People v Recco

[*1] People v Recco 2009 NY Slip Op 51686(U) [24 Misc 3d 1231(A)] Decided on July 31, 2009 Nassau Dist Ct, First District Fischer, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 31, 2009
Nassau Dist Ct, First District

People of the State of New York, Plaintiff,

against

Anne F. Recco, Defendant.



2009NA000941



Kathleen M. Rice, Nassau County District Attorney, 99 Main Street, Hempstead, NY 11550 for People

Paul R. Pepper, Esq., 18 West Carver Street, Suite 2, Huntington, NY 11743 for Defendant

Rhonda E. Fischer, J.

This case presents a unique fact pattern which requires the exercise of the rarely used provisions of CPL 170.40. permitting a court to employ its discretion and conduct a hearing to consider the dismissal of the charges against the defendant in the "interest of justice."

The defendant's motion to dismiss is, therefore, granted to the extent provided herein and is set down for a hearing in accordance with People v. Clayton, 41 AD2d 204.

The defendant is charged with a violation of PL 240.30(1), aggravated harassment second degree, a class A misdemeanor.

The allegations are that the defendant made harassing phone calls to the complaining witness, her ex-husband. They have been divorced since 2001, after a troubled 10-year marriage which produced two sons who have lived with their father for the past year.

The instant charge stems from alleged phone calls to the complaining witness on November 6, 2008. It appears that the defendant is entitled to nightly telephone calls with her sons on their phones. If she was unable to contact them for three days, she was to call the complaining witness, who is supposed to facilitate telephone contact. Nevertheless, the complaining witness, who admits that he was aware that it was his ex-wife calling, refused to answer the calls. Instead, he filed this charge against her.

It is perhaps significant to note that Ms. Recco found it necessary to have the complaining witness removed from the marital residence prior to the divorce and has received therapy and counseling services as a victim of spousal abuse.

In the eight years since the divorce, the complaining witness has brought approximately 10 petitions in the Family Court of various counties for the modification of the custody arrangement. [*2]In 2008, Ms. Recco agreed to allow the sons to live with the complaining witness. She alleges that, since that time, the complaining witness has constantly frustrated her court ordered communication and parenting time with her sons.

He also has made numerous criminal charges as well as complaints to Child Protective Services, all of which have been unsuccessful. If anything, this clearly establishes a pattern of harassment and attempts to control the defendant by the complaining witness, even though the marriage is long since over.

Finally, this charge was used as the basis for yet another Family Offence Petition which was heard in the Family Court on December 17, 2008. Even though the burden of proof is a mere "preponderance of the evidence," the petition was dismissed because of "insufficient evidence of a family offense."

On the basis of these facts , the defendant moves to dismiss the charges against her in the "interests of justice," pursuant to CPL §170.40.

McKinney's CPL § 170.40 states as follows:

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;

(e)any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant; [*3]

(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.

Although the charge against this defendant would appear to meet sections a, b, c, d, f, g, h, i, and j the People nevertheless, oppose the motion. They point out that the complaining witness alleges that the defendant made numerous phone calls within the space of an hour, purportedly leaving a message "I'm going to do what I have to do."

However, a dismissal in the interest of justice may be granted when "some compelling factor, consideration or circumstance" exists "clearly demonstrating that conviction or prosecution of the defendant ... would constitute .... injustice." People v. Clayton, supra. Where a court considers granting the motion "it should not do so until fair notice of its intention has been given to the parties and a hearing has been held" Clayton, supra.

The Court is aware that a trial court's discretion to dismiss in the interest of justice should be exercised sparingly and only in that "rare" and "unusual" case where the facts and circumstances require "fundamental justice beyond the confines of conventional considerations." People v. Belge, 41 NY2d 60. Put another way, a "compelling factor is present if denial of the motion would be such an abuse of discretion so as to shock the conscience." People v. O'Grady,175 Misc 2d 61.

Such a motion should be granted only where a defendant has demonstrated by a preponderance of the credible evidence that a compelling reason exists to warrant dismissal in the interest of justice. If the defendant fails to meet this burden, the Court may summarily deny the motion (People v. Schlessel, 104 AD2d 501 [1984]). As noted by the Court in People v. Gragert, 1 Misc 3d 646 [2003]:

When deciding a motion to dismiss in the interest of justice, it is not necessary to engage in a point-by-point 'catechistic' discussion of all 10 factors listed under Criminal Procedure Law §170.40(1) See, People v. Rickert, 58 NY2d 122. Instead, the court is required to consider the factors 'individually and collectively' in making a value judgment that is based upon striking a sensitive balance between the interests of the individual and those of the state (People v. Harmon, 181 AD2d [*4]34). In so doing, the court must be mindful that its power to grant the relief is neither absolute nor uncontrolled (see People v. Wingard, 33 NY2d 192, 196 [1973]), and that such power should be exercised 'sparingly' (People v. Howard, 151 AD2d 253, 256 [1989], lv denied 74 NY2d 811 [1989].)

Despite the limited circumstances in which courts have held a motion to dismiss should be granted, the decision is still left almost exclusively to the trial court's discretion. The Appellate Term has held that where the trial court is objective, and examines and considers the applicable statutory factors, the decision lies within the discretion of the trial court. See, People v. Spagnola 19 Misc 3d 16.

The facts and circumstances of this case, in this Court's view, warrant such a conclusion requiring "fundamental justice beyond the confines of conventional considerations." It seems clear that the complaining witness was deliberately ignoring the calls from his ex-wife who was merely trying to lawfully exercise her right to talk with her sons.

Considering the relevant statutory factors, the defendant's action produced little or no harm to anyone; the defendant has no prior record; there is relatively little useful result that will come of a sentence authorized from the offense; and dismissing the case will in no way harm the public safety or confidence in the criminal justice system.

Further, the Family Court hearing did not find by a "preponderance of the evidence" standard that the charge was valid.

Given the above considerations, the defendant has alleged enough facts to constitute a legal basis supporting the motion. In response, the People have raised questions about several of the alleged facts.

CPL §210.45 dictates the procedure by which a motion to dismiss can proceed. Pursuant to CPL §170.45, the requirements of CPL §210.45, are applicable to a defendant charged under an information or misdemeanor complaint. CPL §210.45(4) requires the court to grant a motion to dismiss without a hearing where the motion is supported by sworn allegations of fact that are sufficient to create a legal basis for the dismissal, and those facts are conceded to by the People, or proven by documentary evidence. CPL §210.45(5) gives the court discretion to deny the motion without a hearing where there are either no facts supporting the motion alleged, insufficient facts supporting the motion alleged, or the alleged facts are refuted by documentary proof.

The court cannot grant the motion without a hearing pursuant to subdivision four because the sworn allegations of fact by the defendant are not conceded to in their entirety by the People, nor are they supported by unquestionable documentary proof. Similarly the court cannot summarily deny the motion pursuant to subdivision five because the defendant does make allegations of fact which support a legal basis for the motion, and those facts are not conclusively refuted by documentary proof. As a result, this case falls into subdivision six. CPL 210.45(6) reads "if the court does not [*5]determine the motion pursuant to subdivision four or five, it must conduct a hearing and make findings of fact essential to the determination thereof."

Therefore, the defendant's motion is granted to the extent that a hearing shall be held pursuant to People v. Clayton, supra, and CPL §210.45 (6) to make findings of fact necessary to make a ruling on dismissal pursuant to CPL §170.40. Said hearing shall be held in the DVM Part of the District Court on September 1, 2009 at 9:30 a.m. The foregoing constitutes the Decision and Order of the Court.

SO ORDERED:

__________________________________

DISTRICT COURT JUDGE

Dated: July 31, 2009

cc: Kathleen M. Rice, District Attorney, Nassau County

Paul R. Pepper, Esq.