People v Riverhead Park Corp. (2009 NY Slip Op 51547(U))

People v Riverhead Park Corp.

2009 NY Slip Op 51547(U) [24 Misc 3d 136(A)]

Decided on June 29, 2009

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

The People of the State of New York, Appellant,

against

Riverhead Park Corp. and LARRY OXMAN, Respondents.

Appeal from an order of the Justice Court of the Town of Southampton, Suffolk County (Deborah Kooperstein, J.), entered April 2, 2008. The order, insofar as appealed from as limited by the brief, in effect, sua sponte dismissed the superseding accusatory instruments.

Order, insofar as appealed from, reversed, on the law, superseding accusatory instruments reinstated and matter remitted to the Justice Court for all further proceedings thereon.

While a motion by defendants to dismiss the original accusatory instruments was pending, the People, on March 25, 2008, filed accusatory instruments which superseded some of the original accusatory instruments. By order entered April 2, 2008, the Justice Court granted defendants' motion to dismiss the original accusatory instruments and, in effect, sua sponte dismissed the superseding accusatory instruments.

We note at the outset that, on appeal, the People have not contested the dismissal of the original accusatory instruments.

The Justice Court's effective sua sponte dismissal of the superseding accusatory instruments, prior to defendants' arraignment on those instruments, without written motion by defendants or a fair opportunity for the People to be heard, and without a stated statutory ground for the dismissal, was improper (see CPL 170.30, 170.45, 210.45; People v Mezon, 80 NY2d 155 [1992]; People v Douglass, 60 NY2d 194 [1983]; People v Morisseau, 19 Misc 3d 59 [App Term, 2d & 11th Jud Dists 2008]; People v Gonzalez, 184 Misc 2d 262, 263-264 [App Term, 1st Dept 2000]). Accordingly, the order, insofar as appealed from, is reversed, the superseding accusatory instruments are reinstated and the matter is remitted to the Justice Court for all further proceedings thereon. We note that, contrary to the manner in which the Justice Court apparently construed CPL 170.10, this statutory provision imposes upon the court a duty to arraign defendants on the superseding accusatory instruments that is mandatory, not discretionary (see [*2]People v Goss, 87 NY2d 792, 798 [1996]).