People v. Ryan

CourtNew York Supreme Court Appellate Division
Citation42 A.D.2d 869,347 N.Y.S.2d 216
Decision Date13 August 1973
PartiesThe PEOPLE of the State of New York, Plaintiffs-Appellants, v. Keith RYAN and Paul Smoot, Defendants-Respondents.

Page 216

347 N.Y.S.2d 216
42 A.D.2d 869
The PEOPLE of the State of New York, Plaintiffs-Appellants,
v.
Keith RYAN and Paul Smoot, Defendants-Respondents.
Supreme Court, Appellate Division, Second Department.
Aug. 13, 1973.

Page 217

Before HOPKINS, Acting P.J., and MARTUSCELLO, SHAPIRO, CHRIST and BRENNAN, JJ.

MEORANDUM BY THE COURT.

Appeal by the People from an order of the Supreme Court, Kings County, 72 Misc.2d 990, 340 N.Y.S.2d 321, dated February 20, 1973, which granted defendants' motion to dismiss the indictment filed against them.

Order reversed, on the law and the facts, indictment reinstated and motion denied. The matter is remitted to the Criminal Term with directions that an immediate trial preference be granted the defendants.

Defendants were arrested on March 23, 1972. An indictment was filed on May 3, 1972, charging them (together with a third co-defendant, not represented on this appeal) with 15 counts of robbery, attempted robbery, grand larceny, attempted grand larceny, assault and possession of weapons and dangerous instruments and appliances, as a felony.

Defendants' contention is that they moved for dismissal of the indictment for lack of speedy prosecution on September 19, 1972, the District Attorney's office having been given two days in which to respond. The Criminal Term dismissed the indictment on January 26, 1973, after hearing oral argument on the motion that same day.

The record contains what is said to be the history of the instant case as marked in the Supreme Court Trial Folder. There is no notation that any motion to dismiss for failure to grant a speedy trial was made by these defendants. The assumption is, therefore, that such motion was made orally. The granting of such a motion constitutes error.

Page 218

The statutory language is clear and mandatory that a motion, made prior to conviction, to dismiss an indictment for lack of prosecution must be (a) in writing and (b) upon reasonable notice to the People (CPL 210.45, subd. 1; CPL 210.20, subd. 2). To the same effect is our decision in People v. Cowan, 21 A.D.2d 687, 250 N.Y.S.2d 628, wherein we stated that motions to dismiss an indictment must be made upon prior written notice of motion and be supported by affidavits.

At bar, the record is devoid of any showing of a notice of motion or supporting affidavits. Although defendants did submit memoranda of law, the same does not constitute proper compliance with the procedural requirements on a motion...

To continue reading

Request your trial
13 practice notes
  • People v. Rodriguez
    • United States
    • New York Supreme Court Appellate Division
    • June 4, 1974
    ...must be made upon proper papers and on notice (CPL 210.45). One made orally and without notice should not be granted (People v. Ryan, 42 A.D.2d 869, 347 N.Y.S.2d 216). Upon remand, the motion should be renewed on proper papers (People v. Cowan, 21 A.D.2d 687, 250 N.Y.S.2d The question of th......
  • People v. Faulkner
    • United States
    • United States State Supreme Court (New York)
    • April 3, 1975
    ...was later heard in part by this court, but was denied under constraint of the holdings of the Second Department in People v. Ryan, 42 A.D.2d 869, 347 N.Y.S.2d 216 and of the First Department in People v. Rodriguez, 45 A.D.2d 41, 356 N.Y.S.2d 60, requiring a motion to dismiss an indictment u......
  • People v. Kitt
    • United States
    • New York Supreme Court Appellate Division
    • April 7, 1983
    ...is warranted for the fundamental reason that the defendant failed to comply with the strictures of CPL § 210.45 subd. 1. (People v. Ryan, 42 A.D.2d 869, 347 N.Y.S.2d Even if the merits of the oral motion are considered, the result is the same. This case involves a murder that occurred on Ma......
  • People v. Kornegay
    • United States
    • New York Supreme Court Appellate Division
    • January 22, 1976
    ...orally and not on notice as required (CPL 210.45) and that it has been held that a motion so made should not be granted (People v. Ryan, 42 A.D.2d 869, 347 N.Y.S.2d 216). Upon remand, the motion should be renewed on proper papers (People v. Rodriguez, 45 A.D.2d 41, 44, 356 N.Y.S.2d 60, 62--......
  • Request a trial to view additional results
13 cases
  • People v. Rodriguez
    • United States
    • New York Supreme Court Appellate Division
    • June 4, 1974
    ...must be made upon proper papers and on notice (CPL 210.45). One made orally and without notice should not be granted (People v. Ryan, 42 A.D.2d 869, 347 N.Y.S.2d 216). Upon remand, the motion should be renewed on proper papers (People v. Cowan, 21 A.D.2d 687, 250 N.Y.S.2d The question of th......
  • People v. Faulkner
    • United States
    • United States State Supreme Court (New York)
    • April 3, 1975
    ...was later heard in part by this court, but was denied under constraint of the holdings of the Second Department in People v. Ryan, 42 A.D.2d 869, 347 N.Y.S.2d 216 and of the First Department in People v. Rodriguez, 45 A.D.2d 41, 356 N.Y.S.2d 60, requiring a motion to dismiss an indictment u......
  • People v. Kitt
    • United States
    • New York Supreme Court Appellate Division
    • April 7, 1983
    ...is warranted for the fundamental reason that the defendant failed to comply with the strictures of CPL § 210.45 subd. 1. (People v. Ryan, 42 A.D.2d 869, 347 N.Y.S.2d Even if the merits of the oral motion are considered, the result is the same. This case involves a murder that occurred on Ma......
  • People v. Kornegay
    • United States
    • New York Supreme Court Appellate Division
    • January 22, 1976
    ...orally and not on notice as required (CPL 210.45) and that it has been held that a motion so made should not be granted (People v. Ryan, 42 A.D.2d 869, 347 N.Y.S.2d 216). Upon remand, the motion should be renewed on proper papers (People v. Rodriguez, 45 A.D.2d 41, 44, 356 N.Y.S.2d 60, 62--......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT