People v Leclair (Richard)

[*1] People v Leclair (Richard) 2006 NY Slip Op 51180(U) [12 Misc 3d 133(A)] Decided on June 6, 2006 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 6, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., ANGIOLILLO and LIPPMAN, JJ
2005-1791 OR CR.

The People of the State of New York, Appellant,

against

Richard Leclair, Respondent.

Appeal from an order of the Justice Court of the Town of Blooming Grove, Orange County (Christopher J. Turpin, J.), entered October 5, 2005. The order dismissed the accusatory instruments.

Order reversed on the law, accusatory instruments reinstated and matter remanded to the court below for all further proceedings thereon.

After denying the People's request for an adjournment prior to the scheduled start of the trial, the court granted defendant's oral motion to dismiss the accusatory instrument, over the People's objection that the motion must be in writing, citing the People's failure to produce the complaining witness for trial.

As the People timely and properly argued below, a post-arraignment motion to dismiss an accusatory instrument in the furtherance of justice (CPL 170.30 [1] [a], [g]), must be in writing and on reasonable notice to the People (CPL 210.45 [1]; 170.45; People v Key, 45 NY2d 111, 116 [1978]; People v Jack, 117 AD2d 753 [1986]; People v Ramos, 94 AD2d 708 [1983]; People v Paredes, NYLJ, May 10, 2004 [App Term, 9th & 10th Jud Dists]; 32A NY Jur 2d, Criminal Law § 1444). Absent waiver, 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" (People v Littles, 188 AD2d 255, 256 [1992] [citation omitted]), is "clearly error [warranting] reversal in and of itself" (People v Dunlap, 216 AD2d 215, 217 [1995]).

Moreover, a trial court has no statutory or inherent authority to dismiss a criminal proceeding for failure to prosecute (Matter of Morgenthau v Roberts, 65 NY2d 749, 752 [1985]; People v Douglass, 60 NY2d 194, 206 [1983]; People v Guzman, 168 AD2d 154, 157 [1991]; [*2]People v Tartaglione, 5 Misc 3d 126[A], 2004 NY Slip Op 51190[U] [App Term, 9th & 10th Jud Dists]; People v Peuteau, NYLJ, May 10, 2004 [App Term, 9th & 10th Jud Dists]; People v Gambino, NYLJ, Mar. 20, 2002 [App Term, 9th & 10th Jud Dists]). We note that the trial court is not without a remedy when confronted with an "inexcusable" prosecutorial delay in preparing a case for trial (People v De Carr, 158 AD2d 912, 913 [1990]). "As suggested in People v Douglass (60 NY2d 194, 200, supra), the court could have denied the adjournment and, if the prosecutor was unable to proceed, placed the case on a reserve calendar to be restored only when ready for trial or dismissed when the speedy trial period had elapsed" (Matter of Holtzman v Goldman, 71 NY2d 564, 574 [1988]).

Rudolph, P.J., Angiolillo and Lippman, JJ., concur.
Decision Date: June 6, 2006