People v. Harper

MARJORIE L. BYRNES, J. Defendant was arrested on August 9, 2000, in the City of Rochester, and charged with aggravated unlicenced operation of a motor vehicle in the third degree (hereinafter AUO3rd), in violation of Vehicle and Traffic Law § 511 (1) (a). Defendant was thereafter arraigned on August 31, 2000. The accusatory instrument filed with the court consisted of a uniform traffic ticket supplemented by a supporting deposition and a New York State Department of Motor Vehicles (hereinafter DMV) teletype, which was incorporated into the supporting deposition by reference. The supporting deposition, signed by Rochester Police Officer E. Martinez, specifically stated defendant "told your complainant that she didn't have a NY State license because it had been suspended due to a DWI arrest." The DMV teletype listed a license revocation on December 27, 1997 for a DWI conviction. The accusatory instrument charging AUO3rd was facially sufficient. The pleadings established reasonable cause to believe that defendant operated a motor vehicle on a public highway while knowing or having reason to know that her license or privilege of operating a motor vehicle in this State was suspended (see, People v Quarles, 168 Misc 2d 638; Vehicle and Traffic Law § 511 [1] [a]; CPL 100.40 [2]). The element of operation was established by the officer's personal observations. The element of "while knowing or having court to amend the charge to AUO2nd, even though that was the charge he wanted to prosecute and felt was justified by the facts. He then purported to "withdraw" the accusatory instrument charging AUO3rd and insisted that he would refile another accusatory instrument charging defendant with AUO2nd. The court refused to allow the People to withdraw the AUO3rd charge and the court stood ready, willing and able to amend the accusatory instrument to AUO2nd, the charge that the People wanted to prosecute. Additionally, the court pressed the People regarding the amendment of the accusatory instrument and readiness for trial but Mr. Gargan refused to answer the court's queries. It was his opinion that the charge of AUO3rd was withdrawn and removed from the Trial Calendar. At this point, defendant moved to dismiss the charge of AUO3rd for failure to prosecute. The court sua sponte dismissed the charge of AUO3rd in the interest of justice. In support of the dismissal in the interest of justice, the court noted that the charge involved was AUO3rd (the lowest level of misdemeanor authorized by law), that the case had a date certain for trial of which the People were aware for a month, that the People elected not to subpoena any witnesses for the trial, that the People refused to move to amend the accusatory instrument to the charge that the People wanted to prosecute all along, that the People refused to proceed to trial on either the original charge or the upgraded charge, and that the People attempted to withdraw the charge, rather than proceed to trial, which effectively avoided a trial order of dismissal.^[*] Mr. Gargan stated that the court had no authority to dismiss the charge in the interest of justice inasmuch as the People had already withdrawn the charge. He further stated his intention to refile the matter as an AUO2nd.

The prosecutor in this case asserts that he had the power to withdraw the accusatory instrument charging AUO3rd after it was filed with the court, notwithstanding the fact that it was facially sufficient (CPL 100.40 [2]). The prosecutor opined that he possessed inherent power to determine whether the charge was to be prosecuted and in what fashion. To that end, he asserted Therefore, the court concludes that the prosecutor did not have authority to "withdraw" the accusatory instrument charging AUO3rd and his purported attempt to do so was ineffective.

The court informed the People that they did not have authority to withdraw the accusatory instrument. As noted, the court then repeatedly attempted to press the prosecutor regarding amendment of the accusatory instrument to reflect the charge the People wanted to prosecute and readiness for trial. The prosecutor, however, refused to answer the court's questions and insisted that the charge was already withdrawn, so there was no case pending before the court. The defense stated that defendant was ready for trial. At this point, the court sua sponte dismissed the charge of AUO3rd in the interest of justice. CPL 170.40 (2) authorizes a local criminal court to dismiss an accusatory instrument in the interest of justice either upon motion of the People, the defendant or the court itself (see, CPL 170.40 [2]; see also, People v Henriquez, 68 NY2d 679). The court took this action, however, only after the following occurred: (1) the prosecutor admitted that, even though the case was scheduled for trial with a date certain more than a month in advance, he intentionally did not subpoena any witnesses for trial; (2) the prosecutor attempted the unauthorized withdrawal of the charge of AUO3rd on the day of trial which, if successful, would have allowed the People to avoid a trial order of dismissal; (3) the prosecutor repeatedly refused to move to amend the accusatory instrument to charge AUO2nd, the charge that the People wanted to prosecute; and (4) the prosecutor refused to proceed to trial on either the original charge or the upgraded charge. In support of the court's dismissal in the interest of justice, the court noted on the record in open court that the charge was an allegation of AUO3rd (the lowest level of misdemeanor authorized by law) and the other enumerated factors outlined previously. CPL 170.40 (1) sets forth 10 factors that the court must consider, to the extent applicable, in deciding whether to dismiss in the interest of justice. The factors are to be considered "individually and collectively" (CPL 170.40 [1]). The statute gives a local criminal court authority to dismiss a charge in the interest of justice for some compelling factor, consideration or circumstance demonstrating that conviction or merits pursuant to CPL 290.10, the statutory vehicle authorizing a trial order of dismissal. The People subsequently commenced a CPLR article 78 proceeding seeking to prohibit enforcement of the trial court's order. On appeal to the Court of Appeals, that court stated that the trial court was justified in denying the prosecutor's request for an adjournment of the trial (Matter of Holtzman v Goldman, supra, at 570; accord, Matter of Hynes v George, 76 NY2d 500). The Court of Appeals ruled, however, that the trial court's subsequent corrective action was improper and it reinstated the indictment because the trial court had no authority to dismiss the indictment on the merits inasmuch as the trial had not commenced (Matter of Holtzman v Goldman, supra, at 570-571). Although the Court of Appeals reinstated the indictment due to the basis of the trial court's dismissal, the Court of Appeals also stated "[t]his court in no way denies or curtails even the extreme measure of dismissal of a criminal prosecution to redress the People's abuse of adjournments. Dismissal in the interest of justice may well be appropriate for just such abuses" (Matter of Holtzman v Goldman, supra, at 575). Like the situation in Matter of Holtzman (supra), this case did not proceed to trial on the trial date due to the People's lack of readiness for trial. In Matter of Holtzman, the prosecutor was unable to locate the complaining witness; in this case, the prosecutor intentionally did not subpoena any witnesses for trial. In Matter of Holtzman, the prosecutor requested an adjournment that was denied; in this case, the prosecutor attempted to withdraw the charge and refused to proceed to trial. No adjournment was requested by the People, although it would have been denied. In both cases, had the People proceeded to trial, the cases would have resulted in dismissals. Unlike the trial court in Matter of Holtzman, which improperly dismissed the indictment on unauthorized grounds, this court has dismissed the charge on authorized grounds, i.e., in the interest of justice, and for valid reasons (see, Matter of Holtzman v Goldman, supra, at 574-575). Therefore, this court reaffirms its oral decision dismissing the accusatory instrument in the interest of justice as it is justified under the exceptional circumstances set forth by the court both in this decision and on the record in open court on November 23, 2000. The accusatory instrument is therefore dismissed in the interest of justice. [*] It should be noted that the People did not request an adjournment of the trial. However, even if the People had made such a request it would have been denied. The People not being ready for trial due to the People's intentional failure to subpoena witnesses is not grounds for an adjournment of the trial.