PEOPLE v. McKIVER (2009)

Appeal from an order of the Criminal Court of the City of New York, Richmond County (Matthew Sciarrino, J.), dated March 13, 2008. The order sua sponte dismissed the accusatory instrument on the ground that the People violated defendant's statutory right to a speedy trial.

Order reversed, on the law, accusatory instrument reinstated and matter remitted to the Criminal Court for all further proceedings.

Defendant was charged in an accusatory instrument with assault in the third degree (Penal Law § 120.00[1] ), endangering the welfare of a child (Penal Law § 260.10[1] ), attempted assault in the third degree (Penal Law §§ 110.00, 120.00[1] ) and harassment in the second degree (Penal Law § 240.26[1] ). On March 13, 2008, the Criminal Court sua sponte dismissed the accusatory instrument based on speedy trial grounds (see CPL 30.30[1][b] ).

A motion to dismiss “must be made in writing and upon reasonable notice to the [P]eople” (CPL 210.45 [emphasis added] ). While the People were put on notice that the court was contemplating dismissal of the accusatory instrument based on CPL 30 .30 (see CPL 170.45, 210.45; People v. Alston, 191 A.D.2d 176 [1993] ), they expressly objected to a dismissal based on said ground, asserting that there was no written motion before the court. Therefore, contrary to defendant's contention, the People did not waive the procedural requirement that the motion be made in writing (cf. People v. Jennings, 69 N.Y.2d 103 [1986]; People v. Singleton, 42 N.Y.2d 466 [1977]; People v. Cook, 193 A.D.2d 366, 369 [1993] ), and the Criminal Court improperly sua sponte dismissed the accusatory instrument. Accordingly, the order is reversed, the accusatory instrument reinstated and the matter remitted to the Criminal Court for all further proceedings.

PESCE, P.J., GOLIA and STEINHARDT, JJ., concur.