[898 NYS2d 755]

#### The People of the State of New York, Appellant, v Alfonso Valentin, Respondent.

Supreme Court, Appellate Term, Second Department,

February 8, 2010

*20APPEARANCES OF COUNSEL

*Richard A. Brown, District Attorney,*Queens *(Edward D. Saslaw*of counsel), for appellant. *Lynn W.L. Fahey*and *David E Greenberg,*for respondent.

OPINION OF THE COURT

Memorandum.

Ordered that the appeal from the order dated March 18, 2008 is dismissed as said order was superseded by the order dated April 2, 2008; and it is further ordered that the order dated April 2, 2008, insofar as appealed from, is affirmed.

In October 2007 the People charged defendant with criminal sale of marihuana in the fourth degree (Penal Law § 221.40) based upon the arresting officer’s observation of a transaction between defendant and another person involving cash and a transparent bag of marihuana. On November 7, 2007 the People orally consented to a *Mapp*hearing without the necessity of a written motion *(cf.*CPL 710.60 [1]). On February 5, 2008 the Criminal Court denied the prosecutor’s request for a fifth adjournment of the hearing to produce the officer and granted defendant’s motion to suppress evidence. The People moved for leave to reargue defendant’s suppression motion. By order dated March 18, 2008, the court, in effect, granted leave to reargue and, upon reargument, adhered to the prior determination denying a further adjournment and granting defendant’s suppression motion, noting that a more detailed order disposing of the motion would be forthcoming. A more detailed order to the same effect was issued on April 2, 2008. The People appeal from the March 18, 2008 and April 2, 2008 orders, arguing that the Criminal Court abused its discretion in denying the adjournment, that the denial was tantamount to an unauthorized dismissal and, because defendant failed to establish his standing to challenge the propriety of the seizure of marihuana, alleged to have been from the hand of the person to whom he sold the marihuana, that there was no basis to convene a hearing in the first instance, rendering the grant of the motion without legal foundation, notwithstanding the absence of proof of the constitutionality of the seizure.

*21The People objected to defendant’s failure to demonstrate standing *(e.g. People v Ramirez-Portoreal,*88 NY2d 99, 108-109 [1996]) for the first time in their reargument motion. We find that the People’s consent to a procedure, whereby a *Mapp*hearing was granted without a written motion or a demonstration of defendant’s standing to challenge the constitutionality of the seizure of evidence, and the People’s failure thereafter to raise said issue on any of the adjourned dates of the hearing, waived any procedural complaint with respect to the grant of the hearing.

The grant of an adjournment rests within the sound discretion of the court *(e.g. Matter of Anthony M.,*63 NY2d 270, 283 [1984]; *People v Singleton,*41 NY2d 402, 405 [1977]; *People v Foy,*32 NY2d 473, 476 [1973]; *People v Ruiz,*57 AD3d 576 [2008]; *People v Jackson,*41 AD3d 498 [2007]; *People v Melvin,*223 AD2d 604 [1996]), and under the circumstances presented, we cannot say that the Criminal Court improvidently exercised its discretion. The Court of Appeals has rejected a claim that the People are entitled to adjournments until their speedy trial time is exhausted *(Matter of Hynes v George,*76 NY2d 500, 506 [1990]), and has expressed disapproval of prosecutorial conduct wasteful of judicial resources and burdensome to defendants and their counsel who are required repeatedly to appear and be prepared for hearings that do not occur *(see People v Douglass,*60 NY2d 194, 200 [1983]). The People’s factual representations regarding their diligence to produce the witness and the reasons for his repeated nonappearance, are insufficient to support a finding that the court improvidently exercised its discretion in denying the People’s request for a fifth adjournment.

The People offered no explanation for one nonappearance, and the explanations for two other absences, which were that the adjournment dates corresponded to the officer’s “regular day off” and the officer’s attendance at a promotion ceremony, do not support the People’s claims to diligence in selecting adjournment dates upon proper knowledge of the officer’s availability and on timely notice to the officer of the hearing dates. Indeed, notwithstanding that the Criminal Court had declared the next adjournment “final” as to the People *(see e.g. People v Patterson,*177 AD2d 1042 [1991]), the People offered only that the officer had been assigned to “election detail.” This pattern of absences, as the Criminal Court properly noted, established little more than that the officer’s attendance at the suppression hearing was a matter of diminished priority as to all competing *22interests. Moreover, when the prosecutor sought yet an additional adjournment, he accompanied that request with no representations regarding the likelihood of the officer’s appearance at the adjournment date, a relevant consideration when determining the propriety of an adjournment request *(see e.g. People v Robinson,*295 AD2d 544 [2002]; *People v Di Fondi,*275 AD2d 1018 [2000]; *People v Benson,*260 AD2d 864, 865 [1999]; *People v Blasini,*253 AD2d 886, 887 [1998]; *People v Patterson,*177 AD2d at 1042).

As evidentiary review of the merits of the suppression motion was foreclosed by the People’s failure to produce a witness *(compare People v Ramirez-Portoreal,*88 NY2d at 109; *see People v Bashkatov,*18 Misc 3d 127[A], 2007 NY Slip Op 52364[U] [App Term, 2d & 11th Jud Dists 2007]), we find no basis to disturb the court’s order granting the motion to suppress evidence. Although the Criminal Court’s order may effectively prevent the People from proving their case, the order was not tantamount to an unauthorized dismissal of a criminal action *(Matter of Hynes v George,*76 NY2d 500 [1990]; *Matter of Holtzman v Goldman,*71 NY2d 564 [1988]; *see People v Roesch,*163 AD2d 429, 430-431 [1990]). Accordingly, the order is affirmed.

Golia, J.P

(dissenting in part and concurring in part and voting to dismiss the appeal from the order dated March 18, 2008, to reverse the order dated April 2, 2008, insofar as appealed from, and to remit the matter to the Criminal Court for a determination de novo of defendant’s motion to suppress evidence, following a hearing, in the following memorandum). I concur with the majority in the dismissal of the appeal from the order dated March 18, 2008, as that order was superseded by the order dated April 2, 2008.

However, with respect to the order dated April 2, 2008, I disagree with the majority in their legal findings. Most particularly, I disagree with their broad reading of the Court of Appeals’ determination in *Matter of Hynes v George*(76 NY2d 500 [1990]), which establishes a very particularized exception to the line of cases exemplified by *People v Douglass*(60 NY2d 194 [1983]) and *Matter of Holtzman v Goldman*(71 NY2d 564 [1988]).

In the case at bar, unlike in *Hynes,*the trial court summarily granted defendant’s motion to suppress the physical evidence, to wit, the marihuana, in a criminal sale of marihuana case. The result of this action was to render it legally impossible for the prosecution to prove its case and was therefore the functional equivalent of a dismissal. The action by the trial *23court in this case is substantially different from the action of the trial court in *Hynes*and more like the action taken in *Holtzman*and *Douglass.*In *Hynes,*the Court of Appeals said:

> “Here, unlike *Holtzman*or *Douglass,*the trial court entered no order of dismissal; it simply required the parties to proceed with jury selection . . . Contrary to the People’s argument, respondent’s order to proceed with jury selection *did not have the practical effect*of a ‘threatened’ dismissal. The People had time during the jury selection process to make further efforts to locate the complainant ... If such efforts failed, the People could have made a second adjournment request. The People made no such efforts, but choose instead to commence this collateral proceeding at the Appellate Division” (76 NY2d at 505 [emphasis added; citations omitted]).

Simply, the Court of Appeals in *Hynes*found that the *Douglass*line of cases did not apply since the action by the trial court did not have the practical effect of a dismissal whereas, in the case at bar, it is indisputable that the result of suppressing the marihuana in a case that charges the sale of marihuana is, in effect, a dismissal of the charges *(see*CPL 450.50; *People v Midgett,*86 Misc 2d 1003 [App Term, 9th & 10th Jud Dists 1976]).

Consequently, I do not agree with the majority. I find that the majority, without basis, unjustifiably expanded the reasoning of *Hynes*to the point where they say that “[although the Criminal Court’s order *may effectively prevent*the People from proving their case, the order was not tantamount to an unauthorized dismissal of a criminal action” (emphasis added). In fact, the *Hynes*Court found that there was no unauthorized dismissal after holding that the action of the trial judge *“did not*have the practical effect of a ‘threatened’ dismissal” (76 NY2d at 505 [emphasis added]).

Additionally, I respectfully disagree with the majority in their support of the trial judge’s denial of the People’s request for an adjournment on February 5, 2008. The Criminal Court was informed that the police officer was unable to appear because he had just been reassigned to an “election” detail. February 5, 2008 was the day of the Democratic Party primary election for the office of President of the United States. Current events, New York politics, or risk assessment should have enlightened the Criminal Court, and all, that this had the potential to be an extraordinary day, far above the norm.

*24I do not in any way discount the less than stellar, erstwhile performance and forthrightness of the Assistant District Attorney, but I also do not accept the trial court’s refusal to accede to the officer’s reassignment on that particular day.

Finally, it appears that the trial judge failed to meet the requirements of CPL 710.60. Subdivision (6) of that statute requires that “[rjegardless of whether a hearing was conducted, the court, upon determining the motion, must set forth on the record its findings of fact, its conclusions of law and the reasons for its determination.”

This the trial court did not do.

It is clear that a court must set forth its reasons on the record so as to obviate the very situation that we have here, that is, to prevent a trial judge from summarily granting a suppression motion as a purely punitive measure rather than on the merits. Since the trial court failed to do so, I would reverse the order dated April 2, 2008 and remit the matter to the Criminal Court for a determination de novo of defendant’s motion to suppress evidence, following a hearing.

Pesce and Weston, JJ., concur; Golia, J.P, dissents in part and concurs in part in a separate memorandum.