[*1]
People v Ausby (Donnell)
2014 NY Slip Op 51763(U) [46 Misc 3d 126(A)]
Decided on December 17, 2014
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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 17, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Ling-Cohan, JJ.
570213/2014

The People of the State of New York, Appellant,

against

Donnell Ausby, 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 July 12, 2013, which granted defendant's motion to dismiss the accusatory instrument pursuant to CPL 30.30.

Per Curiam.

Order (Linda Poust Lopez, J.), dated July 12, 2013, reversed, on the law, motion denied, and superseding information reinstated.

The People's November 26, 2011 record statement of readiness to proceed to trial on the common law driving while intoxicated charge (see Vehicle and Traffic Law § 1192[3]) effectively stopped the "speedy trial" clock, inasmuch as the count of the accusatory instrument pertaining to that charge was "deemed" converted to an information on that date (CPL 170.65[1]) and no basis is shown to conclude that the People were not then actually ready to proceed on the converted charge (see People v Kendzia, 64 NY2d 331, 337 [1985]; People v Carter, 91 NY2d 795, 798 [1988]). That the accusatory instrument may have contained what the motion court characterized as a "careless" drafting error with respect to the defendant's claimed blood alcohol level — an error solely affecting a subsequently dismissed per se driving while intoxicated charge (see Vehicle and Traffic Law § 1192[2]) — did not signify a lack of readiness to proceed on the properly converted common law intoxication charge, concerning which the People were "technically positioned" to go to trial (People v Terry, 225 AD2d 306, 307 [1996], lv denied 88 NY 886 [1996]; see also People v Dion, 93 NY2d 893 [1999]). As has been stated in analogous circumstances: "Speedy trial [analysis] must, as a matter of course, often involve distinct considerations with respect to individual counts of a single accusatory instrument" (People v Gonzalez, 168 Misc 2d 136, 137 [1996], lv denied 88 NY2d 936 [1996], quoting People v Minor, 144 Misc 2d 846, 848 [1989], lv denied 74 NY2d 666 [1989]). With the exclusion of the subsequent time periods, it is indisputable that the People did not exceed the 90-day statutory speed trial limit applicable to the common law intoxication charge (CPL 30.30[1][b]). The remaining count of the accusatory instrument, charging defendant with driving while impaired (see Vehicle and Traffic Law § 1192[1]), involves a traffic infraction which triggers no statutory speedy trial rights under CPL 30.30 (see People v Gonzalez, 168 Misc 2d at 137).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.


I concurI concurI concur


Decision Date: December 17, 2014