People v Pabon (Ricardo)

[*1] People v Pabon (Ricardo) 2015 NY Slip Op 50336(U) Decided on March 19, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 19, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Hunter, Jr., Ling-Cohan, JJ.
570913/14

People of the State of New York, Appellant,

against

Ricardo Pabon, Defendant-Respondent.

The People appeal from an order of the Criminal Court of the City of New York, Bronx County (Linda Poust-Lopez, J.), dated June 9, 2014, which granted defendant's motion to dismiss the accusatory instrument pursuant to CPL 30.30.

Per Curiam.

Order (Linda Poust-Lopez, J.), dated June 9, 2014, reversed, on the law and the facts, motion denied, accusatory instrument reinstated, and matter remanded to Criminal Court for further proceedings.

Defendant's CPL 30.30 motion should have been denied. The 7-day adjournment requested by the People on October 1, 2012 was excludable from speedy trial calculations, since defendant's pretrial motion was under consideration by the court (see CPL 30.30[4][a]). Even though the People were otherwise not ready to proceed, "the fact remains that as a practical matter, the case could not have been tried until resolution of [defendant's] motion . . . , and thus the "motion time" exclusion of CPL 30.30 (4)(a) applies" (People v McCray, 238 AD2d 442, 443 [1997], lv denied 90 NY2d 895 [1997]; see People v Douglas, 209 AD2d 161 [1994], lv denied 85 NY2d 908 [1995]).

The People were also improperly charged with the entire 62-day adjournment period from October 16, 2013 to December 17, 2013. The People made a sufficiently detailed showing of exceptional circumstances through their unchallenged representations of the arresting police officer's unavailability from October 16, 2013 to November 16, 2013, due to legitimate medical reasons, and thus that period is excludable pursuant to CPL 30.30(4)(g) (see People v Goodman, 41 NY2d 888 [1977]; People v Alcequier, 15 AD3d 162 [2005], lv denied 4 NY3d 851 [2005]). Contrary to defendant's claim, the People were not required to show that the witness was completely immobilized or totally incapacitated, or that they had made extraordinary efforts to secure his presence (see People v Martinez, 268 AD2d 354 [2000], lv denied 94 NY2d 922 [2000]). Deduction of the aforementioned excludable periods from the total 97 days found by the motion court brings the time chargeable to the prosecution within the 90—day statutory period.

The count of the accusatory instrument charging defendant with driving while impaired [*2](see Vehicle and Traffic Law § 1192[1]), should not, in any event, have been dismissed. Driving while ability impaired, as charged here, is a traffic infraction which triggers no statutory speedy trial rights under CPL 30.30 (see People v Gonzalez, 168 Misc 2d 136 [1996]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur

Decision Date: March 19, 2015