People v. Lush

Appellate Division of the Supreme Court of New York

People v. Lush

234 A.D.2d 991, 652 N.Y.S.2d 188, 1996 N.Y. App. Div. LEXIS 13777

Appellate Division of the Supreme Court of the State of New York·Decided December 30, 1996·Published·Cited by 4 cases

Opinion

—Case held, decision reserved and matter remitted to Ontario County Court for further proceedings in accordance with the following Memorandum: County Court erred in denying defendant’s motion to dismiss the indictment without first conducting a hearing to determine whether defendant was denied due process of law by preindictment delay (see, People v Lesiuk, 81 NY2d 485, 490; People v Fuller, 57 NY2d 152, 159; People v Vasquez, 79 AD2d 621; People v Marshall, 72 AD2d 799, 800). Under the circumstances of this case, a hearing must be conducted to determine whether the 14-month delay in arresting and indicting defendant was unreasonable or was " 'a determination made in good faith to defer commencement of the prosecution for further investigation or for other sufficient reasons’ ” (People v Lesiuk, supra, at 490, quoting People v Singer, 44 NY2d 241, 254). (Appeal from Judgment of Ontario County Court, Henry, Jr., J.— Criminal Sale Controlled Substance, 3rd Degree.) Present— Lawton, J. P., Fallon, Doerr, Balio and Boehm, JJ.

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—Case held, decision reserved and matter remitted to Ontario County Court for further proceedings in accordance with the following Memorandum: County Court erred in denying defendant’s motion to dismiss the indictment without first conducting a hearing to determine whether defendant was denied due process of law by preindictment delay (see, People v Lesiuk, 81 NY2d 485, 490; People v Fuller, 57 NY2d 152, 159; People v Vasquez, 79 AD2d 621; People v Marshall, 72 AD2d 799, 800). Under the circumstances of this case, a hearing must be conducted to determine whether the 14-month delay in arresting and indicting defendant was unreasonable or was " 'a determination made in good faith to defer commencement of the prosecution for further investigation or for other sufficient reasons’ ” (People v Lesiuk, supra, at 490, quoting People v Singer, 44 NY2d 241, 254). (Appeal from Judgment of Ontario County Court, Henry, Jr., J.— Criminal Sale Controlled Substance, 3rd Degree.) Present— Lawton, J. P., Fallon, Doerr, Balio and Boehm, JJ.

People v. Lush, 234 A.D.2d 991, 652 N.Y.S.2d 188, 1996 N.Y. App. Div. LEXIS 13777 (N.Y. Ct. App. 1996).

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Opinion

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