Opinion
No. 2021-740 Q CR
09-08-2023
The People of the State of New York, Appellant, v. Albert Harris, Respondent.
Queens County District Attorney (Johnnette Traill, John M. Castellano, Nancy Fitzpatrick Talcott and Sharon Y. Brodt of counsel), for appellant. New York City Legal Aid Society (Simon Greenberg of counsel), for respondent.
Unpublished Opinion
Queens County District Attorney (Johnnette Traill, John M. Castellano, Nancy Fitzpatrick Talcott and Sharon Y. Brodt of counsel), for appellant.
New York City Legal Aid Society (Simon Greenberg of counsel), for respondent.
PRESENT:: WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, LISA S. OTTLEY, JJ
Appeal from an order of the Criminal Court of the City of New York, Queens County (Mary L. Bejarano, J.), dated October 19, 2021. The order, insofar as appealed from as limited by the brief, granted defendant's motion to dismiss the accusatory instrument on statutory speedy trial grounds.
ORDERED that the order, insofar as appealed from, 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, insofar as appealed from, is affirmed.
Insofar as is relevant to this appeal, on June 24, 2019, defendant was charged in an accusatory instrument with 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), speeding (Vehicle and Traffic Law § 1180 [d], a traffic infraction), and driving while ability impaired (Vehicle and Traffic Law § 1192 [1], a traffic infraction); defendant was arraigned thereon; and the People announced ready for trial. By notice of motion dated July 24, 2019, defendant moved to dismiss all the counts of the accusatory instrument, except driving while intoxicated per se, as facially insufficient. The People opposed in an affirmation dated July 31, 2019 in which they argued, among other things, that "the accusatory and factual parts of the [accusatory] instrument conform to the requirements set forth in Sections 100.10 [sic] and 100.40 of the Criminal Procedure Law." On September 25, 2019, the Criminal Court (Jeffrey Gershuny, J.) denied defendant's facial insufficiency motion. On December 6, 2019, the Criminal Court (Karina E. Alomar, J.) issued a second order denying defendant's facial insufficiency motion.
On January 23, 2020, the matter was adjourned to March 11, 2020 for the People to file a certificate of compliance (CoC) (see CPL 245.50 [1]). On February 13, 2020, the People filed off-calendar a CoC and a statement of readiness (SoR) that did not include a CPL 30.30 (5-a) certification of the facial sufficiency of the accusatory instrument. By order dated May 4, 2021, the Criminal Court (Scott A. Dunn, J.) directed the People to turn over impeachment material on the arresting officer, and the matter was adjourned to September 14, 2021 for the People to comply with the order. On September 3, 2021, the People turned over the impeachment material on the arresting officer and filed off-calendar a supplemental CoC and an SoR that did not include a CPL 30.30 (5-a) certification.
By notice of motion dated September 10, 2021, defendant moved to dismiss the accusatory instrument on statutory speedy trial grounds, arguing that the People's post-January 1, 2020 SoRs were invalid because they lacked CPL 30.30 (5-a) certifications. The People opposed, asserting, among other things, that the People did not need to file a CPL 30.30 (5-a) certification because they had already made a facial sufficiency certification in their July 31, 2019 opposition to defendant's facial insufficiency motion and the Criminal Court had confirmed the facial sufficiency of the accusatory instrument in its September 25, 2019 and December 6, 2019 orders denying defendant's facial insufficiency motion. The People also contended that the adjournments for the People to turn over impeachment material on the arresting officer were excludable pursuant to CPL 30.30 (4) (a). On October 19, 2021, the Criminal Court (Mary L. Bejarano, J.) granted defendant's statutory speedy trial motion after finding that the People were chargeable with 177 days of delay, consisting of the 48-day period from January 23 to March 11, 2020 and the 129-day period from May 4 to September 10, 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]), the People's February 13, 2020 and September 3, 2021 SoRs did not stop the speedy trial clock (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]). We reject the People's contention that the Criminal Court's September 25, 2019 and December 6, 2019 orders denying defendant's motion to dismiss some of the counts in the accusatory instrument on facial insufficiency grounds, or the People's opposition to that motion, obviated the need for the People to file a CPL 30.30 (5-a) certification. Moreover, the People failed to establish their entitlement to the exclusion of the 129-day period from May 4 to September 10, 2021 pursuant to CPL 30.30 (4) (a) (see People ex rel. Ferro v Brann, 197 A.D.3d 787, 787-788 [2021]; People v Pagan, 75 Misc.3d 11, 12-13 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; see also Matter of Jayson C., 200 A.D.3d 447, 449 [2021]; People v Rodriguez, 77 Misc.3d 23, 25 [App Term, 1st Dept 2022]). Consequently, 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.
Accordingly, the order, insofar as appealed from, 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.
TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.