People v. Wise
| Decision Date | 19 September 1988 |
| Citation | 532 N.Y.S.2d 833,141 Misc.2d 409 |
| Parties | The PEOPLE of the State of New York v. Andrew WISE, Defendant. |
| Court | New York District Court |
Denis Dillon, Dist. Atty., Nassau County, Mineola by Marianne T. McGinn, Asst. Dist. Atty., for plaintiff.
Bruno Goldberg & Ventura, Franklin Square by Patrick L. Bruno, for defendant.
This motion to dismiss presents an issue of first impression. The issue here is whether the speedy trial statute (CPL Section 30.30) applies to a charge which has been amended from a misdemeanor to a traffic infraction. The defendant was arraigned on January 29, 1988 on the charge of Operating a Motor Vehicle While Under the Influence of Alcohol pursuant to VTL Section 1192(3), an Unclassified misdemeanor, which is the equivalent of an A misdemeanor. On June 17, 1988, the charge was amended to VTL Section 1192(1), a traffic infraction. The defendant moved to dismiss the instant Information pursuant to CPL Section 30.30(1)(b) on the ground that the People were not ready for trial within ninety (90) days from the commencement of the action. The People oppose such a dismissal claiming that CPL Section 30.30 does not apply to traffic infractions.
CPL Section 30.30 defines the time during which the People must be ready to proceed to trial. The statutory protections apply to criminal actions where at least one of the charges is a felony, a misdemeanor or a violation. The statute does not expressly address the time limitation which should apply when the charge is amended from a misdemeanor to a lesser offense. The defendant urges this Court to apply the statutory speedy trial time restrictions applicable to a misdemeanor because the defendant was originally charged with a misdemeanor. This Court declines to do so.
In the instant case, the People amended the charge reducing it from a misdemeanor to a traffic infraction. The amended charge was derived directly from the original charge; the only difference between the two charges is the alleged degree of the defendant's intoxication. For speedy trial purposes, the action commences and the speedy trial time limitations begin to run on the date the first accusatory instrument is filed, even if that original accusatory instrument is subsequently replaced. People v. Lomax, 50 N.Y.2d 351, 428 N.Y.S.2d 937, 406 N.E.2d 793 (1980); CPL Section 1.20(16), (17). Since the new charge is related back to the commencement of the action to compute speedy trial time, the time limitations, if any, imposed by the statute upon the amended charge, VTL Section 1192(1), should control. See People v. Brown, 133 Misc.2d 929, 508 N.Y.S.2d 874 (Mt.Vernon City Ct.West.Co.1986); People v. Bernard, 129 Misc.2d 1083, 495 N.Y.S.2d 634 (Crim.Ct.Queens Co.1985).
However, this Court finds that the speedy trial protections of CPL Section 30.30 do not apply to VTL Section 1192(1). VTL Section 1192(1) is a traffic infraction. As already noted, CPL Section 30.30 applies to felonies, misdemeanors and violations. Since the speedy trial statute is silent on the definitions of those offenses, the appropriate scope of those terms is found in Section 10.00 of the Penal Law. CPL Section 1.20.
A traffic infraction is obviously not a felony. Moreover, it does not fall within the definition of a misdemeanor or a violation. Penal Law Section 10.00(3) defines a violation as "an offense, other than a 'traffic infraction.' " Similarly, Penal Law Section 10.00(4) explicitly excludes traffic infractions from the definition of a...
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People v. Bernier
...the Legislature's failure to expressly include a matter in a statute is an indication that such exclusion is intended. People v. Wise, 141 Misc. 2d 409, 532 N.Y.S.2d 833 (Dist.Ct., Nassau County, 1988). New York statutes are replete with examples where traffic infractions are not included w......
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People v. Matute
...as to the applicability of CPL § 30.30 where such a complaint has been amended to charge only a traffic infraction. In People v. Wise, 141 Misc.2d 409, 532 N.Y.S.2d 833 (Dist.Ct., Nassau County), the statute was held to be inapplicable under such circumstances. This court respectfully The m......
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People v. Fisher
...speedy trial limit imposed on the original charge if they choose to reduce the charge to that of a traffic infraction. People v. Wise, 141 Misc.2d 409, 532 N.Y.S.2d 833 [Nassau Dist.Ct.1988] held that as the speedy trial statute does not apply to traffic infractions the People did not have ......
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The People Of The State Of N.Y. v. Stanton, 2009-03458
...(App Term, 1st Dept 1996) (per curiam); People v Fiacco, 146 Misc 2d 330, 331, 549 NYS2d 901, 902 (Albany City Ct 1989); People v Wise, 141 Misc 2d 409, 410-411, 532 NYS2d 833, 834-835 (Nass Cnty Dist Ct 1988). See also Preiser, Practice Commentaries, McKinney's Cons. Laws of NY, Book 11A, ......