People v. Budani, 2022-50325

CourtNew York District Court
Writing for the CourtANDREW M. ENGEL, J.
PartiesThe People of the State of New York, Plaintiff, v. Joseph Budani, Defendant.
Docket NumberCR-012750-21NA,2022-50325
Decision Date15 April 2022

The People of the State of New York, Plaintiff,
v.

Joseph Budani, Defendant.

No. 2022-50325

Docket No. CR-012750-21NA

District Court of Nassau County, First District

April 15, 2022


Unpublished Opinion

MOTION DECISION

For the People: Anne Donnelly, Nassau County District Attorney

For Defendant: Frank Desousa, Esq.

ANDREW M. ENGEL, J.

Papers Submitted:

Notice of Motion 1

Affirmation in Support 2

Affirmation in Opposition 3

Memorandum of Law 4

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'." ...

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