OPINION OF THE COURT
BARBARA JAFFE, J. Defendant, charged by misdemeanor information with two counts of third degree assault (Penal Law § 120.00 [1], [2]), criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [2]), and petit larceny (Penal Law § 155.25), moved to dismiss the information pursuant to Criminal Procedure Law § 30.30 (1) (c) and § 170.30 (1) (e), claiming that the People were not ready for trial within 90 days of the commencement of the criminal action. On August 12, 2003, this court denied defendant's motion for the following reasons.
June 26, 2002 to July 11, 2002 (excluded):
claim, however, that the People served statement notice solely or in part to circumvent speedy trial limitations. In support of her argument, defendant cites People v McIntosh (80 NY2d 87, 90 [1992]), where the Court of Appeals observed that the ordinarily excludable delay resulting from the People's filing of a notice of appeal (see CPL 30.30 [4] [a]) becomes chargeable upon the People's withdrawal of the notice. In relying on McIntosh, defendant essentially maintains that if the People are to be charged with delay resulting from the pendency of a subsequently withdrawn appeal, then they should also be charged with delay associated with the filing of statement or identification notice which is later withdrawn by the People.
March 11 to May 28, 2003 (23 days included):
The parties agree that the delays from March 11 to April 21, 2003, and from May 14 to May 28, 2003, are excludable and that 23 days, from April 21 to May 14, 2003, should be charged to the People. Conclusion Thus, 66 days of chargeable time have elapsed since the filing of the misdemeanor complaint, well within the 90-day statutory limit. Accordingly, defendant's motion to dismiss is denied. (CPL 170.45, 210.45 [5] [b], [c].) [1] "[W]here 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 information, prosecutor's information or misdemeanor complaint pursuant to article 180 . . . the period applicable for the purposes of subdivision one 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 . . . ." [2] Although the People are not statutorily required to notify the defendant of their intent to introduce physical evidence at trial, to the extent that the disclosure requirement of Criminal Procedure Law § 240.20 (1) (f) may also trigger the filing of a motion to suppress, defendant's argument would logically extend to delay occasioned by an adjournment preceding any kind of hearing, as long as the hearing becomes unnecessary due to action taken by the People.