For the People: P. David Soares, Esq., Albany County District Attorney, By: Christine Labbate, Esq., Assistant District Attorney, 6 Lodge Street, Albany, New York 12207 For the Defendant: Gerstenzang, Sills, Cohn, and Gerstenzang, By: Jonathan Cohn, Esq., 210 Great Oaks Boulevard, Albany, New York 12202
For the People: P. David Soares, Esq., Albany County District Attorney, By: Christine Labbate, Esq., Assistant District Attorney, 6 Lodge Street, Albany, New York 12207
For the Defendant: Gerstenzang, Sills, Cohn, and Gerstenzang, By: Jonathan Cohn, Esq., 210 Great Oaks Boulevard, Albany, New York 12202
John J. Reilly, J.Defendant, Michele Bernier, is charged with driving while ability impaired by alcohol, in violation of Vehicle and Traffic Law § 1192(1) ; obscured or dirty license plate, a traffic infraction, in violation of Vehicle and Traffic Law § 402(1) and failure to affix registration, a traffic infraction, in violation of Vehicle and Traffic Law § 403(1). By notice of motion filed on March 26, 2018, defendant, through her attorney, Jonathan Cohn, Esq., moved for omnibus relief. For the reasons set forth below, the Court rejects defendant's motion and holds that traffic infractions are not subject to the rules for motion practice as set forth in the Criminal Procedure Law. CPL § 255 et.seq. There are varying and divergent holdings from courts throughout New York State regarding the practice of treating traffic infractions as crimes for procedural purposes. For the reasons set forth below, this Court agrees with the line of cases holding that traffic infractions are not subject to the rules for motion practice governing felonies, misdemeanors and violations as set forth in CPL § 255, et.seq.
The starting point in any case of statutory interpretation is the language of the statutes themselves. When a statute does not define a particular term, it is presumed that the term should be given its ordinary meaning without resorting to artificial or forced construction. People v. Duggins, 3 N.Y.3d 522, 788 N.Y.S.2d 638, 821 N.E.2d 942 (2004). Words of ordinary import in a statute are to be given their usual and commonly understood meaning unless it is clear from the statutory language that a different meaning was intended. Drew v. Schenectady County, 88 N.Y.2d 242, 644 N.Y.S.2d 471, 666 N.E.2d 1344 (1996). It is a general rule of construction that the Legislature's failure to expressly include a matter in a statute is an indication that such exclusion is intended. People v. Wise, 141 Misc. 2d 409, 532 N.Y.S.2d 833 (Dist.Ct., Nassau County, 1988).
New York statutes are replete with examples where traffic infractions are not included within the scope of an applicable law. For example, the Legislature has excluded traffic infractions from the right to assigned counsel. County Law § 722-a. The Court of Appeals has held that it is not necessary, as a matter of constitutional right, to advise a defendant in a traffic case of his right to counsel, even at arraignment. People v. Bliss , 53 Misc. 2d 472, 278 N.Y.S.2d 732 (County Ct., Allegany County, 1967) citing , People v. Felberbaum, 9 N.Y.2d 213, 213 N.Y.S.2d 53, 173 N.E.2d 783.
A discovery demand may be made by a defendant against whom "an indictment, superior court information, information or simplified information charging a misdemeanor is pending ...". CPL § 240.20(1). This Court holds, therefore, that discovery, as set forth in the Criminal Procedure Law, is not available to a defendant with a pending traffic infraction. See , People v. McGettrick, 139 Misc. 2d 403, 528 N.Y.S.2d 758 (Hudson City Ct., Columbia County, 1988).
Likewise, a motion to suppress evidence, pursuant to Criminal Procedure Law §§ 710.20 and 710.30 may be made by a defendant against whom a "criminal action" is pending. The Court finds that traffic infractions, while often characterized as offenses, fall outside the perimeter of the statutory language. In short, the Court holds that traffic infractions are not criminal actions within the meaning of the statute.
The term "offense" is the generic term for any violation of law for which imprisonment or a fine is the prescribed sanction. Penal Law § 10.00(1). Included with that term are the terms "crime", "felony", "misdemeanor", "petty offense", "violation" and "traffic infraction". The term "crime" is the generic term for a felony or misdemeanor. The term "petty offense", [See , CPL § 1.20(39) ], is the generic term for the non-criminal offenses of "violation" and "traffic infraction." (Donino, Practice Commentary, McKinneys Con Law of NY, Book 39, Penal Law § 10.10, 2008, at 20).
Based upon the foregoing, this Court concludes that, in the present matter, defendant is charged with a petty offense, which is not a criminal action. See, e.g. , People v. Ashley, 32 Misc. 3d 644, 927 N.Y.S.2d 536 (County Ct., Kings County, 2011)revd other grounds 39 Misc. 3d 149(A), 2013 WL 2668886 (App. Term, 2nd, 11th and 13th Jud. Dists., 2013). It is well settled that the distinction between serious and petty offenses determines what type of criminal defense procedures are available to a defendant. For example, offenses that carry a maximum term of imprisonment of greater than six months are deemed serious offenses for which defendant is entitled to a jury trial. People v. Foy, 88 N.Y.2d 742, 650 N.Y.S.2d 79, 673 N.E.2d 589 (1996), citing Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437. Offenses carrying sentences of less than six months are petty offenses, to which no right to a jury trial attaches. People v. Urbaez, 10 N.Y.3d 773, 856 N.Y.S.2d 520, 886 N.E.2d 142 (2008). A petty offender may also be sentenced to a term of five years probation without triggering the right to a jury trial. See , Franks v. U.S., 395 U.S. 147, 89 S.Ct. 1503, 23 L.Ed.2d 162 (1969).
Having determined that a traffic infraction is not a criminal action, the Court notes that prosecution of a traffic offense is, nonetheless, penal in nature and such prosecutions are generally governed by the rules of criminal law. People v. Phinney, 22 N.Y.2d 288, 292 N.Y.S.2d 632, 239 N.E.2d 515 (1968). However, as previously stated, a traffic infraction is not a crime ( VTL § 155 ), and not all protections normally afforded to a criminal defendant need be applied to those charged with a petty offense. Id. For example, Vehicle and Traffic Law § 155 deems a traffic infraction an offense for the purpose of an arrest without a warrant. People v. Vierno, 159 Misc. 2d 770, 606 N.Y.S.2d 557 (Crim.Ct., Richmond County, 1993). Traffic infractions are to be treated as misdemeanors only with regard to determinations of jurisdiction, procedure and manner of arrest. People v. Bliss,supra. In sum, there is a substantial distinction between the nature of a traffic infraction and a crime and a traffic infraction is to be treated as a misdemeanor for procedural purposes only. See , Application of Gross, 284 A.D. 786, 135 N.Y.S.2d 435 (3rd Dept., 1954)
In making the determination that speedy trial protections do not apply to defendants in traffic matters, including DWAI, the court in People v. Wise , supra, held that "(a) traffic infraction is obviously not a felony. Moreover, it does not fall within the definition of a misdemeanor or violation. Penal Law § 10.00(3) defines a violation as ‘an offense other than a traffic infraction’. Similarly, Penal Law § 10.00(4) explicitly excludes traffic infractions from the definition of a misdemeanor. Moreover, Penal Law § 55.10(4) provides that an offense designated a traffic infraction does not become a violation or a misdemeanor by virtue of the prescribed sentence. People v. Vierno, supra . The Wise court determined that, since the definitions of the offenses covered by CPL § 30.30 did not expressly include traffic infractions, the statute did not apply to the traffic infraction of driving while intoxicated in violation of Vehicle and Traffic Law § 1192(1). Id. ; People v. Gonzalez, 168 Misc. 2d 136, 645 N.Y.S.2d 978 (App.Term 1996)
This Court finds that the logical extension of the foregoing is to further conclude that traffic infractions are not subject to the motion practice rules as set forth in the Criminal Procedure Law § 255 et.seq. Defendant's omnibus motion, served in the above referenced matter is, therefore, dismissed.
The Court recognizes that, in certain cases, issues requiring pre-trial resolution by the Court may arise. The Court, therefore, will examine each case on an ad hoc basis to determine whether or not a pre-trial hearing is warranted. If so, the Court will hold a hearing immediately preceding trial. Should issues be raised in the hearing that require extended deliberation by the Court, the trial may be adjourned until such time as a determination has been made, thus satisfying the mandate of CPL § 710.40(3). See , People v. Brown, 103 A.D.3d 912, 962 N.Y.S.2d 245 (2nd Dept., 2013).
The Court has considered defendant's remaining arguments and finds them to be without merit. The case is now ready for trial.
This decision shall constitute the decision and order of the Court.