People v. Ray

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

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.

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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