus on the adjournments and issues that were raised by defense in its § 30.30(2)(a) application. 6 of 15 FILED: BRONX COUNTY CLERK 06/14/2022 12:36 PM INDEX NO. 808901/2022E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/14/2022 how any of these issues contributed to their inability to state or be ready for trial, or how any of these issues contributed to delay. They cannot meet this burden because the delay in this case is entirely attributable to the prosecution—to their failure to disclose materials required under C.P.L § 245 and state ready for trial. Since more than 90 days have passed since the commencement of this case in which the prosecution has not stated ready for trial, and since the prosecution cannot establish sufficient excludable adjournments, Mr. Maisonave must be released pursuant to C.P.L. § 30.30(2)(a). A. The 3 days between Mr. Maisonave’s November 9, 2021 arraignment and defense counsel's 30.30 waiver on November 12, 2021 are chargeable to the prosecution as the prosecution was not ready for trial. (3 days) Time is chargeable where the prosecution is not ready for trial. In this case, Mr. Maisonave was arraigned in criminal court on November 9, 2021. On November 12, 2021 defense informed the assigned District Attorney that they would be waiving time pursuant to C.P.L. §30.30 and §180.80 until November 22, 2021. Accordingly, the three days between November 9 and November 12, 2021 are chargeable to the prosecution. 3 days. C. The 24 days between November 22, 2021 and December 16, 2021 is chargeable to the prosecution since the prosecution was not ready for trial and that delay was not attributable to Mr. Maisonave’s absence. (24 days) Time is chargeable to the prosecution where the prosecution is not ready for trial and they cannot claim any valid exclusion. More specifically, the time following indictment, but before a defendant has been arraigned on the indictment, is chargeable to the prosecution in the absence of a statement of readiness. See People v. Correa, 77 N.Y.2d 930, 931, (1991) (“Delays between indictment and the arraignment, like other court congestion, do not prevent the People from being ready for trial. Such delays are, therefore, not excludable under CPL 30.30”); People v. 7 of 15 FILED: BRONX COUNTY CLERK 06/14/2022 12:36 PM INDEX NO. 808901/2022E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/14/2022 Jaquez, 71 Misc. 3d 1110, 1112 (N.Y. Sup. Ct. 2021). The prosecution is therefore “charged the entire period of delay prior to asserting their readiness unless there is a specific exclusion of the time under C.P.L. § 30.30(4) that prevents the People from being able to assert their readiness.” People v. Morris, 63 Misc. 3d 626, 629 (Crim.Ct. N.Y. Co 2018), citing People v. Cotes, 80 N.Y.2d 201, 213 (1992). Since here the prosecution was not ready for trial between November 22, 2022 and December 16, 2022, and because they cannot validly claim any C.P.L. § 30.30 exclusion, these 24 days are chargeable to the prosecution. This full adjournment is chargeable to the prosecution as the delay is attributable to the prosecution’s failure to state ready for trial. The case against Mr. Maisonave was indicted on November 19, 2021. The case was heard in part FB on November 22, 2022 and a §190.50 certificate was filed that day. As of November 22, 2021 the indictment had not been filed. As of November 22, 2021 the prosecution had not stated ready for trial or filed a statement of readiness. Nor was the prosecution was ready for trial on the adjourn date of December 16, 2021. Had the prosecution been ready for trial, they could have filed a COC and SOR off-calendar, prior to Mr. Maisonave’s arraignment on the indictment. People v. Goss, 87 N.Y.2d 792 (1996); People v. McFaline, Ind. No. 2122-2021 (Sup. Ct. N.Y. Co. Scherzer, J) (April 26, 2022) (unpublished), attached as Ex. C (“the People were not barred from filing a COC and a statement of readiness prior to the Supreme Court arraignment.”). In fact, it is the common practice of the Bronx DA’s office to file SORs off-calendar in such situations. See, e.g., Redacted Off-Calendar SOR, attached as Ex. D. Here, the prosecution did not file an SOR prior to Mr. Maisonave’s arraignment, because they were not and could not have been ready for trial. The delay was therefore attributable to the prosecution, and they should be charged for this full adjournment. 8 of 15 FILED: BRONX COUNTY CLERK 06/14/2022 12:36 PM INDEX NO. 808901/2022E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/14/2022 That the indictment was filed on or around November 26, 2022, does not affect the calculation. The filing of the indictment, in the absence of a statement of readiness, does not stop the clock.2 McFaline, at C. (“The filing of an indictment and the scheduling of the Supreme Court arraignment are not events that toll speedy trial time.”) Since no SOR or COC had been filed at the time of the filing of the indictment, the speedy trial clock was still ticking. Mr. Maisonave’s absence in court on November 22, 2022 (for medical reasons) also does not render this an excludable adjournment. The prosecution’s position is that this entire adjournment should be excludable pursuant to C.P.L. § 30.30(4)(c), which excludes “the period of delay resulting from the absence of unavailability of the defendant.” C.P.L. § 30.30(4)(c). However, this exclusion does not apply. The plain language of the statute states that time is excluded when the “delay result[s] from the absence or unavailability of the defendant.” Id. (emphasis added) The law is not that time is excluded any time a defendant is absent. In People v. Tukshaitov, for instance, the defendant did not appear for his Supreme Court Arraignment, but his lawyer indicated that she had been in touch him. (Ind. 71674-21, Sup. Ct. Kings Co. Sciarrino , M) (March 22, 2022) (unpublished), attached as Ex. E. The court stayed a bench warrant and adjourned the case for ten days. Id. The court held that, since the prosecution was not ready for trial, these 10 days were chargeable to the prosecution and reasoned that a bench warrant stay does not automatically entitle the prosecution to a § 30.30 exclusion. Id. At 2 (distinguishing the facts from People v. Parker, 186 A.d.2D 593 (2d. Dept. 1992), where defendant absconded and thus 3030 exclusion was proper). Here, the prosecution’s readiness was not dependent on Mr. Maisonave’s availability or production to court. Rather, to be ready, the prosecution needed to 2 Judge McCormack ruled, on June 3, 2022, that at least a portion of this adjournment was excludable, but did not specify which or how many dates. 9 of 15 FILED: BRONX COUNTY CLERK 06/14/2022 12:36 PM INDEX NO. 808901/2022E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/14/2022 gather and disclose evidence, be in touch with their witnesses, file a COC, and communicate their readiness to the court. Had Mr. Maisonave been produced that day, they would not have been able to state ready. Therefore, the delay in this case was in no way due to Mr. Maisonave’s absence. C. The 27 days between December 16, 2021 and January 12, 2022 is chargeable to the prosecution since the prosecution was not ready for trial and that delay was not attributable to Mr. Maisonave’s absence. (27 days) On December 16, 2021, Mr. Maisonave was not produced to court. The parties were told he was receiving medical attention and could not be brought. Therefore, Mr. Maisonave was not arraigned on the indictment on this date. Between December 16, 2021 and January 12, 2022 the prosecution did not file a COC or SOR, or otherwise state ready for trial. For the same reasons discussed above, and because Mr. Maisonave’s absence did not prevent the prosecution from stating ready for trial, this time is chargeable to the prosecution. D. January 12, 2022 to March 21, 2022. Defense does not concede that this period—during which motions were filed and a decision was rendered—is excludable in the absence of a valid COC and SOR. However, defense did not raise this adjournment in its § 30.30(2)(a) application. E. The 38 days between March 21, 2022 and April 28, 2022 are chargeable to the prosecution since the prosecution had not filed a statement of readiness, defense did not waive time, and because any delay was attributable solely to the prosecution’s failure to disclose discovery and state ready for trial. (38 days) On March 21, 2022, the court issued a decision on defenses' omnibus motion. As of that date, the prosecution had not filed a COC or SOR, or otherwise stated ready for trial. The case was adjourned for the prosecution’s COC and for conference. The case was not adjourned for 10 of 15 FILED: BRONX COUNTY CLERK 06/14/2022 12:36 PM INDEX NO. 808901/2022E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/14/2022 hearing and trial. Defense counsel expressly stated that she was not waiving time pursuant to C.P.L. § 30.30. Transcript, 3/21/22: 5:19-23, attached as Ex. F. The adjournment between the date of decision on March 21, 2022 and the next adjourn date of April 28, 2022 is therefore chargeable to the prosecution. Since the prosecution had not filed a COC and was therefore not in a position to proceed to trial, this adjournment is not excludable under C.P.L. § 30.30(4)(a). The prosecution will argue that this adjournment is excludable pursuant to C.P.L. § 30.30(4)(a) as a reasonable time to prepare for trial. Defense acknowledges that many courts prior to the enactment of C.P.L. § 245, tolled speedy trial time between the date of decision on motions and the first hearing date for this reason. People v. Green, 90 A.D.2d 705, 705–06(1982); See People v. Kastner, 132 A.D.3d 420 (2015). However, these cases pre-dated the enactment of C.P.L. § 245, which tied trial readiness to the filing of a valid COC. C.P.L. § 245.50(3). Although the new law did not undo or repeal C.P.L. § 30.30(4)(a), it nevertheless affects the reasoning behind the exclusion, and the situations in which that exclusion applies. Under the new statutory framework, a case cannot be adjourned for hearing, and the prosecution cannot be ready, unless and until they file a COC. Where the prosecution has not filed a COC, a case is adjourned for discovery conference/COC instead of trial. Where a case is adjourned for the prosecution’s COC, the prosecution cannot claim a § 30.30(4)(a) exclusion based on the need to prepare for trial. To allow an exclusion here would contradict the logic of C.P.L. § 30.30. There is no binding case law addressing whether a § 30.30(4)(a) exclusion ‘to prepare for trial’ is appropriate following a decision on an omnibus motion, where the people are not ready for trial due to failure to comply with C.P.L. § 245.50(3). The Court of Appeals has not yet addressed the issue. Nor has any Appellate Division department resolved this specific issue. 11 of 15 FILED: BRONX COUNTY CLERK 06/14/2022 12:36 PM INDEX NO. 808901/2022E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/14/2022 While at first glance the First Department case ex rel LaBrew v. Vance appears to have ruled on this issue, a closer look at that decision reveals that it is readily distinguishable. 192 A.D.3d 645 (1st Dept. 2021). Most importantly, in that case the adjournment in question—between decision on the omnibus and the date the case was adjourned for trial—took place in 2019, before the new law went into effect3. The case does not, therefore, address if and how C.P.L. § 245 impacts the logical soundless of a § 30.30(4)(a) exclusion. In addition, the case does not make clear if the prosecution was ready for trial by the time the decision was handed down. Therefore, this case does not directly address the question at issue here. Another First Department case, People v. Torres, held that the adjournment following a decision on a protective order was excludable where the prosecution was ready and had complied with its C.P.L. § 245 obligations. People v. Torres, No. 1158/18, 2022 WL 1549553, at *2 (N.Y. App. Div. 1st Dept. May 17, 2022). This issue, therefore, has not been settled by any binding authority. At least one lower court has found this adjournment to be attributable to the prosecution. In People v. Tukshaitov, attached as Ex. E, a Kings county court charged the prosecution for the 30 days following date of decision where no COC/SOR had been filed. In People v Weissinger the court explained that the prosecution can only claim this exemption where the motion schedule in fact impairs their readiness. 74 Misc 3d 1225(A) (Just. Ct. Monroe Co. 2022) Allowing an excludable adjournment to prepare for hearings when the prosecution is otherwise not ready for trial would contradict the logic of 30.30 caselaw. Whereas here, the prosecution is not ready for trial because they had not filed a COC, the delay is attributable to the 3 Per the decision, the case against Mr. Hayes commenced in 2019, and was indicted in 2019. Defense contacted the attorney for Mr. Hayes who confirmed that the decision on the omnibus was handed down October 28, 2019, and the case was adjourned until December 3, 2019 for trial. Therefore, this case does not address the effect of CPL 245, on the applicability of 30.30 exclusions. 12 of 15 FILED: BRONX COUNTY CLERK 06/14/2022 12:36 PM INDEX NO. 808901/2022E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/14/2022 prosecution. It would defy common sense to permit the prosecution to take an excludable adjournment to prepare for trial in this situation.4 G. The adjournment between April 28, 2022 and May 31, 2022 is chargeable to the prosecution because the prosecution was not ready for trial, and any delay was attributable solely to the prosecution’s failure to state ready for trial (33 Days). On April 28, 2022, the prosecution had still not filed an SOR, COC, or otherwise stated ready for trial. That day, the case was not heard in Part 77 because the judge was out sick. The case would have been administratively adjourned. However, defense counsel wished to make a bail application, and had the case called in part SCA. All parties were present for this application. This adjournment is chargeable to the prosecution because the prosecutor was not ready for trial, and the delay is attributable to the prosecution. This adjournment is not excludable pursuant to any section of C.P.L. § 30.30. For many of the same reasons discussed in Part F, supra, this adjournment is not excludable under C.P.L § 30.30(2)(a). Nor is it excludable under any other subsection. Had the prosecution been ready for trial, a post-readiness delay caused by an administrative adjournment would be excludable. People v. Goss, 87 N.Y.2d 792, 797 (1996). However, where the prosecution has never been ready for trial, and the impediment to their readiness is within their control, an administrative adjournment is not excludable under any section. H. The 4 days between May 31, 2022 and June 3, 2022 are chargeable to the prosecution as they were not ready for trial and defense’s oral § 30.30(2)(a) application did not stop the clock. (4 days) 4 This adjournment is also not excludable as a consent adjournment. If the People rely on consent under C.P.L. 30.30(4)(b), they must establish that such consent was ‘clearly expressed by defendant or defense counsel.’ (People v. Liotta, 79 N.Y.2d 841, 843 (1992); see also People v. Dickinson, 18 N.Y.3d 835 (2011).” People v. Lewins, 151 A.D.3d 575, 576 (1st Dept. 2017). 13 of 15 FILED: BRONX COUNTY CLERK 06/14/2022 12:36 PM INDEX NO. 808901/2022E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/14/2022 On May 31, 2022, the prosecution was still not ready for trial and had not filed a COC or SOR. Defense’s oral application for § 30.30(2)(a) release did not stop the clock. The case was adjourned until June 3, 2022 for additional arguments. On that day the people were still not ready for trial. These 4 days are chargeable to the prosecution. I. The 12 days between June 3, 2022 and the filing of this writ are chargeable to the prosecution as the prosecution is not ready for trial. (12 days) Since June 3, 2022 the prosecution has not been ready for trial and has not filed a COC or SOR. Therefore, these 12 days are chargeable to the prosecution. CONCLUSION Over 90 days have elapsed since the commencement of this action in which the prosecution has not been ready for trial. He therefore must be released pursuant to C.P.L. § 30.30(2)(a). WHEREFORE, to enforce Petitioner’s rights under C.P.L. §§ 30.30(2)(a) and (8) and the New York and Federal Constitution, this Court should grant the instant writ of habeas corpus on behalf of the Petitioner held in violation of C.P.L. §§ 30.30(2)(a), and should order Petitioner’s release, or, in the alternative, set bail in an amount and form that Petitioner can make. Dated: Bronx, New York June 14, 2022 ____________________ Hannah Rosenthal, Esq. Bronx Defenders 14 of 15 FILED: BRONX COUNTY CLERK 06/14/2022 12:36 PM INDEX NO. 808901/2022E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/14/2022 VERIFICATION Hannah Rosenthal, an attorney admitted to practice law before the courts of this state, affirms that he is the relator, that he has read the foregoing Petition and that the same is true to his knowledge, except for those portions stated on information and belief, which are based on police records and court records which he believes to be true. Dated: Bronx, New York June 14, 2022 _____________________ Hannah Rosenthal, Esq. 360 East 161st Street Bronx, NY 10451 (347) 842-1392 15 of 15