People v. Smith
| Citation | 53 A.D.2d 652,384 N.Y.S.2d 488 |
| Parties | The PEOPLE, etc., Appellant, v. James SMITH et al., Respondents. |
| Decision Date | 14 June 1976 |
| Court | New York Supreme Court Appellate Division |
Eugene Gold, Dist. Atty., Brooklyn (Mark M. Kalish, Brooklyn, of counsel), for appellant.
Jack Wlodawer, New York City, for respondent Smith and Joseph Lombardo, Brooklyn, for respondent Bostic (one brief).
Before LATHAM, Acting P.J., and COHALAN, RABIN, SHAPIRO and TITONE, JJ.
MEMORANDUM BY THE COURT.
Appeal by the People from an order of the Supreme Court, Kings County, dated July 18, 1975, which, upon defendants' motions, dismissed the consolidated indictment for failure to accord them a speedy trial. Order reversed, on the law and the facts, motions denied, and consolidated indictment reinstated.
Defendants were indicted, late in 1973, for the crimes of murder and robbery in the first degree. On July 16, 1975, some 20 months thereafter, the District Attorney moved the case for trial, but indicated to the court that a key witness for the prosecution was unwilling to testify because he feared for himself and his family. The matter was adjourned to the following day, at which time the prosecutor requested a two-week delay, during which time he felt that it might be possible to rectify the problem with the witness. Defendants opposed the adjournment and orally moved to dismiss the consolidated indictment on the ground that they had been denied a speedy trial. Their motions were granted by the trial court.
The granting of defendants' oral motions to dismiss constituted error. The statutory language is clear and mandatory; a motion to dismiss an indictment for lack of prosecution which is made prior to conviction must be (a) in writing and (b) upon reasonable notice to the People (CPL 210.45, subd. 1; CPL 210.20, subd. 2; People v. Dedmon, 53 A.D.2d 646, 384 N.Y.S.2d 846 (decided herewith); People v. Orr, 53 A.D.2d 634, 384 N.Y.S.2d 478 (2d Dept., dec. June 7, 1976)).
Moreover, the mandate of a speedy trial, provided for in CPL 30.20, is inapplicable to homicide prosecutions (see CPL 30.30, subd. 3, par. (a)). The presence of the additional robbery count in the consolidated indictment does not bring the case within the ambit of CPL 30.30 (see People v. Johnson, 38 N.Y.2d 271, 278--279, n. 3, 379 N.Y.S.2d 735, 742, 342 N.E.2d 525, 530).
Finally, even assuming that CPL 30.30 governs, we are of the view that, on this record, defendants were neither deprived of their statutory right, nor of their constitutional right, to a speedy trial. The record indicates that virtually all of the...
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