People v Thurston (George)

[*1] People v Thurston (George) 2005 NY Slip Op 51692(U) [9 Misc 3d 136(A)] Decided on October 20, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 20, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: October 20, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS PRESENT : RUDOLPH, P.J., ANGIOLILLO and McCABE, JJ.
2005-441 OR CR

THE PEOPLE OF THE STATE OF NEW YORK, Appellant,

against

GEORGE D. THURSTON, Respondent.

Appeal from an order of the Justice Court of the Town of Warwick, Orange County (Daniel F. Coleman, J.), dated January 24, 2005. The order granted defendant's motion to dismiss the accusatory instruments on the ground that he was denied a speedy trial.

Order unanimously reversed on the law, accusatory instruments reinstated and matter remanded to the court below for a determination de novo of defendant's speedy trial motion following a hearing.

Defendant was charged with harassment in the second degree in three separate accusatory instruments. In an order dated January 24, 2004, the court below dismissed the accusatory instruments on the ground that the People did not submit opposition papers to defendant's speedy trial motion. As CPL 210.45 does not provide that the failure to submit answering papers is a ground for dismissal of an accusatory instrument, the order must be reversed (see People v Suriel, 173 Misc 2d 674 [App Term, 9th & 10th Jud Dists 1997]). However, we are unable to determine when defendant first appeared in court and, thus, whether defendant was denied the right to a speedy trial (see People v Lewin, 8 Misc 3d 99 [App Term, 9th & 10th Jud Dists 2005]). Therefore, the matter must be remanded to the court below for a determination de novo, following a hearing, of defendant's speedy trial motion.
Decision Date: October 20, 2005