People v. James

146 A.D.2d 647, 536 N.Y.S.2d 853, 1989 N.Y. App. Div. LEXIS 441

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 17, 1989
• Status: Published

Opinion

— Appeal by the defendant from a judgment of the Supreme Court, Kings County (Broomer, J.), rendered February 6, 1985, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the case is remitted to the Supreme Court, Kings County, to hear and report on the defendant’s motion to dismiss the indictment on the ground that he was deprived of his right to a speedy trial (see, CPL 30.20, 30.30), and the appeal is held in abeyance in the interim. The Supreme Court is to file its report with all convenient speed.

It was error for the court to deny as moot the defendant’s motion to dismiss the indictment on the ground that he had been deprived of his right to a speedy trial. The fact that on the date of the court’s decision, the People were then ready to go to trial did not render the speedy trial issue moot. Moreover, contrary to the People’s appellate contention, we do not find that the defendant conceded the factual assertions in the People’s affirmation in opposition to the defendant’s motion (cf., People v Walters, 127 AD2d 870, lv denied 69 NY2d 956). Accordingly, the matter is remitted to the Supreme Court to hear and report on the issue of whether the defendant was deprived of his right to a speedy trial (see, CPL 30.20, 30.30).

We pass upon no other issue at this juncture. Brown, J. P., Lawrence, Kooper and Spatt, JJ., concur.