People v. Graham

135 A.D.2d 1115, 523 N.Y.S.2d 991, 1987 N.Y. App. Div. LEXIS 52975

Opinion

— Order unanimously reversed on the law, motion denied and indictment reinstated. Memorandum: The court erred in granting defendant’s oral motion to dismiss the indictment. "A motion to dismiss an indictment pursuant to CPL 210.20 must be made in writing and upon reasonable notice to the people” (CPL 210.45 [1]; People v De Rosa, 42 NY2d 872; People v Jack, 117 AD2d 753). Here, the prosecutor did not waive his right to have the motion made on papers, and with notice (cf., People v Lebensfeld, 82 AD2d 925) but, instead, asserted that one of the grounds upon which he opposed the motion was the failure of defendant to make the motion on papers. (Appeal from order of Erie County Court, Monserate, J. — dismiss indictment.) Present— Doerr, J. P., Denman, Boomer, Green and Balio, JJ.