People v. Smith , 81 A.D.2d 965 ( 1981 )

— Appeal from an order of the County Court of Rensselaer County, entered April 30, 1980, which granted defendant’s motion to dismiss the indictment. The instant criminal action was commenced by the filing of an indictment on June 20, 1979 charging defendant with third degree grand larceny and fraudulently obtaining public assistance (Social Services Law, §145, subd 1). Six months and 15 days later, on January 4, 1980, the prosecution gave notice it was ready for trial. Defendant subsequently moved pursuant to CPL 210.20 (subd 1, par [g]) for dismissal of the indictment on the ground he had been denied the right to a speedy trial guaranteed by CPL 30.30. Based upon the affidavits and exhibits submitted to it, the trial court granted his application and this appeal by the prosecution ensued. An application to dismiss an indictment based on a claimed violation of the speedy trial requirements of CPL 30.30 may not be granted without a hearing unless “The sworn allegations of fact essential to support the motion are either conceded *** or are conclusively substantiated by unquestionable documentary proof’ (CPL 210.45, subd 4, par [c]; subd 6; cf. People v Gruden, 42 NY2d 214). Neither condition was met here and, therefore, it was error for the trial court to summarily resolve the legal questions presented in defendant’s favor. Although the prosecution tacitly acknowledged that it was not ready for trial within six months after the indictment was filed (CPL 30.30, subd 1, par [a]), the affidavits submitted in opposition to defendant’s motion claimed two exclusions from that limitation: the period of delay resulting from defendant’s absence when his location was unknown and could not be determined by due diligence (GPL 30.30, subd 4, par [c]) and, thereafter, the period during which he was without counsel through no fault of the court (GPL 30.30, subd 4, par [f]). While the burden of proving statutory exclusions rests on the prosecution (cf. People v Dean, 45 NY2d 651; People v Washington, 43 NY2d 772; People v Gruden, 42 NY2d 214, supra), the instant assertions were plainly sufficient on their face to controvert defendant’s application in the first instance. In reply, defendant offered a change of address form he filed with postal authorities and a letter by his former attorney seeking to withdraw from the case. Such documents, however, are not conclusive. The former merely tends to establish that a change in residence occurred. It does not prove defendant’s actual location or negate the very real possibility that there was some justifiable delay in ascertaining his whereabouts. The latter gives no indication of the sequence followed by the trial court. While it is technically accurate to say that until new counsel was appointed defendant was not without an attorney, we do not read the statute in such a narrow fashion. Whether a change in representation is prompted by the accused or by the attorney, the fact remains that a trial will only take place when the matter is settled. Fault attributable to the court in obtaining counsel for a defendant is not excludable, but some period of time might necessarily elapse in the appointment process which should not, in fairness, be charged against the prosecution. Since many of the pertinent circumstances surrounding the claimed exclusions were unknown, the issues should not have been determined in the absence of a factual hearing. Thus, while the ultimate result may remain unchanged, we withhold decision of this appeal and remit the matter to the trial court for further development of the record (see People v Berkowitz, 50 NY2d 333, 349; People v Gruden, 42 NY2d 214, supra; People v McLaurin, 38 NY2d 586). Decision withheld, and matter remitted to the County Court of Rensselaer County for further proceedings not inconsistent herewith. Kane, J.P., Mikoll and Yesawich, Jr., JJ., concur.