People v. O'Brien , 423 N.Y.S.2d 832 ( 1979 )

Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered June 6, 1977, convicting him of criminal possession of a weapon in the second degree and reckless endangerment in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, without a hearing, of defendant’s motion to dismiss the indictment on the ground of denial of a speedy trial as required by statute and the due process clauses of the State and Federal Constitutions. Case remanded to Criminal Term to hear and report on defendant’s motion to dismiss the indictment upon the ground of denial to him of his right to a speedy trial and appeal held in abeyance in the interim. Criminal Term is to file its report with all convenient speed. The court denied defendant’s speedy trial motion without a hearing. The denial of the motion' prevented the defendant from proving, as he must, that the People were not ready for trial within the specified time (see CPL 30.30, subd 1, par [a]; 210.45, subd 7) and eliminated any need for the District Attorney to show that the delay or some portion of it might be excluded pursuant to the provisions of CPL 30.30. The present record is not sufficiently complete to permit a proper review. A hearing should be held on these points and findings made with respect to these issues. With commendable candor, the District Attorney in his brief concedes that a hearing should be held in order to permit a proper review of the speedy trial issue by this court. Hopkins, J. P., Lazer, Cohalan and Martuscello, JJ., concur.