People v Vargas (Tommey)

[*1] People v Vargas (Tommey) 2015 NY Slip Op 50726(U) Decided on May 15, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 15, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Hunter, Jr., Ling-Cohan, JJ.
570768/14

The People of the State of New York, Appellant,

against

Tommey Vargas, Defendant-Respondent.

The People appeal from an order of the Criminal Court of the City of New York, Bronx County (John H. Wilson, J.), dated June 27, 2013, which granted defendant's motion to dismiss the accusatory instrument.

Per Curiam.

Order (John H. Wilson, J.), dated June 27, 2013, reversed, on the law, accusatory instrument reinstated, and matter remanded to Criminal Court for further proceedings.

Criminal Court's sua sponte dismissal of the accusatory instrument was improper. A post-arraignment motion to dismiss an accusatory instrument "must be made in writing and upon reasonable notice to the [P]eople" (People v Littles, 188 AD2d 255, 256 [2002], lv denied 81 NY2d 842 [1993]). The failure to follow that procedure, intended to facilitate "full development of the issues and an adequate opportunity for the People to contest the specific grounds asserted for dismissal" (id. at 256), is "clearly error [warranting] reversal in and of itself" (People v Dunlap, 216 AD2d 215, 217 [1995]). Nor can it be said, in light of the prosecutor's objection, that the People waived the requirement that the motion be made in writing (see People v Littles, 188 AD2d 255, 256 [1992], lv denied 81 NY2d 842 [1993]). Indeed, the dismissal was summary in nature and the People were not prepared to respond to the argument that the supporting deposition of the Postal Inspector was not properly subscribed (see People v Parker, 223 AD2d 179 [1996], lv denied 89 NY2d 927 [1996]). Nor were the issues clarified. In this regard, it was far from clear from the brief colloquy that preceded the court's action, what particular subdivision of CPL 170.30(1) the court was relying on when it dismissed the accusatory instrument, since defendant also asserted that speedy trial time had expired.

Morever, even the sparse record now before us presents factual issues as to whether the challenged supporting deposition was properly subscribed (see CPL 100.20; cf. Matter of Kenneth K. 218 AD2d 534 [1995]) and whether speedy trial time has expired.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: May 15, 2015