People v. Lopez

• Decision Date: 14 October 2021
• Docket Number: 2020-730 W CR
• Parties: The PEOPLE of the State of New York, Appellant, v. Omar LOPEZ, Respondent.
• Court: New York Supreme Court — Appellate Term

73 Misc.3d 133 (A)

154 N.Y.S.3d 579 (Table)

The PEOPLE of the State of New York, Appellant,

v.Omar LOPEZ, Respondent.

2020-730 W CR

Supreme Court, Appellate Term, New York, Second Dept., 9 & 10 Jud. Dist.

Decided on October 14, 2021

Westchester County District Attorney (Brian R. Pouliot and William C. Milaccio of counsel), for appellant.

Omar Lopez, respondent pro se (no brief filed).

PRESENT: ELIZABETH H. EMERSON, J.P., JERRY GARGUILO, HELEN VOUTSINAS, JJ.

ORDERED that the order is reversed, on the law, defendant's motion to dismiss the accusatory instrument on statutory speedy trial grounds is denied, and the matter is remitted to the City Court for all further proceedings.

Insofar as is relevant to this appeal, in September 2019, defendant was arraigned on an accusatory instrument that charged him solely with driving while ability impaired ( Vehicle and Traffic Law § 1192 [1] ), a traffic infraction. Thereafter, the People were not ready for trial and the City Court informed the People that they would be charged with the time from November 4, 2019 to December 17, 2019. In January 2020, defense counsel moved to dismiss the accusatory instrument on the ground that defendant's statutory right to a speedy trial had been violated as the People were charged with more than 30 days of delay, citing CPL 30.30 (1) (d), (e). The People opposed the motion, to which defendant replied. By order dated March 9, 2020, the City Court granted defendant's motion, finding that, pursuant to CPL 30.30 (1) (e), the traffic infraction of driving while ability impaired is an offense for purposes of that subdivision, that more than 30 days of delay were chargeable to the People, and, thus, that defendant's statutory right to a speedy trial, pursuant to CPL 30.30 (1) (d), had been violated.

On appeal, the People argue that the statutory speedy trial provisions of CPL 30.30 (1) (d) do not apply to this accusatory instrument, which solely charges a traffic infraction. We agree.

CPL 30.30 was amended to enact paragraph (1) (e), effective January 1, 2020. CPL 30.30 (1) (d) and (e) provide that a speedy trial motion to dismiss an accusatory instrument:

"1.... must be granted where the people are not ready for trial within:

...

(d) 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.

(e) for the purposes of this subdivision, the term offense shall include vehicle and traffic law infractions."

At the outset, we note 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.’ " If, in enacting CPL 30.30 (1) (e), the legislature wanted CPL 30.30 (1) (d) to apply to an accusatory instrument which charges one (or more) traffic infraction(s) only, it would have had to simultaneously...