People v. Ashley

John H. Wilson, J.

Charles J. Hynes, District Attorney, Kings County, by Amanda Muros–Bishoff, Esq., Assistant District Attorney, for the People.Ellen E. Edwards, Esq., for the Defendant.John H. Wilson, J.

This decision should be read in conjunction with the Court's decision in People v. Graham, 31 Misc.3d 720, 919 N.Y.S.2d 313 (Crim. Ct., Kings Cty., 2011).

Defendant is charged with one count each of Operating a Motor Vehicle While Impaired (VTL Sec. 1192.1), and Excessive Speed (VTL Sec. 1180(A)), both traffic infractions.

By motion dated February 22, 2011, Defendant seeks dismissal of the Criminal Court Complaint, asserting that his statutory right to a speedy trial pursuant to the Constitutions of the United States and New York State, has been denied.

By supplemental motion dated April 28, 2011, Defendant also seeks dismissal of this matter in the interest of justice.

The Court has reviewed Defendant's motions, the People's Responses dated March 28, 2011 and May 16, 2011, and the prior proceedings in this matter, including the decision of the Honorable Shari R. Michels, JCC rendered on September 20, 2010.

For the reasons that follow, Defendant's motion is granted in the interests of justice.

Defendant was arrested on October 25, 2008 and arraigned on October 27, 2008. At that time, Defendant was charged with the counts listed above, as well as additional counts of Operating a Motor Vehicle While Intoxicated (VTL Sec. 1192.3), and Reckless Driving (VTL Sec. 1212), both unclassified misdemeanors.

By motion dated May 20, 2010, Defendant sought dismissal of this matter under CPL Sec. 30.30 and 30.20. After review of the motion, and the People's Response dated May 25, 2010, by decision dated September 20, 2010, Judge Michels granted Defendant's motion to dismiss the unclassified misdemeanor charges of VTL Sec. 1192.3 and 1212, retaining the traffic infraction charges enumerated above. The People conceded that 95 days of chargeable time had passed, however, the Court also found that CPL Sec. 30.30 did not apply to traffic infractions.

The Court did then consider Defendant's motion to dismiss pursuant to CPL Sec. 30.20 and under the New York and United States Constitution's guarantee of a Speedy Trial (Art. 1, Sec. 6, and 6th and 14th Amendments, respectively). Applying the factors enumerated in People v. Taranovich, 37 N.Y.2d 442, 373 N.Y.S.2d 79, 335 N.E.2d 303 (1975), “... the Court (found) that Defendant's right to a speedy trial ... has not been violated.” See, Decision of September 20, 2010, p 4.

Operating a Motor Vehicle While Intoxicated, under CPL Sec. 1192.2 and Reckless Driving, under VTL Sec. 1212, 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.3d 1072(A), 814 N.Y.S.2d 564 (Crim. Ct., Kings Cty. 2006) and cases cited therein. Thus, there is no dispute that these charges were properly dismissed pursuant to CPL Sec. 30.30.

Defendant's motion to dismiss dated February 22, 2011, is a renewal of his May 20, 2010 constitutional speedy trial 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 People v. Mahmood, 10 Misc.3d 198, 203–04, 800 N.Y.S.2d 919 (Crim. Ct., Kings Cty. 2006); People v. Fisher, 167 Misc.2d 850, 635 N.Y.S.2d 1002 (Crim. Ct., Richmond Cty., 1995), and cases cited therein.

As we noted in Graham, “this approach ... has been rejected by the Appellate Term of the First Department.” 919 N.Y.S.2d at 316, Appeals teaching in Taranovich and are otherwise unpersuasive.”)

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.

Once again, Defendant is unable to establish a deprivation of his constitutional right to a speedy trial, under either the United States or New York State Constitutions. In its September 20, 2010 decision, the Court noted that “(t)he nearly two-year period also includes delays due to court congestion, adjournments on consent and motion practice.” See, decision of Michel, J., dated September 20, 2010. Only 3 additional months have passed between the court's decision in September of 2010, and the renewed motion filed in February of 2011.

Defendant also fails to establish any prejudice suffered as a result of the additional three month delay. Therefore, under the factors enumerated in Taranovich, this motion must be denied.

As in Graham, this Court finds that CPL Sec. 170.40(1)(h), the impact of a dismissal upon confidence in the criminal justice system, compels the granting of Defendant's 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(1)(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).

There is no substantial difference between the instant case, and Graham. Here two unclassified misdemeanors, VTL Sec. 1192.2 and 1212, were charged on the original docket. CPL Sec. 30.30(1)(b) provides for a 90 day time period 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.”

Under People v. Cooper, 98 N.Y.2d 541, 543, 750 N.Y.S.2d 258, 779 N.E.2d 1006 (2002), “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.” There is no CPL Sec. 30.30(5) 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). Therefore, under these circumstances, the People are bound by the 90 day time limitation of the higher charge.

In asserting that the rules enumerated above do not apply to traffic infractions, even when they appear on the same docket as a misdemeanor, the People cite People v. Dorilas, 19 Misc.3d 75, 78, 860 N.Y.S.2d 797 (App. Term, 2d Dept., 2008). There the Court stated that the traffic infraction “charge should not have been dismissed as CPL Sec. 30.30 does not apply to traffic infractions.” See, also, People v. Thomas, 26 Misc.3d 144(A), 2010 WL 956021 (App. Term, 2d, 11th and 13th Judicial Dists., 2010). On the basis of this authority, the People state that these “decisions of the Appellate Term ... are binding on this Court, and those decisions therefore compel the conclusion that ... the defendant is not entitled to dismissal of the traffic infraction counts pursuant to CPL Sec. 30.30.” See, People's Response dated May 16, 2011, p 5–6.

This Court does not dispute the binding authority of the Appellate Term. However, there are issues presented here, as in Graham, which have not been addressed by the appellate courts.

At the outset, this Court can find no legal reasoning, no basis, no principle which would lead to the conclusion that the plain language of CPL Sec. 30.30(1)(b) should be ignored. That section provides that the 90 day period applies where 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.” (Emphasis added.)

Traffic infractions, such as VTL Sec. 1192.1, are defined in VTL Sec. 155. There a description is found of “any charge of an offense which is a traffic infraction.” (Emphasis added.) Further, PL Sec. 1.20(39) defines a “Petty Offense” as “a violation or a traffic infraction.” Even the People concede that “a traffic infraction is an offense' within the meaning of CPL Sec. 30.30(1)(b).” See, People's Response dated May 16, 2011, p. 8, footnote 2.

In fact, this is an issue that the lower courts have been struggling with for many years, without clear direction from the appellate courts. When Fisher and Mahmood attempted to impose a 60 day time limitation period upon the prosecution of traffic infractions, this was done out of a proper concern for the due process rights of the defendant. “To hold otherwise would allow the time limitations of the lesser charge to control the entire docket. Due Process will not permit this result.” Mahmood, 10 Misc.3d at 204, 800 N.Y.S.2d 919.

The Mahmood decision cites People v. Faison, 171 Misc.2d 68, 72, 662 N.Y.S.2d 973 (Crim. Ct., Bx. Cty., 1996). There, 15 years ago, the Court expressed its concern that to allow the People to maintain traffic infraction charges when the misdemeanor charges have been dismissed would give the People “an infinite period in which to prosecute.” That court based its decision on the reasoning of People v. Matute, 141 Misc.2d 988, 535 N.Y.S.2d 524 (Crim. Ct., Bx. Cty., 1988). There, 8 years before Faison, the Court expressed its concerns in language which still resonates today, 23 years later:

“To permit the reduced charge to govern in this context would not limit the People's allotted preparation time, but would completely remove the prosecution from the requirements of the statute. Such a result would hardly serve the basic purpose of insuring prompt prosecution. It would undermine the defendant's legitimate expectation, arising at the commencement of the action, of a speedy disposition of the matter. And it would increase the potential for unfair manipulation of the charges to prosecutorial advantage. Finally, the application of CPL 30.30 to actions begun as misdemeanor prosecutions can hardly be said to conflict with any possible legislative attempt to conserve the People's resources by excluding prosecutions for traffic infractions from its reach. This is especially so where, as here, the matter is treated as a misdemeanor for months.” 141 Misc.2d at 992, 535 N.Y.S.2d 524.

The People argue that “a defendant would effectively be rewarded with a dismissal of the traffic infractions only because he was also charged with other, more serious offenses.” The People further state that this result is “unreasonable and thus presumably could not have been intended by the Legislature.” See, People's Response dated May 16, 2011, p 10. But following the logic of Matute and Faison, if this Court followed the rulings in Dorilas and Thomas, it is the People who are rewarded with a vast expansion of their time to prosecute a traffic infraction, when they have failed to timely prosecute a more serious misdemeanor.

Witness the fact that the defendant in Graham had been arrested in September of 2009, and the Defendant in the instant matter was arrested in October of 2008.

To date, the appellate courts have not addressed the due process rights of the accused in this context. Thus, until these legitimate and proper concerns, expressed over the course of more than 20 years in Matute, Faison, Fisher, Mahmood, Graham, and now the instant matter, are specifically addressed by the appellate courts, this Court will continue to follow the holding of the Court of Appeals in Cooper, and interpret the plain language of CPL Sec. 30.30(1)(b) to provide for the dismissal of all offenses on a docket in which the top count is a misdemeanor, punishable by more than 3 months incarceration.

This is the only result possible if the Court is to protect the due process right of a defendant to a speedy trial, while insuring that there is no unfair manipulation of the charges to prosecutorial advantage.

Thus, for the reasons stated above, this entire matter should have been dismissed on September 20, 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 (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. 170.40(1)(h).

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.