People v. McKiver

24 Misc. 3d 78, 886 N.Y.S.2d 790

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 22, 2009
• Status: Published

Opinion

OPINION OF THE COURT

Memorandum.

Order reversed, on the law, accusatory instrument reinstated and matter remitted to the Criminal Court for all further proceedings.

Defendant was charged in an accusatory instrument with assault in the third degree (Penal Law § 120.00 [1]), endangering the welfare of a child (Penal Law § 260.10 [1]), attempted assault in the third degree (Penal Law §§ 110.00, 120.00 [1]) and harassment in the second degree (Penal Law § 240.26 [1]). On March 13, 2008 the Criminal Court sua sponte dismissed the accusatory instrument based on speedy trial grounds (see CPL 30.30 [1] [b]).

A motion to dismiss “must be made in writing and upon reasonable notice to the [P'leople” (CPL 210.45 [emphasis added]). While the People were put on notice that the court was contemplating dismissal of the accusatory instrument based on CPL 30.30 (see CPL 170.45, 210.45; People v Alston, 191 AD2d 176 [1993]), they expressly objected to a dismissal based on said ground, asserting that there was no written motion before the court. Therefore, contrary to defendant’s contention, the People did not waive the procedural requirement that the motion be made in writing (cf. People v Jennings, 69 NY2d 103 [1986]; People v Singleton, 42 NY2d 466 [1977]; People v Cook, 193 AD2d 366, 369 [1993]), and the Criminal Court improperly sua sponte dismissed the accusatory instrument. Accordingly, the order is reversed, the accusatory instrument reinstated and the matter remitted to the Criminal Court for all further proceedings.

Pesce, PJ., Golia and Steinhardt, JJ., concur.