City Court of Albany, May 21, 2018

Gerstenzang, Sills, Cohn, & Gerstenzang, Albany (Jonathan Cohn of counsel), for defendant.

P. David Soares, District Attorney, Albany (Christine Labbate of counsel), for plaintiff.

Defendant, Michele Bernier, is charged with driving while ability impaired (DWAI) by alcohol, in violation of Vehicle and Traffic Law § 1192 (1); obscured or dirty license plate, a traffic infraction, in violation of Vehicle and Traffic Law § 402 (1); and failure to affix registration, a traffic infraction, in violation of Vehicle and Traffic Law § 403 (1). By notice of motion filed on March 26, 2018, defendant, through her attorney, Jonathan Cohn, Esq., moved for omnibus relief. For the reasons set forth below, the court rejects defendant's motion and holds that traffic infractions are not subject to the rules for motion practice as set forth in the Criminal Procedure Law. (CPL art 255.)

There are varying and divergent holdings from courts throughout New York State regarding the practice of treating traffic infractions as crimes for procedural purposes. For the reasons set forth below, this court agrees with the line of cases holding that traffic infractions are not subject to the rules for motion practice governing felonies, misdemeanors and violations as set forth in CPL article 255.

The starting point in any case of statutory interpretation is the language of the statutes themselves. When a statute does not define a particular term, it is presumed that the term should be given its ordinary meaning without resorting to artificial or forced construction. (People v Duggins, 3 NY3d 522 [2004].) Words of ordinary import in a statute are to be given their usual and commonly understood meaning unless it is clear from the statutory language that a different meaning was intended. (Matter ofDrew v Schenectady County, 88 NY2d 242{**63 Misc 3d at 346} [1996].) It is a general rule of construction that the legislature's failure to expressly include a matter in a statute is an indication that such exclusion is intended. (People v Wise, 141 Misc 2d 409 [Nassau Dist Ct 1988].)

New York statutes are replete with examples where traffic infractions are not included within the scope of an applicable law. For example, the legislature has excluded traffic infractions from the right to assigned counsel. (County Law § 722-a.) The Court of Appeals has held that it is not necessary, as a matter of constitutional right, to advise a defendant in a traffic case of his right to counsel, even at arraignment. (People v Bliss, 53 Misc 2d 472 [Allegany County Ct 1967], citing People v Felberbaum, 9 NY2d 213 [1961].)

A discovery demand may be made by a defendant against whom "an indictment, superior court information, prosecutor's information, information, or simplified information charging a misdemeanor is pending" (CPL 240. 20 [1]). This court holds, therefore, that discovery, as set forth in the Criminal Procedure Law, is not available to a defendant with a pending traffic infraction. (See People v McGettrick, 139 Misc 2d 403 [Hudson City Ct 1988].)

Likewise, a motion to suppress evidence, pursuant to Criminal Procedure Law §§ 710.20 and 710.30, may be made by a defendant against whom a "criminal action" is pending. The court finds that traffic infractions, while often characterized as offenses, fall outside the perimeter of the statutory language. In short, the court holds that traffic infractions are not criminal actions within the meaning of the statute.

The term "offense" is the generic term for any violation of law for which imprisonment or a fine is the prescribed sanction. (Penal Law § 10.00 [1].) Included with that term are the terms "crime," "felony," "misdemeanor," "petty offense," "violation" and "traffic infraction." The term "crime" is the generic term for a felony or misdemeanor. The term "petty offense" (see CPL 1.20 [39]) is the generic term for the non-criminal offenses of "violation" and "traffic infraction." (William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law § 10.00 at 20 [2009 ed].)

Based upon the foregoing, this court concludes that, in the present matter, defendant is charged with a petty offense, which is not a criminal action. (See e.g. People v Ashley, 32 Misc 3d 644 [Kings County Ct 2011], revd on other grounds 39 Misc 3d 149[A], 2013 NY Slip Op 50945[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013].)

{**63 Misc 3d at 347}It is well settled that the distinction between serious and petty offenses determines what type of criminal defense procedures are available to a defendant. For example, offenses that carry a maximum term of imprisonment of greater than six months are deemed serious offenses [*3]for which defendant is entitled to a jury trial. (People v Foy, 88 NY2d 742 [1996], citing Baldwin v New York, 399 US 66 [1970].) Offenses carrying sentences of less than six months are petty offenses, to which no right to a jury trial attaches. (People v Urbaez, 10 NY3d 773 [2008].) A petty offender may also be sentenced to a term of five years' probation without triggering the right to a jury trial. (See Frank v United States, 395 US 147 [1969].)

Having determined that a traffic infraction is not a criminal action, the court notes that prosecution of a traffic offense is, nonetheless, penal in nature and such prosecutions are generally governed by the rules of criminal law. (People v Phinney, 22 NY2d 288 [1968].) However, as previously stated, a traffic infraction is not a crime (Vehicle and Traffic Law § 155), and not all protections normally afforded to a criminal defendant need be applied to those charged with a petty offense. (Id.) For example, Vehicle and Traffic Law § 155 deems a traffic infraction an offense for the purpose of an arrest without a warrant. (People v Vierno, 159 Misc 2d 770 [Crim Ct, Richmond County 1993].) Traffic infractions are to be treated as misdemeanors only with regard to determinations of jurisdiction, procedure and manner of arrest. (People v Bliss.) In sum, there is a substantial distinction between the nature of a traffic infraction and a crime and a traffic infraction is to be treated as a misdemeanor for procedural purposes only. (See Matter of Gross v Macduff, 284 App Div 786 [3d Dept 1954].)

In making the determination that speedy trial protections do not apply to defendants in traffic matters, including DWAI, the court in People v Wise (141 Misc 2d at 410-411 [internal quotation marks omitted]) held that

"[a] traffic infraction is obviously not a felony. Moreover, it does not fall within the definition of a misdemeanor or a violation. Penal Law § 10.00 (3) defines a violation as an offense, other than a traffic infraction. Similarly, Penal Law § 10.00 (4) explicitly excludes traffic infractions from the definition of a misdemeanor."

Moreover, Penal Law § 55.10 (4) provides that an offense designated a traffic infraction does not become a violation or a{**63 Misc 3d at 348} misdemeanor by virtue of the prescribed sentence. (People v Vierno.) The Wise court determined that, since the definitions of the offenses covered by CPL 30.30 did not expressly include traffic infractions, the statute did not apply to the traffic infraction of driving while intoxicated in violation of Vehicle and Traffic Law § 1192 (1). (Id.; People v Gonzalez, 168 Misc 2d 136 [App Term, 1st Dept 1996].)

This court finds that the logical extension of the foregoing is to further conclude that traffic infractions are not subject to the motion practice rules as set forth in Criminal Procedure Law article 255. Defendant's omnibus motion served in the above referenced matter is, therefore, dismissed.

The court recognizes that, in certain cases, issues requiring pretrial resolution by the court may arise. The court, therefore, will examine each case on an ad hoc basis to determine whether or not a pretrial hearing is warranted. If so, the court will hold a hearing immediately preceding trial. Should issues be raised in the hearing that require extended deliberation by the court, the trial may be adjourned until such time as a determination has been made, thus satisfying the mandate of CPL 710.40 (3). (See People v Brown, 103 AD3d 912 [2d Dept 2013].)

The court has considered defendant's remaining arguments and finds them to be without merit. The case is now ready for trial.