People v Reeves

[*1] People v Reeves 2009 NY Slip Op 50637(U) [23 Misc 3d 1108(A)] Decided on April 13, 2009 County Court, Essex County Richard B. Meyer, J Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through July 15, 2009; it will not be published in the printed Official Reports.

Decided on April 13, 2009
County Court, Essex County

The People of the State of New York,

against

George C. Reeves, III, Defendant



5166



Julie A. Garcia, Esq., Essex County District Attorney, (Michael P. Langey, Esq., of counsel), Elizabethtown, New York.

McPhillips, Fitzgerald & Culum, LLP (Bradley Krause, Esq., of counsel), Glens Falls, New York, for the defendant.

Richard B. Meyer, J.

Application by the Essex County District Attorney, on notice to defendant's counsel[FN1], "for an order directing that the felony complaint and other papers transmitted . . . pursuant to subdivision 1 of section 180.30 be returned to the local criminal court for reconsideration of the [*2]action to be taken" (CPL §180.40).

The defendant is charged by felony complaints dated July 14, 2008 with the crimes of assault in the second degree (Penal Law §120.05[1]), a class D violent felony, and coersion in the first degree (Penal Law §135.65[1]), a class D felony. The charges arise out of an incident alleged to have occurred on July 13, 2008 at approximately 3:50 a.m in the Town of Ticonderoga, Essex County. The felony complaints and the supporting deposition of the defendant's wife aver that the defendant punched her in the ribs causing laceration to her spleen and requiring hospitalization in intensive care and medical treatment. It is also alleged that he took her cell phone and tore the telephone line for her cordless phone off the wall to prevent her from calling 911. Following arraignment in the Ticonderoga Town Justice Court, the defendant waived his right to a felony hearing (CPL §180.60) and on September 10, 2008 an order was issued releasing the defendant on bail pending grand jury action.

The People now seek to have the charges returned to local criminal court to be disposed of by plea to criminal mischief in the fourth degree (Penal Law §145.00[4]), a class A misdemeanor, for intentionally disabling or removing telephonic equipment while his wife attempted to seek emergency assistance from law enforcement. As part of their application, the People have filed a signed plea agreement providing for a three year probation sentence, community service, substance abuse and violence intervention treatment, and a "refrain from" order of protection for three years. In their application, the People contend that return of the charges is warranted because, in the opinion of the District Attorney's Office, the case should not be prosecuted as a felony and it would not be in the interests of justice or the best interests of the defendant's and alleged victim's family for there to be a felony prosecution.

It is clear that a district attorney, a member of the Executive branch of government, has the primary responsibility for determining whether a person should be prosecuted for criminal conduct and which violations of the law are to be charged (see People v. Eboli, 34 NY2d 281, 357 NYS2d 435, 313 NE2d 746). Also, "[a] defendant's criminal history or prior relationship with a victim, the victim's own wishes, and the strength and veracity of the facts underlying the charge are examples of the many considerations that might, upon further investigation, lead a prosecutor to reduce a charge" (People v. Urbaez, 10 NY3d 773, 775, 886 NE2d 142, 144, 856 NYS2d 520, 522 [italics added]). The broad discretion accorded a prosecutor to decide whether a particular defendant should be charged in the first instance with a felony or misdemeanor crime, or to later reduce a felony crime to a misdemeanor, is, however, not the same as the exercise of judicial discretion in allowing a charged felony crime to be reduced to a misdemeanor.

The obligation of the court is to act as an impartial arbiter, "detached from outside pressures often brought to bear on the prosecution and defense" (People v. Farrar, 52 NY2d 302, 306, 419 NE2d 864, 865, 437 NYS2d 961, 962), "in overseeing and supervising the delicate balancing of public and private interests" (People v. Selikoff, 35 NY2d 227, 243, 360 NYS2d 623, 638, 318 NE2d 784, 795) "represented in the criminal process" (People v. Farrar, supra ). [*3]Nowhere is this delicate balancing more crucial than in domestic violence cases. Further, in the context of an application under CPL §180.40 where the prosecution seeks return of a felony complaint to the local criminal court so that it may be reduced to a misdemeanor, such return is authorized only where the superior court (CPL §10.10[2]) "is satisfied that the felony complaint is defective or that such action is required in the interests of justice" (italics added)(CPL §180.40).

Here, there is no claim that the felony complaints are defective. Rather, the District Attorney contends that her office "has determined . . . [that] it would not be in the interest of justice or the best interest of the family to proceed" with felony prosecutions. In support of that determination, the District Attorney has submitted an affirmation summarily stating that the defendant does not have a "significant criminal history", the defendant and the alleged victim are married and "have children in common", "[t]he victim wants the defendant to address his anger issues through counseling", a felony conviction could prevent the defendant "from supporting his family", and that "the victim feels the defendant's criminal conduct was an isolated incident and the defendant has accepted responsibility for his criminal conduct". The instant motion is based solely upon affirmations of the District Attorney and an assistant district attorney, and no statement from the alleged victim has been furnished to provide factual background and support for their arguments, most of which are conclusory. The defendant apparently has a criminal history, but the prosecution has chosen not to make it known to this court, as neither the specifics of that history nor a copy of a DCJS report thereof has been furnished, so that its significance and relevance can be assessed.

It is not uncommon in domestic violence cases for the defendant and the alleged victim to have children together, or to be concerned about the impact of a felony conviction upon their respective finances and personal relationship. Circumstances such as these often result in an unwillingness on the part of an alleged victim to pursue criminal charges. Significantly, such a reluctance may be indicative of controlling or manipulative behaviors on the part of an abusive partner and the victim's minimization of abuse (Leidholdt, Dorchen, Interviewing Battered Women, pages 12-15, 22, and Reichler, Judith, Representing a Victim of Domestic Violence Who Needs Child Support, pages139-140 [Lawyer's Manual on Domestic Violence, 5th Edition]).

Also, the fact that the defendant's ability to earn income may be impaired by his conviction of a felony crime is no grounds for reduction of the charge to a misdemeanor. The prosecution's broad assertion[FN2] in this regard is unsupported by any facts and is purely speculative. Were this court to adopt the prosecution's position, almost every defendant facing a felony charge would have grounds for reducing it to a misdemeanor offense. There is no indication that the defendant's conviction of a misdemeanor crime will have any less impact on his ability to earn income to support his family than would result from a felony conviction. Although loss of employment following a criminal conviction is a well-recognized collateral consequence, a [*4]defendant's obligation to support his children is unabated thereby (see Knights v. Knights, 71 NY2d 865, 527 NYS2d 748, 522 NE2d 1045). Also, services are available to provide financial assistance to a victim and her/his children (see Reichler, Judith, Representing a Victim of Domestic Violence Who Needs Child Support, pages139-168 [Lawyer's Manual on Domestic Violence, 5th Edition]). Moreover, New York law generally prohibits discrimination in employment against persons previously convicted of one or more criminal offenses, thereby significantly mitigating the effects of a felony or misdemeanor conviction upon a defendant's subsequent employment (see, Correction Law §750-§755 and Executive Law §296[15] [unlawful discriminatory practice to deny employment to any person "by reason of his or her having been convicted of one or more criminal offenses" or "a finding of a lack of good moral character' which is based upon" such conviction(s)]; see also Public Officers Law §3[1] [person qualified for public office unless convicted of violating federal selective draft act or selective training and service act]; 4 NYCRR §66.4 [person not automatically disqualified or barred from appointment to civil service position because of a criminal conviction]). Finally, a convicted defendant can seek a certificate of relief from disabilities (Correction Law §700, §702).

The results of the prosecution's "further investigation" into this "defendant's criminal history or prior relationship with [the] victim, the victim's own wishes, and the strength and veracity of the facts underlying the charge[s]" (People v. Urbaez, supra ) have not been furnished to this Court. There is insufficient factual information upon which this Court can make a determination that a return of the felony complaints to the local criminal court "is required in the interests of justice" (italics added) (CPL §180.40). The motion is therefore denied.

IT IS SO ORDERED.

ENTER____________________________________

Richard B. Meyer

J.C.C.

Footnotes

Footnote 1:Even though an application under CPL §180.30 may be made ex parte, the People chose to make it on notice to defendant's counsel.

Footnote 2:The District Attorney's affirmation states, "If convicted of a felony the defendant could be prevented from supporting his family."