Appeal from a judgment of the District Court of Nassau County, First District (Kenneth L. Gartner, J., on motion to dismiss; Norman St. George, J., on speedy trial motions and at jury trial and sentence), rendered September 5, 2008. The judgment convicted defendant, upon a jury verdict, of driving while ability impaired.

ORDERED that the judgment of conviction is reversed, on the law, so much of the order dated July 3, 2007 as denied the branch of defendant's motion seeking to dismiss the accusatory instrument pursuant to CPL 30.30 (1) (b) is vacated, said branch of defendant's motion is granted, the accusatory instrument is dismissed, and the fine and surcharge, if paid, are remitted.

The People filed a simplified traffic information charging defendant with driving while intoxicated (Vehicle and Traffic Law § 1192 [3]). Defendant moved, among other things, to dismiss the accusatory instrument on the ground that it was facially insufficient. The District Court (Kenneth L. Gartner, J.) denied said motion. Thereafter, defendant moved to dismiss the accusatory instrument on the ground, among others, that he was denied his statutory right to a speedy trial (CPL 30.30 [1] [b]) and on the ground that he was denied his constitutional right to a speedy trial (CPL 30.20). By orders dated July 3, 2007 and December 10, 2007 (Norman St. George, J.), respectively, the motions were denied by the District Court. After a jury trial, defendant was found guilty of driving while ability impaired (Vehicle and Traffic Law § 1192 [1]). Defendant then moved to set aside the verdict on the ground, inter alia, that the evidence adduced at trial was legally insufficient to prove his guilt beyond a reasonable doubt. The District Court denied that motion as well, and the instant appeal by defendant ensued.

The simplified traffic information was sufficient on its face in that it substantially conformed to the requirements prescribed by the Commissioner of Motor Vehicles (see CPL 100.25, 100.40; People v Key, 45 NY2d 111 [1978]). Furthermore, the supporting deposition of [*2]Trooper Knapp contained allegations of fact which provided reasonable cause to believe that defendant committed the offense charged (see CPL 100.25 [2]; People v Kelly, 10 Misc 3d 136[A], 2005 NY Slip Op 52131[U] [App Term, 9th & 10th Jud Dists 2005]). Thus, the District Court properly denied defendant's motion to dismiss the accusatory instrument as facially insufficient.

However, the District Court improperly denied defendant's motion to dismiss insofar as it sought dismissal on the ground that defendant was denied his statutory right to a speedy trial (CPL 30.30). Since defendant was charged with a misdemeanor punishable by a sentence of imprisonment of more than three months, the People were required to be ready for trial within 90 days of the commencement of the action (CPL 30.30 [1] [b]). The action was commenced on May 13, 2005, the date on which the simplified traffic information was filed (CPL 1.20 [17]; People v Lomax, 50 NY2d 351 [1980]). On that same day, defendant was arraigned, and the minutes indicate that after defendant was arraigned, the case was adjourned to June 20, 2005. Contrary to the People's contention, the record does not reflect that defendant expressly requested or acquiesced to this adjournment (see CPL 30.30 [4] [b]; People v Garrett, 182 AD2d 496 [1992]). Therefore, the 38-day adjournment from May 13, 2005 to June 20, 2005 was chargeable to the People.

The People argue that the next four adjournments, covering the period from June 20, 2005 to December 5, 2005, were attributable to defendant for motion practice. However, as there are no minutes in the record for any proceedings held on June 20, 2005 through September 20, 2005, there is no way to determine to whom said 92-day period should be charged. "[I]t is the People's burden to ensure, in the first instance, that the record of the proceedings at which the adjournment was actually granted is sufficiently clear to enable the court considering the subsequent CPL 30.30 motion to make an informed decision as to whether the People should be charged . . . [and when] the People fail[] to satisfy this primary obligation, they must assume responsibility for the . . . delay" (People v Cortes, 80 NY2d 201, 215-216 [1992] [citations omitted]; see also People v Collins, 82 NY2d 177 [1993]). As the People failed to satisfy their burden of creating a record establishing that the 92-day period from June 20, 2005 to September 20, 2005 is excludable, it must be charged to them. Consequently, we conclude that the District Court improperly denied defendant's motion insofar as it sought to dismiss the accusatory instrument pursuant to CPL 30.30 (1) (b). In view of the foregoing, we reach no other issue.
Accordingly, the judgment of conviction is reversed, so much of the order dated July 3, 2007 as denied the branch of defendant's motion seeking to dismiss the accusatory instrument pursuant to CPL 30.30 (1) (b) is vacated, said branch of defendant's motion is granted and the accusatory instrument is dismissed.

Molia, J.P., LaCava and Iannacci, JJ., concur.
Decision Date: December 02, 2009