Papers Submitted: Notice of Motion 1 Affirmation in Support 2 Affirmation in Opposition 3 Memorandum of Law 4 DECISION and ORDER The Defendant’s motion to dismiss this docket pursuant to CPL §§170.30(1)(e) and/or (f) and/or 210.20(1)(g) is GRANTED. The Defendant alleges and “the People concede that more than ninety days of People’s time has elapsed as to the misdemeanor charges of VTL §§1192.2A, 1192.2 and 1192.3.” (People’s Memorandum of Law 3/31/22, p. 2.) Nevertheless, relying on People v. Lopez. 73MIsc.3d 133(A), 154 N.Y.S.3d 579 (App. Term 9th & 10th Jud. Dists. 2021); People v. Smith, 73 Misc.3d 136(A), 155 N.Y.S.3d 31 (App. Term 9th & 10th Jud. Dists. 2021) and People Altman, 73 Misc.3d 127(A), 152 N.Y.S.3d 547 (App. Term 9th & 10th Jud. Dists. 2021) the People argue that, contrary to the intention of the Legislature, “30.30 time does not apply to the added charge of VTL §1192.1.”1 (People’s Memorandum of Law 3/31/22, p. 2.) The People’s reliance on these cases is misplaced, as they are each inapposite to the matter sub judice, and the People’s argument is without merit. Each of the cases upon which the People rely are limited to the question of whether “the statutory speedy trial provisions of CPL §30.30(1)(d)…apply to [an] accusatory instrument, which solely charges a traffic infraction.” People v. Lopez, supra. In each of those cases, the court correctly found that they did not. In each of those cases, the court’s determination was based upon the following: CPL §30.30(1)(d) provides that a motion to dismiss pursuant to CPL §170.30(1)(e) must be granted where the People are not ready for trial within “thirty days of the commencement of a criminal action wherein the defendant is accused of one or more offenses, at least one of which is a violation and none of which is a crime.” The court noted that CPL §30.30(1)(d) “would only be applicable if (1) the accusatory instrument accuses the defendant of one or more offenses, (2) one or more of the offenses is a violation, and (3) no offense is a crime.” People v. Altman, supra. The court took cognizance of CPL §30.30(1)(e), which provides that “for the purposes of this subdivision, the term offense shall include a traffic infraction[,]” but noted that “ Vehicle and Traffic Law §155 provides that a traffic infraction is not a crime and that Penal Law §10.00(3) defines a violation as ‘an offense, other than a traffic infraction’.” People v. Lopez, supra. In each of the cases upon which the People rely, the court then recognized that although a traffic infraction is an “offense” it is not a “violation” and “since the accusatory instrument did not also charge the defendant with a violation” People v. Altman, supra. the provisions of CPL §30.30(1)(d) did not apply and the matters were not subject to statutory speedy trial dismissal. Whether this was the result of Legislative intent or oversight in addressing violations, this is not the scenario in the matter sub judice. In the matter before this court, the Defendant is charged with three crimes, to wit: VTL §§1192(2A), 1192(2) and 1192(3) and now, one offense, VTL §1192(1). CPL §30.30(1)(d) is not implicated in this case. In this matter, the operative provision is CPL §30.30(1)(b), which provides that a motion to dismiss pursuant to CPL §170.30(1)(e) must be granted where the People are not ready for trial within “ninety days of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony.” While it is apparent on its face, it bares emphasizing that we are not here concerned with whether the offense of VTL §1192(1) is a “violation.” In this case, as indicated, we are concerned with whether (1) the accusatory instrument accuses the defendant of one or more offenses, (2) at least one is a misdemeanor punishable by imprisonment of more than three months, and (3) none of which is a felony. There is no question but that this criterion has been met in this case. The three misdemeanors with which the Defendant is charged are punishable by a sentence of imprisonment of up to one year. See: 1193(1)(b)(i) Additionally, as indicated hereinabove, “for the purposes of this subdivision, the term offense shall include a traffic infraction.” CPL §30.30(1)(e). Thus, “in a criminal case such as this, where a defendant is charged with both a misdemeanor for which more than three months’ incarceration is possible and a traffic infraction, the People are provided with a 90-day ‘clock’ within which they must be ready.” See: People v. Galindo, 70 Misc.3d 16, 127 N.Y.S.3d 223 (App. Term 2nd, 11th and 13th Jud. Dists. 2020) Failing that, the matter is subject to dismissal pursuant to CPL §170.30(1)(e). See: People v. Galindo, id.; People v. Quinlan, 71 Misc.3d 266, 142 N.Y.S.3d 305 (Crim. Ct. Bronx Co. 2021) Accordingly, it is hereby ORDERED, that this entire docket is dismissed pursuant to CPL §170.30(1)(e). This constitutes the decision and order of this court. Dated: April 15, 2022
