Opinion
374 KA 18–01621
07-05-2019
The PEOPLE of the State of New York, Appellant, v. Thomas A. RAFFERTY, Defendant–Respondent.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (JEFFERY R. FRIESEN OF COUNSEL), FOR APPELLANT. THOMAS A. RAFFERTY, DEFENDANT–RESPONDENT PRO SE.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (JEFFERY R. FRIESEN OF COUNSEL), FOR APPELLANT.
THOMAS A. RAFFERTY, DEFENDANT–RESPONDENT PRO SE.
PRESENT: SMITH, J.P., PERADOTTO, CARNI, LINDLEY, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed.
Memorandum: The People appeal from an order granting that part of defendant's omnibus motion seeking to dismiss the indictment in the furtherance of justice pursuant to CPL 210.40(1). We affirm.
" ‘While the question of whether to dismiss an indictment in the furtherance of justice is addressed to the discretion of the trial court, this discretion is not absolute’ " ( People v. Coomey , 144 A.D.3d 1583, 1583, 40 N.Y.S.3d 260 [4th Dept. 2016] ; see People v. Hirsch , 85 A.D.2d 902, 902, 447 N.Y.S.2d 80 [4th Dept. 1981] ). Here, contrary to the People's contention, we conclude that there is no basis for reversal inasmuch as County Court did not abuse its discretion in dismissing the indictment charging defendant, an employee of the County of Ontario, with three counts of falsifying business records in the second degree ( Penal Law § 175.05[1] ) and three counts of offering a false instrument for filing in the first degree (§ 175.35[1]; cf. People v. Scott , 284 A.D.2d 899, 900, 728 N.Y.S.2d 600 [4th Dept. 2001], lv denied 96 N.Y.2d 924, 732 N.Y.S.2d 641, 758 N.E.2d 667 [2001] ; People v. Wright , 278 A.D.2d 820, 820, 719 N.Y.S.2d 411 [4th Dept. 2000], lv denied 96 N.Y.2d 789, 725 N.Y.S.2d 654, 749 N.E.2d 223 [2001] ; see generally People v. Stranahan , 237 A.D.2d 920, 920, 656 N.Y.S.2d 1012 [4th Dept. 1997], lv denied 89 N.Y.2d 1101, 660 N.Y.S.2d 395, 682 N.E.2d 996 [1997] ). The court " ‘carefully review[ed] ... all of the criteria listed in CPL 210.40(1) and [properly found] several of them applicable and compelling’ " ( Coomey , 144 A.D.3d at 1583, 40 N.Y.S.3d 260, quoting People v. Herman L. , 83 N.Y.2d 958, 959, 615 N.Y.S.2d 865, 639 N.E.2d 404 [1994] ).