40 A.D.2d 561 | N.Y. App. Div. | 1972
Appeal by the People from an order of the Supreme Court, Kings County, dated March 22, 1972, which granted defendant’s motion to dismiss the indictment for failure to prosecute. Order reversed, on the law, motion denied and indictment reinstated. Defendant was indicted for assault in the second degree on October 19, 1971. The ease appeared on the Ready Calendar on January 31, 1972. Between indictment and the appearance of the case on the Ready Calendar, defendant had moved to relieve assigned counsel and for an inspection of the Grand Jury minutes ancillary to a motion to dismiss the indictment. On March 6, 1972 the People requested an adjournment of the trial for two weeks, on the statement by defense counsel that the complaining witness was believed to be deceased. That adjournment was granted and defendant was released on his own recognizance. On March 20, 1972 the court dismissed the indictment when the prosecuting attorney said that he was unable to determine whether the complaining witness was alive. The appeal is from the order made upon that decision. In our opinion, the indictment was improvidently dismissed. But five months elapsed between indictment and dismissal and the prosecution had requested only one adjournment of the trial. The prosecution was entitled to a reasonable time to determine whether, as stated by the defense, the complaining witness was alive and available. Hopkins, Acting P. J., Martuseello, Gulotta, Brennan and Benjamin, JJ., concur.
