People v Ostrowski
Annotate this CaseDecided on December 15, 2015
District Court of Suffolk County, First District
People of the State of New York,
against
Mark E. Ostrowski, Defendant.
2012SU015355
For the Defendant: Philip Castellano, Jr.
Nesconset, NY
For the People:ADA Maria Troulakis
for Thomas J. Spota, District Attorney of Suffolk County
Karen M. Wilutis, J.
The defendant is charged with driving while his ability was impaired by the combined influence of drugs or of alcohol and any drug or drugs (V & TL §1192(4)), aggravated driving while intoxicated (V & TL §1192(2-a)) and two traffic infractions. The defendant previously moved to dismiss on statutory speedy trial grounds. (CPL 30.30). By order of the Court dated December 19, 2013 the motion was granted solely for the purpose of determining the nature of certain specified adjournments. The People have submitted transcripts of adjourned dates for the purpose of demonstrating their readiness announcement(s) and any excludable time periods upon which they seek to rely in opposition to the defendant's motion. The Court has evaluated same and reviewed the parties' arguments on the motion.
Pursuant to CPL 30.30(1)(b), the People were required to make an effective statement of their readiness for trial within 90 days of the commencement date of the within criminal action, taking into account all excludable time periods. The within criminal action commenced on March 16, 2012 with the filing of an accusatory instrument charging a violation of V & TL 1192(4). The defendant was arraigned and the matter was adjourned to March 20, 2012, at which time the defendant appeared with counsel and the matter was adjourned to March 23, 2012 at the defendant's request. On that date a lab report was laid in to supplement count one and the matter [*2]was adjourned to April 27, 2012 at the defendant's request. An additional lab report was laid in on that date and the matter was again adjourned at the defendant's request to June 20, 2012. An information charging a violation of V & TL §1192(2-a) was laid in on that date and the People announced their readiness for trial.
A review of the information charging a violation of V & TL §1192(4) discloses that it fails to set forth the requisite factual allegations establishing every element of the offense charged and the defendant's commission thereof. (CPL 100.40, 100.15). One of the elements of Vehicle and Traffic Law §1192(4) is that the defendant ingested a "drug", which term is specifically defined in Vehicle and Traffic Law §114-a as any substance listed in Public Health Law §3306. (See People v. Rose, 8 Misc 3d 184 [Nassau Dist Ct 2005]; People v. Kahn, 160 Misc 2d 594 [Nassau Dist Ct 1994]). Although the information does allege that the defendant stated, inter alia, "I take a lot of medications", there is no evidence as to the specific medications to which the defendant referred and therefore no allegation that the defendant had ingested a substance listed in Public Health Law §3306. Any statement(s) of readiness on such a jurisdictionally defective instrument would have been ineffective. (See People v. Kerins, 26 Misc 3d 127(A) [App Term 2nd Dept, 9th & 10th Jud Dists 2009]; see also People v. Reyes, 24 Misc 3d 51 [App Term 2nd Dept, 9th & 10th Jud Dists 2009]). However, the entirety of the period from the filing of the jurisdictionally defective information to the filing of a sufficient information is not automatically chargeable to the People, as adjournments on a defendant's request or consent are still excludable even in the absence of readiness. (See People v. Worley, 66 NY2d 523 [1985]).
Review of the submissions herein discloses that the following periods were excludable: March 16 to March 20, 2012 [defendant was without counsel] and March 20 to June 20, 2012 [adjournments at the defendant's request]. The People then made an effective readiness announcement on the record on June 20, 2012 upon their filing of a sufficient information charging a violation of V & TL §1192(2-a). It has been held that "once the District Attorney had effectively announced his readiness for trial the operational effect of CPL 30.30 was exhausted." (People v. Brothers, 50 NY2d 413 [1980]). As such, the People have not violated their statutory speedy trial mandate.
Accordingly, the defendant's motion to dismiss pursuant to CPL 30.30 is denied.
Parenthetically, the Court notes that this order does not address constitutional speedy trial issues, as CPL 30.20 has not been raised in the motion papers sub judice.
December 15, 2015 ______________________________
Para>J.D.C.
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