People v. Cole

Mar 30, 1989
Versions:73 N.Y.2d 957
538 N.E.2d 336
540 N.Y.S.2d 984
1989 N.Y. LEXIS 311

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the indictment dismissed.

The court should have granted the defendant’s motion to dismiss on speedy trial grounds (CPL 30.30). Defendant’s motion challenged the People’s assertion of readiness as illusory because they were unable to produce the complainant. The sworn allegations of fact essential to support defendant’s motion were conceded by the People when they failed to submit opposition papers contesting these allegations (People v Gruden, 42 NY2d 214). Under these circumstances the court is required by statute to grant the motion (CPL 210.45 [4] [c]; see also, People v Gonzalez, 116 AD2d 735).

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur in memorandum.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, etc.