People v Manoylo

[*1] People v Manoylo 2007 NY Slip Op 50916(U) [15 Misc 3d 1130(A)] Decided on April 25, 2007 Criminal Court Of The City Of New York, Kings County Best, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 25, 2007
Criminal Court of the City of New York, Kings County

THE PEOPLE OF THE STATE OF NEW YORK

against

Joseph Manoylo, Defendant. THE PEOPLE OF THE STATE OF NEW YORK EDWARD MELENDEZ, Defendant. THE PEOPLE OF THE STATE OF NEW YORK JOHN GIROUX, Defendant. THE PEOPLE OF THE STATE OF NEW YORK IGOR SHORMAN, Defendant.



THE PEOPLE OF THE STATE OF NEW YORK

against

EDWARD MELENDEZ, Defendant.



THE PEOPLE OF THE STATE OF NEW YORK

against

JOHN GIROUX, Defendant.



THE PEOPLE OF THE STATE OF NEW YORK

against

IGOR SHORMAN, Defendant.



2004KN041755

Miriam R. Best, J.

These cases all present the same question: when have the People run out of time to prosecute a defendant for the traffic infraction of Driving While Ability Impaired by Alcohol (VTL § 1192[1]) (DWAI)? In two of these cases, the defendants were originally charged with misdemeanors and traffic infractions. In the other two cases, the defendants were charged only [*2]with traffic infractions.[FN1] Currently, each defendant is charged only with one or more traffic infractions. Each defendant argues that he has been denied his constitutional right to a speedy trial, codified in CPL § 30.20, because of the long delay since his arraignment. Because these cases all present the same basic issue, the court has consolidated them for decision.

The Speedy Trial Rules Applicable to the DWAI Infraction

It is well settled that, when a defendant is charged only with traffic infractions, he has no statutory right to a speedy trial under CPL § 30.30. People v Gordon, 2 Misc 3d 134(A), 2004 WL 727017 (App Term, 9th and 10th Jud Dists), lv denied, 3 NY3d 674, lv denied on reconsideration, 3 NY3d 706 (2004); People v Kreinen, 2002 NY Slip Op 40359(U), 2002 WL 1967926 (App Term, 9th and 10th Jud Dists 2002); People v Taylor, 189 Misc 2d 313 (App Term, 2d Dept 2001); People v Gonzalez, 168 Misc 2d 136 (App Term, 1st Dept), lv denied, 88 NY2d 936 (1996). This "apparent statutory oversight," People v Heller, 4/14/2000 NYLJ 33, col. 5 (Crim Ct, Richmond County 2000) (Garnett, J.), often has the ironic result of requiring a defendant to wait longer for a trial on a traffic infraction than he or she would have to wait if charged with a more serious, misdemeanor charge.[FN2]

A defendant facing trial on a traffic infraction does, however, have a constitutional right to a speedy trial. Gordon; Kreinen; Taylor, 198 Misc 2d at 314; see also People v Thorpe, 160 Misc 2d 558, 559 (App Term, 2nd Dept 1994). Faced with the difficulty of trying to determine when too much time has passed to allow a defendant to continue to face trial for DWAI, some courts have attempted to fashion a constitutional speedy trial limit for these cases. People v Mahon, 2007 NY Slip Op 50796(U), 2007 WL 1139418, *2 (Dist Ct, Nassau County 2007) ("This Court holds that the speedy trial time period regarding a violation of Vehicle and Traffic Law § 1192.1 . . . should not be greater than the time period governing a violation of Vehicle and Traffic Law § 1192.2, Driving While Intoxicated {which is ninety [90] days}."); People v Mahmood, 10 Misc 3d 198, 203-04 (Crim Ct, Kings County 2005) (Wilson, J.) ("it is reasonable and appropriate to hold that where the docket includes charges of both misdemeanor and traffic infractions, the Constitutional Speedy Trial time for the traffic infraction is 60 days"); People v Fisher, 167 Misc 2d 850, 855-56 (Crim Ct, Richmond County 1995) (Maltese, J.) (defendant charged with DWAI has constitutional right to speedy trial within 60 days of arraignment).

This approach has obvious appeal, because of the ease with which it could be applied, but this court cannot follow it. As the court pointed out in People v Ramsammy, 11 Misc 3d 1061(A), 2006 WL 615992, ***2 (Crim Ct, Kings County 2006) (Mondo, J.), the Appellate [*3]Term has held that, in adjudicating these claims, the court must engage in the traditional analysis set forth in People v Taranovich, 37 NY2d 442, 445 (1975). Thus, the court must consider the following factors: (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.

Taranovich, 37 NY2d at 445. "[N]o one factor or combination of factors . . . is necessarily decisive or determinative of the speedy trial claim, but rather the particular case must be considered in light of all the factors as they apply to it." Id. Moreover, "where in the circumstances delay is great enough there need be neither proof nor fact of prejudice to the defendant." Id. at 447. Compare, People v Matera, 2003 NY Slip Op 51180(U), 2003 WL 21974065 (App Term, 9th and 10th Jud Dists 2003) (unexplained delay of over two years in bringing traffic infraction case to trial warranted dismissal), and People v Rogoish, 2003 NY Slip Op 51120(U), 2003 WL 21700087 (App Term, 9th and 10th Jud Dists 2003) (unexplained delay of over three years in bringing traffic infraction case to trial warranted dismissal), and People v Thorpe, 160 Misc 2d at 559 (unexplained delay of over two years in bringing traffic infraction case to trial warranted dismissal), with People v Taylor, 189 Misc 2d at 314 (where record established that defendant was responsible for virtually entire 14-month delay between filing of accusatory instruments and last scheduled trial date, motion to dismiss traffic infraction should have been denied).

With respect to all of these cases, the court's analysis of the third Taranovich factor, the nature of the underlying charge, is obviously the same. DWAI is a traffic infraction. The Court of Appeals has said that, "New York has long deemed traffic infractions as a form of misconduct distinguishable from more serious breaches of the law or crimes." People v Letterio, 16 NY2d 307, 312 (1965), cert. denied, 384 US 911 (1966);[FN3] Fisher, 167 Misc 2d at 855. Nevertheless, this court cannot say that driving a motor vehicle while one's ability to do so is impaired by alcohol is a trivial matter. It is punishable by a fine or imprisonment or both, as well as a mandatory 90-day license suspension (VTL § 1193),[FN4] and such conduct has the obvious potential to cause property damage and/or personal injury to the impaired driver, bystanders, and the police. Accordingly, this court will not dismiss a DWAI charge lightly.

Resolution of these four cases will turn, therefore, on an analysis of the other four Taranovich factors: the extent of and reason for the delay, whether defendant has been incarcerated during the delay, and whether defendant has been prejudiced by the delay.[FN5] For the [*4]reasons set forth more fully below, this analysis leads the court to grant the motion to dismiss in People v Manoylo, and to deny the motion in the other three cases.

People v Manoylo

From Arraignment to the End of the Year 2004

On July 4, 2004, defendant Joseph Manoylo was arraigned on a complaint charging him with violations of VTL §§ 1192(3) (Driving While Intoxicated, a misdemeanor), 1192(1) (DWAI), 600(1)(A) (Leaving the Scene of an Incident Without Reporting, a traffic infraction) and 600(2)(A) (Leaving the Scene of an Incident Without Reporting, a misdemeanor). The People served and filed a statement of readiness off calendar on July 26, 2004. On October 4, 2004, the next time the case was called in court, the People made a plea offer and the case was adjourned to November 29th for the People to provide a copy of the videotape. The People failed to provide the videotape on that date, and the case was adjourned to January 27, 2005 for trial.[FN6]

Delay During the Year 2005

On January 27th, the People were not ready, but defense counsel did not appear in court, so the case was adjourned to February 23, 2005. On February 23rd, defendant did not appear in court, allegedly because he was in the hospital in Binghamton. The case was adjourned to March 24, 2005, but defendant failed to appear in court again, and a bench warrant was ordered. That bench warrant was not vacated until June 22, 2005, when defendant returned to this court.[FN7] The case was adjourned to June 27th to track a new, pending felony. On June 27, 2005, this case was adjourned to July 5th for trial, but on that day defense counsel failed to appear. The case was adjourned to July 25, 2005, for defense counsel to appear, but he failed to appear again on that date. The case was adjourned to September 30, 2005 for counsel to appear, and on that date the case was adjourned to November 14, 2005 for trial. On November 14th, the People were ready for trial, but defense counsel was actually engaged on trial in Bronx County. The case was adjourned to December 14, 2005. On December 14th, the People were not ready for trial, because a new Assistant District Attorney (ADA) was being assigned to the case. The case was adjourned to January 26, 2006.

Delay During the Year 2006

On January 26, 2006, the People were not ready for trial and requested an adjournment of five days. The case was adjourned to February 8th, on which date the People had no file in court. The case was adjourned to May 15, 2006, and the court ruled that the People would be charged all the time until they served and filed a statement of readiness. The People filed a statement of readiness off calendar on February 24th, but it did not contain any information as to when defense counsel was served with it, and when the case was called on May 15th, the People were again not ready for trial. On that date, the People told the court that the arresting officer was on his regular day off, and also that they did not know which ADA would be trying the case. The People requested an adjournment of one week, but the case was put over until June 12, 2006. On June [*5]12th, the People were again not ready for trial, because the ADA was scheduled to begin another trial and the arresting officer was not notified to come to court. The People requested an adjournment of one week, but the case was put over until July 13, 2006. On July 13th, the People were again not ready for trial, because the arresting officer had again not been notified to come to court. The case was adjourned to September 5, 2006, when the People were again not ready for trial. On that date, the People conceded that they were out of CPL § 30.30 time on all counts except the DWAI. The court dismissed all of the charges except for the DWAI, and adjourned the case to October 12, 2006.

Motion practice to dismiss the DWAI charge began on October 12, 2006, a date on which the People were again not ready for trial, because the arresting officer was again not available. Defense counsel pointed out that the case was, at that point, over two years old and should be dismissed. The court set a motion schedule, which was subsequently modified to accommodate defense counsel's trial schedule in federal court. Ultimately, defense counsel did not file a motion until January 17, 2007. The People did not respond to the motion by February 8th, as directed by the court, because the case was again reassigned to a new ADA. The People served and filed their response on February 15th.[FN8]

Analyzing the Taranovich Factors

As this review demonstrates, approximately two years and three months passed between the filing of the accusatory instrument and the inception of motion practice to dismiss the DWAI charge. Virtually all of the delay between January 27, 2005 and July 25, 2005 was caused because either defendant or his lawyer failed to appear on scheduled court dates. The delay from November 14th to December 14th was also caused by defense counsel's unavailability, because he was on trial in another county. Virtually all of the subsequent delay, however, was caused by the People. The next seven times this case was called on the calendar, over a period of 11 months, the People were not ready, either because the case had just been reassigned to a new ADA, or the ADA was on trial elsewhere, or the arresting officer was not present in court. Even after consenting to dismissal of all of the charges except the DWAI, the People were not ready for trial some five weeks later, because once again the arresting officer was not available. Thereafter, the People assigned yet another ADA to handle the present motion. Accordingly, as to the first two Taranovich factors, the delay has been extensive, and much of it has been caused by failures by the People.

As to the fourth and fifth Taranovich factors, they do not mandate dismissal. Defendant was incarcerated for over a month, but only because he was simultaneously incarcerated on an unrelated Robbery charge. During the rest of the pendency of this case, defendant has been at liberty. He does not allege that he has been prejudiced by the delay in bringing him to trial.

The Lengthy Delay in this Case Warrants Dismissal

Time and again, the People have failed to go forward on this case. Although they made their first statement of readiness just over three weeks after defendant's arraignment, they were [*6]subsequently not ready for trial more often than they were ready. They were dilatory in providing discovery, repeatedly reassigned the case among ADAs, and were not able to have the arresting officer appear in court at all during calendar year 2006. Even though a significant portion of delay is attributable to defendant and his counsel, this court cannot escape the conclusion that the People have not acted in a timely way to bring this case to trial and cannot justify the inordinate delay.

Under all the circumstances, this court holds that defendant has been denied his constitutional right to a speedy trial. His motion to dismiss is granted.

People v Melendez

Delay During the Year 2005

On May 25, 2005, Edward Melendez was arraigned on a complaint charging him with violations of PL § 145.00(3) (Criminal Mischief in the Fourth Degree) and VTL §§ 1192(1) (DWAI), 1212 (Reckless Driving) and 1227(1) (Consumption or Possession of Alcoholic Beverages in Certain Motor Vehicles). The People served and filed a statement of readiness off calendar on August 18, 2005. On September 29, 2005, the People made a plea offer and the case was adjourned to November 7th for Discovery by Stipulation (DBS). On November 7, 2005, the People announced that they were ready and served and filed DBS. The case was adjourned to December 7th for trial. On December 7, 2005, the People again stated that they were ready for trial and provided defense counsel with a copy of the videotape. The case was adjourned to January 23, 2006 for trial, at defense counsel's request.

Delay During the Year 2006

On January 23, 2006, the People were again ready for trial, but defense counsel requested an adjournment, because of defendant's medical issues. The case was adjourned to February 22, 2006. On February 22nd, the People had no file and the case was adjourned to March 23, 2006. The People were again not ready on March 23rd, because the arresting officer was not available. They requested an adjournment of four days, but the case was adjourned to May 1, 2006. On May 1st, the People were again not ready for trial, this time because the ADA was out of the office. The People requested an adjournment until May 8, 2006, but the case was adjourned to May 26, 2006. On May 26th, the People were ready for trial, and defense counsel requested a briefing schedule in order to file a speedy trial motion. The case was adjourned for July 18, 2006, but defense counsel did not file a motion during this period. On July 18th, the case was adjourned to September 19, 2006 for trial. On September 19th, the People were ready for trial, but defense counsel was not ready, because she had just finished a trial. She asked for a new motion schedule, and the case was adjourned to November 1, 2006. On November 1st, the court (McGuire, J.) granted defendant's motion to dismiss the VTL § 1212 count for a speedy trial violation, but denied the motion to dismiss the traffic infractions.[FN9] Defense counsel told the court that she wanted to file a motion to reconsider, and the court set a new motion schedule. The case was adjourned to December 13, 2006. Defense counsel did not file a motion to reconsider, however, and on December 13th the case was adjourned to January 24, 2007 for trial.

Delay During the Year 2007 [*7]

The People were not ready for trial on January 24, 2007, because a new ADA had just been assigned to the case. The People requested an adjournment of two weeks. Defense counsel told the court that she was going to be away until the end of February, so the case was adjourned to March 7th for trial. On March 7th, the People stated that they were ready for trial. Defense counsel told the court that she had drafted, but not yet completed, the instant motion. The case was adjourned for the motion to be perfected and decided.[FN10]

Analyzing the Taranovich Factors

As the foregoing review demonstrates, almost 22 months elapsed between defendant's arraignment on the accusatory instrument and the present motion. Much of that delay, however, is attributable to defendant. The first two times the case was on for trial, the People were ready but defendant requested an adjournment, which caused a delay from early December 2005 to mid-February 2006. The next time the People were ready for trial, on May 26, 2006, defendant requested a motion schedule. Yet while the case was delayed from May to July to allow briefing and decision, defense counsel filed no motion, leading the court to adjourn the case to September 2006 for trial. The same scenario then repeated itself: the People stated ready for trial on September 19, 2006, but defense counsel said that she was not ready and that she wanted another motion schedule. The speedy trial clock stopped again, from September to November 2006, to allow briefing and decision. When defense counsel won dismissal of some, but not all, of the charges, she asked for yet another briefing schedule. The court adjourned the case for approximately six more weeks, but defense counsel did not file any motion. When the case was on for trial again, the People requested an adjournment of two weeks, but defense counsel said she would not be available through the end of the following month, so the case was adjourned from the end of January 2007 until the beginning of March. Finally, the last time the People were ready for trial, defense counsel asked for yet another briefing schedule. Thus, over eight months of delay are attributable to defendant: once because of his ill health; once for defense counsel's trial schedule; once for defense counsel's planned absence from work; and twice for motion practice that defense counsel failed to perfect.

During this same period, the People were ready for trial several times. Although it took approximately ten weeks for them to make their first statement of readiness for trial after defendant's arraignment, they served and filed DBS on time. They were ready on the first trial date, not ready on the next three trial dates, and then ready again three more times. Based on the foregoing, this court cannot find that the People have failed to pursue this case.

As to the fourth and fifth Taranovich factors, they do not mandate dismissal. Defendant was released at arraignments with the People's consent [FN11]. Finally, as to any claim of prejudice, defendant is vague. He argues that "the defense may have been impaired and prejudiced by the [*8]prosecution's delay" (Kripke Aff. at p. 11, emphasis supplied) and that "[i]t goes without saying

that defendant's memory is also critical" (id. at p. 12). Defendant also claims that it is difficult for him to return to court on this case, because he has been gradually moving from New York to Florida. Yet he concedes that he maintains a residence and a driver's license in New York. Defendant's ultimate argument is that "specific prejudice is not required" (id).

Dismissal of this Case is Not Warranted

This court holds that, under all the circumstances, dismissal is not warranted. Rather, this case is similar to People v Taylor. While this defendant did not cause virtually the entire delay, in contrast to the situation in Taylor, defendant did cause much of it, including twice when defense counsel asked for briefing schedules and then failed to carry through. Defendant's claim of prejudice, however, is almost identical to the one in Taylor, where the defendant argued only that "it would be a great inconvenience for him to have to travel back to New York from his residence in South Carolina again." Taylor, 189 Misc 2d at 325-26.

For all of these reasons, this court holds that defendant has not been denied his constitutional right to a speedy trial. His motion to dismiss is denied.

People v Giroux

On November 12, 2005, John Giroux was arraigned on a complaint charging him only with DWAI. Because the complaint was self-corroborating, the case was adjourned to December 21, 2005 for DBS. On December 21st, the People served and filed DBS and made a plea offer. The case was adjourned to January 31, 2006 for trial.

Delay in the Year 2006

On January 31, 2006, the People were ready for trial. The case was adjourned to February 28th for trial. On February 28, 2006, the People reduced their plea offer and the case was adjourned to March 2nd for trial. On March 2, 2006, the People were not ready and requested March 15th, but the case was adjourned to March 29th for trial. On March 29, 2006, the People were ready for trial, but defense counsel was not, and the case was adjourned to May 4th. On May 4, 2006, the People served and filed a witness list and calibration documents, but they were not ready for trial, because the arresting officer was on sick leave. The People requested an adjournment to June 5th, but the court adjourned the case to June 7, 2006. The People were again not ready on June 7th and requested an adjournment to June 12, 2006. The court adjourned the case to June 12th for trial, but the People were not ready again on that day. They requested two days, but the court adjourned the case to June 21, 2006. On June 21st, the People were ready for trial, but defense counsel was not. The case was adjourned to June 28, 2006, when both sides announced ready for trial. The case was adjourned for one day, but on June 29th the Honorable Alvin Yearwood recused himself and adjourned the case to September 6, 2006 for trial before another judge. On September 6th, the People were not ready for trial, because a new ADA had been assigned to the case. The People requested a one-week adjournment, but the court adjourned the case to October 5, 2006. The People were again not ready for trial on October 5th, because the technician was not available. The court adjourned the case to October 26, 2006. On October 26th, the People were not ready for trial, because the arresting officer was out for an [*9]injury suffered in the line of duty. The case was adjourned to November 30, 2006.[FN12] On November 30th, the People asked for an adjournment of one day. The court adjourned the case to January 16, 2007.[FN13]

Delay in the Year 2007

On January 16, 2007, the People were ready for trial but no trial parts were available, so the case was adjourned to February 13, 2007. The People were not ready that day, because the ADA was on trial in another case. They requested a two-week adjournment, and defense counsel requested a briefing schedule to perfect the instant motion. Both defendant and the People served and filed their papers in a timely fashion.

Analyzing the Taranovich Factors

Approximately 15 months elapsed from the time defendant was arraigned on the accusatory instrument to the commencement of this motion practice. Much of that delay was attributable to the People, who were not ready for trial nine times; they caused approximately three and one-half months of delay. Indeed, as defendant correctly points out, the People were not ready five of the last six times the case was on for trial. Defense counsel was not ready for trial twice, which caused approximately 5-1/2 weeks of delay. Finally, the court itself could not accommodate this trial twice. Once, the case was adjourned for approximately two months because of Judge Yearwood's recusal. Another month of delay was caused early this year, when both sides answered ready for trial but no trial parts were available.

As to the fourth and fifth Taranovich factors, neither compels dismissal here. Defendant was released on his own recognizance at arraignments, and his claim of prejudice is theoretical. He asserts that he has been prejudiced because, Over time memories naturally fade, a phenomenon that affects both prosecution and defense witnesses equally. What is not equal, however, is that the prosecution's witnesses (the police) have extensive records of what they did and observed on the night in question. Mr. Giroux, the only possible defense witness, has only his memory to rely on.

(Lesman Aff. at p. 5). Yet this case appears to be relatively straightforward. The complaint alleges that defendant was stopped at a checkpoint and admitted that he had been drinking vodka.[FN14] Defendant took both a roadside sobriety test and an Intoxilyzer test several hours later at the precinct, and the People have provided him with the videotape.

Dismissal of this Case is Not Warranted

Under all of the circumstances, this court cannot conclude that defendant has been denied [*10]his constitutional right to a speedy trial. Delays in bringing this case to trial have been caused by the prosecution, the defense, and the court itself. Unlike the situation in People v Manoylo, supra, the People have shown their intention to pursue this case by serving and filing a witness list and documents necessary for trial. They were ready in March and June 2006 and again in January 2007. Moreover, delays caused when the ADA was on trial or the arresting officer was sick or injured should not be equated with such delays as reassigning the case on the eve of trial to a new ADA or failing to notify the arresting officer to come to court.

Accordingly, the motion to dismiss is denied.

People v Shorman

On December 18, 2005, Igor Shorman was arraigned on a complaint charging him with two traffic infractions, DWAI and failing to obey traffic-control devices (VTL § 1110). The complaint was converted at that time and the case was then adjourned twice for defendant either to retain private counsel or to show proof of eligibility for assigned counsel.

Delay in the Year 2006

On February 7, 2006, the court ruled that defendant was eligible for Legal Aid counsel and the case was adjourned to March 8, 2006 for DBS. The People served and filed DBS on March 8th and the case was adjourned to April 5, 2006 for trial. On April 5th, the People were not ready for trial and the case was adjourned to May 8, 2006. The People were not ready on that day, because the arresting officer was unavailable. The People requested a one-week adjournment, but the court adjourned the case to June 12, 2006. On June 12th, the People were ready for trial, but no trial parts were available, and the case was adjourned to September 7, 2006. On September 7th, the People were not ready and requested two weeks, but the court adjourned the case to October 16, 2006; during the interim, the case was adjourned to October 18, 2006 for trial.[FN15] However, on October 18th the People were again not ready for trial, because the arresting officer was on his regular day off. The People requested six days, but the court adjourned the case to December 12, 2006.[FN16] On December 12, 2006, the People were ready for trial, and the case was adjourned for one day.[FN17] On December 13, 2006, the People were not ready, because the arresting officer failed to appear in court.[FN18] The People asked for a week's adjournment, but defense counsel asked for a briefing schedule.

Ultimately, defense counsel filed and served the instant motion on January 8, 2007, four [*11]days after it was originally due, but the People had not responded by February 6, 2007, the original date for decision. The People served and filed their first response to the motion on February 20th, but this court observed that it missed defendant's point.[FN19] The People served and filed their supplemental response on March 6, 2007, and the case was adjourned for decision.

Analyzing the Taranovich Factors

As the foregoing review shows, a little over a year elapsed from defendant's arraignment on the accusatory instrument and the instant motion. Approximately a month and a half's delay was caused by the need to determine defendant's eligibility for assigned counsel. Approximately three months of delay were caused because the court could not accommodate this trial. The defense has asked for one adjournment.

Yet the People have only been ready for trial twice. Six months elapsed before they answered ready the first time. The only other time the People announced ready was almost one year to the day after defendant's arraignment, and then they were not ready for trial the very next day. The People were not ready five times, including three times when the arresting officer was unavailable or failed to come to court. Moreover, when motion practice began, the People were dilatory in responding. Thus, much of the delay in this case is attributable to the People.

Regarding the fourth and fifth Taranovich factors, they do not mandate dismissal. Defendant has not been incarcerated during this case. As to prejudice, he alleges that, With each day that passes the memories of all involved fade a little further. . . . Without fresh memory of what occurred that night, the defense cannot effectively challenge the memory of the People's witnesses nor the accuracy of their paperwork. Not only is the defense's ability to challenge the People['s] case impaired, but one defense witness has already informed defense counsel that he will not be able to testify on behalf of Mr. Shorman because the passage of time has left him unable to remember with detail what occurred that night.

(Vitek Aff. at p. 9.) Yet, as in People v Giroux, supra, this case appears to be uncomplicated. Defendant was allegedly stopped for driving through a red light at approximately 4:00 am on December 17, 2005. The People have given notice pursuant to CPL § 710.30(1)(a) that defendant admitted having "a few drinks including a shot of Jack Daniels." The People's discovery materials reveal that they will concede that defendant blew only a .067 on the Intoxilyzer test, that his clothes were orderly and his speech clear at the time of his arrest, and that, during the coordination test, defendant's speech was clear, his balance, walking and turning were steady, and he could accurately touch both hands to his nose. There is a videotape of defendant taking these tests.

Dismissal of this Case is Not Warranted

In this case, as in People v Manoylo, supra, this court cannot escape the conclusion that the People show no serious intention of prosecuting these traffic infractions, despite the apparent ease with which they could do so. Yet "inexcusable delay will not in and of itself be sufficient to warrant the drastic measure of dismissal." People v Ramsammy, 2006 WL 615992, ***2, citing People v Taylor, 189 Misc 2d at 314. Defendant's claim of prejudice has superficial force, but is [*12]not specific enough to allow the court to conclude that "the likelihood of [his] acquittal," Taranovich, 37 NY2d at 447, has been affected by the delay in bringing this case to trial. After all, defendant does not claim that the witness whose memory has faded was an eyewitness to his driving, and, moreover, defendant has been provided with ample material from the People which he may be able to use to challenge the People's case.

Based on the foregoing, the court cannot conclude that defendant has been denied his constitutional right to a speedy trial. His motion to dismiss is denied.

Conclusion

For the reasons set forth above, People v Manoylo is dismissed. The court will stay sealing for 30 days, to permit the People to determine whether they will seek appellate review.

The motions to dismiss in People v Melendez, People v Giroux and People v Shorman are all denied.

The foregoing is the decision and order of this court.

Dated: Brooklyn, New York

April 25, 2007

________________________________________

Miriam R. Best

Judge of the Criminal Court Footnotes

Footnote 1:Defendant Joseph Manoylo was originally charged with violations of VTL §§ 1192(3), 1192(1), 600(1)(A) and 600(1)(B). Defendant Melendez was originally charged with violations of PL § 145.00(3) and VTL §§ 1192(1), 1212 and 1227(1). Defendant John Giroux was only charged with the DWAI infraction. Finally, defendant Igor Shorman was only charged with DWAI and with a violation of VTL § 1110, which is also a traffic infraction.

Footnote 2:As Judge Garnett cogently observed in Heller, in calling on the Legislature to correct this anomaly, "[w]ith no statutory limit in CPL § 30.30, these cases remain unresolved until the delay becomes so egregious . . . that a court will grant dismissal under other statutory and constitutional provisions." People v Heller, 4/14/2000 NYLJ 33, col. 5 (Crim Ct, Richmond County 2000).

Footnote 3:Concurring, Judge Bergan wrote, "The basic concept of the traffic infraction is that a traffic violation is not a crime and the violator is not a criminal." Letterio, 16 NY2d at 312.

Footnote 4:For offenses occurring after November 1, 2006, the defendant may also be sentenced to a drinking driver program.

Footnote 5:The following narratives are based on the notations in the official record of court action for each case.

Footnote 6:The People filed a statement of readiness off calendar on January 7, 2005, but the document contained no information as to whether and when a copy was served on defense counsel.

Footnote 7:At this point, defendant was also separately charged with Robbery and was wanted in Binghamton.

Footnote 8:Insofar as defendant's motion was based on a claimed CPL §30.30 motion, the court denied it from the bench on February 15th. Defense counsel asked for more time to file a constitutional speedy trial motion, but did not do so. However, defendant cited Fisher in his motion, and the People's response analyzes the Taranovich factors.

Footnote 9:VTL § 1212 (Reckless Driving) is an unclassified misdemeanor. The People conceded that the misdemeanor of Criminal Mischief should also be dismissed for a CPL § 30.30 violation.

Footnote 10:In fact, the People have never responded to the present motion.

Footnote 11:Defendant claims that he "spent three days in confinement prior to his arraignment, probably for medical reasons" (Kripke Aff. at p. 11). The events that led to defendant's arrest occurred on the evening of May 21, 2005 and, according to the notes in the official record of court action, defendant was hospitalized until May 23rd. The court was told that he suffered from heart trouble, high blood pressure and diabetes.

Footnote 12:The People filed a statement of readiness on November 14, 2006, but the document does not contain any indication of whether or when the People served it on defense counsel.

Footnote 13:The People filed a statement of readiness on December 11, 2006, but the document does not contain any indication of whether or when the People served it on defense counsel.

Footnote 14:According to the People's CPL § 710.30(1)(a) notice, defendant said, "I had three bottles of vodka."

Footnote 15:Defendant concedes that this was done at his request, because he "became aware that the defense would not be ready on October 16, 2006." Vitek Aff. at p. 7.

Footnote 16:According to this court's notations in the official record of court action, defendant either requested or suggested the date of December 12, 2006.

Footnote 17:No trial parts were available on December 12th. Vitek Aff. at p. 7.

Footnote 18:According to defendant, the People claimed initially that the officer was not notified, but "[a]fter further investigation, [they] modified their reason for not being ready to that the supervisor of the officer would not let him appear in court." Vitek Aff. at p. 8. The People do not deny this assertion.

Footnote 19:In their first response, the People only addressed the question of whether traffic infractions were governed by CPL § 30.30. They did not address defendant's analysis under Taranovich.