(dissenting and voting to affirm the order in the following memorandum). While there can be no dispute that a district attorney has the authority to delegate prosecutorial powers, I find that the use of that power in this case has resulted in disparate treatment contrary to the Equal Protection Clause of the United States Constitution. Accordingly, I respectfully dissent and would affirm the order granting defendant’s motion to dismiss the simplified traffic information.
The Fourteenth Amendment to the United States Constitution provides:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person -within its jurisdiction the equal protection of the laws.”
Where, as here, the disparate treatment does not implicate a suspect classification or a fundamental right, the court must apply the rational basis test, which provides that a challenged classification must be upheld if it is rationally related to the achievement of a legitimate governmental interest (see Osborn Mem. Home Assn. v Chassin, 100 NY2d 544 [2003]; Trump v Chu, 65 NY2d 20 [1985]). The majority correctly recognizes that there is no constitutional right to a plea bargain (Weatherford v Bursey, 429 US 545 [1977]), and that the no-plea-bargaining policy of the New York State Police (NYSP) is rationally related to the legitimate governmental interest in preventing the appearance of unfairness which inheres when a motorist is forced to plea bargain with the issuing officer. However, it is the delegation of prosecutorial authority, rather than the policy itself, which presents a problem.
In the underlying decision, the Justice Court stated in relevant part that
“[i]t is clear in this speeding prosecution that the State Police’s no-plea-bargaining policy precludes the complainant officer from exercising the necessary prosecutorial discretion to do justice, not merely to secure a conviction. Given the unblem*83ished driving record of the defendant and the absence of any aggravating factors in this case, this offends a ‘sense of justice’ . . . It is this court’s view that a conflict arises when the District Attorney, in accordance with the County Law he is sworn to uphold has appropriately delegated prosecutorial authority to complainant officer who then operates under an internal agency’s policy that precludes him or her from acting foremost to discharge his or her prosecutorial responsibility to do justice.”
The no-plea-bargaining policy should prevent the District Attorney from delegating prosecutorial powers to the NYSP because it precludes the officers from exercising the discretion which all other prosecutors under similar circumstances possess. As a result of the no-plea-bargaining policy, motorists in the same court, before the same judge, for the same traffic violation, are being treated differently depending on whether the ticket was issued by a NYSP officer or some local police officer. Here, the People have failed to articulate a rational basis for the delegation of prosecutorial authority to the NYSP which leads to the disparate treatment of otherwise similarly situated citizens. As noted by the majority, the recent Appellate Division, Second Department, decision in Matter of People v Christensen (77 AD3d 174 [2d Dept 2010]) did not address the equal protection argument. Therefore, I would treat defendant’s motion as having been brought under CPL 170.30 (1) (f), seeking to dismiss the simplified traffic information on the ground that there exists a legal impediment to conviction, and find that the delegation violates the Equal Protection Clause. Accordingly, I vote to affirm the dismissal of the simplified traffic information.
Nicolai, PJ., and LaCava, J., concur; Iannacci, J., dissents in a separate memorandum.