Opinion
2009-03458.
Decided October 20, 2010.
Patrick K. Jordan, Esq., Assistant Corporation Counsel Of Counsel, John J. Reilly, Corporation Counsel, Albany, New York.
Stephen D. Commins, Esq., Attorney for Defendant, Albany, NY.
The People commenced the instant proceeding against defendant by issuing simplified traffic informations on various dates, charging the defendant with several traffic infractions; two violations each of VTL §§ 1229(c)(3)(a) [no seat belt] and 1210(a) [unattended motor vehicle], and one violation of VTL § 509(1) [unlicensed operator]. On or about November 18, 2009, defendant plead "guilty" to reduced charges on these matters. He then moved, by motion filed on December 18, 2009, to vacate these guilty pleas. This motion was granted by the Court on January 21, 2010. Defendant then brought this motion to dismiss the within tickets claiming that his speedy trial rights have been violated pursuant to CPL § 30.30.
The Court initially notes that the speedy trial protections of CPL § 30.30 do not apply to traffic infractions, since they are neither felonies, misdemeanors or violations. See, e.g., People v Taylor, 189 Misc 2d 313, 731 NYS2d 324 (App Term, 2d Dept 2001); People v Gonzalez, 168 Misc 2d 136, 645 NYS2d 978 (App Term, 1st Dept 1996) (per curiam); People v Fiacco, 146 Misc 2d 330, 331, 549 NYS2d 901, 902 (Albany City Ct 1989); People v Wise, 141 Misc 2d 409, 410-411, 532 NYS2d 833, 834-835 (Nass Cnty Dist Ct 1988). See also Preiser, Practice Commentaries, McKinney's Cons. Laws of NY, Book 11A, CPL § 30.30, at 207-08.
Although defendant did not move for relief under the traditional speedy trial remedy found in CPL § 30.20, the Court will nonetheless examine this matter as if he had. Whether or not this right has been infringed depends upon an examination of the following five factors: (1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charges; (4) any extended period of pretrial incarceration; and (5) any impairment of defendant's defense. People v Gates, 70 AD2d 734 (3d Dept 1979), citing People v Taranovich, 37 NY2d 442, 445 (1975). These factors must be balanced in each individual case, with no factor or combination of factors necessarily determinative. People v Gates, supra, at 735.
In this action, the prosecution was waiting to proceed with trial until one of the arresting officers had returned from active military duty, however, the delay has been for no more than seven months. There has been no pre-trial incarceration of defendant and the underlying charges are minor traffic infractions. Defendant claims that his defense has been impaired since the person he claims to have impersonated him was in the Albany County Jail on March 16, 2010 (the originally scheduled trial date); has since been released and cannot now be located by defendant. However, this Court would not have produced this witness from the Albany County Jail for purposes of testifying at the trial if it had been scheduled while he was in jail. At most, the Court would have adjourned the trial until after the witness was released from jail, which would have put defendant in the same circumstance he is in presently.
This Court finds that the speedy trial provisions of CPL § 30.20 have not been violated. Accordingly, defendant's motion to dismiss is denied.
However, the Court will now set these matters down for trial. The trial of these charges are hereby consolidated for trial which will take place on December 7, 2010 at 9:30 am. Defendant and his counsel are directed to appear at that time, ready to proceed.
So ordered.