PEOPLE v. SCOTT (1997)

Order, Supreme Court, Bronx County (Joseph Cerbone, J.), entered July 8, 1996, which granted defendant's motion to dismiss the indictment pursuant to CPL 30.30, unanimously affirmed.

Since the People repeatedly failed to exercise due diligence in attempting to produce defendant from Federal custody (see, CPL 30.30[4] [e] ), the court properly charged the People with the adjournment time periods caused by those failures.   A hearing was unnecessary since there were no material factual issues that could not be resolved upon the parties' submissions.   The People failed to pursue statutorily prescribed methods for securing the presence of a defendant detained in Federal custody (see, CPL 580.30).   The People were never “unequivocally advised by the Federal prosecutor that defendant would not be released prior to his Federal trial [and/or sentencing]” (People v. Gonzalez, 235 A.D.2d 366, 653 N.Y.S.2d 321, lv. denied 89 N.Y.2d 1093, 660 N.Y.S.2d 387, 682 N.E.2d 988).   Rather, as the submitted transcripts and exhibits make clear, the People made inadequate efforts to follow up on their unsuccessful efforts to produce defendant.

MEMORANDUM DECISION.