People v Smith (Anthony)

[*1] People v Smith (Anthony) 2007 NY Slip Op 52166(U) [17 Misc 3d 134(A)] Decided on November 13, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 13, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., McCABE and TANENBAUM, JJ
2003-932 S CR.

People of the State of New York, Respondent,

against

Anthony Wayne Smith, Appellant.

Appeal from a judgment of the Justice Court of the Town of Southampton, Suffolk County (Deborah E. Kooperstein, J., at sentencing), rendered on March 18, 2003, following a change of venue from the Justice Court of the Town of Riverhead, Suffolk County (Henry S. Saxtein, J., at trial). The judgment convicted defendant, upon a jury verdict, of disorderly conduct.

Judgment of conviction reversed on the law and accusatory instrument dismissed.

Defendant filed a notice of appeal from judgments convicting him of resisting arrest and disorderly conduct. By order dated November 27, 2006, this court reversed the judgment convicting defendant of resisting arrest and dismissed said accusatory instrument on the ground that it was jurisdictionally defective. The appeal from the
judgment convicting defendant of disorderly conduct (Penal Law § 240.20) was held in
abeyance and the matter remanded to the trial court for reconstruction of the pretrial hearing and trial testimony as to said charge so as to permit proper appellate review. As the parties and the lower court now concur that a proper reconstruction is not possible, the judgment of conviction must be reversed. Under the totality of the circumstances, the accusatory instrument is dismissed as to the disorderly conduct charge (see People v Yavru-Sakuk, 98 NY2d 56 [2002]).

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.,
Decision Date: November 13, 2007