People v. Berke

66 N.Y.2d 861 (1985)

The People of the State of New York, Appellant, v. Paul Berke, Respondent.

Court of Appeals of the State of New York.

Decided November 19, 1985.

Robert M. Morgenthau, District Attorney (Andrew J. Turro of counsel), for appellant.

Lawrence S. Goldman for respondent.

Chief Judge WACHTLER and Judges JASEN, MEYER, SIMONS, KAYE, ALEXANDER and TITONE concur in memorandum.

*863MEMORANDUM.

The order of the Appellate Term should be reversed, the information reinstated and the case remitted to Criminal Court, New York County, for further proceedings on the information.

Criminal Court erred in ruling that when a felony charge is dismissed and the judge directs the People to prepare a prosecutor's information as to the misdemeanor charges remaining, CPL 30.30 (1) (b) requires dismissal, without regard to time otherwise excludable, if the People fail to provide such an information within 90 days of the dismissal order. Unlike the situation in People v Colon (59 N.Y.2d 921), the People had already filed a felony complaint which conferred jurisdiction over the defendant (CPL 100.40 [1]). There being no other basis for dismissal pursuant to CPL 30.30, the information should be reinstated.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, etc.