Opinion
2005KN060402.
Decided March 2, 2006.
The defendant, John G. Madsen, is charged with Assault in the Third Degree (PL § 120.00), Attempted Assault in the Third Degree (PL § 110/120.00[1]), Menacing in the Third Degree (PL § 120.15) and Harassment in the Second Degree (PL § 240.26). He moves for dismissal of the accusatory instrument in the interest of justice (CPL 170.40). The People oppose the motion. This court makes the following findings of fact and conclusions of law:
On September 20, 2005, the defendant was arraigned on a misdemeanor complaint charging him with the above-stated offenses. The complaint alleges that at the northeast corner of State Street and Flatbush Avenue in the back of a taxi, the defendant, John G. Madsen, did repeatedly punch, Alex Kranjec about the face and eye. It is alleged that the attack caused lacerations/bleeding/swelling/bruising about Mr. Kranjec's face and eye.
Facts
On September 4, 2005 at approximately 11:30 p.m, Alex Kranjec, John Madsen and his girlfriend, along with another friend were sharing a taxicab ride home to Brooklyn following a party, which they all attended in Queens. The defendant, who is a vice-president of a major financial brokerage, sat in the backseat between his girlfriend and Mr. Kranjec. As the cab rode through Brooklyn, an argument began between the Mr. Kranjec and the Mr. Madsen's girlfriend over a remark he allegedly made disparaging Caribbeans as hateful, violent and amoral. The defendant's girlfriend, who he contends was worried that the cabdriver might take offense at these statements because she thought he could be Caribbean, said that Mr. Kranjec was a racist. Mr. Kranjec allegedly replied, "Fuck you. I am not a racist." At this point John G. Madsen hit the complainant near his left eye. The People contend that the repeatedly punched the complainant in the face, while the defendant contends that he "reflexively" jabbed at the complainant when he allegedly leaned toward the girlfriend, accidentally striking Mr. Kranjec near the eye.
At that point the cabdriver stopped the cab and ordered all the passengers out. The complainant received treatment at a local hospital, which the People contend required 10 stitches.
The defendant was arrested two weeks later.
After arraignment, the case was adjourned for conversion by the serving and filing of a supporting deposition. On November 29, 2005, the People served and filed a supporting deposition. The court file does not show that the defendant was arraigned on the information or waived such arraignment. On January 31, 2006, the defendant served and filed the instant motion.
Discussion
Criminal Procedure Law 170.40(1) provides that a court may dismiss an accusatory instrument if "some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such accusatory instrument or count would constitute or result in injustice. . . ." The statute lists the following ten factors which the court should consider "to the extent applicable":
(a) the seriousness and circumstances of the offense;
(b) the extent of harm caused by the offense;
(c) the evidence of guilt, whether admissible or inadmissible at trial;
(d) the history, character and condition of the defendant;
(e) any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant;
(f) the purpose and effect of imposing upon the defendant a sentence authorized for the offense;
(g) the impact of a dismissal on the safety or welfare of the community;
(h) the impact of a dismissal upon the confidence of the public in the criminal justice system;
(i) where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion;
(j) any other relevant fact indicating that a judgment of conviction would serve no useful purpose.
The People argue that this motion is time-barred. CPL 255.20(1) requires that all pre-trial motions must be filed no more than 45 days after arraignment. This rule applies to all motions based on provisions of Article 170 ( see CPL 255.10). Dismissal of an accusatory instrument in the furtherance of justice is provided for under Article 170. Therefore, the 45-day rule applies to such motions ( see People v. Field, 161 AD2d 660 [2nd Dept 1990] and see also People v. Bones, 17 AD2d 689 [2nd Dept 2005]). The defendant's filing of this motion occurred on January 31, 2006, more than four months after his arraignment on the misdemeanor complaint. The complaint was converted into an information on November 29, 2005. Even if the court were to treat November 29, 2005 as the start of the 45-day window for pre-trial motion filing, the filing of the instant motion occurred 64 days later.
CPL 255.20(3) does permit the court to reach the merits of a pre-trial motion which has not been filed within 45 days of arraignment when the defendant has shown good cause why lateness could not have reasonably been avoided ( People v. Anderson, 201 AD2d 658 [2nd Dept 1994]). The defendant has made no such showing and has failed to address the lateness issue at all. Therefore, the defendant's motion for an order dismissing the accusatory instrument in the furtherance of justice is time-barred and as such is hereby denied.
Even if the court had found that the motion was not time-barred, the motion would still have had no merit. The defendant's central argument is that a conviction would seriously harm his career in finance. Leaving aside that such a concern does not satisfy the criteria expressed in People v. Frigenti, ( 91 Misc 2d 139 [Sup Ct Kings County 1977]), the court notes that the defendant has submitted no support, such as affidavits of professionals in the field, for his dire assessment of the impact a conviction would have on the future of his career. Even if the defendant had provided the court with evidence of the probability of such negative impact, a dismissal on this basis would say to the community that its most successful members deserve greater consideration by the court than their more modest neighbors. This the court is not prepared to have different standards based on the incomes and careers of the defendants before the court.
A court should not exercise its discretion to grant such a motion "with respect to matters that go neither to the fairness or accuracy of the truth-finding process nor the jurisdiction of the court" ( Frigenti, supra at 139).
Equally unconvincing is the defendant's assessment of the strength of the People's case. He argues that his injury to the complainant was accidental and was immediately preceded by the complainant's own aggressive and abusive behavior towards the defendant's girlfriend. He minimizes the extent of injury inflicted. He assures the court that the cab driver believes that the complainant was "at fault." However, the defendant has not submitted affidavits of the cab driver or the other passengers nor has he submitted the complainant's medical records or asked the court to direct the People to provide these records. He has also not addressed the fact that at trial the court has the power to dismiss the case at the conclusion of the evidence to prevent a conviction upon insufficient evidence ( See CPL 250.10).
In any event, a motion to dismiss in the interest of justice is not the appropriate mechanism for a defendant's assertion of his innocence ( see People v. Figueroa, 164 Misc 2d 814 [Crim Ct Kings County 1995]; People v. Prunty, 101 Misc 2d 163 [Crim Ct Queens County 1979]). To be sure, the court may consider "the evidence of guilt whether admissible or inadmissible at trial" (CPL. 170.40[c]). However, "[i]t is the evidence that is available to the People that is contemplated" by that statutory provision ( People v. Figueroa, supra, quoting People v. Pruty [emphasis added]). The community's trust in the justice system could be undermined by the court preventing the "full airing of the proof available to both sides." (People v. Figueroa, supra.)
The defendant also makes the point that this case is his first arrest. He also points to his business success and other indicia of his being a respectable member of the community. It is well established that even the lack of a prior criminal record is itself not sufficient reason to warrant dismissal in the interest of justice ( People Kelley, 144 AD2d 764 [2nd Dept 1988]; People v. Andrew, 78 AD2d 683 [2nd Dept 1980]). The same applies to an exemplary background (People v. Ortiz, 152 AD2d 755 [2nd Dept 1989]).
This opinion shall constitute the Decision and Order of the court.
Accordingly, the motion is denied.