Opinion
20905C-09.
Decided October 20, 2010.
Hannah Gladstein, Esq., Counsel for Defendant, The Legal Aid Society, Bronx, NY.
Katie Wasserman, Esq., Assistant District Attorney, Criminal Court Bureau, Bronx, NY.
Defendant Keith Royster was charged with Assault in the Third Degree, P.L. § 120.00(1), Obstruction of Governmental Administration, P.L. § 195.05, and Harassment P.L. § 240.26(1), arising out of an incident that occurred on January 28, 2009, at the Eric M. Taylor Center on Rikers Island where Defendant was then incarcerated.
On May 13, 2009, Defendant filed an omnibus motion seeking, among other things, to have the Court: (1) suppress all testimony regarding any identifications of Defendant; (2) preclude the introduction of any additional statements or identification testimony at trial; (3) preclude the People from introducing at trial evidence not supplied in response to Defendant's Request for a Bill of Particulars; and (4) preclude the People from introducing evidence of Defendant's prior bad acts.
The People submitted an opposition, filed on May 27, 2009, to Defendant's motion.
On May 27, 2009, the Honorable Ann Donnelly granted, in part, and denied, in part, Defendant's motion. Judge Donnelly granted Defendant a Wade-Dunaway hearing and ordered the People to provide discovery prior to the hearing. The Court also reserved the Sandoval and Ventimiglia issues as to Defendant to the trial court.
On August 30, 2010, the parties appeared before this Court for the Wade-Dunaway hearing. The People moved to dismiss the charges of Obstructing Governmental Administration and Assault in the Third Degree and to add the charge of Attempted Assault in the Third Degree, P.L. § 110.00/120.00. Defendant did not object to the amendment and the motion was granted.
After the People's case in the hearing, Defendant asked the Court to dismiss the action in the interest of justice as he had already served the maximum sentence of incarceration allowable in this case and a trial of the matter would not be an effective use of the Court's resources. Transcript of Hearing, August 30, 2010, at p. 67.
Upon consideration of each of the factors relevant to a dismissal in the interest of justice, the Court dismisses the misdemeanor information against Defendant with prejudice. The Court finds that, in these difficult economic times and in light of the serious backlog of cases awaiting trial in Bronx County, a guilty verdict would provide no benefit to the People, the Defendant or the community. The Court notes that the maximum period of incarceration that Defendant could face, if found guilty after trial, is 90 days on the Class B misdemeanor and 15 days on the violation.
This backlog was alluded to by the People when Assistant District Attorney Katie Wasserman, Esq., informed the Court that she personally currently had 130 other cases — "some of which are quite old" — awaiting trial. Transcript of Hearing, August 30, 2010, at p. 75.
As Defendant was receiving credit for the time he has been incarcerated awaiting trial, Defendant already has served the maximum period of incarceration for both the violation and the Class B misdemeanor. Defendant was incarcerated for a total of over 5 months. Thus, his actual period of incarceration awaiting trial on this case well exceeded the maximum period of time he could have served upon a guilty plea or verdict.
Moreover, if Defendant were to have been found guilty and were to have been sentenced, likely he would have been credited "good time" and, thus, his period of incarceration awaiting trial on this case likely is more than double the actual time he would have had to serve upon a guilty plea or verdict. See Corrections Law § 804, Good Behavior Allowances Against Definite Sentences. "(1) Every person confined in an institution serving a definite sentence of imprisonment may receive time allowances as discretionary reductions of the term of his sentence not to exceed in the aggregate one-third of the term imposed by the court . . ."
On the date of trial, Defendant already had served more than two months beyond the maximum period he would have had to serve if convicted. For the reasons discussed below, in this case, the interest of justice demands that the charges be dismissed.
Defendant was incarcerated on this matter for 2-1/2 months in 2009. On June 15, 2009, Defendant posted bail in this case and was released pending trial. When Defendant did not appear in court on a scheduled date, March 24, 2010, a bench warrant for Defendant was issued on that date. The warrant was vacated on May 17, 2010 and bail was then set at $5,000.00. Defendant was then incarcerated on this matter from that date through August 30, 2010, the hearing date — approximately 3 additional months).
This matter demonstrates the complicated and delicate balancing that the Court must conduct in determining whether to dismiss a case in the interest of justice. The Court must weigh and consider ten factors: (1) the seriousness and circumstances of the offense; (2) the extent of harm caused by the offense; (3) the evidence of guilt and whether admissible or not at trial; (4) the history, character and condition of the defendant; (5) any exceptionally serious misconduct of law enforcement personnel; (6) the purpose and effect of imposing a sentence upon the defendant; (7) the impact of dismissal on the safety or welfare of the community; (8) the impact of a dismissal on the confidence of the public in the criminal justice system; (9) where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion; and (10) any other relevant fact indicating that conviction would serve no useful purpose. See CPL § 170.40; People v. Colon, 86 NY2d 861, 863 (1995); People v. Rickert, 58 NY2d 122, 127, 446 N.E.2d 419, 421 (1983); People v. Payne, 2002 NY Slip Op 50293U, *4 (Mount Vernon City Ct. 2002) (especially important are the nature of offense, evidence against defendant and defendant's history, the purpose and effect of imposing upon a sentence, and confidence of the public in the criminal justice system). Although the Court need not engage in a "point-by-point catechistic" discussion of these factors, Rickert, 58 NY2d at 128, the Court has reviewed the factors both "individually and collectively" and, upon consideration of these factors, finds that the interest of justice requires a dismissal of the charges. People v. Harmon, 181 AD2d 34, 35 (1st Dept. 1992); People v. Stockwell, 18 Misc 3d 1145A, 2008 NY Slip. Op. 50444U, *4 (Watertown City Ct. 2008).
With respect to the nature of the offenses, here, the most serious offense charged is a Class B misdemeanor; the other charge is a violation which does not constitute a criminal offense. Thus, these charges fall at or near the low end of the scale of serious crimes. As noted by the Court of Appeals, the lesser the offense, the more available the remedy of a dismissal in the interest of justice. People v. Rickert, 58 NY2d at 132 (exercise of discretion to dismiss in the interest of justice more available for lesser crimes than for felonies).
With respect to the Court's consideration of the purpose and effect of imposing a sentence, which is to punish, rehabilitate, deter crime, and protect the community, People v. Colon, 209 AD2d at 256; People v. Vecchio, 139 Misc 2d 165, 169 (Sup. Ct., Queens Co. 1987), the Court notes that no such remedies exist in this case. Here, if convicted of all counts, Defendant already would have served more than the maximum sentence of incarceration he could receive on these charges. Whether convicted or not, Defendant would be released. Thus, convicting and sentencing Defendant will have no effect on punishment, rehabilitation, deterrence, or protection of the community. People v. Bruno, 11 Misc 3d 1083A, 2006 NY Slip. Op 50681U, *5-6 (Sup. Ct., New York Co. 2006) where defendant completed drug program and remained drug free for two years, conviction would serve no useful purpose); People v. Brooks, 142 Misc 2d 678, 685-86 (Sup. Ct., Kings Co. 1988) (retribution end was served by defendant's year in jail prior to trial); People v. Payne, 2002 NY Slip Op 50293U, *4-5 (little benefit to community of imposing short additional sentence is weighed against high cost of obtaining a conviction); People v. P., 106 Misc 2d 1075, 1079 (Just. Ct., Twn. of Greenburgh 1980) (misdemeanor charges dismissed where $50.00 fine after conviction does nothing more after defendant has been punished by arrest, fingerprinting and holding for hours).
With respect to the Court's consideration of the effect on the safety and welfare of the community, a dismissal also will have no effect as Defendant would not be incarcerated even if, after a trial, he were found guilty as he already has served almost twice the period of time to which he could have been sentenced. People v. Pope, 53 AD2d 651, 651 (2nd Dept. 1971) (where defendant had already served maximum time when conviction reversed, indictment dismissed in interest of justice); People v. Pugh, 150 AD2d 734, 735 (2nd Dept. 1989). See also People v. Payne, 2002 NY Slip Op 50293U, *4-5 (misdemeanor information dismissed where Defendant had already served almost all time possible and trial would give little or no benefit to community); People v. Brooks, 142 Misc 2d 678, 685, 538 N.Y.S.2d 387, 392 (Sup. Ct., Kings Co. 1988) (court considered the fact that defendant already had served one year of a possible minimum two year sentence in dismissing in interest of justice).
With respect to the Court's consideration of the community's confidence in the criminal justice system, such confidence can only be increased by a dismissal in the interest of justice in this case. The public's confidence in the criminal justice system is based on equally important factors — the prosecution and punishment of crimes and fairness. People v. Reets, 157 Misc 2d 515, *518 (Sup. Ct., Kings Co. 1993).
The public can have no confidence in a criminal justice system that would regularly incarcerate defendants awaiting trial for periods longer than the potential sentences those defendants would face after a conviction. See, e.g., Report of Committee to Utilize the Services of Retired Judges, Bill Jacket, L 1983, ch 840, at 60 (backlog and delay in the system "seriously cripple[s]" our State's court system and "undermine[s] public confidence in the fairness of justice in our state"); NY County Lawyers' Ass'n. v. State, 192 Misc 2d 424, 433 (Sup. Ct., New York Co. 2002) (protracted pretrial detention is material and actual injury warranting preliminary injunction directing increased hourly pay to assigned counsel), aff'd, 294 AD2d 69 (1st Dept. 2002).
While the People are apparently untroubled by their representation to this Court that "there are a lot of circumstances in which people serve the maximum amount of time before they're actually given the opportunity to have a hearing or trial," ( see Transcript at 68), such a situation cannot be countenanced by this Court. Indeed, the public's confidence in the criminal justice system is better served by ensuring that the resources which would be used to prosecute this case are applied to reduce the backlog of other more serious cases where a defendant is incarcerated awaiting trial.
The very foundations of the State's system of criminal jurisprudence — due process and the presumption of innocence — are undermined if pretrial detentions lasting longer than the possible sentences defendants could receive if convicted after trial become a systemic part of the criminal justice system. See United States v. Salerno, 481 U.S. 739, 746-49, 95 L. Ed. 2d 697, 107 S. Ct. 2095 (1987) (pretrial detention violates due process when regulatory detention exceeds the bounds of "reasonable duration" such that it becomes punitive); see also U.S. v. McCarty, 2009 U.S. Dist. Lexis 120342 (Dist. Ct. Hawaii 1992).
Courts assess each case on a case-by-case basis when determining whether the length of a pretrial detention violates Defendant's due process rights, U.S. v. Gonzales-Claudio, 806 F.2d 334, 340 (2nd Cir. 1986), and must weigh: (i) the length of the detention; (ii) the extent of the prosecution's responsibility for the delay of the trial; (iii) the gravity of the charges; and (iv) the strength of the evidence upon which detention was based (i.e., the evidence of the risk of flight and dangerousness). U.S. v. El-Hage, et al., 213 F.3d 74, 79 (2nd Cir. 2000); U.S. v. Orena, 986 F.2d 628, 630 (2nd Cir. 1993).
The Court notes that, in this case, approximately 4 weeks of time prior to the trial is chargeable to the People. Had a petition seeking review of Defendant's pretrial detention been made on due process grounds, the fact that Defendant's pretrial detention well exceeded the time he would have had to serve if convicted of all charges, and the fact that the most serious charge is a Class B misdemeanor, would have been considered by the Court in determining whether Defendant's due process rights had been violated by continued detention.
Moreover, in the current economic climate, when this country faces the worst recessionary period since the Great Depression, and the court system, along with all other government service agencies, faces budgetary cuts and increased caseloads, the use of judicial, prosecutorial and defense resources — all public — to try this misdemeanor and violation case, where the Defendant has already served more than the maximum he could receive if convicted, is unduly wasteful. The public confidence in this system is not served by such wastefulness.
Wise, Proposed Budget Includes Bump For Borough District Attorneys, N.Y.L.J., Feb. 4, 2009,(Legal Aid's attorney-in-chief quoted as saying that 2011 cuts in city and state funds, coming on top of cuts in the 2010 fiscal year, "will further impair our ability to provide a constitutional defense" for indigent defendants in the city and that, even without the planned 2010 cuts, Legal Aid's 435 criminal defense lawyers handle on average 592 cases a year — 48 percent higher than the 400-case standard set by the Appellate Division, First Department).
Glaberson, The Recession Begins Flooding into the Courts, New York Times, Dec. 27, 2009, (describing how New York courts ended 2009 with 4.7 million cases, highest number ever, with increases seen in family, criminal and commercial courts, and across the judicial system).
The Court notes that, in addition to the Court itself, two attorneys from the District Attorney's office, an attorney from The Legal Aid Society, a court reporter, a court clerk, numerous court officers, along with Department of Corrections personnel, who transport Defendant between Rikers Island and the courtroom, are required for the trial of this case. In a county so sorely in need of these judicial, prosecutorial and defense resources, these costs must be considered. See People v. Williams, 21 Misc 3d 1118A, *7 (Crim. Ct., New York Co. 2008) (accusatory instrument dismissed because Defendant already institutionalized; belabored prosecution of case serves no legitimate purpose and drains court system and city's resources); People v. Payne, 2002 NY Slip Op 50293U, *4-5 (court refused to appropriate extensive resources to trial where little or no benefit would ensue to People).
The Court also has considered the injuries claimed by two officers of the New York City Department of Correction in its analysis, and notes that, although a conviction may address some of the concerns of such victims, nonetheless, here, where no further incarceration is possible, and the People have represented that this matter is being prosecuted without regard to any civil action that has been or might be filed arising out of the incident at issue, any such conviction, would be pyrrhic, at best.
The People's position about whether there would be any connection between this criminal action and any pending or potential civil action was inconsistent and convoluted. Initially, the People informed the Court that "[t]his case is being prosecuted on its own merits, and, irregardless [sic] of, you know, the civil matter that is pending or soon to be pending." Transcript at p. 67.
Thereafter, the People seemed to reverse their position, informing the Court that "[w]hile the civil case has nothing to do with the criminal case, the criminal case does have something to do with the civil case." Tr. at 74. After the Court pointed out that this position seemed inconsistent with the People's initial contention, the People then argued that" . . . the criminal case has nothing to do with the civil case, however, the civil case does have something to do with the criminal case." Tr. at 75. Inconsistencies notwithstanding, there simply does not appear to be any prejudice to the People in a dismissal of this case.
For all these reasons, the charges against Defendant are dismissed in the interest of justice.
The following papers were considered by the Court in deciding the motion: Notice of Defendant's Omnibus Motion and Affirmation of Hannah Gladstein, Esq., Attorney for Defendant, filed May 13, 2009; Affirmation of Katie Wasserman, Esq., Assistant District Attorney, in Opposition, filed May 27, 2009.
This constitutes the Decision and Order of this Court.