People v. Stanback , 149 A.D.3d 876 ( 2017 )

People v Stanback (2017 NY Slip Op 02828)

People v Stanback

2017 NY Slip Op 02828

Decided on April 12, 2017

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 12, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
RUTH C. BALKIN
LEONARD B. AUSTIN
FRANCESCA E. CONNOLLY, JJ.

2015-12138
(Ind. No. 10850/13)

[*1]The People of the State of New York, appellant,

v

Carl Stanback, respondent.

Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Jean M. Joyce of counsel), for appellant.

Lynn W. L. Fahey, New York, NY (Anna Pervukhin of counsel), for respondent.

DECISION & ORDER

Appeal by the People, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Gary, J.), dated October 23, 2015, as granted, in the interest of justice, that branch of the defendant's oral motion which was to dismiss count one of the indictment, charging attempted murder in the second degree.

ORDERED that the order is reversed insofar as appealed from, on the law, that branch of the defendant's oral motion which was to dismiss count one of the indictment, charging attempted murder in the second degree, is denied, without prejudice to renewal, that count of the indictment is reinstated, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent herewith before a different Justice.

A motion by a defendant to dismiss an indictment must be made in writing and upon reasonable notice to the People (see CPL 210.45[1]). Here, the Supreme Court erred in dismissing, in the interest of justice, count one of the indictment, charging attempted murder in the second degree, upon the defendant's oral motion, without a full development of the issues, due consideration of the statutory factors (see CPL 210.40[1]), or an adequate opportunity for the People to contest the specific grounds asserted for dismissal (see CPL 210.40[1][a]-[j]; People v Jack, 117 AD2d 753, 753-754; People v Vega, 80 AD2d 867; People v Clayton, 41 AD2d 204, 206). Accordingly, if the defendant properly moves in writing, the Supreme Court shall determine such motion pursuant to the procedure set forth in CPL 210.45.

The defendant's alternative argument for affirmance is unpreserved for appellate review (see People v Alfaro, 66 NY2d 985, 987; People v Ariza, 77 AD3d 844; People v McGee, 110 AD2d 719, 719-720) and, in any event, not reviewable on the People's appeal (see CPL 470.15; People v Goodfriend, 64 NY2d 695, 697; People v Byrd, 96 AD3d 962, 964).

DILLON, J.P., BALKIN, AUSTIN and CONNOLLY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court