People v. Fisher

• Decision Date: 20 November 1995
• Citation: 167 Misc.2d 850,635 N.Y.S.2d 1002
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Gregory FISHER, Defendant.
• Court: New York City Court

Page 1002

635 N.Y.S.2d 1002

167 Misc.2d 850

The PEOPLE of the State of New York, Plaintiff, v. Gregory FISHER, Defendant.

Criminal Court of the City of New York County of Richmond.

Nov. 20, 1995.

Patrick Parotta, Staten Island, for defendant.

William Murphy, Dist. Atty. of Richmond County (Timothy O'Donovan, of counsel), New York City, for plaintiff.

JOSEPH J. MALTESE, Judge.

The defense motion to dismiss the charge of Driving While Ability Impaired by Alcohol (DWAI) (Vehicle and Traffic Law § 1192.1), a traffic infraction, pursuant to the speedy trial provisions of Criminal Procedure Law section (CPL) 30.30 is denied. While CPL §§ 30.30 and 30.20 do not apply to traffic infractions there is a constitutional right to a speedy trial which has not yet been violated.

Facts

It is undisputed that fifty-two days between the defendant's arraignment on August 27, 1995 and the People being "ready for trial" on October 18, 1995 are chargeable to the People. The defendant argues that the case should be dismissed as more than 30 days have passed since the defendant's arraignment, the time allowed to be "ready for trial" on a violation.

1. Statutory Speedy Trial

Criminal Procedure Law section 30.30 establishes that where the defendant is not in custody, the People must be "ready for trial" within 90 days if the highest crime charged is a class A or unclassified misdemeanor which is punishable by a term of imprisonment of more than three months (CPL § 30.30[1][b]; or within 60 days if the highest crime charged is a class B misdemeanor which is punishable by a term of imprisonment of less than three months (CPL § 30.30[1][c]; or within 30 days if the "offense is a violation " (CPL § 30.30[1][d].)

However, the statute is noticeably silent on the issue of whether a person charged with a traffic infraction has statutory "speedy trial" rights.

The Appellate Term Second Department has twice held that CPL § 30.30 is not applicable to traffic infractions (People v. Albright, NYLJ, December 6, 1991, at 30, col 4 [9th and 10th Judicial Districts]; People v. Brown, NYLJ, April 18, 1984, at 12, col 5.)

Trial courts are divided on this issue. Most trial courts have held that CPL § 30.30 was inapplicable in matters concerning traffic infractions, as CPL § 30.30 only applies to felonies, misdemeanors and violations ¹ (People v. Michalek, 138 Misc.2d 1, 521 N.Y.S.2d 609 [Crim.Ct. New York Co.1987]; People v. Solomon, 124 Misc.2d 33, 475 N.Y.S.2d 749 [Nassau Dist.Ct.1984]; People v. Howell, 158 Misc.2d 653, 601 N.Y.S.2d 778 [Crim.Ct. Kings Co.1993]; People v. Salmeron, NYLJ, May 18, 1988, at 15, col. 6 [Crim.Ct. Kings Co.]; People v. Blake, 154 Misc.2d 660, 585 N.Y.S.2d 993 [Crim.Ct. Kings Co.1992].) ²

However, a contrary view was postured by Judge McKinney of the Syracuse City Court in People v. Pregent, 142 Misc.2d 344, 537 N.Y.S.2d 424 [1988]. There the judge held that CPL § 30.30 applied to traffic infractions since VTL § 155 stated that traffic infractions "shall be deemed misdemeanors and all provisions of law relating to misdemeanors ... except as herein otherwise expressly provided shall apply except that no jury trial shall be allowed for traffic infractions." ³ Therefore, the court concluded, the prosecution had 60 days, the period for class B misdemeanors, in which to be "ready for trial."

Nowhere does VTL § 155 state that traffic infractions are to be handled like class B misdemeanors. Similarly, the speedy trial statute only applies to unclassified misdemeanors if the defendant faces a term of imprisonment greater than 3 months. As Judge Stahl stated in People v. Fiacco, 146 Misc.2d 330, 331, 549 N.Y.S.2d 901 [Albany City Ct.1989] "[n]o matter how tortured the reasoning, a violation of section 1192(1) of the Vehicle and Traffic Law is not a misdemeanor."

Section 1193(1) of the VTL clearly states that a violation of DWAI, (VTL § 1192.1) "shall be a traffic infraction and shall be punishable by a fine of not less than [$300] nor more than [$500]" and/or up to 15 days in jail.

"The Penal Law makes it clear that a traffic infraction is not a 'violation' * * * it is instead a sui generous non criminal offense" (Preiser, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 11A, CPL 30.30, at 169 [emphasis added]. A "violation" means "an offense, other than a 'traffic infraction', for which a sentence to a term of imprisonment in excess of fifteen days cannot be imposed ..." (PL § 10.00[3] Accordingly, a traffic infraction cannot conveniently be treated as a violation for procedural or speedy trial reasons as the Legislature has expressly excluded a traffic infraction from the definition of a violation.

The Criminal Procedure Law sets a one year statute of limitations to commence an action on all "petty offenses" (CPL § 30.10[2][d].) A "petty offense" is a "violation or a traffic infraction " (CPL § 1.20[39] [emphasis added]. However, the words "petty offense" are not included in CPL § 30.30. The Legislature provided that only "[f]or the purposes of arrest without a warrant ... a traffic infraction shall be deemed an offense" ⁴ (VTL § 155 [emphasis added].

The first court which addressed the issue of whether CPL § 30.30 applied to traffic infractions held that the speedy trial statute did not apply to traffic infractions (People v. Zagorsky, 73 Misc.2d 420, 423, 341 N.Y.S.2d 791 [Broome County Ct.1973].) The court reasoned that the 30 day time period of CPL 30.30(1)(d) is only applicable when the "defendant is accused of one or more offenses, at least one of which is a violation." (Emphasis added.) This phrase:

"leads by implication to the conclusion that there are some offenses which do not amount to violations. [Therefore], since traffic infractions are the only 'offenses' lower on the scale set forth in the Penal Law than violations, it is apparent that the above phrase is rendered meaningless by a holding that the term 'violation' ... includes traffic infractions" (id at 423, 341 N.Y.S.2d 791.)

2. The "Traditional" Speedy Trial Right

However, the courts in Zagorsky and Fiacco held that the defendant was still entitled to avail himself of the "traditional speedy trial remedy" found in CPL § 30.20 which states that "after a criminal action is commenced, the defendant is entitled to a speedy trial." (Emphasis added.)

The Court of Appeals established 5 factors to decide whether a speedy trial under CPL § 30.20 exists. They are: (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 and delay (People v. Taranovich, 37 N.Y.2d 442, 445, 373 N.Y.S.2d 79, 335 N.E.2d 303 [1975].)

Since violations and traffic infractions are not crimes (PL § 10.00[6], the issue herein is whether a person charged with an offense other than a crime, to wit, a violation or a traffic infraction is entitled to the rights attached to criminal trials.

Judge Fleischman in People v. Attie, 131 Misc.2d 921, 923, 502 N.Y.S.2d 342 [Long Beach City Ct.1986] dismissed charges of passing through a stop sign and unsafe passing of another motor vehicle, both traffic infractions after a 10 month delay in their prosecution. The Judge stated that "[w]hile this traffic offense is not a crime by definition under New York State Law, its prosecution is in the nature of a criminal prosecution in that one aspect of the sentence authorized is a jail term of up to 15 days." (Emphasis added.) Therefore, although the court agreed that CPL § 30.30 did not apply, it agreed with the Zagorsky decision and dismissed the case pursuant to CPL § 30.20.

While this court agrees with Judge Fleischman in Attie, supra at 923, 502 N.Y.S.2d 342, who asserted that "the defendant should not be subject to having such charges against him languish without times end until the recollection of events has dulled to the point where he can no longer defend himself," it does not believe that the rights given to a defendant under CPL § 30.20 apply to a defendant charged with a traffic infraction.

The CPL provides that a criminal action commences by the filing of an accusatory instrument against the defendant in a criminal court (CPL §§ 1.20[16] & [17].) Additionally, the General Construction Law defines a "criminal action" as one which "is prosecuted in the name of the people of the state of New York, as plaintiffs, against a party charged with a crime" (GCL § 18-a [emphasis added]. However, as the defendant is not charged with a crime, ⁵ a criminal action has not taken place. Therefore, the defendant may not avail himself of the speedy trial rule contained in CPL § 30.20.

While some of the foregoing trial courts have conveniently reasoned a statutorily based interpretation of speedy trial rights, this court does not hold that there is a statutory speedy trial right for traffic infractions. Perhaps the State legislature ought review this omission in the statute. However, there is a Constitutional right to a speedy trial.

3. Constitutional Right to a Speedy Trial

No citizen of this State or of the United States may be deprived of his or her "life, liberty or property, without due process of law" (U.S. Const. 14th Amend.) Due process itself gives a defendant a right to a swift resolution of any matter where his liberty (up to 15 days in jail) or property (fine of $300 to $500) is at stake. As Judge Fleischman in Attie stated, these events cannot languish without end. While a defendant charged with a traffic infraction may not have a statutory right to a speedy trial, he or she does have a Constitutional right to a speedy trial. Additionally, this court believes that the 5 Taranovich factors are the appropriate gauge for examining whether the defendant's Constitutional right to a "speedy trial" has been abridged.

After examining the facts at bar, this court does...