People v. Ray

CourtNew York Supreme Court Appellate Division
Writing for the CourtBefore MARTUSCELLO
Citation58 A.D.2d 588,395 N.Y.S.2d 105
Decision Date06 June 1977
PartiesThe PEOPLE, etc., Appellant, v. Howard RAY, Respondent.

Page 105

395 N.Y.S.2d 105
58 A.D.2d 588
The PEOPLE, etc., Appellant,
v.
Howard RAY, Respondent.
Supreme Court, Appellate Division, Second Department.
June 6, 1977.

Eugene Gold, Dist. Atty., Brooklyn (Laura A. Brevetti, Brooklyn, of counsel), for appellant.

Jeff L. Greenup, New York City, for respondent.

Before MARTUSCELLO, J. P., and LATHAM, SHAPIRO and O'CONNOR, JJ.

Page 106

MEMORANDUM BY THE COURT.

Appeal by the People from an order of the Supreme Court, Kings County, entered August 17, 1976, which granted defendant-respondent's oral motion to dismiss the indictment for failure to prosecute.

Order reversed, on the law, and indictment reinstated.

By statute, a motion to dismiss an indictment must be made in writing and upon notice to the People (CPL 210.45, subd. 1; see, also, People v. Pichkur, 52 A.D.2d 852, 382 N.Y.S.2d 565; People v. Ryan, 42 A.D.2d 869, 347 N.Y.S.2d 216; People v. Trottie, 47 A.D.2d 751, 364 N.Y.S.2d 563). The failure to comply with this requirement, unless consented to by the District Attorney, is reversible error (see People v. Rao, 53 A.D.2d 904, 386 N.Y.S.2d 441; People v. Orr, 53 A.D.2d 634, 384 N.Y.S.2d 478; People v. Smith, 53 A.D.2d 652, 384 N.Y.S.2d 488). In this case the District Attorney opposed the application. Furthermore, the basic speedy-trial contention of defendant lacks merit.

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6 practice notes
  • People v. Jordan
    • United States
    • New York Supreme Court Appellate Division
    • September 12, 1983
    ...to dismiss an indictment for failure to prosecute should generally be denied as brought in an inappropriate fashion (People v. Ray, 58 A.D.2d 588, 395 N.Y.S.2d 105), the issue itself will not be considered waived without further indicia demonstrating that such is the defendant's intent (see......
  • People v. Fattizzi
    • United States
    • United States State Supreme Court (New York)
    • June 5, 1978
    ...supra), inasmuch as compliance with the statute is required unless an oral motion is consented to by the People (see People v. Ray, 58 A.D.2d 588, 395 N.Y.S.2d 105). We are aware of the difficulty involved since the supporting deposition may be timely served until the day preceding the tria......
  • People v. Ortreger, No. 2014–1667 D CR.
    • United States
    • New York Supreme Court — Appellate Term
    • August 24, 2017
    ...it was not made in writing, which requirement, we note, can be waived (see People v. Jennings, 69 N.Y.2d 103, 113 [1986] ; People v. Ray, 58 A.D.2d 588 [1977] ).Defendant's legal insufficiency claim is preserved for appellate review since his attorney moved to dismiss the charge following t......
  • People v. Jack
    • United States
    • New York Supreme Court Appellate Division
    • February 18, 1986
    ...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 Page 742 We find unpersuasive ......
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6 cases
  • People v. Jordan
    • United States
    • New York Supreme Court Appellate Division
    • September 12, 1983
    ...to dismiss an indictment for failure to prosecute should generally be denied as brought in an inappropriate fashion (People v. Ray, 58 A.D.2d 588, 395 N.Y.S.2d 105), the issue itself will not be considered waived without further indicia demonstrating that such is the defendant's intent (see......
  • People v. Fattizzi
    • United States
    • United States State Supreme Court (New York)
    • June 5, 1978
    ...supra), inasmuch as compliance with the statute is required unless an oral motion is consented to by the People (see People v. Ray, 58 A.D.2d 588, 395 N.Y.S.2d 105). We are aware of the difficulty involved since the supporting deposition may be timely served until the day preceding the tria......
  • People v. Ortreger, No. 2014–1667 D CR.
    • United States
    • New York Supreme Court — Appellate Term
    • August 24, 2017
    ...it was not made in writing, which requirement, we note, can be waived (see People v. Jennings, 69 N.Y.2d 103, 113 [1986] ; People v. Ray, 58 A.D.2d 588 [1977] ).Defendant's legal insufficiency claim is preserved for appellate review since his attorney moved to dismiss the charge following t......
  • People v. Jack
    • United States
    • New York Supreme Court Appellate Division
    • February 18, 1986
    ...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 Page 742 We find unpersuasive ......
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