Appeal from an amended order of the Justice Court of the Town of Southampton, Suffolk County (Andrea H. Schiavoni, J.), dated November 6, 2013. The amended order granted defendant's oral motion to dismiss the accusatory instrument.

ORDERED that, on the court's own motion, the notice of appeal from the order of the same court dated February 27, 2012 is deemed a premature notice of appeal from the amended order dated November 6, 2013 (see CPL 460.10 [6]); and it is further,

ORDERED that the amended order is affirmed.

Defendant was charged with resisting arrest (Penal Law § 205.30) and obstructing governmental administration in the second degree (Penal Law § 195.05). On the eve of trial, the People requested an adjournment because one of the police witnesses was on vacation and out of the country. The Justice Court denied the People's request for an adjournment and directed the People to proceed with jury selection. After the jury was sworn, the People again requested a brief adjournment because of the unavailability of the police witness. Defendant's counsel objected and orally moved to dismiss. The Justice Court directed the People to present their opening statement. When the People refused to do so, the court, by order dated February 27, 2012, dismissed the information. The People appealed from this order.

The appeal by the People was held in abeyance, and the matter was remitted to the Justice Court to set forth its findings of fact, its conclusions of law and the reasons for its determination (People v Gumbs, 40 Misc 3d 142[A], 2013 NY Slip Op 51513[U] [App Term, 9th & 10th Jud Dists 2013]). Thereafter, the Justice Court issued an amended order, dated November 6, 2013, in which, citing CPL 290.10, it indicated that it had granted defendant's motion after the People had declined to proceed with the trial and the jury had been sworn. We deem the notice of appeal from the February 27, 2012 order to be a premature notice of appeal from the amended order.

Trial courts do not possess any authority, either statutory or inherent, to dismiss an accusatory instrument due to a delay in prosecution or for calendar control, absent speedy trial considerations, prior to the commencement of trial (see Matter of Holtzman v Goldman, 71 NY2d 564, 573-575 [1988] People v Douglass, 60 NY2d 194, 200-204 [1983] People v Spellman, 233 AD2d 254 [1996] People v Sullivan, 142 AD2d 695 [1988] People v Tartaglione, 5 Misc 3d 126[A], 2004 NY Slip Op 51190[U] [App Term, 9th & 10th Jud Dists 2004]). Here, however, the trial had commenced, since the jury had been empaneled and sworn (CPL 1.20 [11] 40.30 [1] [b]). Once a trial has commenced, a court may, pursuant to CPL 290.10 (1) (a), issue a trial order of dismissal upon motion of the defendant "[a]t the conclusion of the People's case or at the conclusion of all the evidence . . . upon the ground that the trial evidence is not legally sufficient to establish the offense charged." In the instant case, since the People declined to make an opening statement (see CPL 260.30 [3], [5]) and failed to introduce any proof, the court properly issued a trial order of dismissal (see CPL 290.10 [1]).

We note that, contrary to the People's contention, under the circumstances presented, the denial of their request for an adjournment was not an abuse of the court's discretion (see People v [*2]Mingo, 155 AD2d 485 [1989]).

Accordingly, the amended order is affirmed.

Nicolai, P.J., Iannacci and Marano, JJ., concur.
Decision Date: March 10, 2014