PEOPLE v. SCOTT (2023)

ORDERED that the order is modified, on the law, by providing that the branch of defendant's motion seeking to dismiss, on statutory speedy trial grounds, the counts of the accusatory instrument charging defendant with traffic infractions is denied; as so modified, the order is affirmed.

Insofar as is relevant to this appeal, on July 27, 2019, defendant was charged in an accusatory instrument with driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2], an unclassified misdemeanor), aggravated driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2-a] [a], an unclassified misdemeanor), common-law driving while intoxicated (Vehicle and Traffic Law § 1192 [3], an unclassified misdemeanor), driving while ability impaired (Vehicle and Traffic Law § 1192 [1], a traffic infraction), consumption of alcoholic beverages in a motor vehicle (Vehicle and Traffic Law § 1227 [1], a traffic infraction), and operating a motor vehicle without a safety belt (Vehicle and Traffic Law § 1229-c [3], a traffic infraction). From March 20 to October 4, 2020, the provisions of CPL 30.30 were tolled for misdemeanor charges in Queens County, among other criminal matters, pursuant to executive orders from the Governor's office in response to the COVID-19 outbreak (see Executive Order [A. Cuomo] No. 202.8 [9 NYCRR 8.202.8]; Executive Order [A. Cuomo] No. 202.67 [9 NYCRR 8.202.67]). On September 16, 2020, the People filed an off-calendar statement of readiness (SoR) that did not include a CPL 30.30 (5-a) certification of the facial sufficiency of the accusatory instrument.

By notice of motion dated March 23, 2021, defendant moved to dismiss the accusatory instrument on statutory speedy trial grounds, arguing that the People's September 16, 2020 SoR was invalid because it lacked the CPL 30.30 (5-a) certification. The People opposed the motion. By order dated April 27, 2021, the Criminal Court (Mary L. Bejarano, J.) granted defendant's motion after finding 254 chargeable days, more than the 90 days allotted to the People to be ready for trial, where, as here, the top charge was an unclassified misdemeanor (see CPL 30.30 [1] [b]; Vehicle and Traffic Law § 1193 [1] [b]). The Criminal Court accepted defendant's argument that the People's September 16, 2020 SoR was invalid pursuant to CPL 30.30 (5-a).

For the reasons stated in People v Gutierrez (––– Misc 3d ––––, 2023 NY Slip Op –––– [appeal No. 2021-355 Q CR], decided herewith), because the accusatory instrument predates the effective date of CPL 30.30 (1) (e), statutory speedy trial time does not apply to the traffic infractions charged therein (see People v Galindo, 38 NY3d 199, 206-207 [2022]). Thus, the branch of defendant's motion seeking to dismiss, on statutory speedy trial grounds, the counts of the accusatory instrument charging defendant with traffic infractions should have been denied. With respect to the misdemeanor charges, because the People did not file a CPL 30.30 (5-a) certification before the expiration of their statutory speedy trial time, the Criminal Court correctly granted the branch of defendant's motion seeking to dismiss, on statutory speedy trial grounds, the counts of the accusatory instrument charging defendant with misdemeanors (see People v Ward, 79 Misc 3d 129[A], 2023 NY Slip Op 50688[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2023]; People v Barahona, 79 Misc 3d 129[A], 2023 NY Slip Op 50687[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2023]).

Accordingly, the order is modified by providing that the branch of defendant's motion seeking to dismiss, on statutory speedy trial grounds, the counts of the accusatory instrument charging defendant with traffic infractions is denied.

MUNDY, J.P., OTTLEY and VENTURA, JJ., concur.