Opinion
Argued April 29, 1987
Decided May 28, 1987
Appeal from the Sullivan County Court, Eugene M. Hanofee, J., Jack Levine, J.
Stephen F. Lungen, District Attorney (Anthony M. Giordano of counsel), for appellant.
Joseph Jaffee and Kenneth C. Klein for respondent.
MEMORANDUM.
The order of County Court, Sullivan County, should be reversed and the matter remitted to that court to exercise its discretion in determining whether to dismiss the People's appeal as untimely (CPL 460.70 [c]; Uniform Rules for Trial Cts § 200.33 [c] [22 N.Y.CRR]).
Defendant, Ronald Evans, was charged on September 30, 1984, with driving while intoxicated in violation of section 1192 (2) and (3) of the Vehicle and Traffic Law. On November 19, 1985, on defendant's motion, the Liberty Town Justice Court ordered suppression of breathalyzer test evidence as having been obtained in violation of defendant's right to counsel. The People filed a timely notice of appeal from that order with County Court, Sullivan County, on December 11, 1985. On December 19, 1985, before the time for perfecting the appeal had run, defendant moved to strike the notice of appeal. The People opposed defendant's motion to strike, but they failed to perfect their appeal within the time period prescribed in section 200.33 (b) of the Uniform Rules for Trial Courts. Following denial of this motion, and in opposition to a second motion to dismiss the appeal as untimely, the People sought to excuse their failure to timely comply with the filing requirement on the ground that the time within which to perfect the appeal had been tolled pending resolution by County Court of defendant's initial motion to strike. Concluding that it had no discretion to entertain an appeal not timely perfected, County Court granted defendant's motion to dismiss.
CPL 460.70 (2) (c) clearly provides that if an appellant fails to perfect the appeal within the time prescribed, "the court may, either upon motion of the respondent or upon its own motion, dismiss the appeal" (see also, Uniform Rules for Trial Cts § 200.33 [c] [22 N.Y.CRR]). County Court erred in concluding that a dismissal for failure to timely perfect was mandatory. Accordingly, the matter must be remitted for that court to exercise its discretion in determining whether, under the circumstances presented, dismissal of the People's appeal is warranted.
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.
Order reversed and case remitted to Sullivan County Court for further proceedings in accordance with the memorandum herein.