People v. Gonzalez

• Decision Date: 18 April 1996
• Citation: 645 N.Y.S.2d 978,168 Misc.2d 136
• Parties: The PEOPLE of the State of New York, Appellant, v. Tomas GONZALEZ, Respondent.
• Court: New York Supreme Court

Page 978

645 N.Y.S.2d 978

168 Misc.2d 136

The PEOPLE of the State of New York, Appellant, v. Tomas GONZALEZ, Respondent.

Supreme Court, Appellate Term First Department.

April 18, 1996.

Robert T. Johnson, District Attorney of Bronx County (Joseph N. Ferdenzi, Allen H. Saperstein and Elizabeth F. Bernhardt, of counsel), for appellant.

Daniel L. Greenberg, New York City (Eve Kessler, of counsel), for respondent.

Before PARNESS, J.P., and McCOOE and FREEDMAN, JJ.

The People appeal from so much of an order of the Criminal Court, Bronx County, dated October 13, 1994 (Michael Sonberg, J.) as granted defendant's CPL 30.30 motion to dismiss the accusatory instrument charging him with driving while impaired.

PER CURIAM:

Order dated October 13, 1994 (Michael Sonberg, J.), insofar as appealed from, reversed, motion denied, and accusatory instrument reinstated.

The sole charge now remaining for prosecution on the within accusatory instrument is driving while impaired (Vehicle and Traffic Law § 1192[1], a traffic infraction which triggers no statutory speedy trial rights under CPL 30.30 (see, Preiser, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 11A, CPL 30.30, at 168-169; People v. Howell, 158 Misc.2d 653, 601 N.Y.S.2d 778; People v. Wise, 141 Misc.2d 409, 532 N.Y.S.2d 833). That a related misdemeanor charge was initially joined does not serve to transform the traffic infraction to the level of a more serious offense or otherwise bring the case within the ambit of CPL 30.30. As has been stated in analogous circumstances, "Speedy trial [analysis] must, as a matter of course, often involve distinct considerations with respect to individual counts of a single accusatory instrument." (People v. Minor, 144 Misc.2d 846, 848, 549 N.Y.S.2d 897, lv. denied 74 N.Y.2d 666, 543 N.Y.S.2d 409, 541 N.E.2d 438; see, People v. Ortiz, 209 A.D.2d 332, 334, 619 N.Y.S.2d 12 lv denied 86 N.Y.2d 739, 631 N.Y.S.2d 619, 655 N.E.2d 716; People v. Smith, 53 A.D.2d 652, 384 N.Y.S.2d 488).

Nor is a speedy trial dismissal of the traffic infraction charge dictated by the provisions of CPL 30.30(1)(b), which set forth the time limits applicable to "a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a misdemeanor ... and none of which is a felony." (emphasis supplied). The use of the generic term "offenses" is critical, inasmuch as the Legislature, "in recognition of the fact that a traffic infraction is not a 'violation,' created the term 'petty offense' for the purpose of referring to non...