People v. Greene

115 A.D.2d 223, 496 N.Y.S.2d 722, 1985 N.Y. App. Div. LEXIS 54467

Opinion

Case held, decision reserved and matter remitted to Supreme Court, Erie County, for further proceedings, in accordance with the following memorandum: The People claim on appeal that the hearing court erred in summarily granting defendant’s motion to dismiss the indictment for denial of his right to a speedy trial. The record is devoid of any findings or conclusions which formed the basis for the granting of defendant’s motion. We remit for a hearing (CPL 210.45 [6]; see, People v Berkowitz, 50 NY2d 333, 349) and for findings of fact with respect to defendant’s claims under CPL 30.30 (statutory ready for trial rule) and 30.20 (constitutional right to a speedy trial). A fact issue exists as to whether the People exercised due diligence in attempting to locate defendant, thereby entitling them to exclude that period, under CPL 30.30 (4) (c) (People v Mitchell, 84 AD2d 822). As to defendant’s CPL 30.20 claim, the court’s findings should include consideration of the factors set forth in People v Taranovich (37 NY2d 442, 445). (Appeal from order of Supreme Court, Erie County, Francis, J.—dismiss indictment.) Present—Dillon, P. J., Callahan, Denman, Boomer and Pine, JJ.