Preserving CPL 30.30 Claims Despite Withdrawal of a Renewal Motion: The Fourth Department’s Clarification in People v. Banks

Introduction

In People v. Banks, 2025 NY Slip Op 04346 (App Div 4th Dept July 25, 2025), the Fourth Department unanimously affirmed a conviction for attempted strangulation in the second degree following a guilty plea. The decision addresses two recurrent issues in New York criminal practice:

• When and how a defendant’s statutory speedy trial claim under CPL 30.30 is preserved for appellate review notwithstanding a purported waiver of appeal and a withdrawn “renewal” motion; and
• How to accurately compute the CPL 30.30 clock, particularly around readiness declared upon indictment, arraignment scheduling delays, adjournments involving both sides, court-caused postponements, and tolling during suppression motion practice (Huntley hearings).

The parties were the People of the State of New York (respondent) and Davon D. Banks (defendant-appellant). After indictment, Banks moved to dismiss for a CPL 30.30 violation, later sought to renew that motion, and ultimately pleaded guilty once the motion was denied. On appeal, he challenged the denial. The ruling provides granular guidance for practitioners on preservation and the computation of excludable time.

Summary of the Judgment

• Appeal waiver invalid: The County Court’s colloquy mischaracterized the appeal waiver as an absolute bar, rendering it invalid under People v. Thomas and its progeny. Thus, Banks’s CPL 30.30 challenge was reviewable.
• Preservation clarified: The Court rejected the People’s argument that the issue was unreviewable because the defense had “withdrawn” the motion; the record showed only the withdrawal of a motion to renew, not the original motion—on which the court had ruled before the plea.
• Speedy trial calculation: The Court charged the People with 151 includable days (141 prereadiness + 10 postreadiness), below the six-month/183-day limit for felonies. The conviction was affirmed.

Detailed Analysis

Precedents Cited and How They Shaped the Decision

• Appeal waivers
  • People v. Thomas, 34 NY3d 545 (2019): Appeal waivers must not be described as an absolute bar to all appellate review. When mischaracterized, they are invalid. Banks relies on Thomas to find the waiver ineffective, allowing review of the CPL 30.30 ruling.
  • Fourth Department follow-ons: People v. Zabko, 206 AD3d 1642 (4th Dept 2022); People v. Johnson, 192 AD3d 1494 (4th Dept 2021). These reinforce Thomas and were used to confirm the waiver’s invalidity.
• CPL 30.30 framework
  • People v. Cortes, 80 NY2d 201 (1992): Establishes the method for calculating readiness time: total elapsed time minus excludable delays plus postreadiness delays attributable to the People. Quoted as the controlling roadmap.
  • People v. Allard, 28 NY3d 41 (2016): Defendant bears the initial burden to allege untimeliness; the burden then shifts to the People to show excludable time.
  • People v. Kendzia, 64 NY2d 331 (1985): Defines “readiness” and assigns the People the burden to demonstrate exclusions once the defendant meets the prima facie burden.
  • People v. Stiles, 70 NY2d 765 (1987): The day the accusatory instrument is filed is excluded from counting.
  • People v. Session, 206 AD3d 1678 (4th Dept 2022): A criminal action commences upon filing the felony complaint.
• Readiness around indictment and arraignment
  • People v. Carter, 91 NY2d 795 (1998): The People may validly announce readiness even before arraignment, and the duty to schedule an arraignment rests with the court. Banks adopts this rule to exclude the interval between readiness and the initial arraignment date.
  • People v. Goss, 87 NY2d 792 (1996); People v. Rickard, 71 AD3d 1420 (4th Dept 2010): Court-caused scheduling delays after readiness are not chargeable to the People. Applied to exclude time up to the first arraignment date.
• Postreadiness adjournments with mixed responsibility
  • People v. Mannino, 306 AD2d 157 (1st Dept 2003); People v. David, 253 AD2d 642 (1st Dept 1998): Where both sides contribute to delay, only the portion solely attributable to the People is chargeable. Banks uses this to charge only the ten days requested by the prosecution for a postreadiness adjournment when defense counsel also failed to appear.
• Court-caused delay after readiness
  • People v. Brown, 28 NY3d 392 (2016): Postreadiness delay attributable to the court is not chargeable to the People. Banks applies this to exclude delays due to the court’s own calendar rescheduling.
• Exclusions for motion practice and hearings
  • People v. Brown, 99 NY2d 488 (2003): Time attributable to pretrial motions is excludable under CPL 30.30(4)(a), including periods awaiting hearings or decisions.
  • People v. Jordan, 220 AD3d 1187 (4th Dept 2023); People v. Edmead, 197 AD3d 937 (4th Dept 2021); People v. Bruno, 300 AD2d 93 (1st Dept 2002): Filing a suppression motion (e.g., requiring a Huntley hearing) tolls the clock for adjournments in anticipation of the hearing and while the motion is pending. Banks relies on these to exclude extensive postreadiness time once the defendant moved to suppress.
• Grand jury minutes
  • People v. Hayes, 180 AD3d 423 (1st Dept 2020): Adjournments otherwise excludable remain excludable notwithstanding nonproduction of grand jury minutes.
  • People v. Beasley, 69 AD3d 741 (2d Dept 2010), affd 16 NY3d 289 (2011): Nonproduction of grand jury minutes is not chargeable unless it demonstrably causes delay. Banks adopts this two-pronged approach to reject the defendant’s claim.
• Counsel conflicts and exclusion
  • People v. Harrison, 171 AD3d 1481 (4th Dept 2019): Conflicts between defendant and counsel can create exclusions under CPL 30.30(4)(f). Banks uses this to reduce prereadiness time in the early period after the felony complaint.
• Preservation after “withdrawal”
  • Cases distinguished: People v. Gilliam, 96 AD3d 1650 (4th Dept 2012); People v. Thousand, 41 AD3d 1272 (4th Dept 2007). These decisions support the proposition that an actual withdrawal of the underlying motion before a plea can forfeit appellate review; Banks clarifies that withdrawing only a motion to renew does not erase the original motion or the court’s ruling thereon.

Legal Reasoning

The Court proceeded in three steps:

1. Appeal waiver invalidity. Because the colloquy described the waiver as a complete bar to appeal, it failed under Thomas and similar Fourth Department cases. Therefore, appellate review of the CPL 30.30 ruling was available.
2. Preservation preserved. Although the People urged that the speedy trial issue was unpreserved due to withdrawal, the record showed the defense withdrew only a motion to renew—not the original motion—and the County Court had already ruled on the original motion before the guilty plea. That preserved the issue for appeal.
3. CPL 30.30 computation. Applying Cortes, Allard, and Kendzia, the Court:
   • Identified the start date: the felony complaint filing (June 14, 2018);
   • Calculated prereadiness time up to the People’s readiness “upon indictment” (November 9, 2018);
   • Then reviewed postreadiness intervals, charging the People only for days attributable solely to them and ineligible for statutory exclusions.
   The outcome: 151 includable days, below the 183-day cap for felonies, meaning no CPL 30.30 violation.

Step-by-Step Calculation in Banks

Statutory cap: 6 months = 183 days (CPL 30.30[1][a]); action commenced June 14, 2018 (CPL 1.20[17]).

Prereadiness:

• Exclude the day of filing (June 14) per Stiles.
• June 15–18: 4 days chargeable.
• June 18–June 27 (felony hearing): only 2 days chargeable because the defendant expressly waived some time and the remainder was excludable for a conflict between defendant and counsel (CPL 30.30[4][f]; Harrison).
• June 27–November 9 (readiness announced upon indictment): 135 days chargeable.
• Prereadiness subtotal: 4 + 2 + 135 = 141 days.

Postreadiness:

• November 9 (readiness)–November 26 (original arraignment date): not chargeable; scheduling arraignment is the court’s duty (Carter; Goss; Rickard).
• November 26–December 17 (actual arraignment): 21 days elapsed. The People asked for a 10‑day adjournment, but defense counsel also did not appear on November 26; only 10 days are chargeable to the People because the remaining delay was not solely attributable to them (CPL 30.30[4][f]; Mannino; David).
• January 30–March 4: not chargeable; rescheduled by the court’s calendar (Brown 2016; Goss).
• March 4–April 2: not chargeable; adjourned for pretrial motion practice (defendant’s suppression motion requiring a Huntley hearing), which is excludable under CPL 30.30(4)(a) (Brown 2003; Campos).
• Additional postreadiness periods: all excludable because the suppression motion stopped the clock for adjournments in anticipation of and while that motion was pending, up until the speedy trial motion was made (Jordan; Edmead; Bruno).
• Postreadiness subtotal: 10 days.

Total includable days: 141 + 10 = 151 days (under the 183‑day limit).

Notable Clarifications in Banks

• Readiness declared upon indictment is effective. The People’s readiness can be valid even before arraignment; any ensuing scheduling lag for arraignment is not automatically chargeable to the People (Carter; Goss).
• Shared-responsibility adjournments postreadiness. When both the People and defense contribute to delay (e.g., People request an adjournment but defense counsel also fails to appear), the People are charged only with the portion attributable to them.
• Suppression motion tolls the clock. Once the defendant files suppression motions necessitating a Huntley hearing, the CPL 30.30 clock is tolled for adjournments tied to the hearing and while the motion is pending (CPL 30.30[4][a]).
• Grand jury minutes. Nonproduction does not per se create chargeable time; time remains excludable if other exclusion grounds apply, and, in any event, the defendant must show that nonproduction actually delayed the case (Hayes; Beasley).
• Preservation after “withdrawal.” Withdrawing a motion to renew a speedy trial motion does not nullify the original motion. If the court decides the original motion before a plea, the issue remains preserved for appeal. Banks squarely distinguishes situations where the original motion itself is withdrawn (Gilliam; Thousand).

Impact and Implications

For Defense Counsel

• Preservation: If you intend to maintain CPL 30.30 claims on appeal after a plea, ensure that the trial court rules on the original motion. Withdrawing a renewal application will not waive the underlying motion—but withdrawing the original likely will.
• Record-building: Articulate precisely why a period is chargeable, especially postreadiness. Where defense counsel is absent or has requested adjournments, the People may be charged only for their discrete contribution, not the entire period.
• Suppression and CPL 30.30: Expect tolling once suppression motions are filed; be strategic about sequencing litigation if you anticipate also pursuing a speedy trial motion.

For Prosecutors

• Readiness timing: A Kendzia-compliant readiness statement can be effective upon indictment, even before arraignment. Ensure readiness is genuine and properly communicated to the court and defense.
• Document exclusions: Make a thorough calendar record of court-caused delays (Brown/Goss), defense-caused or joint delays (CPL 30.30[4][f]), and motion-related tolling (CPL 30.30[4][a]). Identify any requested adjournment lengths on the record.
• Grand jury minutes: Delays attributed to nonproduction are not assumed chargeable; nonetheless, best practice is to produce them promptly to avoid satellite litigation.

For Trial Courts

• Arraignment responsibility: Consistent with Carter, scheduling arraignment post-indictment is a court function; related delays typically should not be charged to the People.
• Clarify adjournment responsibility: When both sides contribute to delay, apportion responsibility explicitly and note the People’s requested adjournment lengths to facilitate accurate CPL 30.30 computations.
• Colloquy on appeal waivers: Avoid Thomas defects by explaining that an appeal waiver is not an absolute bar and identifying issues that survive.

Complex Concepts Simplified

• CPL 30.30 “statutory speedy trial” vs. constitutional speedy trial: CPL 30.30 is a readiness statute. It measures prosecutorial readiness within specific time limits, distinct from the Sixth Amendment/Barker v. Wingo analysis, which considers prejudice and balancing factors. Banks deals only with the statutory clock.
• Prereadiness vs. postreadiness: Prereadiness is the period from commencement to the People’s valid readiness declaration. Postreadiness is the period after readiness; only delays “actually attributable” to the People and not subject to exclusions are charged to them.
• Kendzia readiness: The People must (1) communicate readiness to the court and the defense, and (2) be actually ready to proceed. This can occur by written notice or on-the-record statement, and, per Carter, even before arraignment.
• Exclusions under CPL 30.30(4):
  • (a) Time attributable to pretrial motions (including hearings and decision time) is excluded.
  • (f) Time attributable to the absence or unavailability of the defendant or defense counsel, or conflicts concerning representation, is excluded.
  • (g) “Exceptional circumstances” can exclude additional time, but Banks did not need to reach this provision given other exclusions.
• Huntley hearing: A pretrial hearing to determine the voluntariness and admissibility of a defendant’s statements to law enforcement.
• Motion to renew vs. original motion: A motion to renew re-asks the court to consider an already-decided issue based on new facts or law. Withdrawing a renewal motion does not erase the original motion or the court’s ruling on it; thus, the original ruling remains reviewable unless expressly withdrawn.

Conclusion

People v. Banks refines two crucial aspects of New York criminal practice. First, it reinforces Thomas by invalidating appeal waivers misdescribed as absolute bars, thereby preserving appellate scrutiny of statutory speedy trial rulings. Second—and more distinctly—it clarifies preservation doctrine: withdrawing a motion to renew a CPL 30.30 motion does not waive the original motion when the court has already ruled on it prior to a plea. On the merits, Banks provides a meticulous, practitioner-friendly application of CPL 30.30: readiness can be declared upon indictment; court-controlled scheduling delays and motion practice toll the clock; and postreadiness delays are chargeable only to the extent solely attributable to the People.

The decision thus serves as a roadmap for litigants and courts alike—underscoring accurate apportionment of postreadiness delays, careful record-making on exclusions, and disciplined handling of pretrial motion practice that tolls the statutory clock. As a result, Banks will likely be cited for both its preservation holding and its faithful, granular application of CPL 30.30’s exclusions.