Opinion
570899/14
11-05-2015
The People of the State of New York, Respondent, v. Victor Thompson, Defendant-Appellant.
PRESENT: Lowe, III, P.J., Hunter, Jr., Ling-Cohan, JJ.
Defendant appeals from a judgment of the Criminal Court of the City of New York, Bronx County (Shari Ruth Michels, J. at speedy trial motion; John H. Wilson, J. at trial and sentencing), rendered March 10, 2014, after a nonjury trial, convicting him of driving while impaired, and imposing sentence.
Per Curiam.
Judgment of conviction (Shari Ruth Michels, J. at speedy trial motion; John H. Wilson, J. at trial and sentencing), rendered March 10, 2014, affirmed.
The verdict convicting defendant of driving while impaired (see Vehicle and Traffic Law § 1192[1]) was supported by legally sufficient evidence and was not against the weight of the evidence (see People v Bleakley, 69 NY2d 490 [1987]). There is no basis to disturb the court's determinations concerning credibility.
Contrary to the defendant's contention, the trial court properly admitted the audiotape of two telephone calls to the 911 emergency number under the present sense impression exception to the hearsay rule. The callers were clearly describing events unfolding before them - a man asleep at the wheel of a blue Chevrolet Blazer who would not wake up, despite people banging on the window of the vehicle, and who, as a result, was blocking traffic (see People v Vasquez, 88 NY2d 561, 575—577 [1996]; People v Brown, 80 NY2d 729, 732—734 [1993]). The callers' version of events was also corroborated in sufficient detail (id.). Indeed, the arresting officer testified that when he arrived at the stated location, he observed a blue Blazer, with the keys in the ignition and the engine running, in the middle of the road blocking traffic, as the 911 callers stated. That defendant was no longer in the vehicle when the officer arrived and, instead, was being helped into a taxi that was next to the blue Blazer, was explainable and did not undermine the reliability of the 911 calls (see People v Brown, 284 AD2d 156 [2001], lv denied 96 NY2d 938 [2001]).
Defendant's speedy trial motion was correctly denied. The sole charge now at issue is driving while impaired (see Vehicle and Traffic Law § 1192[1]), a traffic infraction which triggers no statutory speedy trial rights under CPL 30.30 (see People v Polite, 16 Misc 3d 18 [2007], lv denied 9 NY3d 849 [2007]). That a related misdemeanor charge was initially joined does not serve to transform the traffic infraction to the level of a more serious offense or otherwise bring the case within the ambit of CPL 30.30 ( see People v Gonzalez, 168 Misc 2d 136, 137 [1996], lv denied 88 NY2d 936 [1996]; see also People v Dorilas, 19 Misc 3d 75 [2008]). People v Cooper (98 NY2d 541 [2002]), which addressed the "effect the . . . reduction - from class A to class B misdemeanor charges - had on the trial readiness calculation" ( id., at 544-545), does not warrant a contrary result.
Nor did the allegations set forth in defendant's motion papers establish a violation of his constitutional right to a speedy trial (see People v Taranovich, 37 NY2d 442 [1975]). Although there was an extended period of delay, the record indicates that much of the delay resulted from court congestion and defendant's motion practice or unavailability (see People v Mack, 126 AD3d 657 [2015]). Of the limited delay attributable to the People, none of it "appear[s] to have been a deliberate attempt by the prosecution to hamper the [defendant] in the preparation of his defense" (People v Taranovich, 37 NY2d at 446; see People v Polite, 16 Misc 3d at 19). Moreover, defendant was released from custody at arraignment, and made no showing that his ability to defend was prejudiced by the delay in prosecution (see People v Williams, 284 AD2d 221 [2001], lv denied 96 NY2d 926 [2001]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. I concur I concur I concur People v. Victor Thompson14-463 April 2015 Term - Hon. Doris Ling-Cohan
Concurring Opinion
While I concur with the majority that a traffic infraction does not trigger statutory speedy trial rights under CPL § 30.30, I note that, pursuant to VTL § 155, a traffic infraction brought on its own would be heard by the NYS Department of Motor Vehicles Traffic Violations Bureau ("TVB"). Once at TVB, if the People were not ready for a second time, "and do not provide a minimum of seven days' notice...the charge shall be dismissed unless the hearing officer determines that a substantial traffic safety hazard would result from the dismissal". VTL § 227. Thus, it was likely that defendant's traffic infraction, by itself, would have been dismissed at TVB the second time the People answered "not ready" for trial. See VTL § 227. Further, had the traffic infraction been charged in a jurisdiction without an administrative tribunal such as TVB, it would have been heard in the applicable criminal court, where it would "be deemed [a] misdemeanor[ ] and all provisions of law relating to misdemeanors...shall apply", triggering statutory speedy trial rights under CPL § 30.30. VTL § 155; see, e.g. People v Pregent, 142 Misc 2d 344 (Syracuse City Ct 1988) (applying CPL § 30.30(1)(c) to a traffic infraction). Thus, the legislature should consider amending CPL § 30.30 to extend protection when a misdemeanor is initially charged, alongside a traffic infraction, but later dismissed, to cover the situation encountered by defendant herein, so that the speedy trial limits governing mere petty offenses, such as traffic infractions under the Vehicle and Traffic Law VTL § 1192 (1), would never be greater than that applicable to a misdemeanor. See VTL § 1192 (3), § 1193 (1) (a). Decision Date: November 05, 2015