Opinion
XX14
04-29-2014
People of the State of New York v. Sandra J. Reardon, Defendant.
FOR THE PEOPLE: PAUL CZAJKA, ESQ. Columbia County District Attorney By: Robert Gibson, Assistant District Attorney FOR THE DEFENDANT: GERSTENZANG, O'HERN, HICKEY, SILLS & GERSTENZANG Attorneys for the Defendant By: Thomas J. O'Hern, Esq.
FOR THE PEOPLE:
PAUL CZAJKA, ESQ.
Columbia County District Attorney
By: Robert Gibson, Assistant District Attorney
FOR THE DEFENDANT:
GERSTENZANG, O'HERN, HICKEY, SILLS & GERSTENZANG
Attorneys for the Defendant
By: Thomas J. O'Hern, Esq.
David A. Dellehunt, J.
Defendant, Sandra Reardon, was charged with Driving While Intoxicated in violation of Vehicle and Traffic Law §1192(3), Speed Not Reasonable and Prudent in violation of Vehicle and Traffic Law §1180(A), Driving Across Hazard Markings in violation of Vehicle and Traffic Law §1128(D), and Failure to Keep Right in violation of Vehicle and Traffic Law §1120(A). By letter dated February 12, 2014, the People move for an order dismissing the instant case on the grounds that they decline to prosecute. The People have given no explanation for their decision not to proceed but have now offered to provide the same in camera to the Court. Defendant has not submitted opposition to the People's motion and orally join in the request for a dismissal. In the alternative, defendant seeks to have the matter scheduled for a jury trial.
By way of background, the instant matter arose in connection with a one car accident that occurred on October 9, 2011 on County Route 21B North in the Town of Kinderhook. Defendant suffered personal injuries in the accident, was ejected from the driver's seat, knocked unconscious, and had to be airlifted to Albany Medical Center Hospital. The DWI Bill of Particulars alleges that defendant smelled of alcohol, the keys were in the ignition, and alcoholic beverages were found in the vehicle. A blood test taken at the hospital on October 9, 2011 affirmed that defendant had a blood alcohol content of .12 of one per centum by weight of alcohol in her blood. Defendant also allegedly made certain admissions when she regained consciousness in the hospital.
The matter was originally assigned to Kinderhook Town Justice Lisa Mills. Judge Mills recused and the matter was transferred to Kinderhook Town Justice James Carlucci. On or about November 15, 2011 the People filed a CPL §710.30 notice and announced readiness. On or about December 8, 2011, counsel for defendant filed an Omnibus Motion; the People's responses to the motion were due April 17, 2012. On or about December 29, 2011 the People served a copy of the blood test on both defendant's counsel and the Court, and again announced readiness.
Former Kinderhook Town Justice James Carlucci was hired as an Assistant District Attorney in the Office of District Attorney Paul Czajka commencing on January 1, 2012. Accord Czajka v. Koweek, 100 AD3d 1136 (3d Dept. 2012), lv. den. 20 NY3d 857 (2013).
In January 2012, the instant matter was transferred to this Part of the Court. The parties were attempting to reach a resolution of the case through the first ten months of 2012 and the omnibus motion was held in abeyance on consent. Thereafter, on November 20, 2012, the matter was adjourned so that defendant could file a motion to dismiss; it was agreed that the People would file their responsive papers by March 19, 2013. On or about January 8, 2013, defendant filed a motion to dismiss in the interests of justice pursuant to CPL §170.40; the motion was returnable March 19, 2013. In response to the motion the People filed a letter indicating that they decline to prosecute the case and suggesting that the motion is, therefore, moot. Thereafter, defendant withdrew the motion to dismiss. Defendant next appeared on September 17, 2013; on that date, defense counsel indicated that he was withdrawing all motions at the insistence of the District Attorneys' Office and requesting a jury trial. The District Attorney's Office reiterated that it was declining to prosecute and would not be participating in a trial. The Court informed the parties that it was ready, willing and able to summon a jury for a trial and would schedule a date certain for a time when both parties are ready to proceed. The District Attorney's Office has not, however, to date indicated a readiness to proceed on any assigned date.
The parties cite Soares v. Carter, 113 AD3d 993, 979 NYS2d 201 (3d Dept. 2014) for the proposition that it is incumbent upon the Court to dismiss the instant proceeding on its own motion in the interests of justice. While an order dismissing an accusatory instrument pursuant to CPL §170.40(1) may be upon the motion of the People, the Court, or the Defendant, (CPL §170.40[2]), the Court must strike a sensitive balance between the interests of the individual and those of the State. See, People v. Gragert, 1 Misc 3d 646, 648 (2003). There must be a compelling factor, consideration, or circumstance clearly demonstrating that the conviction or prosecution of the defendant would constitute an injustice. See, CPL §170.40; People v. Clayton, 41 AD2d 204, 206 (2d Dept. 1973). The reasons for a dismissal in the interests of the justice must be real and compelling and fall within one of the enumerated factors set forth in CPL §170.40. Soares v. Carter, 113 AD3d at 997 citing People v. Rickert, 58 NY2d 122, 128 (1983). A trial court's discretion to dismiss in the interest of justice is an undertaking to be sparingly exercised. People v. Litman, 99 AD2d 573, 574 (3d Dept. 1984). A motion to dismiss in the interests of justice should be granted only in that rare and unusual case where it cries out for fundamental justice beyond the confines of conventional considerations. People v. Berrios, 160 Misc 2d 612, 614 (1994).
Here the parties have not articulated a single factor to justify the dismissal of the instant case in the interests of justice. The factors to be considered individually and collectively are set forth in CPL §170.40(1) as follows:
the seriousness and circumstances of the offense;where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion; and any other relevant fact indicating that a judgment of conviction would serve no useful purpose.
the extent of harm caused by the offense;
the evidence of guilt, whether admissible or inadmissible at trial;
the history, character and condition of the defendant;
any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant;
the purpose and effect of imposing upon the defendant a sentence authorized for the offense;
the impact of a dismissal on the safety or welfare of the community;
the impact of a dismissal upon the confidence of the public in the criminal justice system;
The DA's offer to provide a reason for declining to prosecute in camera is incongruous. Defendant shares the DA's desire to have the case dismissed, leaving the Court to question whether an in camera review is designed to shield the rationale for the DA's position from the public, and thereby avoid any possible repercussions at the ballot box. See, Soares v. Carter, 113 AD3d at 998. Even a plea outside the bounds of Vehicle and Traffic Law §1192 requires a disclosure on the record of the rationale for diverging from the statutory framework set up by the Legislature. See, Vehicle and Traffic Law §1192(10).
Although the Court is cognizant that the District Attorney possesses broad authority and discretion over all phases of a criminal prosecution, the Court cannot simply dismiss a case upon the grounds that the District Attorney declines to prosecute. See, People v. Douglass, 60 NY2d 194 (1983); Donnaruma v. Carter, 41 Misc 3d 195, 969 NYS2d 755, 766 (2013), aff. Soares v. Carter, 113 AD3d 993, 979 NYS2d 201 (3d Dept. 2014). Nor can a prosecutor unilaterally decide, on its sole whim, to withdraw a case once it has been commenced. See, Soares v. Carter, 113 AD3D at 996, citing People v. Extale, 18 NY3d 690, 695 (2012); see also, People v. Cottini, 39 Misc 3d 1237(A), 2013 NY Slip Op. 50912(U) (2013), aff. People v. Cottini, County Court, Columbia County, April 10, 2014, Koweek, J., Index No. 6228/13.
Contrary to the DA's assertion, the statement that the prosecution declines to prosecute does not deprive the Court of jurisdiction. See, Donnaruma v. Carter, 41 Misc 3d at 207. The Legislature eliminated the doctrine of nolle prosequi to protect the defendant from double jeopardy and insure that there is not an abuse of power by the District Attorney contrary to the public interest. See, Soares v. Carter, 113 AD3d at 996, citing People v. Douglass, 60 NY2d 194, 202 (1983). The State Legislature sought to insure that any proposed disposition is above board, appropriate, and on the merits to forestall the commencement of another prosecution at a different time or place deemed more favorable to the prosecution. Id. at 996; see also, People v. Douglass, supra. Here, the DA's declaration that his office will not prosecute the case has put defendant in the untenable position of relying upon a mere statement espousing the DA's intentions, while forfeiting the protections afforded to her by the Legislature.
Moreover, the DA has requested that the Court participate in the dismissal of charges for reasons to be enumerated outside the earshot of the public. The Court hereby declines the DA's invitation, in order to fulfill its obligation to maintain the integrity of the system by balancing the rights of the defendant against the public interest. Those charged, under our State Constitution and the laws of the State of New York, with holding District Attorney's accountable are entitled to transparency and openness in order to make informed judgments relative to the DA's acts or omissions. See, People v. Shackleton, 40 Misc 3d 1237(A), 2013 NY Slip Op. 50911(U), 2013 WL 2450517 (2013) citing Donnaruma v. Carter, 41 Misc 3d at 214; see also, Soares v. Carter, 113 AD3d at 998.
Although the DA implies that this Court's refusal to grant the instant motion creates a stalemate in contravention of the defendant's rights, the Court finds that defense counsel possesses ample remedies to protect his client's rights under both the Criminal Procedure Law and applicable case law. See, People v. McKenna, 76 NY2d 59 (1990); CPL §170.30; Soares v. Carter, 113 AD3d at 996-998 citing NY Const., Art. XIII, §13; Executive Law §63(2).
Accordingly, the DA's motion to dismiss is denied in all respects. The foregoing shall constitute the Decision and Order of the Court. Defendant is entitled to be present at every stage of the proceedings. Any motions not specifically addressed herein shall be deemed denied.
ENTER.SO ORDERED.
Kinderhook, New YorkDavid A. Dellehunt
Kinderhook Town Justice