Opinion
October 20, 1994
Appeal from the County Court of Otsego County (Estes, J.).
A misdemeanor complaint was filed in the Richfield Springs Town Court against defendant Ron Hansel and LF Fuels charging them with two counts of endangering public health, safety or the environment in violation of ECL 71-2711, a class A misdemeanor. The record is unclear whether the actual filing date was January 20, 1993 or February 3, 1993. After several adjournments and due to the complex nature of this case, the matter was presented to the Otsego County Grand Jury and an indictment dated May 17, 1993 was returned charging Hansel, LF Fuels and defendant M.O.T.S., Inc. with two counts of endangering public health, safety or the environment in the third degree, the identical charges set forth in the original complaint.
The charges against LF Fuels were subsequently dismissed upon request of the People. After motions and the appointment of counsel for defendants, the case was scheduled for trial on July 19, 1993, but was adjourned at defendants' request until the September 1993 term. The case was called for trial on September 10, 1993, October 1, 1993 and November 8, 1993, but on each occasion the case was adjourned, although the People stated their readiness in each instance. The case was then scheduled for trial on January 7, 1994; however, by letter dated November 9, 1993, the People advised County Court and defendants that a material witness would be unavailable from January 5, 1994 through January 20, 1994 and that they would be unable to try the case during that period. In open court on January 7, 1994, the People reiterated their inability to try the case during the next two weeks, at which point the attorney for M.O.T.S. orally moved to dismiss, based on the People's failure to be ready to proceed. After initially stating that he was not ready for trial, Hansel, appearing pro se with an advisor, joined in the motion. County Court reserved decision, but later that day orally advised the parties that the motions to dismiss had been granted. Following a written decision dated February 1, 1994, an order dismissing the indictment was entered on February 3, 1994. Both parties appeal.
Defendants have filed a cross appeal from the order dismissing the indictment. As defendants are not aggrieved by this order, the cross appeal is dismissed.
As a general rule, a motion to dismiss an indictment on speedy trial grounds must be made in writing and supported by sworn allegations with reasonable notice to the People (see, CPL 210.45; People v. Lawrence, 64 N.Y.2d 200). Although defendants' oral motions were insufficient to satisfy this rule, the requirement that the motion be made in writing is waived by the People should they fail to object to the improper procedure (see, People v. Jennings, 69 N.Y.2d 103). As was pointed out in People v. Littles ( 188 A.D.2d 255, lv. denied 81 N.Y.2d 842), however, the Jennings case involved extensive oral argument upon fully clarified issues presented with adequate notice to the People. Further, it is defendants' initial burden to show a period of delay in excess of the statutory period, at which time the burden shifts to the People to demonstrate that these delays were not chargeable to them (see, People v. Santos, 68 N.Y.2d 859; People v. Kendzia, 64 N.Y.2d 331).
In the instant case defendants failed to specify the date of the commencement of the action or any other factual basis for their motions, and since the vast majority of the time charged to the People occurred while the case was pending in Town Court, County Court should not have summarily granted the motion. Instead, the court should have afforded the People an opportunity not only to clarify what transpired while the matter was before Town Court, but to also respond with any other pertinent factual information. Therefore, we will remit this matter to County Court to accept submissions from the parties or for a hearing (see, People v. Wiggins, 194 A.D.2d 840; People v. Johnson, 184 A.D.2d 862).
Mercure, J.P., Crew III and Casey, J., concur. Ordered that the order is reversed, on the law, indictment reinstated and matter remitted to the County Court of Otsego County for further proceedings not inconsistent with this Court's decision.