People v. Smith ( 1985 )

— Appeal from order of the Supreme Court, New York County (George Roberts, J.), entered April 4, 1984, granting defendant’s motion to dismiss, in the interest of justice, an indictment charging him with robbery in the first and second degrees and assault in the second degree, held in abeyance, and the matter is remanded to the motion Judge to set forth his reasons in accordance with CPL 210.40 (2).

On this appeal by the People from an order granting defendant’s motion to dismiss in the interest of justice an indictment charging him with robbery in the first and second degrees and assault in the second degree, the single ground urged is that the court appeared to have based this determination on the circumstance that the People had delayed perfecting an appeal from a previous order vacating the defendant’s conviction of the counts in the indictment because his trial counsel had been ineffective as a result of a conflict of interest.

We agree that such a ground would not have been an appropriate basis for dismissing the indictment in the interest of justice. (See, CPL 210.40 [1].) From an examination of the entire record it is apparent that the court in fact granted the motion on the basis of the application of the criteria set forth in CPL 210.40 (1) to the facts set forth in the defendant’s motion papers. Regrettably he did not make that clear in his brief comment.

We note that the People did not file answering papers to defendant’s motion nor does the record indicate any explanation for failure to do so, and that it has not been urged on this appeal that the facts set forth in defendant’s comprehensive motion papers would not provide an adequate basis for granting the motion. We also note that the appeal from the previous order vacating defendant’s conviction was dismissed by this court on November 1, 1984. Concur — Sandler, J. P., Asch, Bloom and Milonas, JJ.