Opinion
2014-04-18
The PEOPLE of the State of New York, Appellant, v. Elyse RICHMAN, Respondent.
Hermon J. Bishop, Westhampton Beach, for appellant. Guy T. Parisi, Rye, for respondent.
Hermon J. Bishop, Westhampton Beach, for appellant. Guy T. Parisi, Rye, for respondent.
Present: NICOLAI, P.J., IANNACCI and MARANO, JJ.
Appeal from an order of the Justice Court of the Village of Westhampton Beach, Suffolk County (J. Lee Snead, J.), entered May 18, 2012. The order dismissed the accusatory instrument in the interest of justice.
ORDERED that the order is reversed, on the law and facts, the accusatory instrument is reinstated, and the matter is remitted to the Justice Court for all further proceedings before a different judge.
The People charged defendant with violating Code of the Village of Westhampton Beach (the Code) section 197–30 by erecting, without a permit, a six-foot sign advertising her ice cream business. After her constitutional challenges to the relevant sections of the Code were rejected, the matter was adjourned for trial. On April 11, 2012, the adjourned date, the Justice Court, sua sponte, dismissed the accusatory instrument in the interest of justice ( seeCPL 170.40[1] ), citing the time and expense already expended on the matter and the fact that the offending sign had been removed during the pendency of the action. In response, the prosecutor stated only, “the People object.” On May 18, 2012, in response to the People's “request ... to memorialize with clarity the numerous factors bearing on the Court's determination,” the Justice Court issued a written order setting forth “the ultimate reasons ... for the dismissal” ( People v. Rickert, 58 N.Y.2d 122, 128, 459 N.Y.S.2d 734, 446 N.E.2d 419 [1983];seeCPL 170.40[2] ). The People appeal from this order, and we reverse the order and reinstate the accusatory instrument.
It is initially noted that the People cannot invoke the violation of their entitlement to a written motion and reasonable notice ( seeCPL 170.30 [1]; 170.40, 170.45, 210.45[1]; People v. Mezon, 80 N.Y.2d 155, 160, 589 N.Y.S.2d 838, 603 N.E.2d 943 [1992] ) as a basis to reverse the order. Their objection, lacking the requisite specificity, was insufficient to make the People's “position with respect to (a) ruling ... known to the court” (CPL 470.05[2] ), and accordingly, to preserve the claim for appellate review ( see People v. Hawkins, 11 N.Y.3d 484, 491–492, 872 N.Y.S.2d 395, 900 N.E.2d 946 [2008] ), and there was no motion for reargument following either the order of April 11, 2012 or that of May 18, 2012 ( People v. Jennings, 69 N.Y.2d 103, 113, 512 N.Y.S.2d 652, 504 N.E.2d 1079 [1986] ).
However, we agree with the People that the Justice Court improvidently exercised its discretion when it dismissed the accusatory instrument pursuant to CPL 170.40(1). “The discretionary authority to dismiss ... in furtherance of justice ... should be exercised sparingly and only in those rare cases where there is a compelling factor which clearly demonstrates that prosecution ... would be an injustice' ” ( People v. Graham, 39 Misc.3d 35, 37, 965 N.Y.S.2d 271 [App.Term, 2d, 11th & 13th Jud.Dists.2013], quoting People v. Candelaria, 50 A.D.3d 913, 913, 855 N.Y.S.2d 259 [2008];e.g. People v. Schellenbach, 67 A.D.3d 712, 713, 888 N.Y.S.2d 153 [2009];People v. Rahmen, 302 A.D.2d 408, 409, 754 N.Y.S.2d 553 [2003];People v. Gordon, 20 Misc.3d 133[A], 2008 N.Y. Slip Op. 51464 [U], 2008 WL 2763368 [App.Term, 9th & 10th Jud.Dists.2008];see also People v. McAteer, 36 Misc.3d 159[A], 2012 N.Y. Slip Op. 51814[U], *2, 2012 WL 4122039 [App.Term, 9th & 10th Jud.Dists.2012] [such relief should be granted only in those cases which “cry out for fundamental justice beyond the confines of conventional considerations' ”], quoting People v. Harmon, 181 A.D.2d 34, 36, 586 N.Y.S.2d 922 [1992] ). In this inquiry:
“[V]ague or conclusory reasons, unsupported by a record which gives them enough substance to clearly demonstrate the actual existence of at least some compelling factor, consideration or circumstance, will [not suffice].... [W]hile [CPL 170.40] does not compel catechistic on-the-record discussion of items (a) through (j), ... the need to show that the ultimate reasons given for the dismissal are both real and compelling almost inevitably will mean that one or more of the statutory criteria, even if only the catchall (j), will yield to ready identification” ( People v. Rickert, 58 N.Y.2d at 128, 459 N.Y.S.2d 734, 446 N.E.2d 419 [internal quotation marks omitted] ).
Although in its written order of May 18, 2012, the Justice Court properly addressed the factors set forth in CPL 170.40(1)(a-j), we find that the grounds set forth by the Justice Court “considered collectively as well as individually” ( People v. Rickert, 58 N.Y.2d at 132, 459 N.Y.S.2d 734, 446 N.E.2d 419), and upon “a sensitive balancing of the interests of the individual against the competing interests of the public” ( People v. Debiasi, 160 A.D.2d 952, 953, 554 N.Y.S.2d 673 [1990] ), do not justify the court's circumvention of the broad discretion granted to the People to determine what offenses to charge and how to prosecute them ( People v. McAteer, 36 Misc.3d 159[A], 2012 N.Y. Slip Op. 51814[U], *1, 2012 WL 4122039;see People v. Keith R., 95 A.D.3d 65, 67, 941 N.Y.S.2d 76 [2012];People v. Litman, 99 A.D.2d 573, 574, 470 N.Y.S.2d 940 [1984];People v. McConnell, 11 Misc.3d 57, 62, 812 N.Y.S.2d 742 [App.Term, 9th & 10th Jud.Dists.2006] ). Defendant has several times been convicted of the same or similar Code violations, and while the instant violation, a six-foot representation of an ice cream cone, may not, in and of itself, have caused serious harm to the community ( seeCPL 170.40[1][a], [b] ), the offense implicates legitimate and substantial environmental, safety, and aesthetic values ( see Code § 197–30[A], [B]; Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 805, 807, 104 S.Ct. 2118, 80 L.Ed.2d 772 [1984];People v. On Sight Mobile Opticians, 40 Misc.3d 95, 99, 971 N.Y.S.2d 656 [App.Term, 9th & 10th Jud.Dists.2013] ). Further, the arbitrary dismissal of a charge where the “evidence of guilt” (CPL 170.40[c] ) is compelling (as it was, in the opinion of the Justice Court), particularly in the case of a repeat offender ( seeCPL 170.40[1][h] ), serves neither the interests of the penal sanction, which, in defendant's case, were not furthered by the prior sentencing (CPL 170.40[1][f]; see People v. Suitte, 90 A.D.2d 80, 83, 455 N.Y.S.2d 675 [1982] ), nor the fair and evenhanded administration of justice (CPL 170.40 [1][h] ). Finally, while the Justice Court may have been persuaded that defendant was “sincere[ly]” aware “that she is required to obtain a permit for such a sign,” that awareness has surely existed since her first conviction, several years before, for the same offense. Absent evidence of “any exceptionally serious misconduct of law enforcement personnel” in relation to this case (CPL 170.40[e] ), or of “any other relevant fact indicating that a judgment of conviction would serve no useful purpose” (CPL 170.40[j] ), the dismissal under the circumstances presented cannot be considered a provident exercise of a court's authority to dismiss a prosecution in the interest of justice.
Accordingly, the order is reversed, the accusatory instrument is reinstated, and the matter is remitted to the Justice Court for all further proceedings before a different judge.