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The People of the State of v. Joseph M. Herne

State of New York Supreme Court, Appellate Division Third Judicial Department


May 19, 2011

THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,
v.
JOSEPH M. HERNE, RESPONDENT.

Appeal from a decision of the County Court of St. Lawrence County (Richards, J.), dated December 1, 2009, which granted defendant's motions to suppress evidence and dismiss the indictment.

The opinion of the court was delivered by: Rose, J.

MEMORANDUM AND ORDER

Calendar Date: March 22, 2011

Before: Mercure, J.P., Rose, Malone Jr., Stein and Egan Jr., JJ.

A United States Border Patrol agent stopped a pick-up truck driven by defendant and, after inquiry, discovered over 50 pounds of marihuana in a hidden compartment built under the bed of the truck. Defendant was charged with criminal possession of marihuana in the first degree and the People consented to a suppression hearing, at which the sole issue was whether the initial stop of the vehicle was justified. County Court concluded that it was not and granted defendant's motions to suppress the marihuana and dismiss the indictment. The People appeal.

CPL 450.20 permits the People to appeal from "[a]n order suppressing evidence, entered before trial pursuant to [CPL] 710.20" (CPL 450.20 [8] [emphasis added]; see CPL 460.10 [1] [a]). There is nothing in this record to suggest that County Court's oral ruling suppressing the evidence was ever reduced to a signed writing and entered. Nor is there any order dismissing the indictment (see CPL 450.20 [1]). Inasmuch as no appeal lies from the oral rulings (see People v Holmes, 206 AD2d 542, 543 [1994]), this appeal must be dismissed and the matter is remitted to County Court for the issuance of the required order (see People v Peck, 46 AD3d 1098, 1099 [2007]).

Mercure, J.P., Malone Jr., Stein and Egan Jr., JJ., concur.

ORDERED that the appeal is dismissed, without costs, and matter remitted to the County Court of St. Lawrence County for further proceedings not inconsistent with this Court's decision.

ENTER:

Robert D. Mayberger Clerk of the Court

20110519

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