Opinion
2011-03-15
The PEOPLE of the State of New York,v.Jimmy GRAHAM, Defendant.
Charles J. Hynes, District Attorney, Kings County, by Hillary E. Schaeffer, Esq., Assistant District Attorney, for the People.Paul B. Grotas, Esq., Law Office of Christopher J. Cassar, PC, for the Defendant.
Charles J. Hynes, District Attorney, Kings County, by Hillary E. Schaeffer, Esq., Assistant District Attorney, for the People.Paul B. Grotas, Esq., Law Office of Christopher J. Cassar, PC, for the Defendant.JOHN H. WILSON, J.
Defendant is charged with one count each of Operating a Motor Vehicle While Impaired (VTL Sec. 1192.1), Operation in Opposite Direction of One–Way Roadway (VTL Sec. 1127(a)), and Unlicensed Operator (VTL Sec. 509), all traffic infractions.
By motion dated December 23, 2010, Defendant seeks dismissal of the Criminal Court Complaint, asserting that his statutory right to a speedy trial pursuant to CPL Sec. 30.20, as well as the Constitutions of the United States and New York State, has been denied.
Defendant also seeks dismissal of this matter in the interest of justice under CPL Sec. 210.40 and 210.20.
The Court has reviewed Defendant's motion, the People's Response dated February 22, 2011, and the prior proceedings in this matter, including the decision of the Honorable Gilbert Hong, JCC rendered on October 13, 2010.
For the reasons that follow, Defendant's motion is granted in the interests of justice.
PROCEDURAL HISTORY
Defendant was arrested on September 6, 2009, and arraigned on the same date. At that time, Defendant was charged with the counts listed above, as well as two additional counts of Operating a Motor Vehicle While Intoxicated (VTL Sec. 1192.2 and 1192.3), both unclassified misdemeanors, and Consumption of Alcohol in Public (AC 10–125(b), a violation.
By motion dated October 1, 2010, Defendant sought dismissal of this matter under CPL Sec. 30.30. After review of the motion, and the People's Response dated October 7, 2010, by decision dated October 13, 2010, Judge Hong granted Defendant's motion to dismiss the unclassified misdemeanor charges of VTL Sec. 1192.2 and 1192.3, retaining the traffic infraction charges enumerated above.
The court found that the People were charged with 151 days, however, the Court also found that CPL Sec. 30.30 did not apply to traffic infractions.
The basis for the dismissal of the Consumption of Alcohol charge is unclear, but since the substance is described in the Criminal Court Complaint only as “liquor” without any further description or indication that the “beverage contains more than one-half of one percent of alcohol,” the charge is facially insufficient, and properly dismissed. See, People v. Cunningham, 188 Misc.2d 184, 184, 727 N.Y.S.2d 281 (Crim. Ct., N.Y. Cty., 2001).
Operating a Motor Vehicle While Intoxicated, under either CPL Sec. 1192.2 or 1192.3, are both unclassified misdemeanors, and are thus subject to the 90 day time limitation of CPL Sec. 30.30(1)(b). See, People v. Strafer, 10 Misc.2d 1072(a), 814 N.Y.S.2d 564, 2006 WL 118366 (Crim. Ct., Kings Cty., 2006) and cases cited therein. There is no dispute that these charges were properly dismissed pursuant to CPL Sec. 30.30.
By motion dated October 26, 2010, Defendant sought dismissal of this matter pursuant to CPL Sec. 30.20 and in the interests of justice. That motion was orally denied by the Honorable Michael Gerstein, JCC on October 27, 2010.
THE CPL SEC. 30.20 MOTION MUST BE DENIED
The notes from the Court file for October 27, 2010 indicate that the Court orally denied Defendant's motion because “speedy trial does not apply to traffic infractions.” This assertion is correct, in that CPL Sec. 30.30 does not apply to a docket consisting solely of traffic infractions from its inception. See, People v. Gonzalez, 168 Misc.2d 136, 645 N.Y.S.2d 978 (App.Term, 1st Dept., 1996), app. den., 88 N.Y.2d 936, 647 N.Y.S.2d 170, 670 N.E.2d 454 (1996); People v. Howell, 158 Misc.2d 653, 601 N.Y.S.2d 778 (Crim. Ct., Kings Cty., 1993).
Further, it is equally true that the statutory speedy trial provisions of CPL Sec. 30.20 do not apply to a traffic infraction. CPL Sec. 30.20 specifically provides that “(a)fter a criminal action is commenced, the defendant is entitled to a speedy trial.” (Emphasis added.)
In People v. Fisher, 167 Misc.2d 850, 635 N.Y.S.2d 1002 (Crim. Ct., Richmond Cty., 1995), the court reviewed the statutory definition of a “criminal action” as provided in General Construction Law Sec. 18–a. There, a “criminal action” is described as one which is “prosecuted ... against a party charged with a crime.” 167 Misc.2d at 855, 635 N.Y.S.2d 1002 (emphasis in original). Since a traffic infraction is not a crime, “a criminal action has not taken place. Therefore, Defendant may not avail himself of the speedy trial rule contained in CPL 30.20.” Id. at 855, 635 N.Y.S.2d 1002.
This leaves the guarantee of a speedy trial contained in the Federal and New York State Constitutions. That issue does not appear to have been considered by the Court on October 27, 2010.
In his motion, Defendant relies on a line of cases which held that “it is reasonable and appropriate to hold that where the docket includes charges of both misdemeanor and traffic infractions, the Constitutional Speedy Trial time for the traffic infraction is 60 days.” See, Fisher, supra; People v. Mahmood, 10 Misc.3d 198, 203–04, 800 N.Y.S.2d 919 (Crim. Ct., Kings Cty., 2006), and cases cited therein. This approach, however, has been rejected by the Appellate Term of the First Department.
In People v. Polite, 16 Misc.3d 18, 842 N.Y.S.2d 670 (App. Term, 1st Dept., 2007), the Court rejected defendant's speedy trial arguments brought under CPL Sec. 30.20, and held that any evaluation of a constitutional speedy trial claim must take place pursuant to the factors enumerated in People v. Taranovich, 37 N.Y.2d 442, 373 N.Y.S.2d 79, 335 N.E.2d 303 (1975). Specifically, the Court noted that “(t)o the extent that trial-level decisions in such cases as ( Fisher, Mahmood, supra) appear to apply a narrower standard of constitutional speedy trial review to traffic violation prosecutions of the type here involved, they are inconsistent with the Court of Appeal teaching in Taranovich and are otherwise unpersuasive.” 16 Misc.3d at 671, 838 N.Y.S.2d 436.
This court recognizes the authority of the Appellate Term in this area, and will not apply a 60 day time period to traffic infractions such as are presented here. The Taranovich factors will be applied to Defendant's motion.
Under Taranovich, the court must consider “(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay.” 37 N.Y.2d at 445, 373 N.Y.S.2d 79, 335 N.E.2d 303. “(N)o one factor or combination of factors ... is necessarily decisive or determinative of the speed trial claim.” Id. at 445, 373 N.Y.S.2d 79, 335 N.E.2d 303.
Here, Defendant cannot establish a deprivation of his constitutional right to a speedy trial, under either the United States or New York State Constitutions. The case is approximately 17 months old, and only approximately 5 months of that time is attributable to the People. See, decision of Hong, J., dated October 13, 2010. Further, the Defendant's pre-trial incarceration in this matter was due to his arrest in Suffolk County for two other matters, not for the instant allegations. While the underlying charges are traffic infractions, Driving While Impaired is a serious offense which carries substantial penalties, such as a three month suspension of a defendant's privilege to drive, and a maximum fine of $500.00.
Defendant also fails to establish any prejudice suffered as a result of the delay. Therefore, under the factors enumerated in Taranovich, this motion must be denied.
THE MOTION TO DISMISS IN THE INTEREST OF JUSTICE MUST BE GRANTED
When the Court orally denied defendant's motion on October 27, 2010, it did so on “speedy trial” grounds. Defendant's motion to dismiss in the interest of justice appears to have not been considered. Therefore, this motion is properly before this Court on the latest motion to dismiss.
CPL Sec. 170.40(1) provides for a variety of factors which require dismissal of “an information, a simplified traffic information, a prosecutor's information or a misdemeanor complaint, or any count thereof” “as a matter of judicial discretion” if “some compelling factor, consideration or circumstance clearly demonstrate that conviction or prosecution of the defendant upon such accusatory instrument or count would constitute or result in injustice.” See, also, CPL Sec. 170.30(g).
The discretion of the Court to dismiss an information in the furtherance of justice is not absolute, nor is it uncontrolled. See, People v. O'Grady, 175 Misc.2d 61, 65, 667 N.Y.S.2d 895 (Crim. Ct., Bx. Cty., 1997) citing People v. Wingard, 33 N.Y.2d 192, 351 N.Y.S.2d 385, 306 N.E.2d 402 (1973). In fact, this power is to be “employed cautiously and sparingly.” See, People v. Eubanks, 114 Misc.2d 1097, 1098, 454 N.Y.S.2d 768 (App.Term, 2d Dept.,1982).
On a motion to dismiss in the interests of justice, the burden is on the Defendant to establish “some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant would constitute or result in injustice.” See, People v. Boulet, 88 Misc.2d 353, 355, 388 N.Y.S.2d 250 (City Ct., Rochester, 1976); People v. Verardi, 158 Misc.2d 1039, 1042, 602 N.Y.S.2d 318 (Crim. Ct., Kings Cty., 1993).
When considering the motion, the court need not “engage in a point-by-point catechistic discussion of all ten statutory factors; instead, the court is required to consider the factors individually and collectively in making a value judgment that is based upon striking a sensitive balance between the interests of the individual and those of the state.” See, People v. Gragert, 1 Misc.3d 646, 648, 765 N.Y.S.2d 471 (Crim. Ct., N.Y. Cty., 2003).
This Court finds that CPL Sec. 210.40(g), the impact of a dismissal upon confidence in the criminal justice system, compels the granting of Defendant's motion to dismiss.
As previously stated, where a Defendant has been charged with traffic infractions alone, from the inception of the matter, the Constitutional right to a speedy trial can be quite broad. In People v. Gordon, 2 Misc.3d 134(A), 784 N.Y.S.2d 922 (App. Term, 9th and 10th Dist., 2004) and People v. Taylor, 189 Misc.2d 313, 731 N.Y.S.2d 324 (App.Term, 2d Dept., 2001) the Court held that up to 14 months was allowed.
In the instant case, however, VTL Sec. 1192.2 and 1192.3, two unclassified misdemeanors, were charged on the original docket. “CPL 30.30 time periods are generally calculated based on the most serious offense charged in the accusatory instrument and are measured from the date of commencement of the criminal action.” See, People v. Cooper, 98 N.Y.2d 541, 543, 750 N.Y.S.2d 258, 779 N.E.2d 1006 (2002), citing CPL Sec. 30.30(1).
This approach was tacitly approved of in People v. Didio, 14 Misc.3d 128(a), 836 N.Y.S.2d 488 (App. Term, 9th and 10th Dist., 2006). There the Appellate Term noted “that the speedy trial provisions of CPL 30.30 do not apply to the present matter, in which the charge was only a traffic infraction from the outset,” citing Matute, supra.
In Cooper, the Court of Appeals examined the exceptions listed in CPL Sec. 30.30(5) “which require a deviation from the general rule and effectively alters the date a criminal action is deemed to have commenced for purposes of applying the CPL 30.30(1) time frames.” 98 N.Y.2d at 544, 750 N.Y.S.2d 258, 779 N.E.2d 1006. There the rule of law was stated clearly; “unless an event occurs which triggers the specific contingencies of CPL 30.30(5), the general rule articulated in CPL 30.30(1) controls the calculation of the readiness period throughout the criminal action. Under that provision, the readiness time requirement is based on the most serious offense charged in the criminal action, measured from the date of filing of the first accusatory instrument.” Id. at 546, 750 N.Y.S.2d 258, 779 N.E.2d 1006.
Under CPL Sec. 30.30(1)(b), where at least one misdemeanor charge “punishable by a sentence of imprisonment of more than three months” is present on the docket, the time for all “offenses” charged on the same docket begins to run from the “commencement of a criminal action.” See, Mahmood, 10 Misc.3d at 204, 800 N.Y.S.2d 919, Fisher, 167 Misc.2d at 856, 635 N.Y.S.2d 1002; People v. Matute, 141 Misc.2d 988, 990, 535 N.Y.S.2d 524 (Crim. Ct., Bx. Cty., 1988) (“People's readiness obligation was fixed by the nature of the accusations at the commencement of the action”).
As stated previously, Mahmood and Fisher have been superceded by Polite as to the application of a 60 day time limitations period to constitutional speedy trial; However, insofar as Mahmood, Fisher and Matute follow the holding of Cooper and find that “the general rule articulated in CPL Sec. 30.30(1) controls the calculation of the readiness period throughout the criminal action,” this line of cases still represents the current state of the law on this issue.
In People v. McLean, 184 Misc.2d 465, 472, 709 N.Y.S.2d 339 (Crim. Ct., Queens Cty., 2000), the court held that “the determinative factor is not the initial charge but the level of crime with which the defendant is ultimately accused' and for which he is prosecuted,” citing an earlier People v. Cooper, 90 N.Y.2d 292, 660 N.Y.S.2d 546, 683 N.E.2d 11 (1997). The later Cooper opinion disavowed this approach, stating that “the Court did not so hold ... such an interpretation would be inconsistent with CPL Sec. 30.30(1) which correlates the applicable time period to the highest grade of offense charged in a criminal action ... measured from the date of commencement of the criminal action.” 98 N.Y.2d at 546, 750 N.Y.S.2d 258, 779 N.E.2d 1006.
At the institution of the charges in this matter, the Defendant was charged with traffic infractions, as well as VTL Sec. 1192.2 and 1192.3, both unclassified misdemeanors. A review of CPL Sec. 30.30(5) reveals no exception which would allow the maintenance of traffic infraction charges after the misdemeanor charges have been dismissed pursuant to CPL Sec. 30.30(1)(b). Under these circumstances, the People are bound by the 90 day time limitation of the higher charge.
Thus, following the Court of Appeals holding in Cooper, this entire matter should have been dismissed on October 13, 2010 pursuant to CPL Sec. 30.30(1)(b).
It is within the Court's inherent powers to correct a mistake of law. See, People v. Marino, 81 A.D.3d 426, 917 N.Y.S.2d 142, 2011 WL 320990 (App.Div., 1st Dept. 2011), and cases cited therein. To dismiss the remaining charges on this docket corrects the Court's earlier mistake of law, and can only serve to increase the public's confidence in the criminal justice system within the meaning of CPL Sec. 210.40(g).
Therefore, this matter is dismissed in the interest of justice. Sealing is stayed for 30 days.
All other arguments advanced by the People and Defendant have been reviewed and rejected by this court as being without merit.
This shall constitute the opinion, decision, and order of the Court.