OPINION OF THE COURT
JOHN W. CARTER, J. Defendant, Heathcliff Haneiph, stands charged with attempted criminal possession of a controlled substance in the seventh degree, a class B misdemeanor, under docket No. 2001KN063974. Defendant now moves to dismiss the information and underlying complaint pursuant to CPL 30.30 on the ground that the People have failed to answer ready for trial within the statutory period. In his motion, defendant contends that the four Executive Orders issued by Governor Pataki suspending certain provisions of CPL 30.30 in response to the events of September 11, 2001 are unconstitutional. Based upon the court's examination of the court papers, defendant's motion, the People's affirmation in opposition and defendant's reply, the court now makes the following findings of fact and conclusions of law.
Findings of Fact
On August 11, 2001, defendant was arraigned on the charge of criminal possession of a controlled substance in the seventh degree, a class A misdemeanor (Penal Law § 220.03). At arraignment, the People served and filed a supporting deposition as well as a field test. Defendant was released on his own recognizance and the case was adjourned to October 1, 2001 for discovery by stipulation. Although the People allege that they answered ready for trial at arraignment, the minutes of defendant's arraignment contain no such statement of readiness. On September 11, 2001, terrorists attacked and destroyed the World Trade Center. That day, Governor Pataki issued Executive Order No. 113, in which he declared a disaster emergency in the State of New York (see, 9 NYCRR 5.113). On September 12, 2001, Governor Pataki issued Executive Order No. 113.7, which suspended "Sections 30.10 and 30.30 of the Criminal Procedure Law, so far as it bars criminal prosecutions whose limitation period concludes during the period commencing from the date that the disaster emergency was declared pursuant to Executive Order Number 113, issued on September 11, 2001, until further notice" (9 NYCRR 5.113.7). On October 4, 2001, the Governor issued Executive Order No. 113.28 (9 NYCRR 5.113.28), which extended the suspension of CPL 30.30 through October 12, 2001. Executive Order No. 113.28 further suspended through November 8, 2001 On November 27, 2001, the People answered not ready for trial because the arresting officer was unavailable. Accordingly, the court adjourned the case to December 12, 2001, chargeable to the People. On December 12, 2001, the People answered not ready for trial, as the trial assistant was actually engaged. The People requested a two-week adjournment. The court adjourned the case to January 14, 2002, with two weeks chargeable to the People. On January 14, 2002, the People answered not ready for trial because the arresting officer had his regular day off that day and requested a three-day adjournment. Defense counsel requested a further adjournment to January 24, 2002. Accordingly, the court adjourned the case to January 24, 2002, with three days charged to the People. On January 24, 2002, the People answered not ready for trial. Both the arresting officer and the undercover officer had been notified to appear, but the undercover officer had not yet appeared in court. The People requested a one-week adjournment in order to obtain the presence of all of their witnesses in court. The defense requested a further adjournment. Apparently, defense counsel was changing jobs and he was not sure that he would be permitted to keep defendant as a client. Accordingly, the court adjourned the case to February 20, 2002, with seven days chargeable to the People. On February 20, 2002, the People answered not ready for trial due to the arresting officer's vacation schedule. Accordingly, the court adjourned the case to February 28, 2002, chargeable to the People. On February 28, 2002, the People answered ready for trial. The People also reduced the information to attempted criminal possession of a controlled substance in the seventh degree, a B misdemeanor. After extensive colloquy on the production and receipt of discovery materials, the defense requested an adjournment to review the materials. Accordingly, the court adjourned the case, at defense request, to March 19, 2002. On March 18, 2002, defense counsel filed the instant motion.
Conclusions of Law
Where a defendant is originally charged with a misdemeanor which is punishable by a sentence of more than three months, the court must grant defendant's motion to dismiss the case if the People are not ready for trial within 90 days after the commencement of the criminal action (CPL 30.30 [1] [b]). Initially, defense counsel argues that since the information was reduced from a class A misdemeanor to a class B misdemeanor, the People were required to be ready for trial within 60 days. However, that argument was specifically rejected by the Appellate Term, Second Department, in People v Galloway (190 Misc 2d 144 [App Term, 2d Dept 2001]), when the court specifically held that reduction of a class A misdemeanor to a class B misdemeanor does not convert the applicable ready trial period from 90 days to 60 days. In so holding, the Galloway court followed the rationale of People v Sommersell (166 Misc 2d 774 [App Term, 2d Dept 1995]), in which the court held that the statute establishing a shortened time period for speedy trial purposes when a felony is converted to a misdemeanor does not address the situation when an A misdemeanor is converted to a B misdemeanor. The Sommersell court noted that where the Legislature fails to address a situation, the omission is an indication that exclusion was indicated (see, CPL 30.30 [5] [c]). Accordingly, in this case, the People were required to be ready for trial within 90 days. Defense counsel next argues that Governor Pataki's four post-September 11th Executive Orders are unconstitutional. The court rejects this argument for the following reasons. Governor Pataki's initial September 11, 2001 Executive Order declaring a state disaster emergency within the territorial boundaries of the State of New York was authorized by Executive Law § 28, which provides: "1. Whenever the governor, on his own initiative or pursuant to a request from one or more chief executives, finds that a disaster has occurred or may be imminent for which local governments are unable to respond adequately, he shall declare a disaster emergency by executive order." The Governor's subsequent Executive Orders suspending or modifying the provisions of CPL 30.30 were authorized by Executive Law § 29-a, which provides:
"1. Subject to the state constitution, the federal constitution and federal statutes and regulations, and after seeking the advice of the commission, the governor may by executive order temporarily suspend specific provisions of any statute, local law, ordinance, or orders, rules or regulations, or parts thereof, of any agency during a state disaster emergency, if compliance with such provisions would prevent, hinder, or delay action necessary to cope with the disaster."
ready because they failed to turn over necessary discovery materials. In any event, pursuant to Executive Order No. 113.28, the period between October 1, 2001 and October 29, 2001 is excludable. Similarly, pursuant to Executive Order Nos. 113.28 and 113.42, the period between October 29, 2001 and November 27, 2001 is excludable. The 15-day period between November 27, 2001 and December 12, 2001 is chargeable to the People, a fact which they concede. The court finds further that the People should be charged with 14 days of the period between December 12, 2001 and January 14, 2002. The People are properly charged with three days of the period between January 14, 2002 and January 24, 2002. The People are also properly charged with seven days of the period between January 24, 2002 and February 20, 2002. Finally, the People are properly charged with the eight-day period between February 20, 2002 and February 28, 2002. In that the defense has established only 78 days of delay, defendant's motion to dismiss the complaint must be denied.