
    The People of the State of New York, Plaintiff, v. Donald Pounds and Charles Shuman, Defendants.
    Supreme Court, Criminal Term, Kings County,
    July 2, 1970.
    
      Eugene Gold, District Attorney (Helman Brook of counsel), for plaintiff. Arnold D. Roseman for Charles Shuman, defendant. William G. Kerwick for Donald Pounds, defendant.
   Milton Mollen, J.

This is a motion by defendants, Donald Pounds and 'Charles Shuman, for an order dismissing the indictment herein for “ want of prosecution,” or in the alternative, for the parole or discharge of the defendants pending the determination of the appeal of an order of this court dated June 2, 1970.

Defendants were arrested on May 22, 1969 and charged with the crime of murder. They have been held without bail since that date.

On September 24, 1969 the defendants were indicted for the crime of murder. On February 17,1970 the ease was moved for trial. Prior to the trial a “ Huntley-Miranda-Morales ” hearing was conducted before Mr. Justice Jones in Part VI of this court for a period of approximately three weeks.

On June 2, 1970 Mr. Justice Jones rendered a 22-page decision suppressing the statements of the defendants and all evidence obtained as a result of these statements. On June 10, 1970 the People filed a notice of appeal from the order suppressing the statements and the evidence. The People also filed therewith a statement, pursuant to section 518-a of the Code of Criminal Procedure, asserting that deprivation of the use of the aforesaid confessions ‘1 rendered the sum of the proof available to the People insufficient as a matter of law and so weak in its entirety that any reasonable possibility of prosecuting said charge has been effectively destroyed.”

Defendants argue that pursuant to section 518-a of the Code of Criminal Procedure, the filing of such a statement and the taking of such appeal by the People ‘ shall constitute a bar to * * * (2) the prosecution of any existing criminal charge * * * unless and until the order of * * * suppression is reversed on appeal and vacated.”

Defendants further argue that 1‘ by operation of statute the matter is now in limbo, undecided and clearly intolerable. The indictment stands, yet there is no prosecution; the prosecutor is barred from taking any action in furtherance of prosecution ”.

The issue raised herein would appear to be a matter of first impression. The defendants are charged with our most serious crime, murder. This court finds no basis to dismiss the indictment while the appeal is pending in the Appellate Division. Defendants’ motion to dismiss the indictment is denied on condition that the District Attorney proceed with the appeal at the September 1970 term of the Appellate Division.

Further, in the interest of justice, this court fixes bail in the. sum of $7,500 for Donald Pounds and $7,500 for Charles Shuman.  