People v. Mitchell

84 A.D.2d 822, 444 N.Y.S.2d 118, 1981 N.Y. App. Div. LEXIS 16040

Opinion

Appeal by the People from an order of the Supreme Court, Richmond County (Felig, J.), dated March 10, 1981, which granted the defendant’s motion to dismiss the indictment for failure to prosecute. Order reversed, on the law, and case remitted to Criminal Term for further proceedings consistent herewith. Criminal Term erred in summarily granting the defendant’s motion to dismiss the indictment for failure to prosecute. The prosecution claims that during most of the preindictment period, the defendant could not be located, despite diligent efforts by the police. This claim, if substantiated, would constitute good cause for the prosecution’s delay in obtaining an indictment (see People v Staley, 41 NY2d 789; People v Best, 83 AD2d 881). A hearing is required to determine whether the police, in fact, exercised due diligence in their efforts to locate the defendant. Hopkins, J. P., Damiani, Titone and Rabin, JJ., concur.