People v. Robbins

207 A.D.2d 565, 616 N.Y.S.2d 256

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Browne, J.), rendered January 29, 1990, convicting him of criminal sale of a controlled substance in the first degree, after a nonjury trial, and imposing sentence.

Ordered that the matter is remitted to the Supreme Court, Queens County, to hear and report on the defendant’s speedy trial motion, and the appeal is held in abeyance in the interim. The Supreme Court, Queens County, is to file its report with all convenient speed.

The defendant contends that he was deprived of his constitutional and statutory rights to a speedy trial because the People took almost two years from the date of his arrest to commence the trial. (The defendant was arrested on December 16,1987, and the trial commenced on November 16, 1989.)

In his motion papers, the defendant alleged the existence of a delay greater than six months, and the People, in opposition to the defendant’s motion, did not provide conclusive proof of sufficient excludable periods. Accordingly, the Supreme Court erred in denying the defendant’s motion to dismiss the indictment without conducting a full hearing (see, People v Klaus, 94 AD2d 748; People v Berkowitz, 50 NY2d 333). Moreover, we note that the record before us is insufficient to enable us to determine whether the prosecution or the defendant requested certain adjournments (see, People v Manescala, 138 AD2d 633). Lawrence, J. P., O’Brien, Copertino and Friedmann, JJ., concur.