DECISION AND ORDER On April 19, 2019, Defendant moved to dismiss the accusatory instrument pursuant to CPL §30.20 and §30.30, as well as the Sixth and Fourteenth Amendments of the US Constitution. Opposition was filed by the People on May 24, 2019.Procedural HistoryDefendant was arraigned on November 28, 2017. Defendant was charged with Driving While Intoxicated (VTL §1192[3]); Reckless Driving (VTL §1212); and Driving While Impaired (VTL §1192[1]), which is a traffic infraction.The parties appeared in Court on January 18, 2018, March 13, 2018, April 20, 2018, May 18, 2018, June 25, 2018 and August 22, 2018, for a total of seven appearances before the People first announced ready on September 7, 2018.On September 7, 2018, the People announced ready and Defendant filed a motion to dismiss pursuant to CPL§30.20 and §30.30, which was opposed by the People. On September 11, 2018, Judge Elizabeth Warin delivered the decision from the bench, which granted Defendant’s motion pursuant to CPL §30.30 to the extent that it dismissed the misdemeanor charges of VTL §1192(3) and VTL §1212 as the People had not first announced ready until 282 days from the commencement of the action. This left one remaining charge under the docket, Driving While Impaired (VTL §1192[1]), a traffic infraction. The People were ready to proceed at that time; however, the Court was unable to do so and the matter was adjourned to October 4, 2018.On October 4, 2018, the People announced “not ready” and have not been ready to proceed to trial since due to the unavailability of a material witness, the arresting police officer, who allegedly observed Defendant exhibiting signs of intoxication at the time of the arrest, as he is on a military leave of absence.At appearances on December 3, 2018, February 25, 2019 and April 5, 2019, the People advised that the arresting officer was still on military leave and would not be returning before 2020.On April 19, 2019, Defendant filed the within motion to dismiss, which the People opposed. Subsequently, the People submitted a letter dated May 8, 2019 to the Court, signed by the Military and Extended Leave Desk of the New York City Police Department, which states in sum and substance that officer Misbah Bailey, the arresting officer, is currently on a military leave of absence; he was deployed on September 27, 2018 and is expected to return on November 1, 2019. Following his return, he is then entitled to ninety days of reemployment rights and his anticipated return date is January 30, 2020.AnalysisCPL §170.30(1)(e) provides that “(a)fter arraignment upon an information…or misdemeanor complaint, the local criminal court may, upon motion of defendant, dismiss such instrument or any count thereof upon the ground that [t]he defendant has been denied the right to a speedy trial.”“Although a defendant charged with a traffic infraction has no statutory right to a speedy trial, he nevertheless has a constitutional right to a speedy trial” (People v. Taylor, 189 Misc. 2d 313 [App Term, 2d Dept 2001]). When a Defendant’s constitutional right to a speedy trial has been violated, the remedy is dismissal (See People v. Wiggins, 31 NY3d 1 [2018]); People v. Taranovich, 37 NY2d 442 [1975]; People v. Romeo, 12 NY3d 51 [2009]; People v. Staley, 41 NY2d 789 [1977]). “The following factors should be examined in balancing the merits of an assertion that there has been a denial of defendant’s right to a speedy trial: (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 of the delay.” (People v. Taranovich, 37 N.Y.2d 442 [1975]). Having reviewed the Taranovich factors, this Court finds Defendant’s constitutional rights have been violated.The Extent of the DelayWith respect to the first Taranovich factor, the extent of the delay, this Court finds the length of delay excessive. Defendant appeared in court seven times over more than nine months before the People first announced ready. Defendant was arraigned on November 28, 2017 and the People first announced ready on September 7, 2018, approximately nine months after arraignment. Were this Court conducting a statutory analysis of the traffic infraction, 282 days would have been charged to the People when the People initially announced ready. In fact, on September 11, 2018, the Court dismissed the two misdemeanor charges alleged in the complaint pursuant to CPL §30.30.Since October 4, 2018, the People have not been ready for trial because the arresting officer, who the People contend is a material witness, is on a military leave of absence. This has resulted in an additional approximate eight-month delay for a total lapse of approximately eighteen months since Defendant was arraigned.Most importantly, the People recently advised this Court that the unavailable witness is not expected to return from his military leave until January 30, 2020. Thus, the anticipated trial date would not be before February 2020, over twenty six months or over 800 days from arraignment. “Such repeated failure to be ready for trial over an extended period of time may, in and of itself, warrant dismissal” (Internal citation omitted) (People v. Perkins, 37 Misc. 3d 696 [Crim Ct Kings County 2012]).In People v. Perkins, the Court held that the “continued prosecution of this case stands in direct conflict with the expectation that traffic infractions, designated by law as petty offenses, be disposed of in a summary fashion” (See People v. Perkins, 37 Misc. 696 [Crim Ct Kings County 2012]). In Perkins, the more serious misdemeanor charges were dismissed for statutory speedy trial violations and the Court held that the remaining traffic infractions pending for more than two years from the date of commencement violated Defendant’s constitutional right. Similarly, in this instance, the more serious misdemeanor charges have been dismissed and the remaining traffic infraction cannot be tried until more than two years from arraignment.The Reason for the DelayWith respect to the second Taranovich factor, the primary reason for the delay has been the People’s failure to be ready for trial. The first lengthy delay was caused by the People when they failed to announce “ready” for the first time until 282 days following the commencement of the action and provided no reasonable justification.Then the People only announced ready on two occasions, September 7, 2018 and September 11, 2018. As of October 4, 2018, the People announced “not ready” for trial due to the unavailability of a material witness, the arresting officer. As per correspondence provided by the People from the Military and Extended Leave Desk of the New York City Police Department, the witness was deployed on September 27, 2018 and is not expected to return to his employment until January 30, 2020.The Court notes that the unavailability of the material witness while on military leave is certainly justified. The Court additionally notes that the People have not acted in bad faith in the instant matter and continued to keep the Court apprised. Nonetheless, the excessive delay in this matter is caused by the People’s failure to be ready for trial, not Defendant’s. The Court of Appeals noted that “although bad faith by the People obviously would weigh heavily in favor of dismissal of the indictment, the People’s good faith will not insulate their decision to delay trial from judicial review on constitutional speedy trial grounds (internal citations omitted)” (People v. Wiggins, 31 N.Y.3d 1 [2018]).In People v. Wiggins, the Court of Appeals recently dismissed Defendant’s matter on constitutional grounds despite good faith efforts by the People. The Court of Appeals stated “the People cannot justify this extraordinary delay through their good faith alone. The People do not have unfettered discretion to indefinitely pursue evidence that would strengthen their case while the defendant’s trial is postponed” (Id). While the People’s postponement of trial is not due to any bad faith by the People, it is still an excessive delay.The Nature of the Underlying CaseThe sole remaining charge is a traffic violation, VTL 1192(1). The Court acknowledges the seriousness of driving while under the influence and the extensive danger it causes to the public, as well as the drivers themselves. However, in the eye of the law, this is a traffic infraction, not a crime, and is the least serious classification of charges. Pursuant to CPL1.20(39), traffic infractions and violations are considered a “petty offense.” While there is no statutory speedy trial requirement for traffic infractions, the speedy trial requirement for a violation is 30 days from the commencement of the action (CPL 30.30[1][d]).Whether or Not There has Been IncarcerationDefendant was released on his own recognition; therefore, pretrial incarceration is not a factor in this Court’s analysis.Whether or Not the Defense has been Impaired by the DelayThe Court of Appeals notes that there is no requirement that Defendant demonstrate actual prejudice (People v. Taranovich, 37 N.Y.2d 442 [1975]). Nonetheless, Defendant contends that the People intend to rely heavily on eyewitness testimony of police officers and as time passes, the accuracy of their recollections will diminish and become less reliable. This Court agrees.ConclusionAfter evaluating the instant facts and circumstances under the Taranovich factors, Defendant’s motion to dismiss the remaining charge, Driving While Impaired (VTL §1192[1]), a traffic infraction, is granted pursuant to CPL §30.20.The foregoing constitutes the Decision and Order of the court.Dated: May 24, 2019Kings County, New York
