PURSUANT TO CPL 30.30(2)(A), THE 90-DAY SPEEDY TRIAL CLOCK DOES NOT COUNT DAYS WHEN DEFENDANT IS NOT IN CUSTODY; HERE DEFENDANT WAS INITIALLY INCARCERATED, RELASED ON BAIL, AND THEN INCARCERATED AGAIN; THE DAYS DURING WHICH DEFENDANT WAS OUT ON BAIL ARE NOT PART OF THE 90-DAY CALCULATION (SECOND DEPT)

The Second Department, in a full-fledged opinion by Justice Duffy, in a matter of first impression, determined the 90-day clock for a speedy trial violation pursuant to CPL 30.30(2)(a) includes only the days during which defendant was incarcerated. Here defendant was initially incarcerated, then released on bail when his girlfriend posted bail, and then incarcerated again when his girlfriend withdrew as the surety. Defendant’s total number of incarcerated days before the People were ready for trial was 80 days:

Counsel for the defendant contended, among other things, that the 31 days between September 9, 2024, and October 11, 2024, when the defendant was no longer in custody as he had posted bail did not qualify under CPL 30.30(3) or (4) as an exception to the 90-day readiness requirement and that, therefore, 117 days were chargeable to the People for the purposes of CPL 30.30(2)(a). According to counsel, since the People were not ready for trial within 90 days after the defendant was first in custody, the defendant was entitled to be released under CPL 30.30(2)(a). Counsel argued that there was no statutory basis for two different CPL 30.30 clocks or for resetting the clock to exclude the 31 days when he was out on bail.

In opposition, the People contended that the 31 days when the defendant was out on bail should be excluded from the calculation of time under CPL 30.30(2)(a). They contended, in sum and substance, that, upon the defendant’s return to custody in this case, the 90-day time clock under CPL 30.30(2)(a) for the People to be ready for trial reset and began again. The People argued, in the alternative, that the 31 days that the defendant was out on bail should be excluded from the 90-day calculation of readiness under CPL 30.30(2)(a). Thus, they contended that the time chargeable to the People was 80 days, plus 4 days that the Supreme Court charged to the People with respect to a challenge the defendant had made to the validity of the People’s COC, but that, since only 84 days were chargeable under CPL 30.30(2)(a), the People had declared their readiness for trial within the statute’s permissible time frame. * * *

Supreme Court correctly determined that the defendant was not unlawfully detained in violation of CPL 30.30(2)(a). Under the appropriate calculation, here, 20 days was chargeable to the People before the defendant was released on bail from his original custody. Thereafter, an additional 60 days were chargeable to the People for the time period preceding the People’s filing of the COC and the SOR, during which the defendant was again incarcerated. Thus, for the purposes of CPL 30.30(2)(a), 80 days were chargeable to the People under CPL 30.30(2). People ex rel. Liles v Richards, 2026 NY Slip Op 05191, Second Dept 9-2-26

Practice Point: Pursuant to CPL 30.30(a)(2), the 90-day speedy trial clock does not include days when defendant is not in custody. Here defendant was initially incarcerated, released on bail, then incarcerated again. Because the days when defendant was out on bail are not part of the calculation, the speedy trial statute was not violated.