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People v. Gonzalez

Supreme Court, Appellate Term, First Department
Apr 18, 1996
168 Misc. 2d 136 (N.Y. App. Term 1996)

Opinion

April 18, 1996

Appeal from the Criminal Court of the City of New York, Bronx County, Michael Sonberg, J.

Robert T. Johnson, District Attorney of Bronx County (Joseph N. Ferdenzi, Allen H. Saperstein and Elizabeth F. Bernhardt of counsel), for appellant.

Daniel L. Greenberg, New York City (Eve Kessler of counsel), for respondent.


Order dated October 13, 1994, insofar as appealed from, reversed, motion denied, and accusatory instrument reinstated.

The sole charge now remaining for prosecution on the within accusatory instrument is driving while impaired (Vehicle and Traffic Law § 1192), a traffic infraction which triggers no statutory speedy trial rights under CPL 30.30 (see, Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 30.30, at 168-169; People v Howell, 158 Misc.2d 653; People v Wise, 141 Misc.2d 409). 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. As has been stated in analogous circumstances, "Speedy trial [analysis] must, as a matter of course, often involve distinct considerations with respect to individual counts of a single accusatory instrument." (People v Minor, 144 Misc.2d 846, 848, lv denied 74 N.Y.2d 666; see, People v Ortiz, 209 A.D.2d 332, 334, lv denied 86 N.Y.2d 739; People v Smith, 53 A.D.2d 652.)

Nor is a speedy trial dismissal of the traffic infraction charge dictated by the provisions of CPL 30.30 (1) (b), which set forth the time limits applicable to "a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a misdemeanor * * * and none of which is a felony" (emphasis supplied). The use of the generic term "offenses" is critical, inasmuch as the Legislature, "in recognition of the fact that a traffic infraction is not a 'violation,' created the term 'petty offense' for the purpose of referring to noncriminal offenses when traffic infractions are intended for inclusion (see CPL § 1.20)." (Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 30.30, at 169.) The language of CPL 30.30 (1) (b) omits petty offenses from those covered by its terms, and we cannot assume that the legislative omission was unintentional. "'The failure of the Legislature to include a matter within a particular statute is an indication that its exclusion was intended'" (People v Tychanski, 78 N.Y.2d 909, 911).

PARNESS, J.P., McCOOE and FREEDMAN, JJ., concur.


Summaries of

People v. Gonzalez

Supreme Court, Appellate Term, First Department
Apr 18, 1996
168 Misc. 2d 136 (N.Y. App. Term 1996)
Case details for

People v. Gonzalez

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. TOMAS GONZALEZ…

Court:Supreme Court, Appellate Term, First Department

Date published: Apr 18, 1996

Citations

168 Misc. 2d 136 (N.Y. App. Term 1996)
645 N.Y.S.2d 978

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