Opinion
April 23, 1990
Appeal from the Supreme Court, Kings County (Slavin, J.).
Ordered that the order is reversed, on the law, the motion is denied, indictment No. 6812/87 is reinstated and the matter is remitted to the Supreme Court, Kings County, for further proceedings before another Justice.
It is claimed in the prosecution underlying this appeal that, on two separate occasions, the defendant sold a quantity of so-called "crack cocaine" to an undercover officer. On each occasion, the sale was arranged by contacting the defendant via electronic beeper. Following unsuccessful plea negotiations in which the Supreme Court evidently took an active role, the defendant sought and was granted dismissal in the interest of justice. We reverse.
As we have previously noted (see, e.g., People v. Ortiz, 152 A.D.2d 755), the discretionary power to dismiss an indictment in the interest of justice is to be exercised sparingly and its exercise involves a sensitive balancing of the interests of the individual against the competing interests of the public (see, People v. Rickert, 58 N.Y.2d 122; People v. Clayton, 41 A.D.2d 204). The facts that the defendant here has no prior criminal record and that, if convicted of the "top" counts of the indictment, his incarceration is legislatively mandated (see, Penal Law § 70.00, [3]; see also, Penal Law § 220.16, 220.39 Penal) are, standing alone, insufficient to justify dismissal in the interest of justice (cf., People v. Ortiz, supra). The record before us fails to demonstrate that, here, the interests of the individual and the State coincide so as to warrant dismissal or that compelling circumstances tip the balance in the defendant's favor (cf., People v. Clayton, supra; see also, People v. Ortiz, supra; People v. Belkota, 50 A.D.2d 118). The Supreme Court abused its discretion when it granted the defendant's motion. Brown, J.P., Rubin, Sullivan and Harwood, JJ., concur.