Opinion
September 26, 1980
Appeal from the Monroe Supreme Court.
Present — Dillon, P.J., Hancock, Jr., Schnepp, Doerr and Moule, JJ.
Judgment unanimously reversed, on the law and facts, and indictment dismissed. Memorandum: Trial court's denial of defendant's motion for dismissal of his indictment pursuant to CPL 30.30 was error. It is uncontradicted that more than 11 months not attributable to defendant elapsed between the filing of the felony complaint on May 21, 1975 and the statement on the record by the People that they were ready for trial on August 3, 1976. Trial court held that the People had complied with the statutory requirement based on the prosecutor's unsubstantiated assertion that he had been ready for trial on October 31, 1975. This was improper. To establish readiness the prosecutor must submit to the hearing court "record proof of * * * contemporaneous communication of his readiness" (People v. Brothers, 50 N.Y.2d 413, 416, citing People v. Hamilton, 46 N.Y.2d 932, 933). In view of respondent's concession at argument that there was no record statement of readiness prior to August 3, 1976, a hearing would serve no purpose. We find appellant's moving papers sufficient.