[*1]
People v Popat
2007 NY Slip Op 51012(U) [15 Misc 3d 1136(A)]
Decided on May 16, 2007
Criminal Court Of The City Of New York, Kings County
Best, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on May 16, 2007
Criminal Court of the City of New York, Kings County


The People of the State of New York

against

Tulsi Popat, Defendant.




2006KN034619



Assistant District Attorney Kelli M. Muse

Kings County District Attorney's Office

350 Jay Street

Brooklyn, New York 11201

Harry A. Dusenberry, Esq

Attorney for Defendant

125 Livingston Street

Brooklyn, New York 11201

Miriam R. Best, J.

Defendant is charged with Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs under VTL § 1192(3), an unclassified misdemeanor, and VTL § 1192(1), a traffic infraction (DWAI). He now moves this court to dismiss the case pursuant to CPL §§ 30.20 and 30.30. For the reasons that follow, the motion is denied.

Analysis

It is appropriate to give individual speedy trial treatment to each count alleged in an accusatory instrument, because each count is deemed a separate and distinct accusatory instrument. People v Brooks, 190 Misc 2d 247, 250 (App Term, 1st Dept 2001). Accordingly, the speedy trial motion to dismiss the unclassified misdemeanor charge of VTL § 1192(3) must be determined pursuant to CPL § 30.30. However, the traffic infraction charge of VTL § 1192(1) is subject to a separate constitutional speedy trial analysis.

Calculation of Includable and Excludable Time Pursuant to CPL § 30.30

Pursuant to CPL § 30.30 (1), the applicable speedy trial time is determined based on the

highest charge in the accusatory instrument. People v Walton, 165 Misc 2d 672, 674 (Crim Ct, Richmond County,1995). The highest charge in this case subject to CPL § 30.30 is an unclassified misdemeanor punishable by a definite sentence not exceeding one year. VTL § 1193 (1) (b). Because at least one charge is punishable by a sentence of imprisonment of more than three months, the People were required to announce their readiness for trial on the misdemeanor count within 90 days of commencing the criminal action against defendant. CPL § 30.30 (1) (b). In order to be successful on the instant motion, therefore, defendant has the burden of demonstrating the existence of a delay in excess of ninety days. People v. Santos, 68 NY2d 859, 861 (1986); People v. Khachiyan, 194 Misc 2d 161, 166 (Crim Ct, Kings County 2002). Once he has made that showing, the burden shifts to the People to establish that certain periods within that time should be excluded. People v. Santos, supra; People v. Khachiyan, supra.

1.May 20, 2006 to June 27, 2006

Defendant was arraigned on May 20, 2006 on the information. The case was adjourned to June 27th for discovery by stipulation (DBS). No time is charged to the People. CPL § 30.30 (4) (a); People v. Khachiyan, 194 Misc 2d at 166 (DBS is in lieu of motion practice in Kings County and is therefore excludable from the speedy trial calculation, irrespective of the People's readiness for trial); People v. Camacho, 185 Misc 2d 31, 37 (Crim Ct, Kings County 2000) (adjournment on consent for DBS).

2.June 27, 2006 to September 11, 2006 [*2]

On June 27th, the People stated ready for trial,[FN1] and served and filed DBS. The case was adjourned to September 11, 2006 for hearings and trial. No time is charged to the People, as they are entitled to a reasonable period of time to prepare for hearings or trial. CPL § 30.30 (4) (a); People v Reed, 19 AD3d 312, 315 (1st Dept), lv denied, 5 NY3d 832 (2005).

3.September 11, 2006 to October 30, 2006

On September 11th, the People were not ready and requested an adjournment for one week. The case was adjourned to October 30, 2006 for hearings and trial. The People are charged only with the seven days they requested. People v. Nielsen, 306 AD2d 500, 501 (2d Dept 2003), lv denied, 1 NY3d 599 (2004); People v. Dushain, 247 AD2d 234, 236 (1st Dept), lv denied, 91 NY2d 1007 (1998).

4.October 30, 2006 to November 14, 2006

On October 30th, the People were not ready and requested an adjournment until November 2, 2006. The case was adjourned to November 14, 2006 for hearings and trial. The People are charged only with the three days they requested. People v. Nielsen, 306 AD2d at 501; People v. Dushain, 247 AD2d at 236.

5.November 14, 2006 to December 14, 2006

On November 14th, the People were not ready because the arresting officer was on vacation. They requested an adjournment until November 23, 2006. The case was adjourned to December 14, 2006 for trial. The People are charged only with the nine days they requested. People v. Nielsen, 306 AD2d at 501; People v. Dushain, 247 AD2d at 236.

6.December 14, 2006 to January 24, 2007

On December 14th, the People initially stated ready, and informed the court that the police officer was on alert. However, when the case was recalled at 2:15 PM, the People informed the court that they were not ready to proceed to trial because their video tape was unavailable. They requested a two-week adjournment. The case was adjourned to January 24, 2007 for trial. The People are charged only with the 14 days they requested. People v. Nielsen, 306 AD2d at 501; People v. Dushain, 247 AD2d at 236.

7.January 24, 2007 to February 20, 2007

On January 24th, the People were not ready because the assigned assistant district attorney was engaged on trial. The People requested an adjournment until February 1, 2007. The case was adjourned to February 20, 2007 for trial. The People are charged only with the eight days they requested. People v. Nielsen, 306 AD2d at 501; People v. Dushain, 247 AD2d at 236.

8.February 20, 2007 to March 8, 2007

On February 20th, the People were not ready because the arresting officer was on vacation. The People requested an adjournment for two days. Defendant stated that he intended to file a speedy trial motion. The case was adjourned to March 8, 2007 for trial. The People are charged only with the two days they requested. People v. Nielsen, 306 AD2d at 501; People v. Dushain, 247 AD2d at 236

9.March 8, 2007 to Date

On March 8th, the People stated ready, and defendant filed the instant motion to dismiss [*3]pursuant to CPL §§ 30.20 and 30.30. The remainder of the adjournments were for the filing of the People's response and the court's decision. No time is charged to the People. CPL § 30.30 (4) (a).

Constitutional Speedy Trial Analysis Applicable to the DWAI Infraction

The statutory right to a speedy trial created by CPL § 30.30 does not apply to traffic infractions. People v Gordon, 2 Misc 3d 134(A), 2004 WL 727017 (App Term, 9th and 10th Jud Dists), lv denied, 3 NY3d 674, lv denied on reconsideration, 3 NY3d 706 (2004); People v Kreinen, 2002 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); People v Gonzalez, 168 Misc 2d 136 (App Term, 1st Dept), lv denied, 88 NY2d 936 (1996); People v Ramsammy, 11 Misc 3d 1061 (A) (Crim Court, Kings County) (Mondo, J.). This "apparent statutory oversight," People v Heller, 4/14/2000 NYLJ 33, col. 5 (Crim Ct, Richmond County 2000) (Garnett, J.), often has the ironic result of requiring a defendant to wait longer for a trial on a traffic infraction than he or she would have to wait if charged with a more serious, misdemeanor charge.[FN2]

A defendant facing trial on a traffic infraction does have a constitutional right to a speedy trial. CPL § 30.20; Gordon; Kreinen; Taylor, 198 Misc 2d at 314; see also People v Thorpe, 160 Misc 2d 558, 559 (App Term, 2nd Dept 1994). Faced with the difficulty of trying to determine when too much time has passed to allow a defendant to continue to face trial for a violation of VTL § 1192(1), some courts have attempted to fashion a constitutional speedy trial limit for these cases. People v Mahon, 2007 NY Slip Op 50796(U), 2007 WL 1139418, *2 (Dist Ct, Nassau County 2007) ("This Court holds that the speedy trial time period regarding a violation of Vehicle and Traffic Law § 1192.1 . . . should not be greater than the time period governing a violation of Vehicle and Traffic Law § 1192.2, Driving While Intoxicated {which is ninety [90] days}."); People v Mahmood, 10 Misc 3d 198, 203-04 (Crim Ct, Kings County 2005) (Wilson, J.) ("it is reasonable and appropriate to hold that where the docket includes charges of both misdemeanor and traffic infractions, the Constitutional Speedy Trial time for the traffic infraction is 60 days"); People v Fisher, 167 Misc 2d 850, 855-56 (Crim Ct, Richmond County 1995) (Maltese, J.) (defendant charged with DWAI has constitutional right to speedy trial within 60 days of arraignment).

This approach has obvious appeal, because of the ease with which it could be applied, but this court cannot follow it. As the court pointed out in People v Ramsammy, 11 Misc 3d 1061(A), 2006 WL 615992, ***2 (Crim Ct, Kings County 2006) (Mondo, J.), the Appellate Term has held that, in adjudicating these claims, the court must engage in the traditional analysis set forth in People v Taranovich, 37 NY2d 442, 445 (1975). Thus,

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 [*4]there is any indication that the defense has been impaired by reason of the delay.


Taranovich, 37 NY2d at 445. "[N]o one factor or combination of factors . . . is necessarily decisive or determinative of the speedy trial claim, but rather the particular case must be considered in light of all the factors as they apply to it." Id. Moreover, "where in the circumstances delay is great enough there need be neither proof nor fact of prejudice to the defendant." Id. at 447. Compare, People v Matera, 2003 NY Slip Op 51180(U), 2003 WL 21974065 (App Term, 9th and 10th Jud Dists 2003) (unexplained delay of over two years in bringing traffic infraction case to trial warranted dismissal), and People v Rogoish, 2003 NY Slip Op 51120(U), 2003 WL 21700087 (App Term, 9th and 10th Jud Dists 2003) (unexplained delay of over three years in bringing traffic infraction case to trial warranted dismissal), and People v Thorpe, 160 Misc 2d at 559 (unexplained delay of over two years in bringing traffic infraction case to trial warranted dismissal), with People v Taylor, 189 Misc 2d at 314 (where record established that defendant was responsible for virtually entire 14-month delay between filing of accusatory instruments and last scheduled trial date, motion to dismiss traffic infraction should have been denied).

With respect the court's analysis of the third Taranovich factor, the nature of the underlying charge, the Court of Appeals has said that, "New York has long deemed traffic infractions as a form of misconduct distinguishable from more serious breaches of the law or crimes." People v Letterio, 16 NY2d 307, 312 (1965), cert. denied, 384 US 911 (1966);[FN3] Fisher, 167 Misc 2d at 855. Nevertheless, this court cannot say that driving a motor vehicle while one's ability to do so is impaired by alcohol is a trivial matter. It is punishable by a fine or imprisonment or both, as well as a mandatory 90-day license suspension (VTL § 1193),[FN4] and such conduct has the obvious potential to cause property damage and/or personal injury to the impaired driver, bystanders, and the police. Accordingly, this court will not dismiss a VTL § 1192(1) charge lightly.

Resolution of defendant's constitutional right to a speedy trial on the traffic infraction will turn, therefore, on an analysis of the other four Taranovich factors: the extent of and reason for the delay, whether defendant has been incarcerated during the delay, and whether defendant has been prejudiced by the delay. That analysis does not warrant dismissal here. Defendant was not incarcerated in this case. Although the People were not ready for trial from September 11, 2006 until March 8, 2007, the People always requested brief adjournments, but the case was never calendared for the dates that the People had requested. Adjournments to accommodate defense counsel's schedule or because of court congestion are not chargeable to the People. Finally, defendant does not allege that his defense has been impaired by the People's delay in bringing the case to trial.

Conclusion
[*5]

Upon calculating all of the speedy trial periods applicable to the misdemeanor count of VTL § 1192(3), the court finds that 43 days of delay are charged to the People. Accordingly, defendant's motion to dismiss this count pursuant to CPL § 30.30 is denied. Defendant's motion to dismiss the charge of VTL § 1192(1), a traffic infraction, for violation of his constitutional right to a speedy trial, is also denied.

This opinion constitutes the decision and order of the court.

Dated: Brooklyn, New York

May 16, 2007

________________________________________

Miriam R. Best

Judge of the Criminal Court

Footnotes


Footnote 1:Defendant concedes that the People stated ready for trial on June 27, 2006. Dusenberry Aff. at p. 3.

Footnote 2:As Judge Garnett cogently observed in Heller, in calling on the Legislature to correct this anomaly, "[w]ith no statutory limit in CPL § 30.30, these cases remain unresolved until the delay becomes so egregious . . . that a court will grant dismissal under other statutory and constitutional provisions." People v Heller, 4/14/2000 NYLJ 33, col. 5 (Crim Ct, Richmond County 2000).

Footnote 3:Concurring, Judge Bergan wrote, "The basic concept of the traffic infraction is that a traffic violation is not a crime and the violator is not a criminal." Letterio, 16 NY2d at 312.

Footnote 4:For offenses occurring after November 1, 2006, the defendant may also be sentenced to a drinking driver program.