People v. Betances

Full title: THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. FELIPE BETANCES…

Court: Appellate Term of the Supreme Court of New York, First Department

Date published: Oct 3, 2002

193 Misc. 2d 445 (N.Y. App. Term 2002)

748 N.Y.S.2d 832

Opinion

22681

October 3, 2002.

APPEAL from two orders of the Criminal Court of the City of New York, Bronx County (Larry R.C. Stephen, J.), entered September 7, 2001, which, upon reargument, granted motions by defendants to dismiss the informations in the interest of justice.

Robert T. Johnson, District Attorney, Bronx (Joseph N. Ferdenzi and Peter A. Sell of counsel), for appellant.

Legal Aid Society, Brooklyn (Andrew C. Fine and Susan Epstein of counsel), for Felipe Betances, respondent.

PRESENT: HON. WILLIAM P. McCOOE, J.P., HON. PHYLLIS GANGEL-JACOB, HON. MARTIN SCHOENFELD, Justices.

PER CURIAM:

In companion appeals, the People appeal from two orders of the Criminal Court of the City of New York, Bronx County, entered September 7, 2001 (Larry R.C. Stephen, J.) which, upon reargument, granted motions by defendants to dismiss the informations in the interest of justice.

Orders entered September 7, 2001 (Larry R.C. Stephen, J.), to the extent appealed from, reversed, on the law and the facts, defendants' motions denied, informations reinstated, and the matters remanded for further proceedings.

The power to dismiss an accusatory instrument in the interest of justice should be exercised sparingly, only in those rare cases where there is a "compelling factor" which clearly demonstrates that conviction or prosecution of the defendant would result in injustice (see, CPL 170.40, 210.40; People v Dunlap, 216 A.D.2d 215, 217). We find no such compelling factor in either of the companion appeals now before us. Defendants are alleged to have offered a female undercover police officer money for sex, while driving their cars in an area of the Bronx in which prostitution-related activity is said to be rampant. The community's interest in countering the widespread incidence of these types of offenses weighs heavily against dismissal (see, People v Hinzmann, 177 Misc.2d 531, 534-535; see also, People v Crespo, 244 A.D.2d 563, 546, lv denied 91 N.Y.2d 925). Neither the defendants' lack of a criminal history nor the prospect of forfeiture of their vehicles is sufficient, without more, to justify the extraordinary remedy of dismissal in the interest of justice under CPL 170.40 (see, People v Crespo, supra, 244 A.D.2d, at 564; People v Stewart, 230 A.D.2d 116, 121-122, appeal dismissed 91 N.Y.2d 900).