From Casetext: Smarter Legal Research

People v. Elmer

Appellate Division of the Supreme Court of New York, Third Department
May 19, 2011
84 A.D.3d 1593 (N.Y. App. Div. 2011)

Opinion

No. 103515.

May 19, 2011.

Appeal from a decision of the County Court of St. Lawrence County (Richards, J.), dated May 4, 2010, which partially granted defendant's motion to dismiss the indictment.

Nicole M. Duve, District Attorney, Canton (Victoria M. Esposito of counsel), for appellant.

Richard V. Manning, Parishville, for respondent.

Before: Mercure, J.P., Rose, Stein and Egan Jr., JJ.


On June 2, 2009, defendant was charged by indictment with 37 counts of overdriving, torturing and injuring an animal in violation of Agriculture and Markets Law § 353 by allegedly failing to provide proper sustenance to horses in her custody. The first 22 counts referred to conditions existing on her property in December 2008, as observed by police as a result of a complaint, and the remaining counts referred to conditions existing on January 8, 2009, as observed by police pursuant to a search warrant. Various motions ensued, including defendant's motion to set aside the search warrant as invalid and to suppress all of the evidence discovered as a result thereof. County Court ordered a hearing on the suppression issue, which was adjourned several times, prompting defendant to eventually move to dismiss the indictment on statutory speedy trial grounds in May 2010. Following written submissions, oral argument and some testimony, County Court issued an oral decision from the bench granting the motion to dismiss with respect to the first 22 counts of the indictment. The People appeal.

CPL 450.20 permits the People to appeal from "[a]n order dismissing an accusatory instrument or a count thereof, entered pursuant to [CPL] 170.30, 170.50 or 210.20" (CPL 450.20 [1.] [emphasis added]; see CPL 460.10 [a]). Here, apparently County Court's oral ruling dismissing the first 22 counts of the indictment was never reduced to a writing and was never entered. Inasmuch as no appeal lies from the oral ruling ( see People v Holmes, 206 AD2d 542), this appeal must be dismissed and the matter is remitted to County Court for the issuance of the required order ( see People v Peck, 46 AD3d 1098, 1099).

Ordered that the appeal is dismissed, and matter remitted to the County Court of St. Lawrence County for further proceedings not in-consistent with this Court's decision.


Summaries of

People v. Elmer

Appellate Division of the Supreme Court of New York, Third Department
May 19, 2011
84 A.D.3d 1593 (N.Y. App. Div. 2011)
Case details for

People v. Elmer

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. CAROL ELMER, Respondent

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: May 19, 2011

Citations

84 A.D.3d 1593 (N.Y. App. Div. 2011)
2011 N.Y. Slip Op. 4123
922 N.Y.S.2d 663

Citing Cases

People v. Saxton

To the extent that defendant purports to appeal from County Court's denial of his request to adjourn the…

People v. Elmer

” The Appellate Division dismissed the People's appeal and remitted the matter to County Court for the…