Opinion
XX/17
08-30-2017
The People of the State of New York v. Gabriella Mullady, Defendant.
FOR THE PEOPLE: PAUL CZAJKA, ESQ. Columbia County District Attorney 325 Columbia Street, Suite 260 Hudson, New York 12534 By: Trevor O. Flike, Assistant District Attorney FOR THE DEFENDANT: SEAN P. LALLY, ESQ. Attorney for the Defendant P.O. Box 778 Kinderhook, New York 12106-0778
FOR THE PEOPLE: PAUL CZAJKA, ESQ. Columbia County District Attorney 325 Columbia Street, Suite 260 Hudson, New York 12534 By: Trevor O. Flike, Assistant District Attorney FOR THE DEFENDANT: SEAN P. LALLY, ESQ. Attorney for the Defendant P.O. Box 778 Kinderhook, New York 12106-0778 David A. Dellehunt, J.
The defendant, Gabriella Mullady, was charged with Criminal Mischief in the Fourth Degree in violation of Penal Law §145.00(1) (a Class A Misdemeanor), Harassment in the Second Degree in violation of Penal Law §240.26(1) (a Violation) and Disorderly Conduct in violation of Penal Law §240.20(3) (a Violation). Defendant was arraigned on the charges on November 24, 2016, the Public Defender was appointed to represent the defendant, and the matter was adjourned until November 29, 2016. The matter was adjourned on three subsequent occasions at defendant's request.
On or about February 28, 2017 the People sent correspondence to the Court indicating that they "decline to prosecute" the matter. On or about March 7, 2017, Sean P. Lally, Esq. filed a Notice of Appearance with the Court, substituting as counsel for the defendant. On March 21, 2017 a motion schedule was set; defendant was to file motions by April 18, 2017, the People were to file responses by May 16, 2017. The matter was adjourned until May 16, 2017 for status of motions.
On May 16, 2017 defendant's counsel appeared without his client; the People reiterated at that time that they "decline to prosecute". On May 16, 2017 defense counsel submitted to the Court a copy of a money order in the amount of Two Hundred ($200.00) Dollars made payable to the New York State Police purportedly representing the restitution paid by the defendant for damages allegedly caused at the time of the arrest. Defense counsel verbally moved to dismiss the case upon the grounds that the People "decline to prosecute". The verbal motion was denied without prejudice to the defendant bringing a proper motion, in writing and on notice to the People, upon an enumerated ground under CPL §170.30. See, People v. McKeon, 54 Misc 3d 1219(A), 2017 Slip Op. 50245(U) (2017); People v. Franco, 53 Misc 3d 908 (2016). The Court reminded defense counsel that the only way to dispose of a case, once it is filed in a Court, is by way of a plea, after a trial, or after a motion brought upon one of the enumerated grounds set forth in CPL §170.30. The matter was adjourned until June 20, 2017 for defense counsel to confer with his client and to review his options under CPL §170.30.
On June 20, 2017 defense counsel appeared with his client and again requested that the Court dismiss the matter upon the grounds that the People "decline to prosecute". The Court denied the motion. See, Donnaruma v. Carter, 41 Misc 3d 195, 204-205 (2013), aff. 113 AD3d 993 (3rd Dept. 2014), aff. 25 NY3d 1011 (2015); see also, People v. Jordan H., 56 Misc 3d 1207(A), 2017 NY Slip Op. 50893(U) (2017). Counsel, thereafter, requested that the matter be scheduled for a jury trial. The Court explained that while defendant has a constitutional right to a jury trial, the Court could not schedule a date certain trial because the People's refusal to prosecute is an indication that, at that particular juncture, they are no longer ready , or perhaps willing, to proceed to trial. See, People v. McKeon, supra; People v. Franco, supra.; People v. Reardon, 43 Misc 3d 1219(A), 2014 NY Slip Op. 50716(U) (2014). Defense counsel again refused to make a written motion. The matter was adjourned to August 15, 2017 for defendant to consider her options.
Defendant has now filed a written motion to dismiss upon the grounds that the People "decline to prosecute" and "in the interests of justice". Although given the opportunity, the People declined to submit any opposition to the motion. Defense counsel's reliance on People v. Beckman, 38 Misc 3d 878 (2012), in support of its motion to dismiss based upon the People's statement that they "decline to prosecute" is misguided. People v. Beckman, supra. is a County Court case directly inapposite to the holding of the New York State Court of Appeals. See, Donnaruma v. Carter, 41 Misc 3d 195, 204-205 (2013), aff. 113 AD3d 993 (3rd Dept. 2014), aff. 25 NY3d 1011 (2015); People v. Douglass, 60 NY2d 194 (1983). The Court acknowledges the People's discretion to prosecute each case as they wish, but does not have the authority to dismiss the matter on said grounds. Id. at 204-205. Moreover, a dismissal on said grounds does not cause jeopardy to attach and leaves a defendant vulnerable to future whims of the People to resurrect charges at a later date. See, Soares v. Carter, 113 AD3d 993, 996 (2014), citing United States v. Ammidown, 497 F2d 615, 620 (1973); Rinaldi v. United States, 434 US 22, 29 n15 (1977). Accordingly, defendant's motion to dismiss upon the grounds that the People decline to prosecute is denied.
As for defendant's motion to dismiss the instant matter in the interests of justice pursuant to CPL §170.40, the defendant bears the initial burden of setting forth compelling factors to justify a dismissal in the interests of justice. See, CPL §210.40. If this burden is not met, the Court may summarily deny the motion. See People v. Schlessel, 104 AD2d 501, 502 (2nd Dept. 1984). A trial court's discretion to dismiss in the interest of justice is an undertaking to be sparingly exercised. People v. Litman, 99 AD2d 573, 574 (3rd Dept. 1984). The Court must strike a sensitive balance between the interests of the individual and those of the State. See, People v. Gragert, 1 Misc 3d 646, 648 (2003). There must be a compelling factor, consideration, or circumstance clearly demonstrating that the conviction or prosecution of the defendant would constitute an injustice. See, CPL § 170.40; People v. Clayton, 41 AD2d 204, 206 (2nd Dept. 1973). The reasons for a dismissal in the interests of the justice must be real and compelling and fall within one of the enumerated factors set forth in CPL § 170.40. Soares v. Carter, 113 AD3d 993, 997 (3rd Dept. 2014), citing People v. Rickert, 58 NY2d 122, 128 (1983). A motion to dismiss in the interests of justice should be granted only in that rare and unusual case where it cries out for fundamental justice beyond the confines of conventional considerations. People v. Berrios, 160 Misc 2d 612, 614 (1994).
CPL § 170.40(1) sets forth the factors that must be considered by the Court, to wit: (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; and (j) any other relevant fact indicating that a judgment of conviction would serve no useful purpose.
The Court has considered each of the above criteria both individually and collectively in relation to arguments presented by the defendant.
The Court finds that the defendant has established the existence of compelling factors that would warrant dismissal of the charges. Although the People have been silent as to the strength of their case and whether the defendant has paid the full amount of restitution, the defense avers that the defendant paid the New York State Police the full amount of restitution for alleged damages. The underlying charges consisted of two Violations and one Misdemeanor arising in connection with an incident wherein it is alleged that the defendant used foul language, pushed past a New York State Trooper, and kicked a desk at the Trooper barracks at the time of her arrest.
Defense counsel argues that the most serious offense was an offense against property, and that restitution has been paid in full with respect to the same as directed by the People. The defense argues further that the alleged victim does not wish to pursue the charges any further, and that there was no serious harm caused by the offense. The defense points out that the defendant "enjoys an impeccable reputation", has never been in trouble before, and has nearly completed her Ph.D. Defense counsel contends that there would be no negative impact upon the safety or welfare of the community, or upon the confidence of the public in the criminal justice system, if the case is dismissed. Contrastingly, the defense claims that a conviction of the defendant would have a grave impact upon the defendant's ability to obtain further "tuition and living expense stipends and grants to pursue education and work in confidential national security areas".
Accordingly, after examining the factors set forth in CPL §170.40, both individually and collectively, under the circumstances of the present case, the Court finds that the defendant met her burden of setting forth compelling factors to justify a dismissal in the interests of justice. The Court finds that the facts of the present case cry out for fundamental justice beyond the confines of conventional considerations. Accordingly, defendant's motion to dismiss is, therefore, granted in the interests of justice.
Defendant is entitled to be present at every stage of the proceedings. All motions not granted herein are hereby denied. This opinion shall constitute the Decision and Order of the Court. ENTER.SO ORDERED. August 30, 2017 Kinderhook, New York David A. Dellehunt Kinderhook Town Justice