Opinion
September 22, 1978
Appeal from the Erie Supreme Court.
Present — Moule, J.P., Cardamone, Simons, Schnepp and Witmer, JJ.
Order unanimously reversed and indictment reinstated. Memorandum: The defendant was charged with multiple crimes resulting from an incident during which he became intoxicated and fired a pistol several times in a public bar. In attempting to subdue defendant and avoid personal injury, a police officer shot and seriously injured defendant with the result that he is partially paralyzed. That unfortunate circumstance, however, coupled with the requirement that defendant must be imprisoned because he is a second felony offender is not sufficient to satisfy the guidelines governing dismissal in the interest of justice established in People v Clayton ( 41 A.D.2d 204, 208) and approved generally by this court (People v Belkota, 50 A.D.2d 118; and see People v Murry, 57 A.D.2d 711) and the trial court should not have dismissed the indictment.