People v. Nowakowski — 49 N.Y.2d 723

Majority

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The People of the State of New York, Respondent, v Joseph Nowakowski, Appellant.

Argued January 4, 1980;

decided February 5, 1980

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APPEARANCES OF COUNSEL

Samuel J. Castellino, Public Defender (M. Joseph Danaher of counsel), for appellant.

D. Bruce Crew, III, District Attorney (James Hayden of counsel), for respondent.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified and the case remitted to County Court for reconsideration of the CPL 30.30 motion to dismiss the indictment following an appropriate hearing.

We conclude that it was error for the court to have disposed of the motion to dismiss in this instance, disclosing on its face an extended delay, on the inadequate, skeletal record before it.

Accordingly, the case should be remitted to County Court for a hearing and reconsideration of the motion. If the court then denies the motion, the judgment of conviction should be

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amended to reflect such denial, thereby to provide an appealable paper. If the motion is granted the resulting order dismissing the indictment would similarly support an appeal.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order modified and the case remitted to Chemung County Court for further proceedings in accordance with the memorandum herein and, as so modified, affirmed.