People v. Pichkur
| Decision Date | 03 May 1976 |
| Citation | 382 N.Y.S.2d 565,52 A.D.2d 852 |
| Parties | The PEOPLE, etc., Appellant, v. Samuel PICHKUR et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Eugene Gold, Dist. Atty., Brooklyn (Alan D. Rubinstein, Brooklyn, of counsel), for appellant.
Evseroff & Sonenshine, Brooklyn, for respondent Pichkur; Jeffrey A. Rabin, Brooklyn, for respondent Esposito; and Lewis D. Cohen, Brooklyn, for respondent Vitkus (Jeffrey A. Rabin, Brooklyn, of counsel) (one brief).
Before MARTUSCELLO, Acting P.J., and RABIN, SHAPIRO, TITONE and HAWKINS, JJ.
MEMORANDUM BY THE COURT.
Appeal by the People from an order of the Supreme Court, Kings County, dated April 8, 1975, which, upon the court's own motion, dismissed the indictment (No. 5160/72) for failure to prosecute.
Order reversed, on the law, and indictment reinstated, without prejudice to defendants' right to move to dismiss the indictment pursuant to CPL 210.20. No findings of fact have been considered.
A motion to dismiss an indictment must be made in writing and upon reasonable notice to the People (CPL 210.45, subd. 1; People v. Trottie, 47 A.D.2d 751, 364 N.Y.S.2d 563; People v. Ryan, 42 A.D.2d 869, 347 N.Y.S.2d 216). It requires a hearing, at which time the court can determine whether there are any compelling factors necessitating a dismissal in the interest of justice and can adequately set forth its reasons therefor on the record (see People v. Trottie, supra). The procedural requirements of CPL 210.45 must be adhered to even when consideration of the dismissal is upon the court's own motion (People v. Kwok Ming Chan, 45 A.D.2d 613, 360 N.Y.S.2d 425; People v. Clayton, 41 A.D.2d 204, 342 N.Y.S.2d 106). The failure to comply with these requirements constituted reversible error (see People v. Trottie, supra).
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