| People v Elmer |
| 2011 NY Slip Op 04123 [84 AD3d 1593] |
| May 19, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Appellant, v Carol Elmer,Respondent. |
—[*1] Richard V. Manning, Parishville, for respondent.
Malone Jr., J. 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 theindictment.
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 byallegedly failing to provide proper sustenance to horses in her custody. The first 22 countsreferred to conditions existing on her property in December 2008, as observed by police as aresult 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, includingdefendant's motion to set aside the search warrant as invalid and to suppress all of the evidencediscovered as a result thereof. County Court ordered a hearing on the suppression issue, whichwas adjourned several times, prompting defendant to eventually move to dismiss the indictmenton statutory speedy trial grounds in May 2010. Following written submissions, oral argument andsome testimony, County Court issued an oral decision from the bench granting the motion todismiss 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 accusatoryinstrument or a count thereof, entered pursuant to [CPL] 170.30, 170.50 or 210.20" (CPL450.20 [1] [emphasis added]; see CPL 460.10 [1] [a]). Here, apparently County Court'soral ruling [*2]dismissing the first 22 counts of the indictmentwas never reduced to a writing and was never entered. Inasmuch as no appeal lies from the oralruling (see People v Holmes, 206 AD2d 542 [1994]), this appeal must be dismissed andthe matter is remitted to County Court for the issuance of the required order (see People v Peck, 46 AD3d 1098,1099 [2007]).
Mercure, J.P., Rose, Stein and Egan Jr., JJ., concur. Ordered that the appeal is dismissed, andmatter remitted to the County Court of St. Lawrence County for further proceedings notinconsistent with this Court's decision.