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People v. Shearin

Appellate Division of the Supreme Court of New York, Second Department
Jan 24, 1977
55 A.D.2d 939 (N.Y. App. Div. 1977)

Opinion

January 24, 1977


Appeal by the People from an order of the County Court, Suffolk County, dated December 24, 1975, which granted defendant's motion to dismiss the indictment, which charged him with assault in the second degree. Order reversed, on the law, and indictment reinstated. It was an improvident exercise of discretion to dismiss the indictment "in the interest of justice" (see CPL 210.40, subd 2). The authorities cited by the County Court in support of its determination, People v Clayton ( 41 A.D.2d 204) and People v Davis ( 55 Misc.2d 656), are inapplicable. In Clayton we set forth the criteria for such a dismissal; none is here present. Nor do we have a plea of guilty to a misdemeanor and a statement by the probation department, in a presentence report, that defendant is making an "excellent adjustment", or any of the other extenuating and compelling factors which were found in Davis (supra). Unlike Davis, at bar a "member of the public has suffered" because of the defendant's conduct (see People v Davis, 55 Misc.2d 656, 658, supra). Hopkins, Acting P.J., Martuscello, Latham, Titone and Hawkins, JJ., concur.


Summaries of

People v. Shearin

Appellate Division of the Supreme Court of New York, Second Department
Jan 24, 1977
55 A.D.2d 939 (N.Y. App. Div. 1977)
Case details for

People v. Shearin

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. THOMAS R. SHEARIN…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jan 24, 1977

Citations

55 A.D.2d 939 (N.Y. App. Div. 1977)

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