Defendant was originally charged in an accusatory instrument with two unclassified misdemeanors and a traffic infraction. A judge of this court dismissed the misdemeanors because the People failed to comply with Criminal Procedure Law 30.30 (1) (b) [see CPL 170.30 (1) (e)]. After extensive motion practice by defendant, he now moves in a motion filed on February 23, 2006, for an order dismissing the traffic infraction (VTL § 1192 [1]), contending that his rights guaranteed by the Sixth and Fourteenth Amendments to the Constitution of the United States have been violated. The People oppose defendant's motion in a response dated March 6, 2006.

CPL 30.30 (1) is inapplicable to traffic infractions such as VTL § 1192 [1] (People v Gordon, 2 Misc 3d 134 [App Term, 9th and 10th Jud Dists 2004], lv denied 3 NY3d 674, lv denied on reconsideration 3 NY3d 706]; People v Kreinen, NY Slip Op. 40359(U); 2002 WL 1967926 [App Term, 9th and 10th

Jud Dists 2002]); People v Taylor, 189 Misc 2d 313 [App Term, 2d Dept 2001]). "It is well settled that each count contained in an accusatory instrument is deemed as a matter of law a separate and distinct accusatory instrument" (People ex rel. Mack v Warden, 145 Misc 2d 1016, 1017 [Sup Ct, Kings County 1989], citing People v Sciascia, 268 App Div 14, 15, affd 294 NY 927; People ex rel. Troiani v Fay, 13 AD2d 999, 1000; People v Delorio, 33 AD2d 350, 353; People v Quinn, 8 Misc 2d 546, 548). While holding that it is possible to partially convert a complaint into an information, in People v Brooks (190 Misc 2d 247 [2001]), the Appellate Term, First Department, decided a CPL 30.30 subd 1 issue reasoning that "an all or nothing approach is incompatible with the settled rule, applicable to many phases of the criminal law, that each count of an accusatory instrument is deemed as a matter of law to be a separate and distinct accusatory instrument. (Citations and quotation marks omitted.) The common practice of giving individual speedy trial treatment to discrete counts of an information is consistent with this general principle, is expressly authorized by [*2]statute (see, CPL 170.30 [1] [e] [court may dismiss information "or any count thereof" on speedy trial grounds]), and is recognized in our speedy trial jurisprudence." It is for this reason that noncompliance with CPL 30.30 (1) does not result in the dismissal of traffic infractions regardless of whether defendant was originally also charged with crimes.

Although CPL 30.30 (1) is inapplicable to traffic infractions such as VTL § 1192 [1], a defendant's right to a speedy trial is guaranteed by the United States Constitution, the New York Constitution, and Criminal

Procedure Law 30.20.^[FN1]This court will apply the Taranovich factors (see People v Taranovich, 37 NY2d 442, 445 [1975]) in deciding whether defendant has been deprived of his rights provided by the United States and New York Constitutions, and also CPL 30.20. CPL 30.20 provides that after a criminal action is commenced, the defendant is entitled to a speedy trial. Although it has been suggested that CPL 30.20 does not apply to traffic infractions because it applies to criminal actions, and a criminal action cannot be commenced unless the accusatory instrument charges a crime (People v Fisher, 167 Misc 2d 850 [Crim Ct, Richmond County 1995]), this court holds that a plain reading of the definition of criminal action (see CPL 1.20 [16] and [17]) includes the filing of any accusatory instrument against a defendant in a criminal court. Under Fisher, it would be impossible to charge someone in a local criminal court with only a violation because a violation is not a crime (see Penal Law § 10.00 [6]), and therefore no criminal action could be commenced because no crime is alleged. If the reasoning in Fisher were applied, CPL 30.30 (1) (d) would be inapposite since it provides that the People must be ready within 30 days of the "commencement of a criminal action wherein the defendant is accused of one or more offenses, at least one of which is a violation and none of which is a crime". This court chooses to follow the definitions provided by the Criminal Procedure Law and the Penal Law in deciding this matter before resorting to an interpretation of the General Construction Law relied upon in Fisher.

In People v Taylor (189 Misc 2d 313 [App Term, 2nd Dept 2001]), the court stated that although "a defendant charged with a traffic infraction has no statutory right to a speedy trial, he nevertheless has a constitutional right to a speedy trial (People v Fisher, 167 Misc 2d 850)." However, the Appellate Term was unclear whether the statutory right to a speedy trial referred to in Taylor was CPL 30.30, or the codification of a constitutional right to a speedy trial found in CPL 30.20. Nevertheless, Taylor was cited by the Appellate Term for the 9th and 10th Judicial Districts in People v Gordon (2 Misc 3d 134 [2004]), holding that CPL 30.20 applies to traffic violations while CPL 30.30 does not. In any event, each Appellate Term in Gordon and Taylor utilized the Taranovich factors in determining [*3]whether the defendant's constitutional rights were violated.

In determining whether a defendant has been denied his constitutional right to a speedy trial, the court must consider the following factors: (1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay (People v Taranovich, 37 NY2d 442, 445 [1975], supra, cited by People v Gordon, 2 Misc 3d 134 [App Term, 9th and 10th Jud Dists 2004], lv denied 3 NY3d 674, lv denied on reconsideration 3 NY3d 706], supra; People v Taylor, 189 Misc 2d 313 [App Term, 2d Dept 2001], supra). However, except for the extent of delay,

defendant's motion does not address the Taranovich factors.^[FN2]While this court is mindful that some courts of concurrent jurisdiction have decided whether traffic infractions should be dismissed on constitutional speedy trial grounds by determining whether the People exceeded time periods specified in CPL 30.30 (1) (see People v Fisher, 167 Misc 2d 850 [Crim Ct, Richmond County 1995], cited by People v Vladimir Kozoriz, NYLJ, January 4, 2006, at 27, col 1 [Crim Ct, Kings County]; People v Mahmood, 10 Misc 3d 198 [Crim Ct, Kings County 2005]), this court chooses to follow the law enunciated by the Court of Appeals in Taranovich and followed by People v Gordon (2 Misc 3d 134 [App Term, 9th and 10th Jud Dists 2004], lv denied 3 NY3d 674, lv denied on reconsideration 3 NY3d 706], supra) and People v Taylor (189 Misc 2d 313 [App Term, 2d Dept 2001], supra).

Since inexcusable delay will not in and of itself be sufficient to warrant the drastic measure of dismissal(People v Taylor, 189 Misc 2d 313, 314 [App Term, 2d Dept 2001], supra, citing People v Taranovich, 37 NY2d 442, supra, at 446), defendant has not established that his constitutional rights have been

violated to a point where dismissal is warranted. Accordingly, defendant's motion for an order dismissing the traffic infraction is denied.

This shall constitute the opinion, decision, and order of the court.

_______________________ Judge Suzanne Mondo