Opinion
No. 12110013.
2013-04-25
The PEOPLE of the State of New York, Plaintiff, v. Kelly A. ROSSI, Defendant.
David Costanzo, Esq., Columbia County Assistant District Attorney, Hudson, for The People. Eric H. Sills, Esq., Gerstenzang, O'Hern, Hickey, Sills & Gerstenzang, Albany, for Defendant.
David Costanzo, Esq., Columbia County Assistant District Attorney, Hudson, for The People. Eric H. Sills, Esq., Gerstenzang, O'Hern, Hickey, Sills & Gerstenzang, Albany, for Defendant.
CARRIE A. O'HARE, J.
Defendant Kelly Rossi was charged with Resisting Arrest (Penal Law § 205.30), a misdemeanor; Aggravated Driving While Intoxicated (Vehicle and Traffic Law § 1192[2–a][a] ), a misdemeanor; and Driving While Intoxicated (Vehicle and Traffic Law § 1192[3] ), a misdemeanor. On January 2, 2013, this Court was presented with a “Memorandum of Plea Bargain,” noting that the Office of the District Attorney was “declin[ing] to prosecute” all three charges. The Memorandum of Plea Bargain was signed by defendant, defendant's counsel, and an Assistant District Attorney. By Decision and Order dated January 3, 2013, the Court rejected the proposed plea disposition pursuant to Vehicle and Traffic Law § 1192(10)(d) and People v. Douglass, 60 N.Y.2d 194 (1983). The Court further noted that, during the pendency of this matter, it would entertain any motions filed pursuant to the Criminal Procedure Law. Thereafter, defendant moved for the Court to reconsider its prior Decision and Order dated January 3, 2013. In a Decision and Order dated March 1, 2013, this Court denied defendant's motion for reconsideration. People v. Rossi, 39 Misc.3d 496, 2013 N.Y. Slip Op 23056 (Stuyvesant Just Ct, 2012). Defendant now moves for leave to reargue this Court's March 1, 2013 Decision and Order (“the Decision”). The People have not submitted a response to the instant motion.
As this Court noted in the Decision, the Criminal Procedure Law does not permit the reconsideration of motions; rather, CPLR 2221 governs motions affecting a prior order. See People v. Duquette, 152 Misc.2d 239, 240 (County Court, St. Lawrence County, 1991). A motion for leave to reargue is addressed to the sound discretion of the trial court and “may be granted upon showing that the court overlooked or misapprehended the facts or law or mistakenly arrived at its earlier decision.” Viola v. City of New York, 13 AD3d 439, 440 (2d Dept.2004), lv denied5 NY3d 706 (2005); see Carrillo v. PM Realty Group, 16 AD3d 611, 611 (2d Dept.2005); Loris v. S & W Realty Corp., 16 AD3d 729, 730 (3d Dept.2005); CPLR 2221(d)(2). “A motion for leave to renew may be granted upon, inter alia, a showing that there has been a change in the law that would change the prior determination.” Matter of DeRaffele Mfg. v. Kaloakas Mgt. Corp., 48 AD3d 807, 809 (2d Dept.2008), lv dismissed and lv. denied11 NY3d 862; see Weller v. Munson, 309 A.D.2d 1098, 1100 (3d Dept.2003); lv dismissed and lv. denied2 NY3d 782 (2004); CPLR 2221(e)(2).
Defendant's notice of motion states that she is seeking leave to reargue the Decision. In her submission to the Court, she asserts:
Subsequent to this Decision, Columbia County Court Judge Richard M. Koweek issued a written Decision and Order dated March 29, 2013, in People v. Nielsen–Hallock (the Order')....
[The Order] clearly and expressly:
(a) rejects the assertion that Douglass is controlling;
(b) rejects the assertion that [People v. Beckman, 957 N.Y.S.2d 830, 2012 N.Y. Slip Op 22370 (County Ct., Columbia County 2012) ] is not controlling;
(c) referenced [the Decision];
(d) criticized the [ Nielsen–Hallock Court] for failing to follow the binding precedent of Beckman; and
(e) ordered the [ Nielsen–Hallock Court] to dismiss the accusatory instruments nunc pro tunc to the date that the People declined prosecution.
Sills Affirmation at ¶¶ 3–4. Based on the above, defendant argues that “it is now indisputable that Nielsen–Halleck and Beckman constitute binding precedent that this Court is required to follow (despite the Court's good-faith disagreement therewith).” Id. at ¶ 5. Thus, defendant seeks an order from this Court accepting “the People's decision to decline to prosecute and dismiss the charges against the defendant nunc pro tunc to the date that the People declined prosecution....” Id. at Wherefore Clause.
Defendant submits a copy of People v. Nielsen–Hallock, Columbia County Ct, March 29, 2013, Koweek, J., index No. 5261/12. In pertinent part, that case provides:
The Copake Town Court (Herman, J.) dismissed the Informations charging Endangering the Welfare of a Child in violation of Penal Law § 260.10 and Harassment in the Second Degree, in violation of Penal Law § 240.26(1), sua sponte in the furtherance of Justice.
The Columbia County Court (Nichols, J.) specifically addressed the authority of a prosecutor to decline to prosecute and the Court's obligation with respect thereto. People v. Beckman, 38 Misc.3d 878 (citations omitted), Col. Co. Ct. (2012). The lower Court's insistence that People v. Douglass, 60 N.Y.2d 194 (1983) is controlling ( see, e.g., People v. Rossi, –––– Misc.3d ––––– N.Y. town Ct. [2013] ) ignores this Court's binding precedent and People v. Extale, 18 NY3d 690 (citations omitted).
Accordingly, it is this Court's Order that the matter be, and is hereby, remanded to the Copake Town Court, where the accusatory instruments shall be dismissed nunc pro tunc the 12th day of October, the date upon which the District Attorney declined prosecution.
For reasons outlined in the Decision and those presented below, the Court rejects defendant's argument. In the Decision, the Court found defendant's reliance on People v. Beckman, 38 Misc.3d 878 (Columbia County Ct, 2012) unavailing, explaining that this Court is not obligated to follow Beckman because the Court of Appeals has already addressed the issue of a prosecutor's power to unilaterally dismiss a pending accusatory instrument by simply declining to prosecute instead of proceeding under the Criminal Procedure Law. See generally Matter of Patrick BB, 284 A.D.2d 636, 639 (3d Dept.2001); Mountain View Coach Lines, Inc. v. Storms, 102 A.D.2d 663, 664 (2d Dept.1984). Nothing presented by defendant in the current motion has persuaded the Court that, in so holding, it has either overlooked or misapprehended the law or mistakenly arrived at the Decision. Moreover, defendant's reliance on County Court's subsequent issuance of People v. Nielsen–Hallack, is also unavailing because that case does not represent a change in the law that would alter the Decision.
As this Court has explained, the main focus of Douglass is that the Legislature placed limits on the power of courts and prosecutors to dismiss an accusatory instrument. See CPL 170.30; 170.40. The CPL sections allowing such dismissal require either a legal reason or some type of justification for dismissal. People v. Douglass, 60 N.Y.2d at 202 (“It is interesting to note that it was the fear that too many criminal proceedings would be dismissed by District Attorneys without justification that prompted the Legislature ... to authorize courts to intercede in this process .”); see also People v. Extale, 18 NY3d 690 (2012) (noting that “nolle prosequi power still does not exist, and therefore County Court erred ... in believing that the prosecutor could, at her own discretion, choose not to proceed”); Peter Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11 A, CPL 170.40 (citing Douglass and noting that the Legislature “abolished the nolle prosequi ”). Further, in the Decision, this Court noted that, in Douglass, the Court of Appeals recognized the need for checks and balances as contemplated by the Legislature in order to insure that any proposed disposition is above board and appropriate. Thus, as this Court also noted, the Legislature provided the only mechanisms for removal of a case from the local Criminal Court docket to be via trial, a plea or in response to a motion made under the Criminal Procedure Law.
Moreover, nothing presented by defendant in the current motion has changed the fact that, in this case, the DA's Office has not explained to the Court why it is declining to prosecute the charges. See CPL 170.40. Because the charges against the defendant are serious and concern matters of public safety, this Court continues to hold that a statement by the DA's Office that they decline to prosecute, without more, is insufficient to remove the charges from the Court. Therefore, contrary to defendant's argument, this determination does follow binding precedent-from the Court of Appeals-that a prosecutor does not have power to unilaterally dismiss a charge. See People v. Douglass, 60 N.Y.2d 194 (1983), supra. Stated otherwise, as the Court of Appeals explained in People v. Extale, 18 NY3d 690, 694 (2012), supra:
There was a time—almost two centuries ago—when the power to dismiss a count of an indictment was the prosecutor's, and the prosecutor's alone. At “early common law”, dismissal was by nolle prosequi, which only a prosecutor, not a court, could enter. In 1828, however, the prosecutor's power was limited by a statute requiring court approval and in 1881 the nolle prosequi was abolished and the power to dismiss transferred from the prosecutor to the judge (citations omitted).
Thus, acting in accord with these Court of Appeals decisions, the Court denies defendant leave to either reargue or renew the Decision. To reiterate, this Court is following what it perceives to be the binding precedent in this State regarding the lack of a prosecutor's power to unilaterally dismiss an accusatory instrument without moving for such relief under the Criminal Procedure Law. See People v. Douglass, 60 N.Y.2d 194 (1983), supra; People v. Extale, 18 NY3d 690, 694 (2012), supra. However, as noted in earlier decisions, this Court stands willing to entertain any motions filed pursuant to the Criminal Procedure Law regarding this case.
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.
SO ORDERED