Appeal from an order of the Justice Court of the Town of Southampton, Suffolk County (Thomas J. DeMayo, J.), dated December 11, 2008. The order granted defendant's motion to dismiss the accusatory instruments on the ground that defendant was denied his right to a speedy trial.

ORDERED that the order is modified, on the law and the facts, by providing that defendant's motion to dismiss the accusatory instruments pursuant to CPL 30.30 (1) (b) is granted only to the extent of dismissing the accusatory instrument charging defendant with operating a motor vehicle with a suspended registration (Vehicle and Traffic Law § 512) and by reinstating the remaining accusatory instruments; as so modified, the order is affirmed.

In four accusatory instruments, defendant was charged with driving while intoxicated (Vehicle and Traffic Law § 1192 [3]), driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2]), operating a motor vehicle with a suspended
registration (Vehicle and Traffic Law § 512) and operating an uninspected motor vehicle (Vehicle and Traffic Law § 306 [b]), respectively. Defendant moved to dismiss the accusatory instruments on the ground that he was denied his statutory right to a speedy trial (CPL 30.30 [1]). The Justice Court granted defendant's motion and dismissed the accusatory instruments, finding 152 days chargeable to the People. The instant appeal by the People ensued.

Since defendant was charged in separate accusatory instruments with two misdemeanors punishable by a sentence of imprisonment of more than three months (Vehicle and Traffic Law § 1192 [2], [3]), the People were required to be ready for trial within 90 days of the commencement of these actions (CPL 30.30 [1] [b]). The People were required to be ready for trial within 60 days of the commencement of the action on the third instrument (CPL 30.30 [1] [c]), charging defendant with operating a motor vehicle with a suspended registration, as said [*2]charge was punishable by a sentence of imprisonment of no more than three months (Vehicle and Traffic Law § 512; see People v St. Louis, 41 AD3d 897 [2007]).

The actions were commenced on September 3, 2007, the date on which the accusatory instruments were filed (CPL 1.20 [17]; People v Lomax, 50 NY2d 351 [1980]). On that same day, defendant was arraigned. While there are no minutes of the arraignment, on the next adjourned date of September 5, 2007, the court conducted a hearing to determine if defendant should be granted a conditional license. Since the adjournment from September 3 to September 5 was for a pre-trial hearing, it was not chargeable to the People (see CPL 30.30 [4] [a]; People v Ailes, 268 AD2d 370 [2000]).

The next three adjournments, covering the period from September 5, 2007 to February 4, 2008, were all made at defendant's request. As a result, said adjournments were not chargeable to the People (see CPL 30.30 [4] [b]). While the People argue that the adjournment from February 4, 2008 to April 1, 2008 was also made at defendant's request and should not be charged to them, there are no minutes in the record from February 4, 2008 and, as a result, there is no way to determine to whom said 57-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 57-day period from February 4, 2008 to April 1, 2008 is excludable, it must be charged to them.

We find that the next adjournment, from April 1, 2008 to April 29, 2008 for the People to provide discovery, was chargeable to the People. CPL 30.30 (4) (a) provides that "a reasonable period of delay resulting from [discovery]" (emphasis added) should be excluded when calculating the time period within which the People must be ready for trial (see also People v Dorilas, 19 Misc 3d 75 [App Term, 2d & 11th Jud Dists 2008]). Since defendant served the People with a discovery demand on September 6, 2007 and the People did not provide the requested discovery until April 29, 2008, the adjournment from April 1, 2008 to April 29, 2008 was not "a reasonable period of delay," and, thus, said 28-day period should be charged to the People.

The last adjournment, from April 29, 2008 to June 24, 2008, was made at the request of defendant. Consequently, said adjournment was not chargeable to the People (see CPL 30.30 [4] [b]).

In view of the foregoing, we conclude that the Justice Court improperly granted defendant's motion with respect to the charges of driving while intoxicated (Vehicle and Traffic Law § 1192 [3]) and driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2]), as the People were chargeable with only 85 days, and with respect to the charge of operating an uninspected motor vehicle (Vehicle and Traffic Law § 306 [b]), as CPL 30.30 does not apply to traffic infractions (see People v Ferreira, 22 Misc 3d 32 [App Term, 2d & 11th Jud Dists 2008]; People v Gordon, 2 Misc 3d 134[A], 2004 NY Slip Op 50190[U] [App Term, 9th & 10th Jud Dists 2004]). [*3]

Accordingly, the order granting defendant's motion to dismiss the accusatory instruments on the ground that defendant was denied his right to a speedy trial (CPL 30.30 [1] [b]) is modified by providing that defendant's motion to dismiss the accusatory instruments is granted only to the extent of dismissing the accusatory instrument charging defendant with operating a motor vehicle with a suspended registration (Vehicle and Traffic Law § 512) and by reinstating the remaining accusatory instruments.

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