
    The People of the State of New York, Respondent, v Anthony Smith, Appellant.
    [666 NYS2d 44]
   —Appeal by the defendant from a judgment of the Supreme Court, Kings County (Vaughan, J.), rendered April 18, 1994, convicting him of criminal possession of a controlled substance in the seventh degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the matter is remitted to the Supreme Court, Kings County, to hear and report on the defendant’s motion to dismiss the indictment on the ground that he was denied the right to a speedy retrial, and the appeal is held in abeyance in the interim. The Supreme Court, Kings County, is to file its report with all convenient speed.

Following the declaration of a mistrial, the defendant moved to dismiss the indictment on the ground that he was denied his right to a speedy retrial. Inasmuch as the defendant sustained his initial burden of alleging an unexcused delay in excess of six months between the date that the mistrial was ordered and the date of his retrial (see, CPL 30.30 [5]), and the People’s opposition raised factual disputes but did not conclusively refute the defendant’s claim with “unquestionable documentary proof’ (CPL 210.45 [5] [c]), this matter must be remitted to the Supreme Court, Kings County, for a hearing on the defendant’s motion (see, CPL 210.45 [5]; People v Santos, 68 NY2d 859, 861; People v Wilson, 188 AD2d 671, 672).

We pass on no other issues at this juncture. Bracken, J. P., Thompson, Goldstein and Lerner, JJ., concur.  