Opinion
2007-680 RO CR.
Decided July 16, 2008.
Appeal from an order of the Justice Court of the Village of Nyack, Rockland County (Robert S. Knoebel, Jr., J.), dated March 29, 2007. The order granted so much of defendant's motion as sought to dismiss the accusatory instrument in the furtherance of justice.
Order reversed upon the law, so much of defendant's motion seeking to dismiss the accusatory instrument in the furtherance of justice denied, accusatory instrument reinstated and matter remanded for all further proceedings.
PRESENT: RUDOLPH, P.J., McCABE and SCHEINKMAN, JJ.
The court below abused its discretion in granting so much of defendant's motion as sought to dismiss the accusatory instrument in the furtherance of justice ( see CPL 170.40). "The discretionary authority to dismiss . . . in furtherance of justice . . . should be exercised sparingly and only in those rare cases where there is a compelling factor which clearly demonstrates that prosecution . . . would be an injustice" ( People v Candelaria , 50 AD3d 913 , 913 [citations omitted]). The case before us is not one of these "rare" cases.
The court below appears to have based its decision on the grounds that defendant had already served approximately 11 months in jail and would likely not serve additional time if tried, convicted and sentenced. Such considerations alone do not warrant the result reached by the court below ( see People v Anthony C., 269 AD2d 402, 403 [that the defendant, who was on parole at the time of his crime, had already served eight months in prison in connection with his crime, was insufficient to compel the conclusion that continued prosecution would result in injustice]; see also People v Allen, 39 NY2d 916, 918 [reversal of conviction on appeal by defendant who had served his sentence did not entitle him to dismissal of accusatory instrument rather than a new trial, since "the crime was a serious one . . . and for penological purposes it is relevant whether defendant committed the crime"]; People v Rojas , 2 Misc 3d 130[A], 2004 NY Slip Op 50101[U] [App Term, 1st Dept 2004]).
Examining the criteria set forth in CPL 170.40, we note that the crime of which defendant was convicted in the instant case was a serious one (Penal Law § 265.01 ["A person is guilty of criminal possession of a weapon in the fourth degree when: . . . (4) He possesses a rifle or shotgun and has been convicted of a felony or serious offense . . ."]). The evidence of defendant's guilt of said crime, moreover, was overwhelming in view of, inter alia, his admission of owning the shotgun, its being recovered by the police in his home from under his bed, and its subsequently being tested and found operable. Defendant's history included, according to the People's assertion, attempted murder, assault, robbery and criminal possession of a weapon. The instant arrest of defendant occurred while he was on parole. Public confidence in the criminal justice system would certainly be undermined by granting such a defendant a dismissal in the "interest of justice." Therefore, upon our consideration of all of the factors listed in the statute and the circumstances of this case, we conclude that there is no compelling factor which warrants dismissal of the accusatory instrument in the futherance of justice.
Accordingly, the order of the court below is reversed, the accusatory instrument reinstated and the case is remanded for all further proceedings.
Rudolph, P.J., McCabe and Scheinkman, JJ., concur.