The Defendant moves this Court for an order dismissing the last remaining charge against him, VTL § 1192 [1] (Driving While Ability is Impaired by Alcohol), pursuant to CPL § 30.20 arguing that his constitutional right to a speedy trial has been violated. The People oppose the motion.

For the reasons set forth herein the motion is granted and the case is dismissed.

The Defendant was arrested on June 5, 2016 and charged with violating VTL §§ 1192 [1] (Driving While Ability is Impaired by Alcohol), a traffic infraction; 1192 [2] (Driving While Intoxicated by Alcohol), an unclassified misdemeanor; 1192 [2-a] [a] Aggravated Driving While Intoxicated by Alcohol), an unclassified misdemeanor and 1192[3] (Driving While Intoxicated by Alcohol), an unclassified misdemeanor. He was arraigned that same day. The case was subsequently adjourned 10 times when the Defendant moved to dismiss the misdemeanor counts on speedy trial grounds pursuant to CPL § 30.30(1)(b) on August 15, 2017. With the exception of a June 20, 2016 appearance, which was an adjournment for discovery, and the period of time between October 13, 2016 and October 31, 2016 when the Defendant was out on a bench warrant, the People had answered not ready on 7 separate adjourn dates between June 6, 2016 and August 15, 2017. On October 18, 2017, The People correctly conceded that more than 90 days were chargeable to them under CPL 30.30 [1][b] and the motion to dismiss was granted by the Court. Since traffic infractions are not subject to CPL § 30.30 the charge of VTL § 1192 [1] remained (see People v. Polite, 16 Misc 3d 18 [App Term 1st Dept 2007]).

The case was then adjourned to December 15, 2017 for hearings and trial and the People were not ready on that date. The People were directed to file a statement of readiness off calendar and the matter was adjourned to January 22, 2018 for hearings and trial. The People again answered not ready on that date and did not file a statement of readiness off calendar. The Defendant then filed the instant motion seeking dismissal for violating his speedy trial rights pursuant to CPL § 30.20.

Traffic infractions, like the one the Defendant stands charged with, are subject to a Constitutional Speedy Trial analysis which is a higher standard for dismissal. The constitutional basis for a speedy trial is found in the Sixth and Fourteenth Amendments of the United States Constitution. Although the New York State Constitution contains no speedy trial guarantee, CPL § 30.20 and Civil Rights Law § 12 embody the federal constitutional rights (see People v Anderson, 66 NY2d 529, 534-535 [1985]). When a defendant's constitutional right to a speedy trial has been violated, the remedy is dismissal (see People v Taranovich, 37 NY2d 442, 444 [1975]; see also People v Romeo, 12 NY3d 51, 55 [2009]; People v Staley, 41 NY2d 789, 791-792 [1977]. In determining whether a constitutional speedy trial violation has occurred, the Court must weigh five factors: (1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) the extent of pretrial incarceration; and (5) whether the defense was impaired by the delay (see Taranovich, 37 NY2d at 445). The Court evaluates these factors on a case by case basis, "since no rigid precepts may be formulated which apply to each and every instance" of an alleged constitutional right to speedy trial violation (id.) No one factor is necessarily dispositive, but rather the case must be determined in light of all of the factors (People v. Wiggins, __NY 3d __, 2018 NY Slip Op 01111, 2018 WL 889521 [NY 2018]).

The delay in going to trial, 18 months since arraignment, is extensive given the nature of the charge the Defendant is facing, a traffic infraction. This is especially true where the more serious charges, misdemeanor charges which carry up to a year in jail, were dismissed. The reason for the delay is largely attributable to the People not being ready for trial on (9) separate adjourn dates over a period of 18 months. This factor weighs heavily in favor of dismissal.

The primary reason for the delay is the People not being ready for trial. The Defendant is responsible for the period of time he was out on a warrant from between October 13, 2016 and October 31, 2016. Additionally, while time spent on motion practice may often times be chargeable to the Defendant, in this case the motions were filed only in response to the people's failure to be ready and not attributable the Defendant (see People v. Polite, 16 Misc 3d 18, 19 [App Term 1st Dept 2007). Given the nature and length of the delay this factor weighs heavily in favor of dismissal.

Here while the underlying charge is serious it is also true that it is a traffic infraction. The Defendant is facing a serious driving charge. It goes without saying that one who drives while under the influence of alcohol is at a higher risk of causing an accident and hurting an innocent party. However, there is no indication that the trial of this Driving While Ability is Impaired by [*2]Alcohol charge is a complex legal matter requiring much preparation and proof to prosecute (See People v. Brown, 54 Misc 3d 133(A) [App Term 2nd Dept 2017]). Under the circumstances presented here, this factor weighs in favor of dismissal.

The Defendant has been out of jail during the pendency of these proceedings so this is not a significant factor.

The Defendant has been prejudiced by the extent and nature of the delay in this case. Where the delay is long enough, the Defendant need not show any actual prejudice (People v. Perkins, 37 Misc 3d. 696 [Crim Ct, Kings County 2012]).

When applying these factors, the Court reaches the conclusion that the Defendant's speedy trial rights have been violated. In People v. Manoylo, 15 Misc.3d1130(A) [Crim Ct, NY County 2007] the Court found that the Defendant's right to a speedy trial had been violated when the People failed to be ready over an 11-month period. Likewise, in People v. Persaud, 21 Misc 3d 522 (Crim Ct, Kings County 2008) the Court found that an extensive delay not directly attributable to the Defendant warrants dismissal under speedy trial grounds.

The Court is aware that there are other cases which have denied speedy trial dismissal relief where the length of time that the case was pending is similar to the length of time this case has been pending, however, those cases reasoned that where the cause of the delay is court congestion or the Defendant's conduct, dismissal is not warranted, factors not present here. For example in People v. Thompson, 43 Misc 3d 136(A) [App Term 1st Dept 2014] the Appellate Term held that the 21—month delay, mostly resulting from court congestion and defendant's motion practice or unavailability, and where limited delay attributable to the People was not a deliberate attempt to hamper defendant's preparation of his defense, and did not justify dismissal of traffic infraction on speedy trial grounds. In People v. Tejada, 48 Misc 3d 1226(A) [Crim Ct, Bronx County 2015] the Court found that a one year delay, where only three court dates were scheduled for hearing and trial, did not warrant dismissal of traffic infraction.

This case is readily distinguishable from those line of cases because the delay in this case is not from court congestion or the conduct of the Defendant, but rather from the People's failure to be ready for trial over an extensive period of time which extended beyond the period of time permissible under the United States Constitution and dismissal is warranted.

Accordingly, for the reasons stated above, the Defendant's motion to dismiss the remaining count of the accusatory instrument charging a violation of VTL § 1192 [1] is granted and the accusatory instrument is dismissed.

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