People v. Herrara

173 A.D.2d 850

Opinion

Purported appeal by the People from a decision of the Supreme Court, Queens County (Friedmann, J.), dated January 26, 1989, which directed that Queens County Indictment No. 7521/87 be dismissed.

Ordered that the appeal is held in abeyance, and unless the Supreme Court makes a written order on its decision dated January 26, 1989, within 10 days from the date of this decision and order, the People may commence a proceeding pursuant to CPLR article 78 to compel it to do so; in the event that the court refuses to make an order in accordance herewith, and the People fail to commence a proceeding within 30 days of the date hereof, then the respondent may move to dismiss the appeal.

Justice William D. Friedmann, sitting in the Supreme Court, issued a decision from the bench which he clearly intended to have the force of an order, and which the parties are treating as an order. However, Justice Friedmann refused to sign a written order for motives which are best known only to him. Since the present appeal must be dismissed unless a written order is issued (see, e.g., People v Newton, 71 AD2d 1066), and since the appeal is clearly meritorious (see, People v Moore, 158 AD2d 721; People v Sullivan, 142 AD2d 695; People v Cileli, 137 AD2d 829), and since Justice Friedmann’s duty to sign an order is unquestionable, the People may bring an appropriate CPLR article 78 proceeding in this court to compel Justice Friedmann to sign an order conforming to the terms of his decision dismissing the indictment (see, CPLR 7804 [b]; 506 [b] [1]; see also, Matter of Grisi v Shainswit, 119 AD2d 418). Bracken, J. P., Fiber, Miller and Ritter, JJ., concur.