Opinion
2008-2273 K CR.
Decided March 9, 2010.
Appeal from an order of the Criminal Court of the City of New York, Kings County (Geraldine Pickett, J.), dated September 10, 2008. The order granted defendant's motion to dismiss the information on the ground that he was denied his statutory and constitutional rights to a speedy trial.
ORDERED that the order is reversed, on the law, defendant's motion to dismiss the information on the ground that he was denied his statutory and constitutional rights to a speedy trial is denied, the information is reinstated, and the matter is remitted to the Criminal Court for all further proceedings thereon.
PRESENT: PESCE, P.J., WESTON and STEINHARDT, JJ.
Defendant was charged in an information with unlawful possession of marihuana (Penal Law § 221.05), a violation, driving while intoxicated (Vehicle and Traffic Law § 1192), a misdemeanor, reckless driving (Vehicle and Traffic Law § 1212), a misdemeanor, and driving while ability impaired (Vehicle and Traffic Law § 1192), a traffic infraction. He subsequently moved to dismiss the information on the ground that he was denied his statutory ( see CPL 30.30 [b]) and constitutional ( see CPL 30.20) rights to a speedy trial. The Criminal Court granted defendant's motion and dismissed the information finding, with respect to the charges other than the traffic infraction, that defendant's statutory right to a speedy trial was violated because a total of 92 days chargeable to the People had elapsed and finding, with respect to the traffic infraction, that defendant's constitutional right to a speedy trial was violated. The People appeal.
Since one of the offenses with which defendant was charged in the information was a misdemeanor punishable by a sentence of imprisonment of more than three months and none of the offenses was a felony, the People were required to be ready for trial within 90 days of the commencement of the action ( see CPL 30.30 [b]).
On September 2, 2007, the People filed the information, defendant was arraigned and the case was adjourned to October 2, 2007 for discovery by stipulation. Since an adjournment for discovery by stipulation is excludable in calculating the time period within which the People have to be ready for trial for purposes of CPL 30.30 ( see CPL 30.30 [a]; People v Dorilas , 19 Misc 3d 75 [App Term, 2d 11th Jud Dists 2008]), the Criminal Court erred in charging the People with the 30-day adjournment of September 2, 2007 to October 2, 2007.
The People correctly argue that the Criminal Court erred in not charging them with the 55-day adjournment from December 11, 2007 to February 4, 2008. While the People initially declared readiness on December 11, 2007, they later requested an adjournment and the court adjourned the case to February 4, 2008. Thus, this adjournment is chargeable to the People.
The next adjournment, from February 4, 2008 to March 10, 2008, was not chargeable to the People. The People declared readiness, and, after defense counsel pointed out that the People had still not turned over the requested videotape, both the People and defense counsel stated that they were ready to go forward with the pre-trial hearings without the videotape. Nevertheless, the court adjourned the case to March 10, 2008. Once the People declare readiness, subsequent delays in complying with discovery obligations do not ordinarily render the accusatory instrument subject to dismissal under CPL 30.30 because those delays do not affect the People's readiness to proceed to trial and other statutory sanctions exist for such delays ( see People v McKenna, 76 NY2d 59; People v Anderson, 66 NY2d 529). Thus, this adjournment is not chargeable to the People.
Contrary to the People's assertion, the next adjournment, from March 10, 2008 to March 18, 2008, was chargeable to the People since the People were not ready on March 10th, as that day was the arresting officer's regular day off ( see People v Haneiph, 191 Misc 2d 738).
Since the People concede that they were chargeable with the next adjournment from March 18, 2008 to April 3, 2008, and the five days from April 3, 2008 to April 8, 2008, there are a total of 84 days chargeable to the People. As a result, the Criminal Court improperly granted defendant's motion to dismiss on the ground that he was denied his statutory right to a speedy trial.
While CPL 30.30 is inapplicable to the traffic infraction of driving while ability impaired, defendant maintained a constitutional right to a speedy trial with respect to said traffic infraction ( see CPL 30.20; People v Ferreira , 22 Misc 3d 32 [App Term, 2d 11th Jud Dists 2008]). In the case at bar, since there was less than a one-year delay ( see People v Gordon , 2 Misc 3d 134 [A], 2004 NY Slip Op 50190[U] [App Term, 9th 10th Jud Dists 2004]) and defendant did not establish that his defense was impaired by reason of the delay ( see People v Krienan, 2002 NY Slip Op 40359[U] [App Term, 9th 10th Jud Dists 2002]), defendant failed to adequately establish a sufficient basis to warrant the granting of his motion pursuant to CPL 30.20 with respect to the traffic infraction ( see People v Taranovich, 37 NY2d 442, 445).
Accordingly, the order is reversed, defendant's motion to dismiss the information on the ground that he was denied his statutory and constitutional rights to a speedy trial is denied, the information is reinstated, and the matter is remitted to the Criminal Court for all further proceedings thereon.
Pesce, P.J., Weston and Steinhardt, JJ., concur.