People v Riverhead Park Corp.

[*1] People v Riverhead Park Corp. 2009 NY Slip Op 51375(U) [24 Misc 3d 132(A)] Decided on June 29, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 29, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., MOLIA and NICOLAI, JJ
2008-1260 S CR.

The People of the State of New York, Appellant,

against

Riverhead Park Corp., Respondent.

Appeal from an order of the Justice Court of the Town of Southampton, Suffolk County (Deborah Kooperstein, J.), entered April 2, 2008. The order, insofar as appealed from as limited by the brief, granted so much of defendant's motion as sought to dismiss the superseded original accusatory instruments and, in effect, sua sponte dismissed the superseding accusatory instruments.

Order, insofar as it, in effect, sua sponte dismissed the superseding accusatory instruments reversed, on the law, said provision vacated, superseding accusatory instruments reinstated and matter remitted to the Justice Court for all further proceedings thereon.

Appeal from so much of the order as granted the portion of defendant's motion seeking to dismiss the superseded original accusatory instruments held in abeyance and matter remitted to the Justice Court to file a report with this court in accordance with the decision herein within 60 days of the date of the order entered hereon.

While a motion by defendant to dismiss the original accusatory instruments was pending, the People, on March 25, 2008, filed accusatory instruments which superseded some of the original accusatory instruments. By order entered April 2, 2008, the Justice Court granted defendant's motion to dismiss the original accusatory instruments, and, in effect, sua sponte dismissed the superseding accusatory instruments.

We note at the outset that, on appeal, the People have not contested the dismissal of the original accusatory instruments for which superseding accusatory instruments were not filed.

The Justice Court's effective sua sponte dismissal of the superseding accusatory instruments, prior to defendant's arraignment on those instruments, without written motion by defendant or a fair opportunity for the People to be heard, and without a stated statutory ground for the dismissal, was improper (see CPL 170.30, 170.45, 210.45; People v Mezon, 80 NY2d 155 [*2][1992]; People v Douglass, 60 NY2d 194 [1983]; People v Morisseau, 19 Misc 3d 59 [App Term, 2d & 11th Jud Dists 2008]; People v Gonzalez, 184 Misc 2d 262, 263-264 [App Term, 1st Dept 2000]). We note that, contrary to the manner in which the Justice Court apparently construed CPL 170.10, this statutory provision imposes upon the court a duty to arraign defendant on the superseding accusatory instruments that is mandatory, not discretionary (see People v Goss, 87 NY2d 792, 798 [1996]). In light of these considerations, the order, insofar as it, in effect, sua sponte dismissed the superseding accusatory instruments is reversed, the superseding accusatory instruments are reinstated, and the matter is remitted to the Justice Court for all further proceedings thereon.

With respect to the superseded original accusatory instruments, even were this court to reverse the Justice Court's order insofar as it dismissed these accusatory instruments, and to reinstate them, the Justice Court would be mandated to dismiss them upon defendant's arraignment on the superseding accusatory instruments (see CPL 100.50 [1]). It therefore seems inexpedient for this court now to pass on the merits of the question of whether the superseded original accusatory instruments were facially insufficient (see generally People v Carmichael, 224 App Div 766 [1928]). Hence, we hold the appeal from the portion of the order which dismissed the superseded original accusatory instruments in abeyance and remit the matter to the Justice Court to file a report within 60 days of the date of the order entered hereon advising this court as to whether defendant has been arraigned on the superseding accusatory instruments.

Rudolph, P.J., Molia and Nicolai, JJ., concur.
Decision Date: June 29, 2009