People v. Channer

209 A.D.2d 1056, 619 N.Y.S.2d 1013

Opinion

—Case held, decision reserved and matter remitted to Niagara County Court for further proceedings in accordance with the following Memorandum: County Court erred in denying defendant’s motion to dismiss the indictment (see, CPL 30.30 [1] [a]) without conducting a hearing. The criminal proceeding commenced with the filing of the felony information on January 30, 1992 (see, CPL 1.20 [16]). In her moving papers, defendant alleged an unexcused delay of over 13 months, and the motion should have been granted unless the People controverted the factual basis for the motion (see, People v Santos, 68 NY2d 859, 861). The court, however, summarily denied the motion before the People responded. The People, therefore, had no opportunity to show that any portion of the delay should be excluded (see, People v Wiggins, 194 AD2d 840, 842; People v Johnson, 184 AD2d 862, 864). Therefore, we reserve decision and remit the matter for a hearing to resolve the factual issues raised by defendant’s motion to dismiss the indictment pursuant to CPL 30.30 (see, People v Reinhardt, 193 AD2d 1122, 1123; People v Davis, 184 AD2d 575, 578; People v Grant, 127 AD2d 965). (Appeal from Judgment of Niagara County Court, Hannigan, J.—Criminal Possession Stolen Property, 4th Degree.) Present—Denman, P. J., Green, Balio, Callahan and Boehm, JJ.