People v. Jack

CourtNew York Supreme Court Appellate Division
Citation117 A.D.2d 753,498 N.Y.S.2d 741
Decision Date18 February 1986
PartiesThe PEOPLE, etc., Appellant, v. Anthony JACK, Respondent.

Page 741

498 N.Y.S.2d 741
117 A.D.2d 753
The PEOPLE, etc., Appellant,
v.
Anthony JACK, Respondent.
Supreme Court, Appellate Division,
Second Department.
Feb. 18, 1986.

John J. Santucci, Dist. Atty., Kew Gardens (Seymour Roth, of counsel), for appellant.

Philip L. Weinstein, New York City (Nancy Feldman, of counsel), for respondent.

Before MOLLEN, P.J., and GIBBONS, THOMPSON and BROWN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the People from an order of the Supreme Court, Queens County (Browne, J.), dated January 11, 1985, which granted the defendant's oral motion to dismiss the indictment in the interest of justice.

Order reversed, on the law, oral motion denied, indictment reinstated without prejudice to the defendant's right to move to dismiss the indictment upon proper papers, and matter remitted to the Supreme Court, Queens County, for further proceedings. Findings of fact have not been considered.

Pursuant to CPL 210.45(1), a motion by a defendant to dismiss an indictment in the interest of justice must be made in writing and upon reasonable notice to the People. We have repeatedly held that it constitutes reversible error to grant such a motion upon oral application (see, People v. Banks, 93 A.D.2d 893, 461 N.Y.S.2d 401; People v. Ray, 58 A.D.2d 588, 395 N.Y.S.2d 105; People v. Orr, 53 A.D.2d 634, 384 N.Y.S.2d 478; People v. Pichkur, 52 A.D.2d 852, 382 N.Y.S.2d 565).

Page 742

We find unpersuasive the defendant's argument that the instant indictment was dismissed upon the court's own motion. This contention is in direct conflict with the court's written order which recites that the dismissal was granted upon "motion of the defendant". In addition, the minutes of the argument before the court reveal that the defendant moved orally to dismiss the indictment, erroneously advised the court that an oral motion was sufficient, and presented the court with factors and argument in support of his motion. The court treated the motion as one by the defendant and dismissed the indictment over the People's objection that the defendant had failed to give notice as required by CPL 210.45(1).

The defendant cannot bypass the statutory notice requirements, as he attempted to do here, by simply requesting the trial court "on its own motion to dismiss the case". We reject his contention that the indictment was dismissed, sua sponte. In any event, even a sua sponte dismissal must comport with the requirements of reasonable and specific notice to the...

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6 practice notes
  • People v. Sullivan
    • United States
    • New York Supreme Court — Appellate Division
    • July 18, 1988
    ...of the issues and an adequate opportunity for the People to contest the specific grounds asserted for dismissal' " ( see, People v. Jack, 117 A.D.2d 753, 753-754, 498 N.Y.S.2d 741, quoting from People v. Vega, 80 A.D.2d 867, 436 N.Y.S.2d 748; see also, People v. Ramos, 94 A.D.2d 708, 462 N.......
  • People v. Knight
    • United States
    • New York Supreme Court — Appellate Term
    • November 16, 2017
    ...149 A.D.3d 876, 877, 51 N.Y.S.3d 200 [2017] ; People v. Dunlap, 216 A.D.2d 215, 216–217, 629 N.Y.S.2d 407 [1995] ; People v. Jack, 117 A.D.2d 753, 753–754, 498 N.Y.S.2d 741 [1986] ; People v. Morisseau, 19 Misc.3d 59, 60, 860 N.Y.S.2d 793 [App. Term, 2d Dept., 2d & 11th Jud. Dists. 2008] ),......
  • People v. McIntosh
    • United States
    • New York Supreme Court Appellate Division
    • November 13, 1990
    ...the proper procedure in dismissing the indictment sua sponte (see, People v. Sullivan, 142 A.D.2d 695, 531 N.Y.S.2d 295; People v. Jack, 117 A.D.2d 753, 498 N.Y.S.2d 741; People v. Vega, supra). Accordingly, the indictment must be We do not consider the defendant's alternative contention th......
  • People v. Stanback
    • United States
    • New York Supreme Court Appellate Division
    • April 12, 2017
    ...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 A.D.2d 753, 753–754, 498 N.Y.S.2d 741 ; People v. Vega, 80 A.D.2d 867, 436 N.Y.S.2d 748 ; People v. Clayton, 41 A.D.2d 204, 206, 342 N.Y.S.2d 106 ). ......
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6 cases
  • People v. Sullivan
    • United States
    • New York Supreme Court — Appellate Division
    • July 18, 1988
    ...of the issues and an adequate opportunity for the People to contest the specific grounds asserted for dismissal' " ( see, People v. Jack, 117 A.D.2d 753, 753-754, 498 N.Y.S.2d 741, quoting from People v. Vega, 80 A.D.2d 867, 436 N.Y.S.2d 748; see also, People v. Ramos, 94 A.D.2d 708, 462 N.......
  • People v. Knight
    • United States
    • New York Supreme Court — Appellate Term
    • November 16, 2017
    ...149 A.D.3d 876, 877, 51 N.Y.S.3d 200 [2017] ; People v. Dunlap, 216 A.D.2d 215, 216–217, 629 N.Y.S.2d 407 [1995] ; People v. Jack, 117 A.D.2d 753, 753–754, 498 N.Y.S.2d 741 [1986] ; People v. Morisseau, 19 Misc.3d 59, 60, 860 N.Y.S.2d 793 [App. Term, 2d Dept., 2d & 11th Jud. Dists. 2008] ),......
  • People v. McIntosh
    • United States
    • New York Supreme Court Appellate Division
    • November 13, 1990
    ...the proper procedure in dismissing the indictment sua sponte (see, People v. Sullivan, 142 A.D.2d 695, 531 N.Y.S.2d 295; People v. Jack, 117 A.D.2d 753, 498 N.Y.S.2d 741; People v. Vega, supra). Accordingly, the indictment must be We do not consider the defendant's alternative contention th......
  • People v. Stanback
    • United States
    • New York Supreme Court Appellate Division
    • April 12, 2017
    ...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 A.D.2d 753, 753–754, 498 N.Y.S.2d 741 ; People v. Vega, 80 A.D.2d 867, 436 N.Y.S.2d 748 ; People v. Clayton, 41 A.D.2d 204, 206, 342 N.Y.S.2d 106 ). ......
  • Request a trial to view additional results

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