Appeal from an order of the Criminal Court of the City of New York, Kings County (Matthew A. Sciarrino, J.), dated December 20, 2005. The order, insofar as appealed from, dismissed the charge of driving while ability impaired on the ground that the People violated defendant's constitutional right to a speedy trial.

Order, insofar as appealed from, reversed on the law, information reinstated to the extent that it charged defendant with driving while ability impaired, and matter remanded to the court below for all further proceedings.

Defendant was charged in an information with driving while intoxicated (Vehicle and Traffic Law § 1192 [3]), a misdemeanor, and driving while ability impaired (Vehicle and Traffic Law § 1192 [1]), a traffic infraction. He subsequently moved to dismiss the information pursuant to CPL 30.30 (1) (b) on the ground that he was denied his statutory right to a speedy trial. The court granted defendant's motion to dismiss the charge of driving while intoxicated pursuant to CPL 30.30 and, sua sponte, dismissed the charge of driving while ability impaired on the ground that defendant's constitutional right to a speedy trial was violated (CPL 30.20). The People appeal from so much of the order as dismissed the charge of driving while ability impaired.

It is well settled that CPL 30.30 does not apply to traffic infractions (see People v Gordon, 2 Misc 3d 134[A], 2004 NY Slip Op 50190[U] [App Term, 9th & 10th Jud Dists]; People v Taylor, 189 Misc 2d 313 [App Term, 9th & 10th Jud Dists 2001]). Although a defendant charged with a traffic infraction has a constitutional right to a speedy trial pursuant to [*2]CPL 30.20 (see People v Gordon, 2 Misc 3d 134[A], 2004 NY Slip Op 50190[U], supra), in the instant case, defendant's motion to dismiss did not address this issue. Inasmuch as the People were not put on notice that the court was contemplating dismissal of the information based on CPL 30.20 and were not afforded an opportunity to respond to this issue, the lower court improperly dismissed the charge of driving while ability impaired based on said ground (see CPL 170.45, 210.45; People v Alston, 191 AD2d 176 [1993]; People v Clayton, 41 AD2d 204 [1973]; People v Striefler, 2003 NY Slip Op 50937[U] [App Term, 9th & 10th Jud Dists]). Accordingly, the order, insofar as appealed from, should be reversed, the charge of driving while ability impaired reinstated and the matter remanded to the court below for all further proceedings.

Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: May 21, 2007