Opinion
No. 570768/14.
05-15-2015
The PEOPLE of the State of New York, Appellant, v. Tommey VARGAS, Defendant–Respondent.
Opinion
Order (John H. Wilson, J.), dated June 27, 2013, reversed, on the law, accusatory instrument reinstated, and matter remanded to Criminal Court for further proceedings.
Criminal Court's sua sponte dismissal of the accusatory instrument was improper. A post-arraignment motion to dismiss an accusatory instrument “must be made in writing and upon reasonable notice to the [P]eople” (People v. Littles, 188 A.D.2d 255, 256 [2002], lv denied 81 N.Y.2d 842 [1993] ). The failure to follow that procedure, intended to facilitate “full development of the issues and an adequate opportunity for the People to contest the specific grounds asserted for dismissal” (id. at 256 ), is “clearly error [warranting] reversal in and of itself” (People v.. Dunlap, 216 A.D.2d 215, 217 [1995] ). Nor can it be said, in light of the prosecutor's objection, that the People waived the requirement that the motion be made in writing (see People v. Littles, 188 A.D.2d 255, 256 [1992], lv denied 81 N.Y.2d 842 [1993] ). Indeed, the dismissal was summary in nature and the People were not prepared to respond to the argument that the supporting deposition of the Postal Inspector was not properly subscribed (see People v. Parker, 223 A.D.2d 179 [1996], lv denied 89 N.Y.2d 927 [1996] ). Nor were the issues clarified. In this regard, it was far from clear from the brief colloquy that preceded the court's action, what particular subdivision of CPL 170.30(1) the court was relying on when it dismissed the accusatory instrument, since defendant also asserted that speedy trial time had expired.
Moreover, even the sparse record now before us presents factual issues as to whether the challenged supporting deposition was properly subscribed (see CPL 100.20 ; cf. Matter of Kenneth K. 218 A.D.2d 534 [1995] ) and whether speedy trial time has expired.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur.