Opinion
November 21, 1994
Appeal from the Supreme Court, Queens County (Beerman, J.).
Ordered that the matter is remitted to the Supreme Court, Queens County, to hear and report on the defendant's speedy trial motion, and the appeal is held in abeyance in the interim. The Supreme Court is to file its report with all convenient speed.
We agree with the defendant that a hearing should be held to resolve certain factual issues related to his motion to dismiss the indictment on speedy trial grounds (see, CPL 210.45). The record on appeal is inadequate for us to determine whether certain adjournments were excludable for reasons other than delays caused by the court or court congestion (see, People v England, 84 N.Y.2d 1, 4; People v. Smith, 82 N.Y.2d 676, 678; People v. Correa, 77 N.Y.2d 930, 931; People v. Meierdiercks, 68 N.Y.2d 613, 614-615; People ex rel. Sykes v. Mitchell, 184 A.D.2d 466, 467-468). Furthermore, the Supreme Court erred in failing to hold a hearing with regard to that period of delay occasioned by the refusal of the People's police witness to testify due to a measles epidemic at the correctional facility where the defendant was being held, in order to determine whether the delay constituted exceptional circumstances (see, People v. Zirpola, 57 N.Y.2d 706, 708).
Accordingly, the matter is remitted for a hearing on the defendant's speedy trial motion in order to provide an adequate record for appellate review. We pass on no other issue at this time. Bracken, J.P., Miller, Lawrence and Santucci, JJ., concur.