Opinion
No. 2021-355 Q CR
08-04-2023
The People of the State of New York, Appellant, v. David Gutierrez, Respondent.
Queens County District Attorney (Johnnette Traill, John M. Castellano, Sharon Y. Brodt and Katira Campos of counsel), for appellant. Appellate Advocates (Joshua M. Levine of counsel), for respondent.
Unpublished Opinion
Queens County District Attorney (Johnnette Traill, John M. Castellano, Sharon Y. Brodt and Katira Campos of counsel), for appellant.
Appellate Advocates (Joshua M. Levine of counsel), for respondent.
PRESENT:: MARINA CORA MUNDY, J.P., LISA S. OTTLEY, LOURDES M. VENTURA, JJ
Appeal from an order of the Criminal Court of the City of New York, Queens County (Jeffrey Gershuny, J.), dated April 20, 2021. The order granted defendant's motion to dismiss the accusatory instrument on statutory speedy trial grounds.
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 August 28, 2019, defendant was charged in an accusatory instrument with aggravated driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2-a] [a], an unclassified misdemeanor), 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), passing a red light (Vehicle and Traffic Law § 1111[d] [1], a traffic infraction), driving on the wrong side of the road (Vehicle and Traffic Law § 1127 [a], a traffic infraction), and driving while ability impaired (Vehicle and Traffic Law § 1192 [1], a traffic infraction). The matter was adjourned to October 7, 2019 for the People to file a supporting deposition. On September 13, 2019, the People filed off-calendar a supporting deposition and a statement of readiness (SoR). On March 5, 2020, the matter was adjourned to March 25, 2020 for the People to file a certificate of compliance (CoC) (see CPL 245.50 [1]).
Beginning March 20, 2020, statutory speedy trial time was tolled until October 4, 2020 pursuant to executive orders from the Governor's office in response to the COVID-19 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]). Due to the pandemic, the matter was not called on March 25, 2020 and was administratively adjourned to March 26, 2021. On November 2, 2020, the People filed off-calendar a CoC and an 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 24, 2021, defendant moved to dismiss the accusatory instrument on statutory speedy trial grounds, arguing that the People's November 2, 2020 SoR was invalid because it lacked the CPL 30.30 (5-a) certification. The People opposed. By order dated April 20, 2021, the Criminal Court (Jeffrey Gershuny, J.) granted defendant's motion after finding 202 chargeable days, consisting of the 16-day period from August 28 to September 13, 2019, the 15-day period from March 5 to 20, 2020, the 29-day period from October 4 to November 2, 2020, and the 142-day period from November 2, 2020 to March 24, 2021.
In People v Galindo (38 N.Y.3d 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 traffic infractions charged therein. 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, 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 N.Y.2d 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 branch of defendant's motion seeking to dismiss, on statutory speedy trial grounds, the counts of the accusatory instrument charging defendant with misdemeanors (see generally People v King, 216 A.D.3d 1400 [4th Dept 2023]; People v Brown, 214 A.D.3d 823 [2d Dept 2023]; cf. People v Robbins, 206 A.D.3d 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 counts of the accusatory instrument charging defendant with traffic infractions is denied.
MUNDY, J.P., OTTLEY and VENTURA, JJ., concur.