Opinion
No. 2023-3 S CR
04-11-2024
The People of the State of New York, Appellant, v. Tunahan Sogunmez, Respondent.
Suffolk County Traffic Prosecutor's Office (Justin W. Smiloff of counsel), for appellant. Somer Estrin, for respondent (no brief filed).
Unpublished Opinion
Suffolk County Traffic Prosecutor's Office (Justin W. Smiloff of counsel), for appellant.
Somer Estrin, for respondent (no brief filed).
PRESENT: TIMOTHY S. DRISCOLL, J.P., JAMES P. McCORMACK, GRETCHEN WALSH, JJ
Appeal from an order of the District Court of Suffolk County, Suffolk County Traffic and Parking Violations Agency (Debra Urbano-DiSalvo, J.H.O.), rendered December 12, 2022. The order granted defendant's motion to dismiss the simplified traffic information.
ORDERED that the order is affirmed.
Insofar as is relevant to this appeal, on June 20, 2021, defendant was charged in a simplified traffic information with speeding (Vehicle and Traffic Law § 1180 [b]) for driving at a speed of 79 miles per hour (mph) in a 55 mph zone on the northbound side of the Robert Moses Parkway. Defendant was arraigned on September 16, 2021 in the Suffolk County Traffic and Parking Violations Agency and appeared in court on the case numerous times thereafter. On August 8, 2022, the People were not ready for trial because the trooper was unavailable due to an illness. The case was adjourned to November 10, 2022, at the People's request, on which date the People were not ready for trial because the trooper was unavailable as he was attending mandatory training. The People requested an adjournment, and defense counsel objected and moved for dismissal of the simplified traffic information. Judicial Hearing Officer (J.H.O.) Jeffrey Arlen Spinner adjourned the case to December 12, 2022, marked the case final for trial, and informed the People that the case would be dismissed if the trooper failed to appear again.
On December 12, 2022, the People were not ready for trial because the trooper was unavailable due to a family emergency. The People requested an adjournment, which defense counsel opposed, and counsel, again, moved for dismissal of the simplified traffic information. J.H.O. Debra Urbano-DiSalvo noted that "according to the notes of Judge Spinner... it was marked final against The People" and that, "[g]iven the fact that Judge Spinner marked it final against The People, I'm applying the doctrine of Stare Decisis, law of the case." J.H.O. Urbano-DiSalvo also stated that the right to a constitutional speedy trial applies to traffic infractions, and that "there are factors to be considered in determining whether or not there's been a speedy trial violation." The court's return states that defendant's motion to dismiss the simplified traffic information was granted upon J.H.O. Urbano-DiSalvo's "finding that the prior statements of the court were stare decisis and that constitutionally the defendant was entitled to a timely trial."
On appeal, the People contend that the motion should have been denied because (1) the requirements of CPL 210.45 (1) were not met, (2) dismissal cannot be based upon the People's "failure to prosecute," and (3) with respect to the court's conclusion that defendant was deprived of his constitutional right to a speedy trial, the court failed to consider the factors set forth in People v Taranovich (37 N.Y.2d 442 [1975]) in reaching its determination.
In their affidavit of errors, the People state that defendant's motion to dismiss the simplified traffic information should have been denied because there is no statutory basis to dismiss the information upon the People's "failure to prosecute." However, the People's nonjurisdictional appellate contentions-that the order granting defendant's motion to dismiss should be reversed because (1) the motion did not satisfy the CPL 210.45 requirements that it be made in writing and upon reasonable notice to the People and (2) the court failed to consider the Taranovich factors in its constitutional speedy trial analysis-are unpreserved for appellate review, as they were not raised in the affidavit of errors (see People v Klein, 7 N.Y.2d 264 [1959]; People v Sloane, 59 Misc.3d 143 [A], 2018 NY Slip Op 50697[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]; People v Rozario, 20 Misc.3d 76, 83 [App Term, 2d Dept, 9th & 10th Jud Dists 2008]; see generally People v Votaw, 190 A.D.3d 1162, 1164 [2021]).
Only the People's contention that the court had no authority to dismiss the accusatory instrument for "failure to prosecute" was properly raised in both the People's affidavit of errors and their appellate brief. The People correctly argue that a "failure to prosecute" dismissal is improper as a court does not have the inherent authority to dismiss an accusatory instrument on this ground (see People v Douglass, 60 N.Y.2d 194 [1983]; People v Zuckerman, 72 Misc.3d 127 [A], 2021 NY Slip Op 50587[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2021]; People v Atta-Poku, 63 Misc.3d 131 [A], 2019 NY Slip Op 50414[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]). Nevertheless, since defendant's motion to dismiss was also granted upon a finding that his constitutional right to a speedy trial had been violated, and, as the People failed to preserve their challenge to the propriety of the court's determination in that regard (see Klein, 7 N.Y.2d 264; Sloane, 2018 NY Slip Op 50697[U]; Rozario, 20 Misc.3d at 83), we do not review that determination.
Accordingly, the order is affirmed.
DRISCOLL, J.P., McCORMACK and WALSH, JJ., concur.