People v. Stanback

Appellate Division of the Supreme Court of New York

People v. Stanback

2017 NY Slip Op 2828, 149 A.D.3d 876, 51 N.Y.S.3d 200

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 12, 2017

Docket2015-12138

StatusPublished

Cited by2 cases

This text of 2017 NY Slip Op 2828 (People v. Stanback) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Stanback, 2017 NY Slip Op 2828, 149 A.D.3d 876, 51 N.Y.S.3d 200 (N.Y. Ct. App. 2017).

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Opinion

Appeal by the People, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Gary, J.), dated October 23, 2015, as granted, in the interest of justice, that branch of the defendant’s oral motion which was to dismiss count one of the indictment, charging attempted murder in the second degree.

Ordered that the order is reversed insofar as appealed from, on the law, that branch of the defendant’s oral motion which *877 was to dismiss count one of the indictment, charging attempted murder in the second degree, is denied, without prejudice to renewal, that count of the indictment is reinstated, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent herewith before a different Justice.

A motion by a defendant to dismiss an indictment must be made in writing and upon reasonable notice to the People (see CPL 210.45 [1]). Here, the Supreme Court erred in dismissing, in the interest of justice, count one of the indictment, charging attempted murder in the second degree, upon the defendant’s oral motion, without a full development of the issues, due consideration of the statutory factors (see CPL 210.40 [1]), or an adequate opportunity for the People to contest the specific grounds asserted for dismissal (see CPL 210.40 [1] [a] - [j]; People v Jack, 117 AD2d 753, 753-754 [1986]; People v Vega, 80 AD2d 867 [1981]; People v Clayton, 41 AD2d 204, 206 [1973]). Accordingly, if the defendant properly moves in writing, the Supreme Court shall determine such motion pursuant to the procedure set forth in CPL 210.45.

The defendant’s alternative argument for affirmance is unpreserved for appellate review (see People v Alfaro, 66 NY2d 985, 987 [1985]; People v Ariza, 77 AD3d 844 [2010]; People v McGee, 110 AD2d 719, 719-720 [1985]) and, in any event, not reviewable on the People’s appeal (see CPL 470.15; People v Goodfriend, 64 NY2d 695, 697 [1984]; People v Byrd, 96 AD3d 962, 964 [2012]).

Dillon, J.P., Balkin, Austin and Connolly, JJ., concur.

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Appeal by the People, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Gary, J.), dated October 23, 2015, as granted, in the interest of justice, that branch of the defendant’s oral motion which was to dismiss count one of the indictment, charging attempted murder in the second degree.

Ordered that the order is reversed insofar as appealed from, on the law, that branch of the defendant’s oral motion which *877 was to dismiss count one of the indictment, charging attempted murder in the second degree, is denied, without prejudice to renewal, that count of the indictment is reinstated, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent herewith before a different Justice.

A motion by a defendant to dismiss an indictment must be made in writing and upon reasonable notice to the People (see CPL 210.45 [1]). Here, the Supreme Court erred in dismissing, in the interest of justice, count one of the indictment, charging attempted murder in the second degree, upon the defendant’s oral motion, without a full development of the issues, due consideration of the statutory factors (see CPL 210.40 [1]), or an adequate opportunity for the People to contest the specific grounds asserted for dismissal (see CPL 210.40 [1] [a] - [j]; People v Jack, 117 AD2d 753, 753-754 [1986]; People v Vega, 80 AD2d 867 [1981]; People v Clayton, 41 AD2d 204, 206 [1973]). Accordingly, if the defendant properly moves in writing, the Supreme Court shall determine such motion pursuant to the procedure set forth in CPL 210.45.

The defendant’s alternative argument for affirmance is unpreserved for appellate review (see People v Alfaro, 66 NY2d 985, 987 [1985]; People v Ariza, 77 AD3d 844 [2010]; People v McGee, 110 AD2d 719, 719-720 [1985]) and, in any event, not reviewable on the People’s appeal (see CPL 470.15; People v Goodfriend, 64 NY2d 695, 697 [1984]; People v Byrd, 96 AD3d 962, 964 [2012]).

Dillon, J.P., Balkin, Austin and Connolly, JJ., concur.

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2017 NY Slip Op 2828, 149 A.D.3d 876, 51 N.Y.S.3d 200, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-stanback-nyappdiv-2017.

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