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The People of the State of v. Carol Elmer

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


May 19, 2011

THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,
v.
CAROL ELMER, RESPONDENT.

Appeal from a decision of the County Court of St. Lawrence County (Richards, J.), dated May 4, 2010, which partially granted defendant's motion to dismiss the indictment.

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

MEMORANDUM AND ORDER

Calendar Date: March 22, 2011

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

On June 2, 2009, defendant was charged by indictment with 37 counts of overdriving, torturing and injuring an animal in violation of Agriculture and Markets Law § 353 by allegedly failing to provide proper sustenance to horses in her custody. The first 22 counts referred to conditions existing on her property in December 2008, as observed by police as a result of a complaint, and the remaining counts referred to conditions existing on January 8, 2009, as observed by police pursuant to a search warrant. Various motions ensued, including defendant's motion to set aside the search warrant as invalid and to suppress all of the evidence discovered as a result thereof. County Court ordered a hearing on the suppression issue, which was adjourned several times, prompting defendant to eventually move to dismiss the indictment on statutory speedy trial grounds in May 2010. Following written submissions, oral argument and some testimony, County Court issued an oral decision from the bench granting the motion to dismiss with respect to the first 22 counts of the indictment. The People appeal.

CPL 450.20 permits the People to appeal from "[a]n order dismissing an accusatory instrument or a count thereof, entered pursuant to [CPL] 170.30, 170.50 or 210.20" (CPL 450.20 [1] [emphasis added]; see CPL 460.10 [1] [a]). Here, apparently County Court's oral ruling dismissing the first 22 counts of the indictment was never reduced to a writing and was never entered. Inasmuch as no appeal lies from the oral ruling (see People v Holmes, 206 AD2d 542 [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., Rose, Stein and Egan Jr., JJ., concur.

ORDERED that the appeal is dismissed, 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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