Opinion
February 9, 1987
Appeal from the Supreme Court, Queens County (Chetta, J.).
Ordered that the order is reversed, as a matter of discretion, the motion is denied, the indictment is reinstated, and the matter is remitted to the Supreme Court, Queens County, for further proceedings.
The discretionary power to dismiss an indictment in the interest of justice is to be exercised sparingly (CPL 210.40; People v. Insignares, 109 A.D.2d 221, 234; People v. Litman, 99 A.D.2d 573, 574) and, upon reviewing the record, we conclude that this case does not present one of those rare instances where dismissal in the interest of justice is warranted (see, People v Insignares, supra, at 234; People v. Litman, supra). The crime for which the defendant was indicted, robbery in the first degree, is clearly serious (CPL 210.40 [a]; People v Finley, 1 004 A.D.2d 450, 451, adhered to on rearg 107 A.D.2d 709), and, because the alleged crime involved what appeared to be a gun, the interest of public safety weighed heavily against dismissal (CPL 210.40 [h]; People v. Viszokai, 99 A.D.2d 519). Moreover, the defendant's history and character were far from exemplary inasmuch as he had been previously convicted of a felony (CPL 210.40 [d]). In view of these compelling factors, the trial court's doubts as to the strength of the People's case, and its concern as to the possible reluctance of the complaining witness to cooperate with the prosecution, did not warrant dismissal of the indictment. These considerations simply do not "clearly [demonstrate] that conviction or prosecution of the defendant upon such indictment * * * would constitute or result in injustice" (CPL 210.40; People v. Finley, supra, at 451). Mangano, J.P., Bracken, Weinstein and Rubin, JJ., concur.