Opinion
February 2, 1990
Appeal from the Monroe County Court, Egan, J.
Present — Dillon, P.J., Denman, Green, Balio and Lawton, JJ.
Order unanimously reversed on the law, motion denied and indictment reinstated. Memorandum: The indictment charged defendant with burglary in the second degree (Penal Law § 140.25) and petit larceny (Penal Law § 155.25). The People recite that on June 20, 1988 at approximately 4:00 A.M. defendant broke into the home of the victims, who were awakened from their sleep "to see [defendant] rummaging through purses and belongings in [their] bedroom". On March 10, 1989 the court scheduled the case for trial on June 5, 1989. On the latter date the prosecutor informed the court that the chief witness was unavailable but that the People would be ready to proceed on June 29, 1989. Defendant's counsel urged that the court order the parties to proceed to trial and suggested that if the People are "unable to present any proof * * * the matter should be dismissed on the merits". The court inquired whether defendant was also moving to dismiss "in furtherance of justice". Following defendant's affirmative response, the court ordered the case to trial and, after determining that the People were unable to proceed without the chief witness, the court reviewed the factors enumerated in CPL 210.40 (1) and dismissed the indictment in furtherance of justice. The People appeal, and we reverse and reinstate the indictment.
An indictment may be dismissed in furtherance of justice where there exists "some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such indictment * * * would constitute or result in injustice" (CPL 210.40). We have independently reviewed the factors set forth in the statute and we conclude that a dismissal of this indictment in furtherance of justice is not warranted. There is nothing in this record to demonstrate "that rare or unusual circumstance which cries out for fundamental justice" (People v Litman, 99 A.D.2d 573; see also, People v Riccelli, 149 A.D.2d 941, 942).
Burglary in the second degree, a class C felony, is a serious crime and the circumstances underlying its commission here are particularly egregious (see, CPL 210.40 [a]). It is impossible to calculate the extent of harm caused by defendant's conduct (see, CPL 210.40 [b]), but the prosecutor reported to the court that the victims were "highly disturbed" as a result of the crime (see, CPL 210.40 [i]). Moreover, neither the seriousness of the crime nor the potential for harm is diminished by the fact that only $13 (twice characterized by the court as "not a serious amount") was stolen during the burglary.
The court acknowledged that the evidence of defendant's guilt "would be substantial and strong" (see, CPL 210.40 [c]). Defendant had two prior misdemeanor convictions, the most recent of which was for driving while intoxicated. He was serving a sentence of probation and undergoing treatment for alcoholism as a consequence of that conviction. Although he was gainfully employed, and although the court looked favorably upon a continuation of defendant's rehabilitation while on probation, we find nothing in "the history, character and condition of the defendant" (CPL 210.40 [d]) to justify dismissal of the indictment.
The court found no "exceptionally serious misconduct of law enforcement personnel" (CPL 210.40 [e]) but noted that the People's failure to produce the witness on the "day certain" for trial was inexcusable. We agree with that observation. The prosecutor had lead time of almost two months to arrange for the presence of witnesses on the trial date. The prosecutor's failure to have notified the chief witness of the impending trial at an earlier time impeded the orderly and efficient disposition of the court's criminal case calendar. In the circumstances presented, however, the prosecutor's lack of diligence in this regard should not result in dismissal of the indictment. The court was informed that the witness would be available within a reasonable time (see, People v Foy, 32 N.Y.2d 473; People v Chisholm, 140 A.D.2d 534), and defendant's speedy trial rights (see, CPL 30.20, 30.30 Crim. Proc.) would not have been implicated as a result of the requested continuance (see, Matter of Holtzman v Goldman, 71 N.Y.2d 564).
Finally, we do not agree with the court's assertion that the sentence of probation previously imposed upon defendant fulfilled "any laudatory purpose and effect of imposing a sentence" (see, CPL 210.40 [f]). That sentence was imposed for a misdemeanor conviction and bears little relationship to consequences which might result from a conviction for burglary of an occupied home in the nighttime.
In sum, we find that in dismissing the indictment, County Court abused its discretion as a matter of law. Accordingly, we conclude that the indictment must be reinstated.