This case calls upon the court to contend with the conundrum that Criminal Procedure Law ("CPL") § 30.30(1)(d) creates when the People concede dismissal of the misdemeanor charges in driving while intoxicated cases, but not the traffic infraction for driving while impaired. On September 8, 2013, defendant was arrested for driving while intoxicated. The People charged defendant with two misdemeanor counts of driving while intoxicated under Vehicle and Traffic Law ("VTL") § 1192(2) and VTL § 1192(3) and also charged defendant with violating VTL § 1192(1), driving while impaired by alcohol, a traffic infraction, not a crime. On May 11, 2015, the People conceded that more than 90 chargeable days had elapsed and, therefore, conceded dismissal of the misdemeanor charges pending against defendant. However, the People did not concede dismissal of the traffic infraction under VTL § 1192(1).

Nothing required the People to concede. CPL § 30.30, that governs speedy trial time limitations, does not apply to traffic infractions (People v Ausby, 46 Misc 3d 126(A) at *1 [App Term, 1st Dept 2014], lv to appeal granted, on appeal denied, 24 NY3d 1218 [2015]); People v Graham, 39 Misc 2d 271, 273 [App. Term 2d Dept 2013]). Under CPL § 30.30(1)(d), the People have 30 days to bring to trial where "the defendant is accused of one or more offenses, at least one of which is a violation and none of which is a crime." Thus, the legislature did not include traffic infractions within the ambit of CPL § 30.30(1)(d).^[FN1] Although this exclusion may have [*2]been the result of legislative oversight (see People v Perkins, 37 Misc 3d 696, 699 [Criminal Court King County 2012]), the consequence is that traffic infractions have no statutory limit within CPL § 30.30 and tend to remain unresolved until the delay becomes so egregious that the court grants dismissal under different legal provisions.

Here, after the People conceded 30.30 on the misdemeanor charges, they were ready only one time, on the subsequent adjournment date, June 9, 2015. Since that date, they have answered "not ready" four times, including on October 13, 2015, a date the People had specifically requested. On October 9, 2013, defendant made a motion to dismiss on constitutional speedy trial grounds and under People v Taranovich, 37 NY2d 442, 445 (1975). On October 13, 2015, the court summarily denied that motion from the bench, because the People had announced they were ready and had specifically requested October 13th on the prior court date. However, later that day, the People withdrew their readiness once the arresting officer failed to show. Defendant then renewed his motion to dismiss.

In People v Taranovich, 37 NY2d 442, 445 (1975), the Court of Appeals outlined five factors to consider to determine whether there has been a violation of defendant's right to a speedy trial: (1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there had been an extended period of pretrial incarceration; and (5) whether or not the delay has impaired the defense. Taranovich requires the court to "engage in a sensitive weighing process of the diversified factors present in the particular case" (id.). For the following reasons, the court grants renewal, and upon that renewal, having reviewed the specific circumstances of this case in light of the Taranovich factors, the court finds defendant's right to a speedy trial has been violated and dismisses the remainder of this case.

Defendant was arraigned on September 8, 2013. Most of the initial delay in this case is not the fault of the People, but rather devolves from circumstances beyond the control of either side. For instance, defendant's first lawyer was indicted and there were delays to obtain new counsel and for new counsel to become familiar with the case. Then, for the adjournment period September 8, 2014 through at least October 20, 2013, delays occurred because a police officer witness was out in the line of duty. After that circumstance resolved, both sides were ready, but there were no trial parts on four separate occasions: October 23, 2014, December 1, 2014, December 18, 2014 and February 2, 2014.

Motion practice delayed the case. Defendant asserted the People had violated defendant's speedy trial rights and moved to dismiss. First, the court mistakenly dismissed the case, but subsequently withdrew that decision and required more information from the People. From April 13, 2015 until May 6, 2015, the People were supposed to provide documentation concerning a [*3]police officer witness being out ill, including date range and the type of illness. Instead of providing that documentation, on May 11, 2015, the People conceded 30.30 as to the misdemeanor counts. The People answered ready on the subsequent court date, June 9, 2015, however defense counsel was not ready on that date. On four subsequent occasions, the People answered not ready: July 23, 2015, September 28, 2015 and on a date they specifically requested: October 13, 2015. As it turned out, at least with respect to the September 28, 2015 court date, the People were unable to answer ready, because the arresting officer had been suspended some time during the pendency of this case. On October 13, 2015, the People withdrew their readiness, because the same officer who had been suspended, failed to show. Accordingly, it is unclear, when, if ever, the People would be able to try this case.

Since conceding 30.30 as to the misdemeanors, the court calculates that at least 32 additional days of speedy trial time have elapsed-more than the thirty days the People would have to prosecute a violation.

The initial charges in this case were among the most serious. The court also notes that defendant pled guilty in 2007 to the misdemeanor charge of reckless driving. That arrest included charges of driving while intoxicated under VTL 1192(3), common law driving while intoxicated. Defendant's prior arrest and conviction for reckless driving of course makes this particular case harder to dismiss under Taranovich than one where it is a defendant's first offense. However, to defendant's credit, after the arrest in this case, on his own volition, he attended and completed a medically supervised alcohol and substance abuse program. Indeed, according to a letter in the court file, dated March 14, 2014, defendant continued to attend counseling after he had completed the program's requirements. Moreover, this case did not involve an accident. The remaining charge, VTL 1192(1), operating a motor vehicle while impaired by alcohol, like violations, are the least serious classification of charges. The CPL defines both violations and traffic offenses as "petty offenses" (see CPL 1.20[39]). Indeed, were it not for apparent legislative oversight, that is not the place of this court to correct, the charge under VTL 1192(1) would have been long gone.

The court is not aware of an extended period of pre trial incarceration in this case

Defendant's driving privileges have been suspended during the pendency of this action, far more than the ninety days that he would face if convicted of VTL 1192(1). As defendant's employment is with the New York City Transit Authority, he has been suspended from work for three years. As a result of losing his source of income, he is allegedly facing eviction from the home where he has lived for over 50 years. Despite that only the least serious level of offense remains, defendant continues to wait for a trial, over three years after his arrest. The case has been on the court's calendar 23 times. Defendant has never missed a court date, except for the rare occasion where the court excused his appearance because the case was on for decision. Thus, although defendant's papers do not state whether his memory has been impaired by the passage of time or whether evidence has deteriorated, the personal prejudice to defendant from continuing this case is apparent. It is also significant that the People have conceded they did not bring to trial the misdemeanor charges within speedy trial limits (People v Perkins, 37 Misc 3d 351, 357).

In deciding this motion, the court is aware that it is important to maintain the public's confidence in the legal system. To foster that confidence, judges must apply the law in a way that is fair and not arbitrary. Nevertheless, "a prosecution in which all misdemeanor charges have been dismissed for failure to bring the case to trial in a timely manner, while lesser, non-criminal offenses remain pending, potentially without limitation, does not foster [this confidence]" People v Perkins, 37 Misc 3d 696, 703. Ultimately, it is not fair to subject someone to the risk of homelessness and unemployment indefinitely for what may amount to mere legislative oversight.

Accordingly, the court grants defendant's motion to renew, and, upon renewal, grants defendant's motion to dismiss and it is further,

Ordered that the court stays sealing for thirty days.