People v Jiminez

[*1] People v Jiminez 2009 NY Slip Op 51150(U) [23 Misc 3d 1136(A)] Decided on February 27, 2009 Poughkeepsie City Ct Garrity, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 27, 2009
Poughkeepsie City Ct

The People of the State of New York,

against

Juan Jiminez, Defendant.



08-49418



Adam Kirk, Esq.

Attorney for the defendant

4 Liberty Street

Poughkeepsie, NY 12601

Nicholas A. Gildard, Esq.

Senior Assistant District Attorney

Dutchess County District Attorney

236 Main Street

Poughkeepsie, NY 12601

John B. Garrity, J.

The Defendant has moved by way of Notice of Motion, supported by the affirmation of Adam Kirk, Esq., dated December 24, 2008, seeking to dismiss the information in the interests of justice. The People have responded to defendant's motion by filing an Answer in response to Defendant's Motion, which is supported by the affirmation of Nicholas J. Gildard, Assistant District Attorney, dated January 12, 2008 [sic].

Defendant is charged with patronizing a prostitute in the third degree in violation of Penal Law § 230.04, a class A misdemeanor. Now, upon reading the notice of motion, the supporting affirmation, and the People's answer, and due deliberation having been held thereon, this Court determines the motion as follows:

The charges herein stem from the defendant's unlawful conduct wherein it is alleged that he offered an undercover police officer twenty dollars ($20.00) in exchange for sex. Defendant moves to dismiss the within information in the interests of justice pursuant to C.P.L. § 210.40; 170.40 and People v. Clayton, 41 AD2d 204 (1973), on the bases that the offense and its attending circumstances lack a degree of seriousness, there is negligible harm upon which this crime impacted society, and that the history, character, and condition of the defendant support its motion to dismiss the matter in the interests of justice.

This incident represents the defendant's first recordable arrest. At the time of the defendant's arrest, he was 17 years old and thus eligible for adjudication as a youthful offender. The defendant came to this country from Mexico approximately two years ago. Kirk Affirmation. December 24, 2008, ¶7. The defendant lives with his sister in Poughkeepsie and works two jobs - one as a dishwasher at the Poughkeepsie Grand Hotel and another as a landscaper. Kirk Affirmation. December 24, 2008, ¶8. He is taking a course at Arlington Middle School to learn how to write and speak English.Kirk Affirmation. December 24, 2008, ¶9. The defendant argues that since this crime is one of "moral turpitude," under the current immigration law, a conviction of this crime would result in his deportation. Kirk Affirmation. December 24, 2008, ¶11. The defendant also argues that since the People are only seeking to secure a misdemeanor conviction without a particular sentence, and the defendant is eligible for a youthful offender adjudication, a dismissal is relatively consonant with what the People are seeking. Kirk Affirmation. December 24, 2008, ¶13. The defendant argues that dismissal would not negatively impact the safety or welfare of the community nor would it shake the public's confidence in the criminal justice system, in part because since the [*2]prostitute was an undercover police officer, there was no actual harm imposed upon a victim with the commission of this crime. Kirk Affirmation. December 24, 2008, ¶15.

In turn, the People oppose defendant's motion arguing that when the defendant came to this country and settled in New York, he did so illegally and then proceeded to violate the laws of the very State that he illegally entered. Gildard Affirmation, January 12, 2008 [sic] ¶8. The People further argue that a dismissal would legitimize the harm imposed upon the Poughkeepsie City community where prostitution plagues areas of this community and disturbs its residents. Gildard Affirmation, January 12, 2008 [sic] ¶9. By enforcing the prostitution laws of this State, the police allegedly increase safety in the community and allegedly reduce the prostitution trade by reducing the available clientele for prostitutes, which reduces other crimes. Gildard Affirmation, January 12, 2008 [sic] ¶9 (Gildard provides no statistical or factual basis for these statements). The People further argue that deportation should not serve as a basis to dismiss the action in the interests of justice, especially considering the fact that a similarly situated defendant, who is a legal resident of the United States, would not be afforded the same consideration (of dismissal in the interests of justice) that this defendant seeks, who is illegally in this country. Gildard Affirmation, January 12, 2008 [sic] ¶10. Finally, the People argue that while they are not seeking a jail sentence necessarily, a dismissal is not consonant with the penalty they are seeking in this matter. Gildard Affirmation, January 12, 2008 [sic] ¶11.

Criminal Procedure Law § 170.40 (1) gives a Court the authority to dismiss an information in the interest of justice even though there may be no basis for dismissal as a matter of law, but where it should be dismissed as a matter of judicial discretion by the existence of some other compelling factor, consideration or circumstance which clearly demonstrates that the conviction or prosecution of the defendant would constitute or result in injustice. C.P.L.§ 170.40 (1). Although The decision to dismiss an information lies within the discretion of the trial judge, that discretion is not absolute or uncontrolled. People v. Wingard, 33 NY2d 192 (1973). The statute states that a court must find some compelling factor, and where a lower court fails to state such compelling factors, dismissal in not warranted. Among the factors to consider both individually and collectively are 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;

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.

[*3]C.P.L.§ 170.40 (1)(a-j).

In weighing each of the factors collectively as outlined in the statute, the Court finds that a dismissal of the charges against the defendant would have a negative impact upon the confidence of the public in the criminal justice system. Dismissing this case so that the defendant could continue to remain in the United States illegally would effectively make the statute applicable only to citizens, which is patently unfair and violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution. U.S. CONST. amend. XIV, § 1. The fact remains that it was only two years after entering this country that the defendant violated the laws of this State when he patronized an undercover police officer posing as a prostitute in this community. The defendant's argument that he was a virile 17 year old unable to resist the temptation of sex or a prostitute is not a persuasive argument to support a dismissal, nor is the fact that he would be deported for committing a crime of moral turpitude, or that other States have legalized prostitution. The defendant was caught, arrested, and prosecuted all in accordance with the laws of the State after he offered an undercover police officer $20.00 in exchange for sex on Cannon Street. Each arm of government has fulfilled its duties in enforcing the laws handed down to us from our Legislature. Irrespective of what other States outlaw, our State's Legislature has determined that it has a compelling interest to sanction prostitution and the act of patronizing a prostitute. For this Court to dismiss this case on the facts and arguments set forth by the defendant, but then acquiesce to enforcement of the law by overseeing the prosecution of a United States citizen who commits the very same crime would be unprincipled and would effectively impart disparate treatment to the citizen alone - whereby punishment is imposed upon the United States citizen but the non-citizen receives the benefit of a dismissal. The Court must be dispassionate in administering law and justice. And here, while it is unfortunate that the defendant may be deported as a result of this crime, the Court is not convinced that there is a compelling factor authorizing a dismissal. This Court is cognizant of the impact a dismissal would have - for it would effectively usurp the Federal Government's immigration policies and the vast regulations it has created to deport those immigrants from the United States who commit crimes the government has deemed to be crimes of "moral turpitude." This Court will not exercise dominion beyond the threshold of its powers or dictate from the bench upon the morality of this statute, nor is this Court inclined to undermine the federal government's policies on deportation under the legal guise that the case possesses compelling factors for the Court to consider in a motion to dismiss "in the interests of justice."

The defendant is alleged to have violated the law and this Court has a duty to enforce the statute, unless of course there exists some compelling factor, consideration, or circumstance which clearly demonstrates that a conviction or prosecution of the defendant would result in an injustice. C.P.L.§ 170.40 (1). The defendant has failed to establish any such compelling factor or demonstrate that any injustice would result from the defendant's conviction of this crime.

THEREFORE, for the reasons set forth herein, it is

ORDERED, that the defendant's motion seeking dismissal of the information in the interests of justice is denied in its entirety.

SO ORDERED.

All parties are directed to appear before this Court on March ___, 2009 at 9:00 A.M. for further proceedings.

Dated: February 27, 2009_________________________Poughkeepsie, New York

John B. Garrity

City Court Judge

cc:

Adam Kirk, Esq.

Attorney for the defendant

4 Liberty Street

Poughkeepsie, NY 12601

Nicholas A. Gildard, Esq.

Senior Assistant District Attorney

Dutchess County District Attorney

236 Main Street

Poughkeepsie, NY 12601