
    The People of the State of New York, Appellant, v Frank De Rosa, Respondent.
    Supreme Court, Appellate Term, Second Department,
    October 17, 1975
    
      Denis Dillon, District Attorney (Frank A. Doddato of counsel), for appellant. Dillworth, Hoesch & Mercurio (Pat R. Mercurio of counsel), for respondent.
   Appeal from an order of the District Court of Nassau County (Paul S. Lawrence, J.), entered December 11, 1974, dismissing the information against respondent.

Memorandum. Order dismissing information reversed on the law and facts, information reinstated and matter remanded for trial.

. A motion by a defendant to dismiss an information upon the grounds of denial of a speedy trial and in the interests of justice (CPL 170.30, subd 1, pars [e], [g]) must be made in writing and upon reasonable notice to the People (CPL 170.45, 210.45; see, also, People v Trottie, 47 AD2d 751; cf. People v Wingard, 33 NY2d 192, where the dismissal was on the court’s own motion). Hence, the oral motion of the defendant herein to dismiss the information on the day of trial was improperly made and should have been denied. However, we have considered the application on its merits and conclude that it should have been denied in any event. The failure of defendant, who was represented by counsel, to object in any way to the date set by the court for trial, should under the circumstances disclosed be deemed consent thereto. Consequently, the period of time between the arraignment and the originally scheduled trial date should be excluded from the computation of time within which the People had to be ready for trial (CPL 30.30, subd 1, par [c]; subd 4, par [b]). Nor does the record disclose any basis for a dismissal in the interests of justice (CPL 170.40).

Hogan, P. J.

(dissenting). I dissent and vote to affirm the order dismissing the information.

The record shows that at all times defendant was ready and willing to proceed to trial. The three and one-half month delay was the result of the People’s inaction. The minutes of July 3 illustrate the defendant’s insistence on early trial:

"the court: R.O.C. September 3, 1974, 9:30 for conference.

"mr. mercurio: I’d rather not have a conference on this. I’d rather go right to trial on this.

"the court: It might do some good to have a conference. Whatever Judge you are going to come in front of is going to try to conference it anyway. Maybe the charge will be dismissed in the conference.

"mr. mercurio: Your Honor, I’d rather go right to trial.

"the court: Part I, September 3, 1974. Defendant waives conference”.

The People’s assertion that this decision to waive a conference and to seek a trial on September 3 is a continuance to be attributed to defendant is ludicrous. The defendant could do no more than that which he did.

From the minutes of October 24, one again discerns that the reason the September 3 trial date was aborted was the lack of preparation on the part of the People:

"mr. mercurio: On September 3rd at the call of the calendar before Judge Diamond the people said they were not ready and I agreed to an adjournment and I asked them to pick the date because my client works for Dime Savings Bank, Your Honor. And I even had to call them personally to get them to release him again today. And the People said they would be ready for sure on October 24th. And that’s the way I accepted it and that’s the way I went about it”.

On October 24 the People again were not ready when the court convened in the morning, offering the unavailability of witnesses as an excuse:

"mr. doddato: It was the People’s understanding that this case would go to a jury and on that understanding we set it down for today. We felt we would have time to get our witnesses in this afternoon. I was informed this morning this case would go non-jury. It’s one of the reasons the People are not ready at this time.

"mr. mercurio: Your Honor, this is the first I know of this, your Honor.

"the court: Motion denied. Defendant’s motion is granted. Case dismissed”.

Defendant’s culpability in this delay is once again nonexistent.

Furthermore, the People’s insistence that the period from September 3 to October 24 should be excluded from the operation of the ready rule because of "exceptional circumstances” under CPL 30.30 (subd 4, par [g]) is without merit. The gathering of witnesses and obtaining of accident reports is routine and certainly not deserving of such preferential treatment. In this case the People have not been prepared to proceed in a relatively simple and uncomplicated trial.

Finally, the Court of Appeals in People v Wingard (33 NY2d 192, 195) has recently held that a Judge may, on his own motion, dismiss informations "in the interest of justice,” thus abrogating formal notice requirements. In the instant case the motion to dismiss was made by defense counsel in open court, which permitted full argument by the People. The court in People v Wingard (supra), exercised its discretion in dismissing the case when neither the corporation counsel nor the arresting officers appeared in court for trial eight days after arraignment on an information. The instant case presents a far more heinous delay, and, accordingly, I would affirm the judgment of the trial court to dismiss the information.

Gagliardi and Glickman, JJ., concur in memorandum; Hogan, P. J., dissents in separate memorandum.  