Opinion
Case No. 20110032
08-05-2022
PEOPLE of the State of New York, Plaintiff, v. Helena HENRIQUEZ-ULINTZ, Defendant.
For the People: Rockland County Assistant District Attorney Renada N. Lewis For the Defense: David D. Narain, Esq.
For the People: Rockland County Assistant District Attorney Renada N. Lewis
For the Defense: David D. Narain, Esq.
Marc R. Ruby, J.
I. Background, Positions of the Parties, and Procedural Posture
This matter was opened upon the Court's motion for an Adjournment in contemplation of dismissal. Further discussion of this action's procedural posture is set forth in a May 19, 2022 decision. People v. Henriquez-Ulintz , 75 Misc. 3d 1207(A), 2022 WL 1594844 [Just. Ct. 2022]. Relevant to the instant decision, the Defendant remains charged with Criminal trespass in the second degree ( N.Y PENAL LAW § 140.15 ), and Aggravated harassment in the second degree ( NY PENAL LAW § 240.30(1)(a) ) . On July 27, 2022, this Court inquired whether the People and the defense would consent to a sua sponte motion for an Adjournment in contemplation of dismissal, under NY CRIM PROC LAW § 170.55 ("ACD"), on all pending charges. The People promptly and expressly consented. Later that day, the defense responded with a request for leave to file a Clayton motion, under NY CRIM PROC LAW § 170.40 ("IFOJ"). After this Court granted the request, the defense's motion followed.
Nothing herein will revive, or renew any previously dismissed charges. To whatever extent any charges were previously dismissed, said charges remain dismissed as of the original date of dismissal. This order and decision only affects whatever charges are currently pending.
Therein, the defense prayed for an order "pursuant to C.P.L. § 170.40 to dismiss the Accusatory Instrument against [the Defendant], or an alternative relief, in that prosecuting this defendant could result in injustice." The motion also "requests that an order be entered granting such other further and different relief as to this court may seem just and proper."
II. Legal Analysis
At the threshold, the Court consolidates its own ACD motion, and the defense's IFOJ motion, for simultaneous decision. An ACD, is a disposition requiring consent from the prosecutor, the defense, and , the court. Smith-Hunter v. Harvey , 95 N.Y.2d 191, 197, 712 N.Y.S.2d 438, 734 N.E.2d 750 (2000). The defense's consent is rarely withheld. People v. Joseph P. , 106 Misc.2d 1075, 433 N.Y.S.2d 335, 340 (Just. Ct. 1980). Indicia of consent to an ACD can be found where the defense presents facts supporting a contention that further prosecution might result in substantial injustice. People v. Wei Chen , 104 Misc.2d 1057, 430 N.Y.S.2d 469, 475-76 (White Plains City Ct. 1980).
The corresponding dismissal is not a favorable termination to the defendant. Id. Similarly, a favorable termination does not result, where a prosecution is dismissed IFOJ. Id. In this respect, ACD and IFOJ dispositions are alike. Yet, whereas the end results are similar, the manner in which these depositions are reached, and the surrounding timing, vary significantly. To this end, courts are not required to give any reasons for granting ACD's. Hennessy v. Gorman , 87 A.D.2d 29, 30, 450 N.Y.S.2d 638 (4th Dep't 1982), rev'd on other grounds , 58 N.Y.2d 806, 459 N.Y.S.2d 261, 445 N.E.2d 644 (1983).
Meanwhile, the Second Department has noted that courts have historically, only sparingly ordered IFOJ dismissals. People v. Clayton , 41 A.D.2d 204, 208, 342 N.Y.S.2d 106 (2nd Dep't 1973). This is because IFOJ dismissals are only appropriate in the rare circumstances where the letter of the law should "be allowed to gracefully and charitably succumb to the spirit of justice." People v. Joseph P. , 106 Misc.2d 1075, 433 N.Y.S.2d 335, 337 (Just. Ct. 1980), quoting People v. Davis , 55 Misc. 2d 656, 659, 286 N.Y.S.2d 396 (Sup. Ct. N.Y. County 1967). Indeed, before an IFOJ dismissal can be granted, the court must examine and consider a litany of enumerated factors:
(a) the seriousness and circumstances of the offense;
(b) the extent of harm caused by the offense;
(c) the evidence of guilt, whether admissible or inadmissible at trial;
(d) the history, character and condition of the defendant;
(e) any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant;
(f) the purpose and effect of imposing upon the defendant a sentence authorized for the offense;
(g) the impact of a dismissal on the safety or welfare of the community;
(h) the impact of a dismissal upon the confidence of the public in the criminal justice system;
(i) where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion;
(j) any other relevant fact indicating that a judgment of conviction would serve no useful purpose. — ( Id. ; NY CRIM PROC LAW § 170.40 )
As evident by the foregoing, an ACD disposes of charges under a less structured, non-merits based adjudication, than the rarer, and loftier IFOJ dismissal. Powell v. Page , 8 Misc.3d 988, 800 N.Y.S.2d 497 (Sup. Ct. Dutchess Co. 2005). Or, it might be said that furthering justice is a more arduous, than simply safeguarding justice's interest.
A court's decision to order an ACD, instead of an IFOJ dismissal, is not an uncommon occurrence. Indeed, family courts also order ACD's over IFOJ's. For instance, in Matter of Kenyon C. , 69 Misc. 3d 1210(A), 2020 WL 6373638 (Fam. Ct., Bronx County 2020), the respondent's motion to dismiss IFOJ was denied, but an ACD application was granted. There, the Kenyon C. Court could not find "compelling circumstances supporting the drastic remedy of dismissal of the petition in furtherance of justice" under the Family Court Act. Nevertheless, the Kenyon C. Court believed an ACD would serve the interest of justice.
Here, although the defense's IFOJ application marshals facts in furtherance of several of § 170.40 ’s enumerated factors, this Court reads the motion as indicia of the Defendant's consenting to an ACD, in satisfaction of Smith-Hunter v. Harvey , supra . This is because, as discussed below, "the defense [has] present[ed] facts supporting a contention that further prosecution might result in substantial injustice", in accordance with People v. Wei Chen , supra . Accordingly, this Court needn't examine or consider § 170.40 ’s factors, and simply order an ACD sans reasons, under Hennessy v. Gorman , supra .
Lest there be any doubt, the defense never opposed the Court's ACD motion. In fact, the defense prayed for " an alternative relief (emphasis added), in that prosecuting this defendant could result in injustice." In ordering and ACD the Court necessarily finds that ultimate dismissal of the accusatory instruments will further justice. This is exactly what the defense asks for, and this is "such other further and different relief as to this [C]ourt [ ] seem[s] just and proper." (See defense motion.) To be sure, in ordering an ACD, the Court is granting the precise ultimate relief and disposition the Defendant seeks. Plus, defendants only "rarely" withhold consent to an ACD. People v. Joseph P. , supra .
Therefore, the Court does not view the IFOJ application as a cross motion, in opposition. Rather, the Court sees consent to an ACD. And as such, the Court grants relief under the ACD statute, as proposed sua sponte. Furthermore, the Defendant also benefits significantly, because it is by no means a given, that the Defendant would have prevailed upon the IFOJ application. An IFOJ is "drastic", and since the associated burden is far heavier than an ACD, it is only on the rarest of occasion, where an IFOJ dismissal is appropriate. See Clayton , Joseph P. , Kenyon C. , and Davis , supra .
Finally, perhaps most importantly, the Defendant is deriving a substantial benefit from the ACD, because significant punitive consequences may flow, if the Defendant is convicted of the offenses charged. Accordingly, an ACD most surely furthers the Defendant's interests; while at the same time, it is this Court's opinion that justice's interest is simultaneously served by an ACD.
III. Conclusion
The Court's motion to adjourn all pending charges in contemplation of dismissal, is GRANTED. As such, the parts of the defense's motion for other, further and different relief as may seem just and proper to the Court, and for alternative relief, are similarly GRANTED. In light of this, the Court need not reach decision on the remainder of the Defendant's motion. Any further applications, filings, or motions made in this action, shall be prefaced with briefing on whether the application, filing, or motion can be heard, unless the case is first restored to the calendar.
IT IS SO ORDERED.