Opinion
2014–05064 S.C.I. No. 6016/09
02-13-2019
The PEOPLE, etc., Respondent, v. David BOOKARD, Appellant.
Janet E. Sabel, New York, N.Y. (William B. Carney of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy, and Kristen A. Carroll of counsel), for respondent.
Janet E. Sabel, New York, N.Y. (William B. Carney of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy, and Kristen A. Carroll of counsel), for respondent.
REINALDO E. RIVERA, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, JJ.
DECISION & ORDERORDERED that the judgment is affirmed.
On July 21, 2009, the defendant pleaded guilty under a superior court information (hereinafter SCI) to criminal sale of a controlled substance in the fifth degree. In exchange for the plea of guilty, he was placed in the Kings County District Attorney's Drug Treatment Alternative–to–Prison (hereinafter DTAP) program. The program included both residential and outpatient substance abuse treatment. Pursuant to the terms of the plea agreement, if the defendant successfully completed the program, he would be permitted to withdraw his plea and the SCI would be dismissed. However, if the defendant failed to complete the program, or violated certain conditions, including not being arrested, he would be sentenced to a term of imprisonment.
In 2013, during the outpatient treatment portion of the DTAP program, the defendant was arrested and ultimately convicted, after a nonjury trial, of sexual abuse in the third degree. In February 2014, the defendant moved pursuant to CPL 210.40 to dismiss the SCI in furtherance of justice based, inter alia, upon his completion of residential treatment and his performance in outpatient treatment. In an order dated April 8, 2014, the Supreme Court denied the defendant's motion. On April 9, 2014, the defendant was sentenced to a term of imprisonment.
"The discretionary authority to dismiss an indictment in furtherance of justice [pursuant to CPL 210.40 ] should be exercised sparingly and only in those rare cases where there is a compelling factor which clearly demonstrates that prosecution of the indictment would be an injustice" ( People v. Candelaria , 50 A.D.3d 913, 913, 855 N.Y.S.2d 259 [internal quotation marks omitted]; see People v. Schellenbach , 67 A.D.3d 712, 713, 888 N.Y.S.2d 153 ; People v. M.R. , 43 A.D.3d 1188, 841 N.Y.S.2d 799 ). Here, the defendant, who violated a condition of his plea agreement requiring that he not be arrested for a new crime, failed to establish any compelling factor or circumstance that would justify dismissal of the SCI in furtherance of justice (see People v. Candelaria , 50 A.D.3d at 913–914, 855 N.Y.S.2d 259 ; People v. Ward , 300 A.D.2d 418, 418–419, 750 N.Y.S.2d 786 ; People v. McIlwain , 300 A.D.2d 320, 321, 751 N.Y.S.2d 503 ). Accordingly, we agree with the Supreme Court's determination to deny the defendant's motion pursuant to CPL 210.40 to dismiss the SCI in furtherance of justice.
RIVERA, J.P., ROMAN, COHEN and HINDS–RADIX, JJ., concur.