Appeal from an order of the City Court of Newburgh, Orange County (Peter M. Kulkin, J.), dated February 24, 2010. The order granted defendant's motion to dismiss the accusatory instruments.

ORDERED that the order is reversed, on the law, defendant's motion to dismiss the accusatory instruments is denied, the accusatory instruments are reinstated, and the matter is remitted to the City Court for all further proceedings before a different judge.

The City Court granted defendant's oral motion to dismiss the accusatory instruments for failure to prosecute upon being informed, on the date set for trial, that the People's primary witness was unavailable, despite being under subpoena. However, a trial court "has no statutory or inherent authority to dismiss a criminal proceeding for failure to prosecute" (People v Babcock, 19 Misc 3d 134[A], 2008 NY Slip Op 50696[U] [App Term, 9th & 10th Jud Dists 2008]; see People v Douglass, 60 NY2d 194, 205 [1983]; People v Milk, 18 Misc 3d 130[A], 2008 NY Slip Op 50044[U] [App Term, 9th & 10th Jud Dists 2008]; People v Meynard, 18 Misc 3d 130[A], 2008 NY Slip Op 50045[U] [App Term, 9th & 10th Jud Dists 2008]; cf. CPL 170.30).

Accordingly, the order is reversed, defendant's motion to dismiss the accusatory instruments is denied, the accusatory instruments are reinstated, and the matter is remitted to the City Court for all further proceedings before a different judge.

Tanenbaum, J.P., LaCava and Iannacci, JJ., concur. [*2]
Decision Date: May 20, 2011