PEOPLE v. BONNER (1997)

Appeal by the People, as limited by their brief, from so much of an order of the County Court, Suffolk County (Weissman, J.), dated October 4, 1996, as, upon renewal, adhered to the original determination in an order dated August 6, 1996, granting, without a hearing, the defendant's motion pursuant to CPL 30.30 to dismiss Suffolk County Indictment No. 702/96.

ORDERED that the order is affirmed insofar as appealed from.

The instant criminal action was commenced by felony complaint sworn to by Detective Kenneth Woods on September 26, 1995.   An arrest warrant issued October 31, 1995, states that the felony complaint was “filed this 26th day of September 1995” (see, People v. Hendricks, 308 N.Y. 486, 127 N.E.2d 281;  People ex rel. Bias v. Warden, 194 A.D.2d 816, 599 N.Y.S.2d 837).  The People claim that the felony complaint was, in fact, filed on or after October 26, 1995.   The evidence in support of their claims is as the trial court found, “equivocal at best”.   The People were unable to tell the court when the felony complaint was actually filed, but speculated that it was filed sometime between October 26, 1995, and October 31, 1995.   This was insufficient to rebut the documentary evidence that the felony complaint was, in fact, filed on September 26, 1995.

Since the People announced their readiness for trial more than six months later, the indictment was properly dismissed pursuant to CPL 30.30.

The People's remaining contention is unpreserved for appellate review.

MEMORANDUM BY THE COURT.