People v. Jayson
| Citation | 295 N.Y.S.2d 378,31 A.D.2d 551 |
| Parties | The PEOPLE, etc., Appellant, v. Frank JAYSON, Respondent. |
| Decision Date | 25 November 1968 |
| Court | New York Supreme Court — Appellate Division |
Aaron E. Koota, Dist. Atty., Kings County, for appellant; Harold M. Brown, Asst. Dist. Atty., of counsel.
Kleinman, Gold & Landsman, Brooklyn, for defendant-respondent.
Before BELDOCK, P.J., and CHRIST, BRENNAN, RABIN and BENJAMIN, JJ.
MEMORANDUM BY THE COURT.
The People appeal from an alleged order of the Supreme Court, Kings County, dated October 27, 1966, which dismissed the indictment against defendant; and, pursuant to leave of this court, renewed motion by defendant to dismiss the appeal as untimely.
It appears that after the case had been on the calendar on many occasions and adjourned repeatedly, but in only one instance at the request of the District Attorney, it was set down for trial by the Trial Court peremptorily against the People, for September 19, 1966. On that day the District Attorney refused to move the case for trial and requested an adjournment on the ground that two material witnesses could not be located and one was believed to be in Puerto Rico. After considerable discussion and argument, the Court granted defendant's motion to dismiss the indictment 'in the interest of justice.' On October 27, 1966 the People allegedly entered an order on that determination which granted 'the oral motion to dismiss the indictment for lack of prosecution.' A notice of appeal from such order was served and filed by the People on November 21, 1966. Subsequently, it developed that the original of that order could not be found; nor was there a note of its entry in the Clerk's records. Thereafter, on October 17, 1968, an order was made Nunc pro tunc as of October 27, 1966, dismissing the indictment 'upon the grounds set forth in the minutes of the hearing of September 19, 1966 * * *.'
Orders dated October 27, 1966 and October 17, 1968 reversed, on the law and the facts, motion to dismiss indictment denied, and indictment reinstated. Motion to dismiss appeal denied.
We are of the opinion that a trial court, on its own motion, has power under section 671 of the Code of Criminal Procedure to dismiss an indictment in the interests of justice, where the trial has been unduly delayed by the District Attorney. However, that section is inapplicable here, where the dismissal was not on motion of the Court or the District Attorney and no written statement of the reasons for the dismissal was made by the Court and filed as a public record (cf. People v. Glen, 173 N.Y. 395, 66 N.E....
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State v. Smith
...to dismiss an indictment in the interests of justice, where the trial has been unduly delayed by the District Attorney." 31 A.D.2d 551, 295 N.Y.S.2d 378, 379 (1968). In Brown v. Town of Henrietta , the trial court dismissed a case in the furtherance of justice where the compelling factor wa......
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People v. Shanis
...35, 249 N.Y.S. 425 (1931); People v. Schmetterer, 50 N.Y.S.2d 297 (1944); see also McDonald v. Sobel, supra; People v. Jayson, 31 A.D.2d 551, 295 N.Y.S.2d 378 (2d Dept., 1968); People v. Campbell, 48 Misc.2d 798, 267 N.Y.S.2d 5 (1966); cf. Negro v. Dickins, 22 A.D.2d 406, 255 N.Y.S.2d 804 (......
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People v. Graydon
...courts of this state have held that there may be dismissals in the interest of justice pursuant to CCP § 671: People v. Jayson, 31 A.D.2d 551, 295 N.Y.S.2d 378 (trial delay by the District Attorney); People v. Campbell, 48 Misc.2d 798, 267 N.Y.S.2d 5 (where the complainant two months shy of......
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People v. Baker
...a notice of appeal on the same day that the order appealed from was entered (see, CPL 460.10[1][a]; see generally, People v. Jayson, 31 A.D.2d 551, 295 N.Y.S.2d 378; People v. Mullins, 103 A.D.2d 994, 479 N.Y.S.2d 820). The defendant's reliance upon People v. Coaye, 68 N.Y.2d 857, 508 N.Y.S......