People State New York v. Frank Jayson

[31 A.D.2d 551 Page 551] It appears that after the case had been on the calendar on many occasions and adjourned repeatedly, but in only one instance
at the request of the District Attorney, it was set down for trial by the trial court peremptorily against the People, for
September 19, 1966. On that day the District Attorney refused to move the case for trial and requested an adjournment on the
ground that two material witnesses could not be located and one was believed to be in Puerto Rico. After considerable discussion
and argument, the court granted defendant's motion to dismiss the indictment "in the interest of justice." On October 27,
1966 the People allegedly entered an order on that determination which granted "the oral motion to dismiss the indictment
for lack of prosecution". A notice of appeal from such order was served and filed by the People on November 21, 1966. Subsequently,
it developed that the original of that order could not be found; nor was there a note of its entry in the clerk's records.
Thereafter, on October 17, 1968, an order was made nunc pro tunc as of October 27, 1966, dismissing the indictment "upon the
grounds set forth in the minutes of the hearing of September 19, 1966". Orders dated October 27, 1966 and October 17, 1968
reversed, on the law and the facts, motion to dismiss indictment denied, and indictment reinstated. Motion to dismiss appeal
denied. We are of the opinion that a trial court, on its own motion, has power under section 671 of the Code of Criminal Procedure
to dismiss an indictment in the interests of justice, where the trial has been unduly delayed by the District Attorney. However,
that section is inapplicable here, where the dismissal was not on motion of the court or the District Attorney and no written
statement of the reasons for the dismissal was made by the court and filed as a public record (cf. People v. Glen, 173 N.
Y. 395; Matter of McDonald v. Sobel, 272 App. Div. 455, 459, affd. 297 N. Y. 679). If it be assumed that the dismissal was
for lack of prosecution pursuant to section 668 of the Code of Criminal Procedure rather than, as shown by the record, in
the interests of justice, the oral motion should not have been entertained (People v. Cowan, 21 A.D.2d 687). In any event,
even if it be assumed that the court had authority to grant defendant's motion to dismiss the indictment, [31 A.D.2d 551
Page 552]