People v. D'Antuono

245 A.D.2d 1108, 666 N.Y.S.2d 93, 1997 N.Y. App. Div. LEXIS 13905

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 31, 1997
• Status: Published

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 pursuant to CPL 30.30 without conducting a hearing. There are factual issues raised in the motion papers whether the People exercised due diligence and made reasonable efforts to secure defendant’s presence in the jurisdiction for trial. Thus, a hearing must be held to determine whether the People are entitled to exclude certain periods of delay in computing the time in which they were required to be ready for trial under CPL 30.30 (1) (a) (see, People v Santos, 68 NY2d 859, 861-862; People v Channer, 209 AD2d 1056; People v Grant, 127 AD2d 965). Therefore, we reserve decision and remit the matter to Niagara County Court for a hearing to resolve the factual issues raised by defendant’s motion to dismiss the indictment (see, People v Channer, supra; People v Grant, supra). (Appeal from Judgment of Niagara County Court, Hannigan, J.—Robbery, 1st Degree.) Present—Denman, P. J., Green, Callahan, Balio and Fallon, JJ.