Opinion
November 16, 1979
Appeal from the Erie County Court.
Present — Simons, J.P., Hancock, Jr., Schnepp, Doerr and Moule, JJ.
Case held, decision reserved, and matter remitted to Erie County Court for further proceedings, in accordance with the following memorandum: Defendant appeals from judgments of conviction following a jury trial for attempted murder in the second degree (Penal Law, § 125.25, subd 1; § 110.00); felony murder (Penal Law, § 125.25, subd 3); and criminal possession of a weapon in the second and fourth degrees (Penal Law, § 265.03, 265.01 Penal, subd [2]). Defendant contends, inter alia, that she was denied her right to a speedy trial under the New York State and Federal Constitutions. There was a 22-month delay from the time defendant was indicted on November 9, 1976 until the case was tried in September, 1978. On May 9, 1978, the court denied defendant's motion to dismiss for lack of a speedy trial without a hearing and directed that the case be tried at the first available criminal part of the June, 1978 term. The case came to trial the following September. The matter should be remitted to the County Court for a hearing so that "findings of fact essential to the determination" of the speedy trial issue can be made (see CPL 210.45, subd 6). (See People v Williams, 67 A.D.2d 1094; People v Rivera, 64 A.D.2d 815, 816; People v Del Valle, 63 A.D.2d 830; People v Bellach, 56 A.D.2d 656, revd after remand 58 A.D.2d 613.) Although the six-month statutory rule is inapplicable here, where the defendant has been charged with homicide (CPL 30.30, subd 3, par [a]), constitutional speedy trial considerations do apply. On remand the court should consider the evidence adduced in light of the factors set forth in People v Taranovitch ( 37 N.Y.2d 442, 445) including whether, as contended by the People, the delay occasioned by the inability to locate a key prosecution witness should be excused under CPL 30.30 (subd 4) and also what, if any, prejudice resulted to the defendant from the delay. (See, also, People v Singer, 44 N.Y.2d 241.) Proper exception was not taken to those portions of the jury charge objected to by the defendant on appeal. Therefore the errors asserted were not preserved for our review. (See CPL 470.05, subd 2; People v Teeter, 47 N.Y.2d 1002; People v Congilaro, 60 A.D.2d 442, 455.) The other grounds urged by defendant for reversal are without merit.