The defendant, Carlos Baez, was originally charged by information with one count each of Aggravated Driving While Intoxicated; Per Se (VTL § 1192.2-a), Driving While Intoxicated; Per Se (VTL § 1192.2), Driving While Intoxicated (VTL § 1192.3), and Driving While Ability impaired (VTL § 1192.1).

By papers dated March 23, 2009, the defendant moved to dismiss the information filed against him on the grounds that the People have denied him his statutory and constitutional rights to a speedy trial. The People, in papers filed with the court on March 25, 2009 conceded that 134 days are chargeable to them and that the misdemeanors must be dismissed. They further argued that Driving While Ability Impaired is a traffic infraction and is not subject to CPL § 30.30. On April 28, 2009, this court dismissed the misdemeanor counts and adjourned this matter for the People to file papers in relation to the defendant's constitutional claims. No additional papers have been received to date.

As the Court of Appeals has recently reminded us, when analyzing a constitutional speedy trial claim:

The term "speedy trial" must be evaluated in the context of a sensitive balancing of several factors, with no one factor being dispositive of a violation, and with no formalistic precepts by which a deprivation of the right can be assessed (see Doggett v United States, 505 US 647, 651 [1992]; Taranovich, 37 NY2d [442 (1975),] at 444-445). The five factors to be considered are: (1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charges; (4) any extended period of pretrial incarceration; and (5) any impairment of defendant's defense (see Taranovich, 37 NY2d at 445). The balancing of these factors must be performed carefully in light of the particular facts in each case (see People v Vernace, 96 NY2d 886, 887 [2001]). . . .

There is no specific temporal period by which a delay may be evaluated or considered "presumptively prejudicial" (see Doggett, 505 US at 652). Where the delay is lengthy, an examination of the other factors is triggered, and the length of delay becomes one factor in that inquiry (see id.). [*2]

In analyzing the extent of this approximately 14 month delay, it is important to note a number of contextual facts. First, 209 days of this delay — nearly half of the total adjournments — are attributable to motion practice by the defendant. Second, an additional 41 days were the result of the defendant failing to appear in court on a scheduled adjourned date (February 10, 2009). Third, an additional 59 days are due to court congestion. Finally, of the 421 days thus far, only 112 days of delay is attributed to the People. Thus, both the extent of the delay and the reasons for the delay do not support the defendant's claim of a constitutional speedy trial violation.

In addition, although the delay is not insignificant, this court believes that it is reasonable given the seriousness of the charge. While the defendant's assertion that the remaining charge is a minor traffic infraction is correct, this court notes the public danger that is posed by the alleged conduct.

Furthermore, the defendant has not specified the manner in which he was prejudiced by the delay other than the ordinary decrease in memory that occurs in time — a phenomenon that equally affects witnesses for the People. Finally, as the defendant concedes, there was no significant period of pre-trial incarceration involved with case.

Thus, upon review of the particular facts and circumstances of this case, especially when weighing the extent and reason for the delay, the prejudice to the defendant, the nature of the charges, and the lack of an extended period of pre-trial incarceration (see People v Taranovich, 37 NY2d 442 [1975]), this court finds that the defendant was not denied his constitutional right to a speedy trial, and his motion to dismiss on this ground is denied.

The foregoing constitutes the opinion, decision, and order of the Court.

Dated:May 14, 2009

New York, New York

ENTER:

Michael J. Yavinsky, J.C.C.