A New York Criminal Lawyer said this is a motion by defendant for an order granting his application for an adjournment in contemplation of dismissal. This motion requires the Court to decide whether a prosecutor, once having determined to consent to an adjournment in contemplation of dismissal, conditions that consent upon the defendant’s release of his civil claim against the County and certain of its police officers.
A New York Criminal Lawyer said that the defendant was charged with Obstructing Governmental Administration, and Resisting Arrest. The defendant pleaded not guilty at his arraignment on October 15, 1973. On November 15, 1973, a pre-trial conference was held and the question of adjournment in contemplation of dismissal was discussed without any final disposition reached. The matter came before this Court in the trial part on March 12, 1974, and adjourned for trial to March 14, 1974.
On December 20, 1973, a notice of claim by the defendant was served upon the County of Nassau for damages arising out of the subject matter of the herein criminal charges brought against the defendant.
A New York Criminal Lawyer said the District Attorney argues that the official duty of determining whether, when and whom to prosecute resides solely in the District Attorney and the Attorney General. The People further argue that it is the legitimate concern for all public officials to avoid embroiling the governmental subdivision they represent in unfounded and vexatious litigation. They point out that in the case of an A.C.O.D. the People require that an accused show good faith by not suing the County of Nassau. They contend that this is equitable since by discontinuing the prosecution, the People deprive the County of Nassau of a perfect defense against claims of false arrest and the like.
The Court finds no merit in the People’s argument. The basic issue is whether the People having legitimately determined not to prosecute by consenting to an A.C.O.D., may reverse its position solely because defendant refused to abide with the District Attorney’s condition that the defendant release his civil right to sue the County.
A Brooklyn Criminal Lawyer said the case before us involves a condition set forth by the prosecutor but differs from the usual case in that it involves an A.C.O.D. rather than a reduced plea, and further that the defendant refused to grant the condition instead of accepting it and then appealing. The Court finds that an A.C.O.D. as practiced in our courts is merely another category in what is commonly referred to as plea bargaining. The Court further finds that in view of defendant’s refusal to grant the condition of the prosecutor, it is acting as a Court of original jurisdiction and therefore does have the authority to act in this matter.
A Brooklyn Criminal Lawyer said the sec. 170.55 of the Criminal Procedure Law makes the District Attorney’s consent mandatory before the Court can grant a defendant an A.C.O.D. He need not explain or justify the basis of his conclusion, nor should a court inquire into his reasons for reaching his conclusion.
The first question the Court has to determine is whether the prosecutor had determined to consent to an A.C.O.D. The Court finds that the prosecutor had originally given his consent. The next question the Court must determine is whether one having given the consent can a prosecutor withdraw his consent solely on the basis that the defendant refused to abide by the prosecutor’s condition.
The condition set forth by the prosecutor seeks to have the defendant relinquish his constitutional right to petition the government for a redress of grievances. A civil suit against the County is one form of petition for redress. Contrary to the prosecutor’s contention that he has a duty to protect the County and the police against unjust claims, it is the finding of this Court that he may not prosecute for the purpose of deterring citizens from exercising their right to protest official misconduct and petition for redress of grievances.
Having determined that the defendant is worthy of an A.C.O.D., the prosecutor may not condition his consent upon defendant’s release of his constitutional rights. The Court finds this to be an unreasonable condition amounting to undue pressure and an act of coercion and duress.
In a decided case it was stated that prosecutors have broad discretion to press or drop charges. But there are limits. If, for example, the Government had legitimately determined not to prosecute appellant and had then reversed its position solely because he filed a complaint, this would clearly violate the first amendment. The Government may not prosecute for the purpose of deterring people from exercising their right to protest official misconduct and petition for redress of grievances. Moreover, a prosecution under such circumstances would be barred by the equal protection clause, since the Government employs an impermissible classification when it punishes those who complain against police misconduct and excuses those who do not.
The practice of a prosecutor demanding releases of defendant’s claims against the government and police officers in exchange for his consent to an A.C.O.D. must be discouraged. The problem with this practice is that a prosecutor’s discretion as to whether or not to prosecute is unduly influenced by a desire to protect and exonerate the arresting officer from civil liability. Furthermore, these agreements conditioned upon defendant’s release of his civil rights, tend to suppress complaints against police misconduct due to defendant’s anxiety to dispose of the criminal charge pending against him. In a free society these alleged charges against police misconduct should be thoroughly litigated in a civil court of law for the benefit of the police officer whose reputation may have been damaged as well as for the protection of the defendant who may have a legitimate action for damages resulting from police misconduct.
The Court pointed out that it finds nothing wrong with a defendant voluntarily and intelligently offering a release of his possible civil remedies during plea bargaining negotiations and at the time of disposition in open court. The evil arises when a prosecutor has determined that a defendant is worthy of an A.C.O.D. or other type of plea bargain and conditions it upon a release by the defendant forfeiting his constitutional right to seek redress.
In conclusion, the Court finds the following: That the prosecutor did originally consent to the defendant’s application for an A.C.O.D., pursuant to Sec. 170.55 of the Criminal Procedure Law; that he then withdraw that consent solely because the defendant refused to agree to release the County and the police from any civil liability; that the prosecutor’s condition was unreasonable amounting to undue pressure and an act of coercion and duress; that the prosecutor’s demanded condition required the defendant to forfeit his civil right under the First and Fourteenth Amendments of the United States Constitution.
For the reasons stated above and based upon the herein facts, the defendant’s motion is hereby granted and it is ordered that this action be adjourned in contemplation of dismissal as prescribed in Criminal Procedure Law.
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