People v. Alston

126 A.D.2d 731, 511 N.Y.S.2d 133, 1987 N.Y. App. Div. LEXIS 41877

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 26, 1987
• Status: Published

Opinion

Appeal by the People from an order of the Supreme Court, Queens County (Pitaro, J.), dated June 13, 1985, which, after a hearing, granted that branch of the defendant’s omnibus motion which was to dismiss the indictment pursuant to CPL 30.30 (1) (a).

Ordered that the order is affirmed.

The defendant’s moving papers contained sworn allegations of all the facts essential to support that branch of her motion which sought to dismiss the indictment pursuant to CPL 30.30 (1) (a). The People conceded these allegations of fact by totally failing to respond to them in their papers submitted in opposition to the defendant’s omnibus motion (see, People v Gruden, 42 NY2d 214). Thus the court was required to summarily grant that branch of the defendant’s motion and dismiss the indictment (see, CPL 210.45 [4]; People v Gruden, supra; People v Gonzalez, 116 AD2d 735; People v Melendez, 92 AD2d 904).

In light of our determination we need not reach the remaining issues raised by the People on appeal. Niehoff, J. P., Kunzeman, Kooper and Sullivan, JJ., concur.