Opinion
2003-1247 WCR.
Decided October 14, 2004.
Appeal by defendant from judgments of the Justice Court, Town of North Castle, Westchester County (R. McGoey, J.), rendered August 1, 2003, after a bench trial, convicting him of speeding (Vehicle and Traffic Law § 1180 [d]) and failing to stop at a stop sign (Vehicle and Traffic Law § 1172 [a]), and imposing sentence.
Judgments of conviction unanimously affirmed.
PRESENT: McCABE, P.J., RUDOLPH and ANGIOLILLO, JJ.
In August 2002, defendant was issued traffic tickets for speeding (Vehicle and Traffic Law § 1180 [d]) and failing to stop at a stop sign (Vehicle and Traffic Law § 1172 [a]). He subsequently pled not guilty and appeared in court, on November 1, 2002, with his attorney and a witness. The officer who issued the tickets, however, was not present and the court dismissed the charges. Thereafter, also in November 2002, the officer filed two informations charging defendant with the same offenses. Defendant appeared in court on these charges in December 2002 and moved for dismissal of the charges, in January 2003, on the ground that the tickets had been previously dismissed in November 2002 or, in the alternative, in the interest of justice pursuant to CPL 170.40. The People did not oppose the motion which was denied after consideration by the trial court. Defendant was subsequently convicted of both charges.
Contrary to defendant's contention, the record on appeal does not indicate that the charges were dismissed in November 2002 in the interest of justice inasmuch as defendant did not make his motion in writing and upon notice to the People (CPL 170.45, 210.45), and there was no order granting dismissal upon such ground setting forth the reasons therefor upon the record (CPL 170.40). Moreover, it is well settled that a trial court can dismiss a pending criminal prosecution only upon the limited grounds codified in the Criminal Procedure Law ( see People v. Douglass, 60 NY2d 194). The court cannot dismiss charges for the People's failure to prosecute ( see Douglass, 60 NY2d at 200-206), and it does not have the power to terminate a criminal proceeding by entering a trial order of dismissal on the merits where no evidence had been presented and the merits of the case has yet to be heard ( see Matter of Holtzman v. Goldman, 71 NY2d 564; see also People v. Sullivan, 142 AD2d 695; People v. Chisholm, 140 AD2d 534). Since the November dismissal did not constitute an adjudication of the facts going to guilt or innocence, the People had the discretion to reprosecute defendant for the same charges ( see e.g. People v. Nuccio, 78 NY2d 102, 106; People v. Key, 45 NY2d 111, 117) and the trial court acted well within its discretion when it denied that part of defendant's January motion seeking dismissal of the accusatory instruments in the interest of justice.