People v Paredes (Carlos)

[*1] People v Paredes (Carlos) 2004 NY Slip Op 51903(U) [12 Misc 3d 135(A)] Decided on April 28, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 28, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT:: McCABE, P.J., RUDOLPH and ANGIOLILLO, JJ
2003-504 N CR.

The People of the State of New York, Appellant,

against

Carlos E. Paredes, Respondent.

Appeal by the People from an order of the District Court, Nassau County

(L. Ruskin, J.), dated March 3, 2003, dismissing the accusatory instrument.

Order unanimously reversed on the law, accusatory instrument reinstated and matter remanded to the court below for all further proceedings thereon.

Upon defendant's oral motion, the court dismissed the accusatory instrument citing its facial insufficiency, the prosecutor's chronic lateness for court proceedings, defendant's age and lack of criminal record, and the People's failure to offer defendant a negotiated disposition to a reduced charge. The written order, from which the People appeal, further recites that the dismissal was issued in the furtherance of justice upon the People's "failure to prosecute" citing CPL 170.30 (1)(f). However, as the People timely and properly argued below, a post-arraignment motion to dismiss an accusatory instrument, whether for facial insufficiency or in the furtherance of justice (CPL 170.30 [1] [a], [g]), must be in writing and on reasonable notice to the People (CPL 210.45 [1]; 170.45; People v Key, 45 NY2d 111, 116 [1978]; People v Jack, 117 AD2d 753 [1986]; People v Ramos, 94 AD2d 708 [1983]; 32A NY Jur 2d, Criminal Law § 1444). Absent waiver, the failure to follow that procedure, intended to facilitate "full development of the issues and an adequate opportunity for the People to contest the specific grounds asserted for dismissal" (People v Littles, 188 AD2d 255, 256 [1992]), is "clearly error [warranting] reversal in and of itself" (People v Dunlap, 216 AD2d 215, 216-217 [1995]).

Moreover, under the herein facts and applicable law, none of the considerations invoked by the court warranted the information's dismissal. A trial court has no statutory or inherent [*2]authority to dismiss a criminal proceeding for failure to prosecute (Matter of Morgenthau v Roberts, 65 NY2d 749,752 [1985]; People v Douglass, 60 NY2d 194, 206 [1983]; People v Guzman, 168 AD2d 154, 157 [1991]; People v Gambino, NYLJ, Mar. 20, 2002 [App Term, 9th & 10th Jud Dists]), and neither the defendant's age and lack of a criminal record (see People v Bolton, 224 AD2d 436 [1996]; People v Diggs, 125 AD2d 189, 191 [1986]), nor a court's disapproval of the People's determination to withhold a plea offer (e.g. Matter of Duckman, 92 NY2d 141, 146-147 [1998]) was a sufficient ground to dismiss the criminal charge in the furtherance of justice (cf. CPL 170.40 [1] [d]). In any event, the court below clearly did not act to vindicate defendant's statutory or constitutional right to an expeditious prosecution of the accusatory instrument but to impose a sanction for the People's alleged failure timely to appear for court proceedings in unrelated matters (see People v Peuteau, No. 2003-502 N CR [decided herewith]). In our view, the public interest in the resolution of criminal proceedings upon the application of substantive law superseded the court's interest in venting its exasperation, however justified, with prosecutors' dilatory behavior for which appropriate, alternative remedies are available.
Decision Date: April 28, 2004