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Appellant Moves to Dismiss Charges Under CPL 170.40


Defendant is charged with violations of Stalking in the Fourth Degree, Harassment in the Second Degree, Harassment in the Second Degree, Aggravated Harassment in the Second Degree, Aggravated Harassment in the Second Degree, Aggravated Harassment in the Second Degree. The incidents that led to these charges concern telephone calls Defendant made to the complaining witness, a woman with whom Defendant had a dating relationship, in which Defendant allegedly threatened the complaining witness.

A Kings County Criminal lawyer said that defendant now moves to dismiss these charges pursuant to CPL 170.40 in the interests of justice. CPL 170.40 permits dismissal of an information, even though there is no legal basis for such dismissal, as a matter of judicial discretion “by the existence of some compelling factor” that clearly demonstrates that conviction “would constitute or result in injustice.” CPL 170.40 enumerates certain factors that the court must examine and consider in reaching its determination.

These factors are: (a) the seriousness 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; (f) the purpose and effect of imposing upon 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; and (j) any other relevant fact indicating that a judgment of conviction would serve no useful purpose.

The court notes that whereas these factors have been enumerated by the legislature to provide guidance to the judiciary in reaching a conclusion, not all the items are applicable in every instance. In the case at bar, the parties themselves have indicated that the court should focus on the seriousness of the offense, the history, character and condition of Defendant, and the impact of a dismissal on the confidence of the public and the safety of the community. In making our determination, the court has followed the parties’ directions.

The basis of Defendant’s motion is that he is the father of a13-year old daughter who lives in Connecticut whose mother is deceased and a 10-year old son who lives in Brooklyn who has a serious physical disorder. Further, Defendant has been placed in medical care 19 times since 1999, primarily for diabetes related problems. Defendant also alleges that the charges against him are all misdemeanors and that the complaining witness did not suffer any physical injuries.

The People have opposed the instant motion, claiming that Defendant has not posited a compelling reason to warrant dismissal under CPL 170.40. The People maintain that they are ready for trial on the charges.

It is well settled that it is within the sole discretion of the court to dismiss an indictment or an information in the interests of justice. [a case relied upon by Defendant which dismissed the information against a woman charged with first-time prostitution]. However, In order to exercise this discretion, the court must analyze the factors enumerated in CPL 170.40.

In the instant matter Defendant is charged with crimes involving domestic violence. As indicated in a case, a crime of domestic violence is sufficiently serious as to warrant close judicial scrutiny before ordering a dismissal of the action. In that case, also one of aggravated harassment, the court found that it would ignore the interests of the complainant and the community if the charges were dismissed. To dismiss the charges “would cause the public to view the system as unconcerned about safety among family members, especially where the crime underscores the issue of domestic violence which cannot be outweighed by the defendant’s interest in avoiding prosecution.” This court agrees with the analysis presented by the Allen court in its assessment of the seriousness of domestic violence crimes.

Further, Defendant’s physical problems are not serious enough to provide this court with a compelling reason to warrant dismissal. In another case, the appellate court found that a defendant’s terminal illness was not a sufficiently compelling factor to warrant a dismissal, especially since the defendant continued to commit crimes after his diagnosis. In the case at bar, the court notes that, subsequent to his diagnosis of diabetes in 1999, Defendant has been charged and convicted of multiple offenses, the most recent being a conviction for assault with intent to cause serious injury, harassment, and possession of a weapon a year and a half ago. Under these circumstances, the court does not believe that Defendant’s physical condition, nor his personal circumstances, are compelling enough to justify a dismissal of the action.

Based on the foregoing, the court denies Defendant’s motion to dismiss pursuant to CPL 170.40.

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