People v. Barnett

Appeal from an order of the Supreme Court, Queens County, dated September 14, 1966 which granted defendant’s motion for reargument of his motion to dismiss the indictment, which charged defendant with manslaughter in the first degree, and thereupon dismissed the indictment “ with leave to the District Attorney to re-present this matter to the Grand Jury upon other evidence, the Court having read the Grand Jury minutes.” Pursuant to leave granted in the order of this court dated October 27, 1969, respondent has renewed his motion to dismiss the appeal. Appeal dismissed. Defendant was accused of manslaughter in the first degree in that he struck and killed his 13-month-old son, in the presence of his wife and 2%-year-old daughter. The trial court dismissed the indictment on the ground that the wife had been compelled to disclose a confidential communication in violation of section 2445 of the Penal Law. Between September 30, 1966, the date that .the notice of appeal was filed, and February, 1969, the District Attorney did nothing to perfect the appeal. Such delay by the People in perfecting their appeal was inexcusable (cf. Code Grim. Pro., § 535; People v. Webster, 12 N Y 2d 1019; Rules of App. Div. 2d Dept. [22 NYCRR 670.15]). Christ, Acting P. J., Martuscello, Brennan and Benjamin, JJ., concur; (Beldock, P. J., deceased.)