People v Edwards

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[*1] People v Edwards 2015 NY Slip Op 51019(U) Decided on July 10, 2015 Criminal Court Of The City Of New York, Kings County Borrok, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 10, 2015
Criminal Court of the City of New York, Kings County

The People of the State of New York, Plaintiff,

against

Patrice Edwards, Defendant.



2014KN083154



Appearance of Counsel:

Yung-Mi Lee, Brooklyn Defender Services, 177 Livingston Street, Brooklyn, NY 11201, attorney for defendant

Kenneth Thompson, District Attorney, Kings County, by Amanda Cully, Assistant District Attorney, Brooklyn, of Counsel for the People
Andrew Borrok, J.

The instant motion brought pursuant to Criminal Procedure Law (CPL) §§ 170.30(1)(g) and 170.40 seeks to have the pending charges dismissed in the interest of justice. For the reasons set forth below, the defendant's motion is denied.



The Relevant Facts and Circumstances

The defendant is charged with Assault in the Third Degree (Penal Law (PL) § 120.00[1]), Endangering the Welfare of a Child (PL § 260.10[1]), Criminal Possession of a Weapon in the Fourth Degree (PL § 265.01[2]), Menacing in the Second Degree (PL § 120.14[1]), Menacing in the Third Degree (PL § 120.15), and Harassment in the Second Degree (PL § 240.26[1]). On November 5, 2014, the defendant was arraigned and the matter was adjourned until January 6, 2015 to Part AP1F for Grand Jury Action.

On January 6, 2015, the People served and filed a superseding information and three supporting depositions, and dismissed the felony charge of Assault in the Second Degree (PL § 120.05[2]). The matter was adjourned until February 17, 2015 to Part AP2 for discovery by stipulation (DBS).

On February 17, 2015, the People served and filed DBS and the matter was adjourned until April 7, 2015 for any necessary hearings and trial.

On April 7, 2015, the People indicated that they were ready to proceed and that the arresting officer was on alert to come to court to testify. According to defense counsel's colleague, defense counsel was out of the office. The matter was adjourned again for appropriate hearings and trial until April 30, 2015.

On April 30, 2015, the People again indicated that they were prepared to proceed. On this occasion, defense counsel was also out of the office and the matter was adjourned a third [*2]time for hearings and trial until June 9, 2015.

On June 8, 2015, 215 days following the defendant's arraignment and the night before the third scheduled date for hearings and trial to begin, defense counsel filed the instant motion. On June 24, 2015, the People filed their Affirmation in Opposition to Defendant's Motion to Dismiss Pursuant to CPL § 170.40. The matter was adjourned until July 14, 2015 for the court's decision and hearings and trial.



Discussion



I. The Defendant's Motion is Untimely

The Legislature has provided clear rules for pretrial motions with a view towards ending bombarding the courts with last minute motions and other dilatory tactics.[FN1] CPL § 255.20 provides that except as otherwise provided by law, all pretrial motions must be served or filed within 45 days after arraignment or commencement of trial or within such additional time as the court may fix prior to the entry of judgment.[FN2] The court must also entertain any appropriate pre-trial motion based upon grounds of which the defendant could not, with due diligence, have been previously aware, or which, for other good cause, could not reasonably have been raised within such 45 day period. CPL § 255.20(3).

The defendant brought the instant motion 215 days following her arraignment and has not plead that she could not with reasonable diligence have previously been aware of the grounds for the instant motion within the 45 day period required by CPL § 255.20. Accordingly, the defendant's motion to dismiss pursuant to CPL §170.40 is untimely and is therefore denied.



II. Dismissal of the Information in the Interest of Justice

Upon appropriate motion of a defendant, the court may dismiss an information in the interest of justice. CPL § 170.30(1)(g); People v Clayton, 41 AD2d 204 (2d Dept. 1973). However, it is well established that a dismissal in the interest of justice is to 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 AD2d 221, 234, (1st Dept), lv denied 65 NY2d 928 (1985), quoting People v Belge, 41 NY2d 60, 62-63, (1976). The decision to dismiss an information in the interest of justice is not "an untrammeled right to act on purely subjective considerations but requires a balancing of the interests of the individual and of the People." People v Rickert, 58 NY2d 122, 126-127 (1983). Rather, the court is required to [*3]consider the factors enumerated in the statute in deciding whether compelling considerations or circumstances clearly demonstrate that continued proceedings would result in injustice. People v Velez, 111 AD3d 503 (1st Dept 2013). Furthermore, the court must deny the motion in the absence of any such compelling factors demonstrating that continued prosecution or conviction would result in injustice. People v Berrios, 160 Misc 2d 612 (1994) citing People v Insignares 109 AD2d 221 (1st Dept.) lv denied 65 NY2d 928 (1985). CPL § 170.40(1) requires that, when considering a motion to dismiss an information in furtherance of justice, it must "individually and collectively" consider the following factors:

(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.

Consideration of these factors both individually and collectively compels denial of the defendant's motion.

The seriousness and circumstances of the offense

The defendant is charged with Assault in the Third Degree (Penal Law (PL) § 120.00[1]), Endangering the Welfare of a Child (PL § 260.10[1]), Criminal Possession of a Weapon in the Fourth Degree (PL § 265.01[2]), Menacing in the Second Degree (PL § 120.14[1]), Menacing in the Third Degree (PL § 120.15), and Harassment in the Second Degree (PL § 240.26[1]. Assault in the Third Degree, Criminal Possession of a Weapon in the Fourth Degree, and Endangering the Welfare of a Child are all Class A misdemeanors. They are without question serious offenses. The circumstances include the alleged beating of the defendants' seven year old child with a belt which resulted in, among other things, bruising and welts to the child's body. Accordingly, the seriousness of these charges and the circumstances under which the injuries occurred does not favor dismissal.

The extent of harm caused by the offense

The People argue and the defendant concedes that the complainant received "bruises and welts to her leg." See Affirmation of Defense at 7. Although the complainant did not go to the hospital as the defendant argues, the photos of the complainant's injuries show the extent of the [*4]physical harm caused by the defendant. See Affirmation of People, Exhibit 1. In addition, harm need not be measured by physical injury alone. Mental and emotional harm must also be considered. In Assault in the Third Degree, Endangering the Welfare of a Child, and Menacing and Harassment cases, the damage done may be long standing and not readily apparent. Abuse of young children may have a long term detrimental effect on the child's moral and mental welfare. Accordingly, consideration of this factor does not favor dismissal.

The evidence of guilt, whether admissible or inadmissible at trial

In this case, the evidence of the defendant's guilt includes (i) the sworn statement of the seven year old complaining witness (i.e., the supporting deposition) and her potential testimony at trial, (ii) the potential testimony of the complaining witness' teacher at trial who observed the injuries allegedly caused by the defendant, (iii) the testimony of the arresting detective and his potential testimony at trial who observed the complaining witness' injuries and took the defendant's statement, (iv) the potential testimony of the nurse practitioner who observed the complaining witness' injuries, (v) the photographs of the complaining witnesses' injuries, (vi) the complaining witness' medical records from the Brooklyn Child Advocacy Center, and (vii) the defendant's statement admitting to hitting the complainant with a belt. The defendant does not plead in her moving papers that any of the foregoing is not admissible at trial. Accordingly, consideration of this factor requires continuation of the prosecution of the charged offenses.

The history, character, and condition of the defendant

The defendant is a 29 year old single mother. She indicates in her moving papers that she was involved in a domestic violence relationship and moved to New York to a domestic violence shelter with her daughter, the complaining witness, to flee from the complaining witness' father. See Affirmation of Defense at 4. In 2012, the defendant asserts that she obtained her GED and indicates that she has been running a cleaning business. See Affirmation of Defense at 7. The defendant asserts that (i) she has never been arrested before, (ii) she volunteers for a soup kitchen for the homeless, and (iii) since the commencement of this criminal case, (A) has completed 22 sessions of Positive Parenting/Anger Management counseling sessions, (B) volunteers at a twelve week program through Brodgomg Access to Care called Parenting Journey and (C) attends therapy sessions with the complaining witness. In other words, in sum and substance, the defendant argues that this is a first arrest and that she has addressed her anger management issues, is getting her life together and is learning how to address disciplinary issues with her child in an appropriate manner. None of the foregoing constitutes the rare' and unusual' circumstance favoring dismissal under CPL § 170.40. See People v Berrios, 160 Misc 2d 612 (1994). Accordingly, consideration of this factor does not favor dismissal.

Any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant

The defendant does not plead any serious misconduct on the part of law enforcement.

The purpose and effect of imposing upon the defendant a sentence authorized for the offense

As discussed above, the defendant is charged, among other things, with Assault in the Third Degree, Criminal Possession of a Weapon in the Fourth Degree, and Endangering the Welfare of a Child — i.e., three Class A Misdemeanors. If convicted of one of those charges, the statute authorizes a sentence of up to one year of incarceration. The defendant does not plead that this factor favors dismissal of the charges. In fact, the defendant merely points out that this is the defendant's first contact with the criminal justice system and that she has enrolled and completed certain parenting and anger management classes. These arguments however are unavailing. People v Berrios, 160 Misc 2d 612 (1994); People v McGorman, 159 Misc 2d 736 (1993); People v McIwain, 300 AD2d 320 (2002). They are more appropriately directed to the sentencing court should the defendant be convicted. The function of the criminal court is not only to provide protection, but also to provide deterrence, rehabilitation and retribution. People v Berrios, 160 Misc 2d 612 (1994) citing People v McConnell, 49 NY2d 340 (1980). The sentencing court would have discretion in determining the appropriate sentence and whether any jail time would be an appropriate part of her sentence. Furthermore, as this court has already discussed, the allegations involved in this case are serious. They involve repeatedly striking a seven year old child with a belt. Accordingly, consideration of this factor does not favor dismissal.

The impact of a dismissal on the safety or welfare of the community

The safety and welfare of the community is protected by the police who investigate potentially criminal conduct and the district attorney who has the duty to investigate that conduct and prosecute alleged criminal offenses. At trial, the fact finder must determine whether the district attorney has met its burden of proving that each and every element of the crimes charged were in fact committed by the defendant beyond a reasonable doubt. Recognizing that a pretrial dismissal in the interest of justice pursuant to CPL § 170.40 necessarily curtails this process, the court must look very closely as to what the message that any such summary dismissal would be as to acceptable conduct and the community's underlying values. This is axiomatic because one of the primary purposes of criminal law is to deter future harmful conduct. A child is at risk when a mother repeatedly strikes her child with a belt. It is an inappropriate form of discipline. Period. Full Stop. Equally so, if the charges in this case were dismissed and the defendant were afforded a disposition that did not require the defendant to be held responsible for her conduct (provided that the People can prove their case beyond a reasonable doubt), the consequences would be significant and the safety and the welfare of the community would be at risk. A summary dismissal by the court would be equally inappropriate. The message from the court must be that in applying the laws duly enacted by the legislature, this behavior is not an acceptable form of discipline in this community. To hold otherwise would be to ignore the values of the community and the laws duly enacted by the legislature. Furthermore, it would be a complete and total abdication of the court's appropriate role to protect the innocent, unoffending, [*5]unemancipated and otherwise disenfranchised future members of our communities. Accordingly, consideration of this factor requires denial of the motion.

The impact of a dismissal upon the confidence of the public in the criminal justice system

The court's appropriate role in protecting children is of paramount important. Simply put, unemancipated children must be able to rely on their parents or legal guardians. If this relationship breaks down, the child must receive protection from the state and the criminal justice system. If the courts were to dismiss cases involving a mother continually striking her child with a belt, confidence in the criminal justice system would be severely detrimentally impacted. Accordingly, consideration of this factor requires permitting the continued prosecution of the charged offenses.

Where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion

The complainant in this case is a seven year old child. She has sworn under penalties of perjury as to the underlying facts in the criminal complaint. The complaint is corroborated by photographic evidence of the defendant's conduct. There is no reason to believe that the complaining witness will not testify. Equally important, inasmuch as the complaining witness is only seven years old, and is in the custody of ACS, nothing in the pleadings suggest that ACS believes that the criminal complaint should be dismissed in the interest of justice. Accordingly, consideration of this factor does not favor dismissal.

Any other relevant fact indicating that a judgment of conviction would serve no useful purpose.

The defendant argues that the defendant faces potential immigration consequences such as either deportation or a separation from her daughter as a result of a conviction in this case. Potential immigration consequences to a defendant is not an appropriate reason to dismiss. See People v Reyes, 174 AD2d 87, 89 (1st Dept., 1992).

Having considered the factors set forth in CPL § 170.40, both collectively and individually, this court finds the circumstances involved in this case do not involve the unusual circumstances which cry out for dismissal in the interest of justice.



Accordingly, the defendant's motion is denied both because it is untimely under CPL § 255.20 and also because the court determines that dismissal in the interest of justice pursuant to CPL § 170.40 is highly inappropriate.

The foregoing constitutes the opinion, decision and order of the court.

Dated: July 10, 2015_____________________________

Brooklyn, New YorkAndrew Borrok



J.C.C. Footnotes

Footnote 1:"The Legislature's purpose in enacting CPL 250.20 was to regulate pretrial proceedings by requiring a single omnibus motion to be made promptly after arraignment and thus to avoid the proliferation experienced under prior procedure in which a defendant could bombard the courts and Judges with dilatory tactics continuing right up to the eve of trial (see 1972 Report of NY Judicial Conference Advisory Committee on the CPL, 1973 McKinney's Session Laws of NY, pp 2076-2077)." People v Lawrence, 64 NY2d 200, 203 (1984).

Footnote 2:CPL § 170.30(2) provides an exception from this 45 day requirement for motions to dismiss on the grounds that the defendant has been denied the right to a speedy trial (i.e., CPL §30.30 motions brought pursuant to CPL 170.30(1)(e)). However, no such exception exists for CPL § 170.40 motions to dismiss in the interest of justice brought pursuant to CPL § 170.30(1)(g).



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