People v Curtis
2003 NY Slip Op 51717(U)
Decided on November 6, 2003
Criminal Court Of The City Of New York, Bronx County
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This opinion is uncorrected and will not be published in the printed Official Reports.
People v Curtis
Decided on November 6, 2003
Criminal Court Of The City Of New York, Bronx County
The People of the State of New York, Plaintiff,
Susie Curtis, Defendant.
Docket No. 2003BX012658
Arthur Birnbaum, J.
Defendant is charged with Petit Larceny [PL 155.25] and Criminal Possession of Stolen Property in the Fifth Degree [PL 165.40]. The Complaint alleges, in sum and substance, that on January 18, 2003, defendant was observed by the deponent store detective at a Stop & Shop store, to take a bottle of Advil valued at $6.59, place it in her pocket book and walk out of the store without paying for the medication. Defendant was arraigned on March 3, 2003, at which time the court, sua sponte, dismissed the complaint in the furtherance of justice pursuant to CPL 170.40. The People moved by affirmation dated March 21, 2003 to reargue the determination of the court and Defendant submitted papers in opposition dated April 30, 2003. The court granted the People's motion to reargue by Order dated May 6, 2003, and a hearing was held on August 27, 2003. At hearing, the parties stipulated that defendant has had no prior contacts with the criminal justice system, is a well respected public school teacher who has taught kindergarten for 21 years and at the time of the incident her life was consumed by her role as sole caregiver for her terminally ill husband, who died prior to the hearing date. It was also noted at hearing that defendant had been removed from working in the classroom by her employer as a result of her arrest.
Following hearing, the court adheres to its original determination and dismisses the complaint in the furtherance of justice pursuant to CPL 170.40 for the reasons hereinafter stated.
The current language of CPL 170.40 reflects the historical shift in power to dismiss pending cases in the furtherance of justice from the executive branch of government to the judiciary. With the enactment of Sections 663, 664 and 671 of the Code of Criminal Procedure in 1881, the New York State Legislature replaced the common law doctrine of "nolle prosequi", which granted to the prosecutor discretion to discontinue a prosecution in progress, by permitting the court to dismiss an indictment "in the furtherance of justice." See People v. Rickert, 58 N.Y.2d 122, 126 (1983); People v. Clayton, 41 A.D.2d 204, 206 (2d Dep't 1973); Peter Preiser, Practice Commentary, in N.Y. Crim. Proc. Law ss 170.40 (McKinney 1993); Sheila Kles, Criminal Procedure II: How Much Further is the Furtherance of Justice?, 1989 Ann. Surv. Am. L. 413, 414. The district attorney retains the prerogative to prosecute people who commit crimes. People v. Zimmer, 51 N.Y.2d 390, 394. However, "one of the reforms effected through the years [*2]in the procedure to dismiss accusatory instruments in the interest of justice was to remove the power to do so from the offices of the District Attorney and Attorney-General and lodge it, instead, in the courts alone." 58 N.Y.2d at 131.
The former statutory language of CPL 170.40 and CPL 210.40 required a "sensitive balance between the individual and the State" and "the use of the statute depended only on principles of justice, not on the legal or factual merits of the charges or even on the guilt or innocence of the defendant." People v. Clayton, 41 A.D.2d 204, 206 (2d Dep't 1973). However, the antecedent statutes which granted power to the court to dismiss a criminal action in the interest of justice failed to provide specific guidelines for the exercise of that power. In People v. Belge, 41 N.Y.2d 60 (1976), the Court of Appeals called for amendment of CPL 210.40, arguing that "[t]o the extent that the section now fails to prescribe specific criteria for the responsible exercise of the discretion granted by the section and fails to require the court to articulate the manner and extent to which the particular case meets such criteria, it is open to misuse and effective appellate review is made difficult, if not impossible." 41 N.Y.2d at 62. The Legislature responded to the court's concerns with the amendments to CPL 170.40 and CPL 210.40 promulgated in 1979. 58 N.Y.2d at 127. In reviewing the current language of CPL 170.40, as amended in 1979, the Court of Appeals noted: "Throughout its history, and no less today, its thrust, even to the disregard of legal or factual merit, has been 'to allow the letter of the law gracefully and charitably to succumb to the spirit of justice'" 58 N.Y. at 126 quoting People v. Davis, 55 Misc.2d 656, 659. Thus, despite the creation of statutory criteria which the court must consider in the application of CPL 170.40, the underlying historical considerations of looking beyond the legal and factual merits of the case to avoid injustice by granting dismissal in the furtherance of justice have remained intact.
The current criteria for a court to dismiss an action in the furtherance of justice are as follows: § 170.40 Motion to dismiss information, simplified traffic information, prosecutor's information or misdemeanor complaint; in furtherance of justice 1. An information, a simplified traffic information, a prosecutor's information or a misdemeanor complaint, or any count thereof, may be dismissed in the interest of justice, as provided in paragraph (g) of subdivision one of section 170.30 when, even though there may be no basis for dismissal as a matter of law upon any ground specified in paragraphs (a) through (f) of said subdivision one of section 170.30, such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such accusatory instrument or count would constitute or result in injustice. In determining whether such compelling factor, consideration, or circumstance exists, the court must, to the extent applicable, examine and consider, individually and collectively, the following: (a) the seriousness and circumstances of the offense; (b) the extent of harm caused by the offense; (c) the evidence of guilt, whether admissible or inadmissible at trial; (d) the history, character and condition of the defendant;[*3] (e) any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant; (f) the purpose and effect of imposing upon the defendant a sentence authorized for the offense; (g) the impact of a dismissal on the safety or welfare of the community; (h) the impact of a dismissal upon the confidence of the public in the criminal justice system; (i) where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion; (j) any other relevant fact indicating that a judgment of conviction would serve no useful purpose. 2. An order dismissing an accusatory instrument specified in subdivision one in the interest of justice may be issued upon motion of the people or of the court itself as well as upon that of the defendant. Upon issuing such an order, the court must set forth its reasons therefor upon the record.
CPL 170.40 preserves the trial court's discretion to dismiss a criminal complaint in the furtherance of justice sua sponte. CPL 170.40(2); People v. Henriquez, 68 N.Y.2d 679 (1986). However, "[t]he trial court's discretion to dismiss in the interest of justice, should be 'exercised sparingly' and only in that 'rare' and 'unusual' case where it 'cries out for fundamental justice beyond the confines of conventional considerations.'" People v. Insignares, 109 A.D.2d 221, 234 lv. den. 65 N.Y.2d 928 quoting People v. Belge, 41 N.Y.2d 60, 62-63; People v. Howard, 151 A.D.2d 253, 256, lv. den. 74 N.Y.2d 811. A complaint may be dismissed even where the evidence of guilt is unquestioned if the circumstances collectively show that "failure to dismiss would constitute an injustice." People v. Hirsch, 85 A.D.2d 902 (4th Dep't 1981). The power to grant such relief is not absolute. People v. Wingard, 33 N.Y. 2d 192, 196 (1973). In exercising its judicial discretion to dismiss in the interest of justice, the trial court must identify "some compelling factor" which would render the continued prosecution of the defendant an injustice. CPL 170.40. The court need not recite a "catechistic" analysis of each of the ten factors listed by CPL 170.40(1). 58 N.Y.at 128. However, the court must consider the ten statutory factors "individually and collectively" while engaging in a "sensitive balance between the individual and the State." CPL 170.40; 41 A.D.2d at 204; 174 A.D.2d at 89.
Defendant in the instant case is a 56 year old woman who has made her career as a kindergarten teacher in the New York City public schools for the past 21 years. She has never before been arrested. As a result of her arrest, defendant has been deprived of teaching in the classroom by her employer. Additionally, defendant was engrossed with the care of her gravely ill husband, who subsequently died. Defendant is alleged to have stated "I was sorry" when apprehended.
In applying the criteria set forth in CPL 170.40 and the underlying considerations of "fundamental justice" to the facts presented at hearing, it is apparent that dismissal in the furtherance of justice is warranted in this case.
The court must consider the seriousness of the offense and the extent of harm suffered as well as the impact which dismissal would have on the community. CPL 170.40 (1)(a), (c) and [*4](g). Thus the court must strike the traditional balance between the defendant and society. When an offense is particularly heinous and the harm incurred great, then the character and history of the defendant and the impact of the available sentence on the defendant and his family carry little weight in favor of dismissal. See People v. Reyes, 174 A.D.2d 87 (1st Dep't 1992). The fact that a defendant had no prior involvement with the criminal justice system does not, by itself, warrant dismissal where the crime alleged created a significant harm to society. People v. Harmon, 181 A.D.2d 34, 37 (1st Dep't 1992).
However, in the instant case, defendant did not cause significant harm by her actions. The court recognizes that there is harm created by shoplifting. Nonetheless, the de minimis value of the item taken, a $6.59 bottle of Advil pain medication, which occasioned a de minimis harm, allows the court to regard the character, history and personal circumstances of defendant in order to fairly balance her interest against that of the community. In People v. John Doe, N.Y.L.J. 1/7/92 at 25, col 5 (Crim. Ct. N.Y. County), the court gave "great weight" to good character in dismissing a complaint in the interest of justice where defendant had punched the complainant once in the nose in a rowdy bar without causing serious physical injury. The court noted that good character alone is not enough to support dismissal, but under the full set of circumstances it was in the public interest not to expend judicial resources on trivial matters. In People v. Josephine Doe, 158 Misc2d 863 (Crim Ct. N.Y. County 1993)(Pickholz, J.), the court gave "substantial weight to defendant's unblemished record" where evidence of injuries, mere scratches, caused by a young learning disabled woman's involvement in a "school yard skirmish" were "de minimis" and which did not create any risk to society. In People v. Alisa Gragert, N.Y.L.J. 10/2/03 at 19, col 1 (Crim Ct. N.Y. County), the court regarded significantly the youth and inexperience of the defendant in dismissing charges which arose from the defendant's act of blocking pedestrian traffic by lying on the sidewalk during an anti-war demonstration. The court concluded that the fact that the defendant was an honors high school student who engaged in extensive volunteer and community work and had no criminal record outweighed the minimal harm caused, despite evidence of defendant's guilt.
In the case at bar, the credible good character of defendant, her history as a law abiding citizen, expressed contrition and the stressful and disorienting circumstances governing her life relating to her husband's illness at the time of the incident all mitigate in favor of dismissal. The harm caused by defendant's act was de minimis and fundamental justice requires that this defendant be released from further prosecution due to her singular lapse in judgment and unique personal circumstances. Public confidence in the criminal justice system will be strengthened by the court's recognition that honest people occasionally err, and defendant's contrition suggests that imposing punishment would not serve any purpose.
Accordingly, the complaint is dismissed in the furtherance of justice.
This opinion constitutes the decision and order of the court.
Bronx, New YorkArthur Birnbaum, J.C.C.
Decision Date: November 06, 2003