Opinion
November 15, 1988
Appeal from the Monroe County Court, Celli, J.
Present — Callahan, J.P., Doerr, Green, Pine and Davis, JJ.
Order unanimously reversed on the law, indictment reinstated and matter remitted to Monroe County Court for further proceedings on the indictment. Memorandum: On this record, it has not been demonstrated that there are sufficient "compelling" factors to warrant dismissal of the indictment (CPL 210.40; People v. Rickert, 58 N.Y.2d 122; People v. Clayton, 41 A.D.2d 204). While the question of whether to dismiss an indictment in the interest of justice is addressed to the discretion of the court, that discretion is not absolute (People v. Hirsch, 85 A.D.2d 902). The trial court's discretion should be "`exercised sparingly'" and only in that "`rare'" and "`unusual'" case when it "`cries out for fundamental justice beyond the confines of conventional considerations'" (People v. Insignares, 109 A.D.2d 221, 234; see also, People v. Belkota, 50 A.D.2d 118, 120).