Criminal Court of the City of New York, New York County, February 28, 2018

Gomez & Vournas LLC, New York City (Gregory G. Gomez of counsel), for defendant.

Cyrus R. Vance, Jr., District Attorney, New York City (Sarah McAteer of counsel), for plaintiff.

On January 21, 2017, the defendant was charged with Vehicle and Traffic Law § 1192 (3) (driving while intoxicated); Vehicle and Traffic Law § 1192 (2-a) (aggravated driving while intoxicated); Vehicle and Traffic Law § 1192 (2) (driving while intoxicated); and Vehicle and Traffic Law § 1192 (1) (driving while ability impaired). The defendant now moves to dismiss the accusatory instrument pursuant to CPL 30.30 and 30.20.

CPL 30.30 (1) (b) provides that where, as here, "a defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony," the defendant's motion to dismiss must be granted if the People are not ready for trial within 90 days of the commencement of the criminal action (CPL 30.30 [1] [b]).

To be "ready for trial," the People must: (1) communicate their readiness for trial, either in open court or by filing a written notice of readiness with the court and serving it upon the defendant's attorney; and (2) be ready to proceed at the time of the declaration of readiness (People v Kendzia, 64 NY2d 331, 337 [1985]). If the People are not ready for trial within the relevant statutory time period, the prosecution will be dismissed unless the People can demonstrate that specific adjournments should be excluded (People v Brown, 28 NY3d 392, 403 [2016]).

After reviewing the parties' submissions, the court notes that only one adjournment is in [*2]dispute. The parties agree, and the{**59 Misc 3d at 424} court concurs, that absent the disputed adjournment period, there are 79 days of chargeable time pursuant to CPL 30.30. Accordingly, the court will confine its analysis to the disputed period, December 11, 2017, to January 17, 2018.

On February 14, 2017, defense counsel filed a notice of appearance listing his address as 305 Broadway, Suite 1400, New York, NY 10007. On October 1, 2017, defense counsel moved offices to 11 Park Place, Suite 914, New York, NY 10007. At the next four appearances on this matter (on October 23, November 29, December 7, and December 11), defense counsel failed to inform the court or the People of his new address (defendant's mot ¶¶ 33-34).

On December 11, 2017, the People were not ready for trial, as it was the arresting officer's regular day off, and the case was adjourned until January 17, 2018. While the People requested an adjournment date of December 14, 2017, the court (Hon. Lyle Frank) rejected this request and ordered that the People would be charged until a certificate of readiness (COR) was filed. On December 19, 2017, the People filed a COR off-calendar with the court and served the COR upon defense counsel by mailing same to defense counsel's prior office.

Defendant argues that the People's failure to serve the COR at defense counsel's new address renders the COR ineffective and therefore the 36 days between the December 11, 2017 appearance and January 17, 2018 appearance are chargeable to the People (defendant's mot ¶¶ 33, 35-36). The flaw in defendant's argument is that a COR sent to an incorrect address may still be found effective if the People did not have actual notice that the address was incorrect prior to service of the COR (see People v Odjody, 35 Misc 3d 1221[A], 2012 NY Slip Op 50804[U] [Crim Ct, Kings County 2012]; see also People v Grant, 42 Misc 3d 1236[A], 2014 NY Slip Op 50380[U] [Crim Ct, Kings County 2014]).

[1] In this case, the People contend that they did not have actual notice of defense counsel's change of address. Defendant argues that actual notice was given because defense counsel submitted his new address online to the Office of Court Administration and had communicated the address change to a paralegal employed by the New York County District Attorney's Office who then entered the new address into its computer system on October 22, 2017. The court finds that these actions do not establish that the assigned ADA received actual notice of defense counsel's new address. To require an ADA to{**59 Misc 3d at 425} continually corroborate that information in a valid notice of appearance is up to date would impose an unreasonable burden on the People (see e.g. People v Grant, 42 Misc 3d 1236[A], 2014 NY Slip Op 50380[U], *4 [Crim Ct, Kings County 2014] [requiring the People to "repeatedly check the court file to ascertain whether original counsel has remained on the case or new counsel has been retained . . . would impose an unreasonable burden on the People" (internal quotation marks omitted)]; see also People v Almarales, 2002 NY Slip Op 50558[U], *14-17 [Sup Ct, Kings County 2002] [same]). This is particularly so where, as here, defense counsel has been the attorney of record for the entirety of the case and repeatedly failed to avail himself of the most direct and foolproof method to inform the People of his new address, i.e., either stating the change on the record or filing a notice of appearance at one of the subsequent court appearances.

Accordingly, the court finds that the COR sent to defense counsel's former address was served in good faith. As it is undisputed that the COR accurately reflected the People's readiness, the court finds that the COR is valid (see e.g. People v Vaughn, 36 AD3d 434, 436 [1st Dept 2007]; People v Odjody, 35 Misc 3d 1221[A], 2012 NY Slip Op 50804[U] [Crim Ct, Kings County 2012]) and charges the People with the eight days that elapsed between the December 11, 2017 court appearance and the filing of the COR on December 19, 2017 (see People v Stirrup, 91 NY2d 434, 440 [1998]).

Accordingly, the court concludes that 87 days are chargeable to the People pursuant to [*3]CPL 30.30 and denies defendant's motion to dismiss the accusatory instrument pursuant to CPL 30.30.

[2] Defendant also moves to dismiss the Vehicle and Traffic Law § 1192 (1) charge, a traffic infraction. Although CPL 30.30 is inapplicable to traffic infractions such as Vehicle and Traffic Law § 1192 (1), the defendant is nevertheless entitled to a speedy trial in accordance with the United States and New York State Constitutions and CPL 30.20 (People v Taranovich, 37 NY2d 442, 444 [1975]). To determine whether dismissal is warranted pursuant to CPL 30.20, the court must weigh 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;{**59 Misc 3d at 426} and (5) whether or not there is any indication that the defense has been impaired by reason of the delay (id. at 445-446). Consideration of these factors militates against dismissal: although the case is 13 months old, the People are responsible for approximately three months of delay; defendant is not incarcerated; and defendant does not allege that her defense has been impaired (People v Polite, 16 Misc 3d 18, 19 [App Term, 1st Dept 2007] [18-month delay for traffic infraction due largely to court congestion and motion practice did not violate defendant's right to speedy trial]).

Accordingly, it is ordered that the defendant's motion to dismiss the accusatory instrument pursuant to CPL 30.30 and 30.20, on the grounds that her statutory and constitutional right to a speedy trial has been violated, is denied.