Opinion
February 28, 1989
Appeal from the Supreme Court, New York County (William Davis, J.).
In May 1986, the defendant moved to have the indictment dismissed on the ground that he was not brought to trial within the six months required by CPL 30.30. The People failed to provide a written reply or, indeed, to offer any oral reply on the record. At trial, the court summarily denied defendant's motion, concluding that the People were not in violation of CPL 30.30.
To make out a prima facie case under CPL 30.30, a defendant need only show that his trial has been delayed beyond six months. Once he does so, the burden is on the People to prove how much of the time should be excluded. (People v Kendzia, 64 N.Y.2d 331, 338; People v Berkowitz, 50 N.Y.2d 333, 349.)
Here, defendant plainly made out a prima facie case under CPL 30.30. He alleged a 10-month delay, well over the six-month limit. He further asserted that the People did not announce "readiness" to proceed during those 10 months. Moreover, the People's off-the-record, oral response to defendant's motion was patently inadequate. (See, People v Montford, 139 A.D.2d 424; People v Vinh Minh Cao, 136 A.D.2d 472.)
Upon review of the record, we find that the court below erred in summarily denying defendant's motion to dismiss the indictment pursuant to CPL 30.30.
Accordingly, determination of the appeal is held in abeyance and the matter is remanded to provide the People with an opportunity to respond properly to defendant's motion and for a hearing to resolve any factual disputes. (See, People v Montford, supra, at 426; People v Vinh Minh Cao, supra.)
Concur — Murphy, P.J., Carro, Milonas and Ellerin, JJ.