Opinion
November 22, 1976
Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered February 17, 1976, convicting him of criminal sale of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review so much of an order of the same court, dated March 20, 1975, as denied, without a hearing, the branch of defendant's motion which sought to dismiss the indictment for failure to prosecute (see CPL 30.30, subd 1). Case remitted to Criminal Term for a hearing and new determination on the branch of defendant's motion which sought to dismiss the indictment for failure to prosecute (see CPL 30.30, 210.20 Crim. Proc., 210.45 Crim. Proc.), and appeal held in abeyance in the interim. It is undisputed that the indictment charges that defendant committed specified felonies on March 14 and 21, 1974, that the subject criminal action was not commenced until the filing of the indictment on May 31, 1974, that defendant was not arrested on that indictment until January 6, 1975 and that he was arraigned on January 7, 1975. CPL 30.30 provides, in pertinent part: "1. Except as otherwise provided in subdivision three, a motion made pursuant to paragraph (e) of subdivision one of section 170.30 or paragraph (g) of subdivision one of section 210.20 must be granted where the people are not ready for trial within: (a) six months of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a felony". In our opinion, the Criminal Term should not have summarily denied the branch of defendant's motion which sought to dismiss the indictment without conducting a hearing (see CPL 210.45). A hearing is necessary to determine whether defendant's motion should have been granted or whether the "absence or unavailability of the defendant" provision of CPL 30.30 (subd 4, par [c]) justified the denial of the branch of the motion in question (see People v Sturgis, 38 N.Y.2d 625). Cohalan, Acting P.J., Margett, Damiani, Rabin and Hawkins, JJ., concur.