Opinion
July 22, 1991
Appeal from the Supreme Court, Queens County (Posner, J.).
Ordered that the order is reversed, on the law, the motion is denied, the first, second, third, fifth and sixth counts of Queens County Indictment No. 2714/86 are reinstated, and the matter is remitted to the Supreme Court, Queens County, for further proceedings on the indictment.
It is well settled that the discretionary power to dismiss an indictment in the interest of justice is to be exercised sparingly (see, CPL 210.40; People v Serrano, 163 A.D.2d 497, 498; People v Saunders, 161 A.D.2d 611; People v McGraw, 158 A.D.2d 719, 720; People v Ortiz, 152 A.D.2d 755; People v Foster, 127 A.D.2d 684, 685; see also, People v Rucker, 144 A.D.2d 994; People v Insignares, 109 A.D.2d 221, 234; People v Clayton, 41 A.D.2d 204). Moreover, while the granting of relief pursuant to CPL 210.40 is committed to the sound discretion of the trial court, that discretion is not absolute (see, People v Ortiz, supra, at 755; People v Rucker, supra, at 994). In rendering its determination, the court must engage in a "sensitive balancing of the interests of the individual and the People" (People v Rickert, 58 N.Y.2d 122, 127; see also, People v Clayton, supra, at 204). Upon reviewing the record, we conclude that this case does not present one of those rare instances where dismissal in the interest of justice is warranted (see, People v Serrano, supra, at 498; People v Saunders, supra, at 611; People v Foster, supra, at 685). The crimes with which the defendant was charged were clearly serious (see, CPL 210.40 [a]; People v Serrano, supra, at 498; People v Saunders, supra, at 611; People v Foster, supra, at 685), and, because the crimes allegedly involved an air-powered pistol, the interest of public safety weighed heavily against dismissal (see, CPL 210.40 [h]; People v Foster, supra, at 685). Moreover, the defendant's history and character were far from exemplary inasmuch as he had been previously convicted of a felony (see, CPL 210.40 [d]; People v McGraw, supra, at 720; People v Foster, supra, at 685). In view of these compelling factors, the trial court's doubts as to the strength of the People's case and the propriety of the actions of certain law enforcement personnel did not warrant the dismissal of the stated counts of the indictment (see, People v Urcuiolio, 77 A.D.2d 579). These considerations simply do not "clearly [demonstrate] that conviction or prosecution of the defendant upon such indictment * * * would constitute or result in injustice" (CPL 210.40; People v Foster, supra, at 685). Kooper, J.P., Lawrence, Eiber and O'Brien, JJ., concur.