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The People of the State of New York v. Jose Roman

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS


April 13, 2012

THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT, --
v.
JOSE ROMAN,
RESPONDENT.

Appeal from an order of the District Court of Suffolk County, First District (Gigi A. Spelman, J.), entered July 19, 2011.

People v Roman (Jose)

Decided on April 13, 2012

Appellate Term, Second Department

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

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: IANNACCI, J.P., NICOLAI and MOLIA, JJ

The order granted defendant's oral motion to dismiss the accusatory instrument.

ORDERED that the order is reversed, on the law, defendant's oral motion to dismiss the accusatory instrument is denied, the accusatory instrument is reinstated and the matter is remitted to the District Court for all further proceedings.

Defendant was charged with harassment in the second degree (Penal Law § 240.26). When defendant appeared for trial on June 3, 2011, the People requested a brief adjournment until 11:00 A.M. of the same day. Defendant's counsel objected and orally moved to dismiss the accusatory instrument. Over the People's objection, the District Court granted defendant's motion, pursuant to CPL 170.30, on the ground that the People had failed to prosecute the matter.

A trial court has no statutory or inherent authority to dismiss a criminal proceeding for failure to prosecute (see People v Douglass, 60 NY2d 194, 206 [1983]; People v Murchinson, 31 Misc 3d 146[A], 2011 NY Slip Op 50943[U] [App Term, 9th & 10th Jud Dists 2011]; People v Babcock, 19 Misc 3d 134[A], 2008 NY Slip Op 50696[U] [App Term, 9th & 10th Jud Dists 2008]; cf. CPL 170.30). Accordingly, the order is reversed, defendant's oral motion to dismiss the accusatory instrument is denied, the accusatory instrument is reinstated and the matter is remitted to the District Court for all further proceedings.

Iannacci, J.P., Nicolai and Molia, JJ., concur.

Decision Date: April 13, 2012

20120413

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