People v. Elmer
| Decision Date | 19 May 2011 |
| Citation | 2011 N.Y. Slip Op. 04123,922 N.Y.S.2d 663,84 A.D.3d 1593 |
| Parties | The PEOPLE of the State of New York, Appellant,v.Carol ELMER, Respondent. |
| Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HERE
Nicole M. Duve, District Attorney, Canton (Victoria M. Esposito of counsel), for appellant.Richard V. Manning, Parishville, for respondent.Before: MERCURE, J.P., ROSE, MALONE JR., STEIN and EGAN JR., JJ.
MALONE JR., J.
Appeal from a decision of the County Court of St. Lawrence County (Richards, J.), dated May 4, 2010, which partially granted defendant's motion to dismiss the indictment.
On June 2, 2009, defendant was charged by indictment with 37 counts of overdriving, torturing and injuring an animal in violation of Agriculture and Markets Law § 353 by allegedly failing to provide proper sustenance to horses in her custody. The first 22 counts referred to conditions existing on her property in December 2008, as observed by police as a result of a complaint, and the remaining counts referred to conditions existing on January 8, 2009, as observed by police pursuant to a search warrant. Various motions ensued, including defendant's motion to set aside the search warrant as invalid and to suppress all of the evidence discovered as a result thereof. County Court ordered a hearing on the suppression issue, which was adjourned several times, prompting defendant to eventually move to dismiss the indictment on statutory speedy trial grounds in May 2010. Following written submissions, oral argument and some testimony, County Court issued an oral decision from the bench granting the motion to dismiss with respect to the first 22 counts of the indictment. The People appeal.
CPL 450.20 permits the People to appeal from “[a]n order dismissing an accusatory instrument or a count thereof, entered pursuant to [CPL] 170.30, 170.50 or 210.20” (CPL 450.20[1] [emphasis added]; see CPL 460.10 [1][a] ). Here, apparently County Court's oral ruling dismissing the first 22 counts of the indictment was never reduced to a writing and was never entered. Inasmuch as no appeal lies from the oral ruling ( see People v. Holmes, 206 A.D.2d 542, 615 N.Y.S.2d 52 [1994] ), this appeal must be dismissed and the matter is remitted to County Court for the issuance of the required order ( see People v. Peck, 46 A.D.3d 1098, 1099, 847 N.Y.S.2d 734 [2007] ).
ORDERED that the appeal is dismissed, and matter remitted to the County Court of St. Lawrence County for...
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... ... No appeal lies from an oral decision ( cf. People v. Elmer, 84 A.D.3d 1593, 1593, 922 N.Y.S.2d 663 [2011], lv. granted 17 N.Y.3d 903, 933 N.Y.S.2d 658, 957 N.E.2d 1162 [2011]; People v. Herne, 84 A.D.3d 1589, 1590, 922 N.Y.S.2d 827 [2011] ) and, in any event, the denial of counsel's request is not appealable ( see CPL 450.10, 450.15). Notably, we did not ... ...
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