The People of the State of New York, Appellant, v. KC (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 count of the accusatory instrument charging defendant with driving while ability impaired is denied; as so modified, the order is affirmed.

Insofar as is relevant to this appeal, on November 29, 2019, defendant was charged in an accusatory instrument with assault in the third degree (Penal Law § 120.00 [1]), driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2], an unclassified misdemeanor), common-law driving while intoxicated (Vehicle and Traffic Law § 1192 [3], an unclassified misdemeanor), harassment in the second degree (Penal Law § 240.26 [1]), and driving while ability impaired (Vehicle and Traffic Law § 1192 [1], a traffic infraction). On March 3, 2020, the Criminal Court granted the People's motion to dismiss the charges of assault in the third degree and harassment in the second degree, and the People stated ready on the record without certifying the facial sufficiency of the accusatory instrument pursuant to CPL 30.30 (5-a). The matter was adjourned to March 18, 2020 but, due to the COVID-19 pandemic, was not called on that date and was administratively adjourned to March 18, 2021. In the interim, statutory speedy trial time was tolled from March 20 until October 4, 2020 pursuant to executive orders from the Governor's office in response to the pandemic (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]).

By notice of motion dated March 23, 2021, defendant moved to dismiss the accusatory instrument on statutory speedy trial grounds, arguing that the speedy trial clock began running again on January 1, 2020, the effective date of various amendments to the CPL, and that the People's March 3, 2020 statement of readiness was invalid because it lacked a CPL 30.30 (5-a) certification. The People opposed. By order entered June 8, 2021, the Criminal Court (Denise N. Johnson, J.) granted defendant's motion after finding 243 chargeable days, consisting of the 79-day period from January 1 to March 20, 2020 and the 164-day period from October 5, 2020 to March 18, 2021.

In People v Galindo (38 NY3d 199, 206-207 [2022]), the Court of Appeals held that the newly enacted CPL 30.30 (1) (e) is not to be applied retroactively but, rather, applies only to actions commenced after January 1, 2020, the effective date of the new subsection. Before CPL 30.30 (1) (e) went into effect, it was well established that a defendant had no statutory right to a speedy trial for a traffic infraction (see People v Harvey, 76 Misc 3d 134[A], 2022 NY Slip Op 50932[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; People v O'Halloran, 40 Misc 3d 133[A], 2013 NY Slip Op 51142[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; People v Graham, 39 Misc 3d 35 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). As the accusatory instrument in the case at bar predates the effective date of CPL 30.30 (1) (e), statutory speedy trial time does not apply to the charge therein of driving while ability impaired, a traffic infraction. Thus, the branch of defendant's motion seeking to dismiss, on statutory speedy trial grounds, the count of the accusatory instrument charging defendant with driving while ability impaired should have been denied.

With respect to the unclassified misdemeanor charges of driving while intoxicated per se and common-law driving while intoxicated, the People were required to be ready for trial within 90 days of the commencement of the action, since the most serious offense charged was a misdemeanor punishable by a sentence of imprisonment of more than three months (see CPL 30.30 [1] [b]; Vehicle and Traffic Law § 1193 [1] [b]; see also People v Lomax, 50 NY2d 351, 356 [1980]). For the reasons stated in People v Ward (79 Misc 3d 129[A], 2023 NY Slip Op 50688[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2023]), 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 branches of defendant's motion seeking to dismiss, on statutory speedy trial grounds, the counts of the accusatory instrument charging defendant with driving while intoxicated per se and common-law driving while intoxicated (see generally People v King, 216 AD3d 1400 [4th Dept 2023]; People v Brown, 214 AD3d 823 [2d Dept 2023]; cf. People v Robbins, 206 AD3d 1069 [3d Dept 2022]).

Accordingly, the order is modified by providing that the branch of defendant's motion seeking to dismiss, on statutory speedy trial grounds, the count of the accusatory instrument charging defendant with driving while ability impaired is denied.

TOUSSAINT, P.J., BUGGS and VENTURA, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk

Decision Date: August 4, 2023