Jeffrey D. Johnson, New York City, for defendant.
Robert M. Morgenthau, District Attorney, New York City (
Jessica Craig of counsel), for plaintiff.
OPINION OF THE COURT
DEBORAH KAPLAN, J. In the aftermath of the World Trade Center tragedy of September 11, 2001, the Governor of the State of New York issued a series of executive orders in which he, inter alia, Governor's Emergency Orders because of the unavailability for trial of police officer witnesses—even if those officers were not directly involved in emergency work." (People v Pena, 2002 NY Slip Op 861244[U] [Crim Ct, Bronx County, Apr. 5, 2002].) At least one commentator has similarly interpreted the Governor's orders as creating a "presumption" of exceptional circumstances whenever the delay is attributed to the World Trade Center disaster. (See Howard, Reviewing Emergency Suspension on Speedy Trial, NYLJ, Feb. 22, 2002, at 35, col 1.) To conclude otherwise would nullify some provisions of the executive orders and fail to give effect to their aggregate intent. (See People v Mobil Oil Corp., supra .) In this regard, one must consider the sheer magnitude of the events of September 11, 2001, including its impact on the criminal justice system, which is the context in which the orders were issued. In the case at bar, the first three days of the subject 42-day adjournment, from October 9 to October 12, 2001, fall within the period covered by Executive Order No. 113.7. Consequently, those days are excluded from the speedy trial calculation regardless of the reason proffered by the People. If the remaining 39 days of that adjournment are charged to the People, they would have had to have been ready for trial on November 20, 2001. However, this period of delay, from October 12, 2001 through November 20, 2001, must also be excluded. Having been attributed by the People, however summarily, to the unavailability of the police officer witness as a result of the World Trade Center tragedy, this delay is excludable as a per se exceptional circumstance (CPL 30.30 [4] [g]) pursuant to the Governor's executive orders. At the time the defendant filed the instant motion on November 20, 2001, only 50 days of chargeable time had elapsed since commencement of the action. Accordingly, the motion to dismiss the information pursuant to CPL 30.30 is denied.