Opinion
08-03-0024.
Decided on April 24, 2009.
Glenn W. Magnell, Esq., Attorney for Harry Murphy, Goshen, New York.
Tpr. D. Buchal, NYSP — Poughkeepsie, NYSP Troop K, Salt Point, New York.
Kevin O. Bruen, Esq., Assistant Counsel, New York State Police, Albany, New York.
William V. Grady, Esq., Marjorie J. Smith, Esq., Of Counsel, Dutchess County District Attorney, Poughkeepsie, New York.
On March 1, 2008, at about 4:02 p.m., defendant Harry Murphy was driving southbound on the Taconic State Parkway in the Town of Clinton when he was charged with speeding. The simplified traffic information (2K3703T5SP) issued by Trooper D. Buchal of the New York State Police cited defendant for Speed Over 55 Zone, a violation of VTL § 1180 (b). Defendant was allegedly driving 71 mph when the maximum speed limit is 55 mph.
The defendant now moves to dismiss the ticket in furtherance of justice pursuant to CPL § 170.30 and § 170.40. The primary contention raised is that defendant is being denied the opportunity to engage in plea bargaining because of a long standing regulation of the New York State Police that prohibits plea bargaining by its members. The State Police have more recently renewed enforcement of the regulation as of September 1, 2006.
In Dutchess County, the District Attorney has a long standing policy to delegate the authority to prosecute non-criminal simplified traffic informations to the complainant officer. As explained by the District Attorney, if his office were to prosecute traffic cases, including speeding cases, it would create a situation necessitating the hiring of additional prosecutors, support staff, equipment, and office space. Under such financial circumstances, the District Attorney has declined to have his office prosecute non-criminal traffic cases.
In the Town of Clinton, there is no appointed traffic prosecutor to handle the several thousand traffic cases annually that come before the court. It remains to the individual police officer to prosecute such cases through the delegation of authority from the District Attorney pursuant to County Law § 700. This practice has served the people well and it continues to be the standard practice of other police agencies Previously, this has garnered little attention and even less controversy. Traffic tickets issued by the State Police, including speeding tickets, were generally negotiated through plea bargaining to arrive at a plea agreement based upon an evaluation of the underlying facts of the alleged traffic infraction and the motorist's driving record, rather than a specific law enforcement agency's own policy, similar to what an Assistant District Attorney would do in a criminal prosecution. This continues to be the standard practice of other police agencies, including the Dutchess County Sheriff and local police agencies. It is no longer the practice of the State Police. This has created the appearance of unfair and disparate treatment of similarly situated motorists. Put more simply, how the traffic ticket is dealt with in court now often depends on the color of the uniform and the law enforcement agency of the ticketing officer.
Against this backdrop, the defendant has moved to dismiss in furtherance of justice. The defendant contends that the State Police policy prohibiting plea bargaining by the individual trooper, acting in the role of a prosecutor, makes it impossible for individualized justice to be provided which is a "bedrock constitutional imperative of equal justice which the law aims to secure for all.' Batson v. Kentucky, 476 U.S. 79, 87-88 (1986). As defendant further argues, that concept is embodied in the Due Process Clause of the Fifth and Fourteenth Amendments to the Federal Constitution, and "the state, as steward of the judicial system, has the obligation to create and maintain a system that ensures equal justice, In re Watson, 100 NY2d 290 (2003). Equal justice is a fundamental concept that goes beyond the limited confines of Equal Protection" and is the philosophical basis upon which respect for the court and the judicial system is based.
The prosecutor, through Kevin P. Bruen, Esq., Assistant Counsel for the New York State Police has written to the court that all the issues raised in this motion to dismiss in furtherance of justice have been addressed by the decision in In the Matter of The People v. Christensen, 21 Misc 3d 608 (Sup.Ct., Dutchess Co., 2008). Such reliance on Christensen is misplaced. In that case, the respondent Town Justice, after denying a motion to dismiss a speeding ticket in the interest of justice in his discretion, granted alternative relief by accepting a plea to the lesser charge of failure to comply with a traffic control device in violation of VTL § 1110(a). This occurred without the prosecutor's consent, i.e. the State Police. The State Police sought a Writ of Prohibition under CPLR Article 78 to prohibit the Town Justice from accepting a plea to a lesser offense without the consent of the prosecuting authority (see, CPL § 220.10; § 340.10[1]; 340.20[1]). Supreme Court granted the Writ of Prohibition on the basis that the Town Justice had acted in excess of his express statutory authority in accepting a plea to a lesser offense without the prosecutor's consent.
A reading of Justice Marlow's decision in Christensen reveals that he expressly declined respondent Christensen's request to address the legality and appropriateness of the State Police's "no plea bargain" policy on the limited record before him in that proceeding. However, he went on to state, "[F]urthermore this court is sympathetic to and it is equally concerned — as is the Town Justice — about the particular and unique problems this change of the Division's [no plea bargaining] policy has wrought on some local courts in Dutchess County and elsewhere around the state." Id. at 624. Thus, the People, in response to the instant motion, misread Christensen when they state, "all the issues raised in this motion have been addressed by the Supreme Court of Dutchess County in Christensen". To the contrary, the holding in Christensen involved the reduction of a speeding ticket without prosecutorial consent, facts which are separate and distinct from the facts involved in the matter at hand. It may not be read as an endorsement of the State Police's "no plea bargaining" policy, or as a legal precedent that curtails the authority of this court to rule in its discretion on a motion to outright dismiss a charge in furtherance of justice pursuant to the criteria set forth in CPL § 170.40.
The People have not otherwise individually addressed this motion to dismiss or disputed any of the facts alleged therein regarding this defendant. While the Dutchess County District Attorney does not appear as a party in this case, the Affirmation of Marjorie J. Smith, Esq., Bureau Chief, dated September 16, 2008, confirms that the responsibility for the prosecution of simplified traffic informations has been delegated to the complaint officer by the District Attorney pursuant to County Law, § 700. Otherwise, the Dutchess County District Attorney does not address the allegations in the defendant's moving papers and makes no legal argument regarding the merits of the motion.
A court is permitted to dismiss an information, simplified traffic information, prosecutor's information or misdemeanor complaint in the furtherance of justice in accordance with CPL § 170.40(1) "when, even though there may be no basis for dismissal as a matter of law such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such accusatory instrument or count would constitute or result in injustice." In making such a determination, CPL § 170.40(1) states that the court must "to the extent applicable, examine and consider, individually and collectively "ten specific factors as set out in the statute, People v. Duke, 158 Misc 2d 647, 648-649 (App. Term, 2nd Dept., 1993); see also People v. Jenkins , 11 NY3d 282 , 287 (2008); People v. Berrus, 1 NY3d 535,536 (2003).
CPL § 170.40 and its counterpart, CPL § 210.40 for a motion to dismiss the indictment in furtherance of justice are statutes of equity, where the court is permitted to look beyond the specific charge in dismissing an offense before it, when necessary to do justice. In other words, the court must determine in its sound discretion that either the prosecution itself or an ultimate conviction would fly in the face of fundamental fairness. However, such a decision cannot be based on mere speculation. Nor can the court's decision in such a case be arbitrary. "Dismissal lies within the discretion of the trial judge, but such discretion is neither absolute nor uncontrolled." People v. O'Grady, 175 Misc 2d 61, 65 (Bronx Crim. Ct., 1997).
In considering the ten criteria set forth in CPL § 170.40(1) "the court must look to compelling factors that warrant dismissal. A compelling factor is present if denial of the motion would be such an abuse of discretion so as to shock the conscience." Id. at 66. Further, in making its determination, "[t]he court, to the extent applicable, must examine and consider the merits of the defendant's application in light of the factors enumerated in CPL § 170.40(1)(a) through (j), and balance the interests of the defendant, the complainant and the community." People v. Watson, 182 Misc 2d 644, 650-651 (Bronx Crim. Ct., 1999). It is not, however, necessary to engage in a point-by-point "catechistic" discussion of all ten factors. People v. Rickert, 58 NY2d 122, 128 (1983). The language in the CPL § 170.40 criteria present, as a matter of legislative policy, a broad range of considerations unrelated to guilt or innocence. Only factor "c" refers to the evidence of guilt.
In the motion to dismiss, defense counsel affirms that defendant Harry Murphy has a clean driving record with no Vehicle and Traffic convictions. Despite his unblemished driving record and that his ticket was prompted by an alleged speed of 71 mph in a 55 mph zone, he alleges that he has been denied any opportunity to engage in plea bargaining by the State Police's "no plea bargaining" policy coupled with the trooper being delegated absolute prosecutorial authority over the speeding prosecution.
The Court will now consider the following statutory factors:
The serious and circumstances of the offense: the offense of speeding is a non-criminal traffic infraction. There are no aggravating factors present in this case known to the court, nor have the People brought any to the attention of this court;
The extent of harm caused by the offense: the offense of speeding raises legitimate road safety concerns, however the court notes the absence of any other traffic charge against the defendant, and that the alleged speed was 71 mph in a 55 mph zone on the Taconic State Parkway;
The evidence of guilt, whether admissible or inadmissible at trial: the evidence of guilt is unknown, and would be a question to decide at trial.
The history, character and condition of the defendant the court notes the defendant's clean driving record which the People have not disputed in their responding letter;
Exceptionally serious misconduct by law enforcement in the investigation, arrest and prosecution of the defendant: there is no claim of misconduct in the ticketing of the defendant for speeding; however, the prosecution of the defendant under the current rigid "no plea bargaining" policy, which precludes independent prosecutorial discretion by the complainant officer, raises legitimate concerns as set forth more fully below;
The purpose and effect of imposing upon the defendant a sentence authorized for the offense: if convicted, the purpose of the sentence for the speeding offense would be to insure public safety, including the safety of the defendant. The effect of the sentence would not be unduly severe, given that it would be a fine and mandatory surcharge;
The impact of a dismissal on the safety or welfare of the community, and the impact of dismissal upon the confidence of the public in the criminal justice system: The court believes that when justice is done in every individual case, the confidence of the public in the criminal justice system is increased. This requires a further explanation.
The prosecutor in this speeding prosecution is the complainant officer acting under a delegation of authority from the District Attorney. However by delegating of such prosecutorial responsibilities, the District Attorney has vested in the complainant officer the same duties and responsibilities imposed upon any prosecutor to seek to do justice. As the Supreme Court has pointedly, and repeatedly, noted: "An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain: The United States wins a point whenever justice is done to its citizens in the courts.'" Brady v. Maryland, 373 U.S. 83, 87 (1963); "Society wins not only when the guilty are convicted, but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly." Rochin v. California, 342 U.S. 165, 174 (1952)
Recently, the Appellate Division, Second Department in Sedore v. Epstein , 56 AD3d 60 , 68 (2008) barred the use of complainant paid private attorneys from prosecuting criminal cases because of the evolving role of the public prosecutor in our criminal justice system. "The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done" ( Berger v. United States, 295 U.S. 78, 88( see, People v. Santorelli, 95 NY2d 412, 420-21 (2000), cert. den. 532 U.S. 1008; People v. Steadman, 82 NY2d 1, 6; People v. Bailey, 58 NY2d 272, 277; ABA Standards for Criminal Justice, Prosecution Function and Defense Function, Standard 3-1.2[c][3rd ed. 1993]. The practical obligations that flow from the prosecutor's duty to do justice have given heightened recognition to the singular nature of that role ( see, Brady v. Maryland, supra, 373 U.S. 83, 87; People v. Rosario, 9 NY2d 286 (1961), cert den. 368 U.S. 866
It is clear in this speeding prosecution that the State Police's "no plea bargaining" policy precludes the complaint officer from exercising the necessary prosecutorial discretion to do justice, not merely to secure a conviction. Given the unblemished driving record of the defendant and the absence of any aggravating factors in this case, this offends a "sense of justice". As Sedore cautions, "the administration of justice must not only be above approach, it must be beyond the suspicion of reproach" Id. at 67, quoting ( People v. Savvides, 1 NY2d 554, 556.
It is this court's view that a conflict arises when the District Attorney, in accordance with the County Law he is sworn to uphold has appropriately delegated prosecutorial authority to a complainant officer who then operates under an internal agency's policy that precludes him or her from acting first and foremost to discharge his or her prosecutorial responsibility to do justice ( see, Sedore, supra at 67-68). Once the complainant officer accepts the delegation of prosecutorial authority by the District Attorney, any policy that impairs the obligation to do justice must yield to avoid the conflict of interest that would otherwise be created. Simply stated, as Sedore instructs, a public prosecutor's obligations flow not to the complainant (or in this instance, to obedience to a managerial policy that may prevent the fair and faithful discharge of his or her prosecutorial duties), but to the public, which is his client. The conflict in permitting the complainant officer to prosecute traffic cases under a policy that totally limits his or her discretion in all cases, and specifically to prosecute the defendant under such a restrictive policy in this case, should be readily apparent. Sedore, supra at 67."
The Court of Appeals has recently reminded the judiciary that "[i]n deciding a motion to dismiss in the interest of justice, a court must strike a sensitive balance between the individual and the State interests to determine whether the ends of justice are served by dismissal of the [charge].'" People v. Jenkins , supra, 11 NY3d 282 , 287, quoting People v. Clayton, 41 AD2d 204, 208 (2nd Dept., 1973). On these facts and the applicable law, the court concludes the ends of justice would be so served, and further that the conviction of the defendant on the instant 4 point speeding charge in the absence of any aggravating factors in this case would result in injustice.
The motion to dismiss is granted and the charge of speeding is dismissed.
The foregoing constitutes the decision and order of the court.