Opinion
June 10, 1991
Appeal from the Supreme Court, Queens County (Rutledge, J.).
Ordered that the order is reversed, on the law, the motion is denied, the indictment is reinstated, and the matter is remitted to the Supreme Court, Queens County, for further proceedings.
On the scheduled trial date, the People requested a three to four week adjournment in order to produce the complainant who had not appeared despite several attempts by the prosecutor to secure his attendance for trial. The court denied this request, and granted the defendant's oral motion to dismiss the indictment on the ground of the "People's inability to proceed".
The dismissal of the indictment was clearly improper as it was not based upon any of the grounds enumerated in CPL 210.20 (1) and did not satisfy the requirements for dismissal in the interest of justice pursuant to CPL 210.40 (1) (see, People v Moore, 158 A.D.2d 721, 722; People v Sullivan, 142 A.D.2d 695). Moreover, the court was without authority to dismiss the indictment because of a perceived failure to prosecute, or for reasons of calendar control (see, People v Douglass, 60 N.Y.2d 194; People v Moore, supra). Balletta, J.P., Miller, O'Brien and Ritter, JJ., concur.