[750 NYS2d 422]

#### The People of the State of New York, Appellant, v Jorge Cruz, Respondent.

Supreme Court, Appellate Term, Second Department,

August 21, 2002

APPEARANCES OF COUNSEL

*Richard A. Brown, District Attorney,*Kew Gardens *(John M. Castellano, Sharon Y. Brodt*and *Anastasia Spanakos*of counsel), for appellant. *Queens Law Associates, P.C.,*Forest Hills *(Susan K. Wetzel*and *Hettie Powell*of counsel), for respondent.

*485OPINION OF THE COURT

Memorandum.

Order reversed on the law, motion to dismiss the information pursuant to CPL 30.30 denied, information reinstated and matter remanded to the court below for all further proceedings.

In this prosecution charging the defendant with class A misdemeanors and a violation, the People had 90 days from the filing of the accusatory instrument to declare their readiness to proceed to trial (CPL 30.30 [1] [b]). The People argue that they are not chargeable with the adjournments of August 15, 2000 through October 3, 2000 and October 3, 2000 through October 31, 2000 and, thus, are only chargeable with 59 days. Accordingly, this court need only address the aforementioned adj ournments.

The criminal action was commenced by the filing of a misdemeanor complaint. The record establishes that on August 15, 2000, the People submitted a replacing information and defense counsel objected to same on the grounds that its supporting deposition was signed by the 11-year-old complainant thereby challenging the legal sufficiency of such instrument. The court then adjourned the matter to make a determination as to the competency of the child complainant to understand the nature of an oath. On the next adjourned date, the court again adjourned the matter for its determination. Defense counsel’s objection was akin to a motion to dismiss the accusatory instrument as insufficient and, therefore, the aforementioned adjournments were not chargeable to the People since during said periods the legal sufficiency of the accusatory instrument was under consideration by the court *(see,*CPL 30.30 [4] [a]).

Patterson, J.,

dissents and votes to affirm the order in the following memorandum: In my opinion, the order granting defendant’s motion to dismiss the information pursuant to CPL 30.30 (1) (b) should be affirmed. The record discloses that the People not only failed to declare readiness on August 15, 2000 but expressly requested an adjournment. On October 3, 2000, the following court date, the People again failed to declare their readiness for trial. The adjournment of August 15, 2000 through October 3, 2000, together with the 59 days the People concede they are chargeable with, exceeded the statutory period within which the People had to be ready *(see,*CPL 30.30 [1] M).

*486In any event, even if the adjournment of August 15, 2000 through October 3, 2000 and the subsequent adjournment of October 3, 2000 through October 31, 2000 can be attributed to the court, they would be in the nature of adjournments due to court congestion and, as such, not excludable for CPL 30.30 (1) (b) purposes since they in no way prevented the People from declaring readiness for trial *(see, People v Brothers,*50 NY2d 413).

Golia and Rios, JJ., concur; Patterson, J.P., dissents in a separate memorandum.