People v Williams

[*1] People v Williams 2017 NY Slip Op 50963(U) Decided on July 28, 2017 City Court Of Mount Vernon, Westchester County Armstrong, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 28, 2017
City Court of Mount Vernon, Westchester County

The People of the State of New York,

against

Khesean Williams, Defendant.



17-1053



For the People:

Westchester County District Attorney, Mount Vernon Branch

For Defendant:

William O. Wagstaff III, Esq.

75 South Broadway, Suite 400

White Plains, New York 10601
Adrian N. Armstrong, J.

Defendant Khesean Williams is charged with one (1) count of Aggravated Driving While Intoxicated in violation of Vehicle and Traffic Law § 1192.2(a), one (1) count of Driving While Intoxicated in violation of Vehicle and Traffic Law § 1192.3, and one (1) count of Double Parking a Vehicle in violation of Vehicle and Traffic Law § 1202.

The defendant moves to 1) dismiss the Simplified Information in the interest of justice, an application commonly known as a Clayton motion (see People v Clayton, 41 AD2d 204 (2nd Dept. 1973); 2) suppress evidence of his statements to police, or in the alternative, granting a Dunaway/Huntley hearing to determine the admissibility of statements allegedly made; 3) compelling the People to provide discovery and a bill of particulars as well as Rosario and Brady material; 4) precluding the People from introducing at trial evidence of his prior criminal convictions, any underlying bad acts, and all prior uncharged criminal, or wrongful conduct; and 5) allowing for the transcription of hearing minutes at least twenty days prior to the commencement of the trial.

The accusatory instrument against the defendant alleges that on April 29, 2017, at approximately 6:20 p.m. members of the Mount Vernon Police Department (MVPD) responded to the vicinity of Gramatan and Centre Street in the City of Mount Vernon, County of Westchester, in response to a report of a male sleeping in a double-parked vehicle with the engine running. Upon arrival, a MVPD officer observed the defendant sleeping in the double-parked car that had its engine running. The officer alleges that after awakening the defendant, he [*2]observed an open, one-liter bottle of Jack Daniels in the center console of defendant's vehicle. Also in the center console was a cup from Checkers, which was filled with an alcoholic beverage.

The officer asked defendant if he had been drinking, to which he replied, "Yes, but I wasn't driving." The officer noticed that defendant's speech was slurred while he was speaking and a strong odor of alcohol was emanating from his breath. The officer observed that defendant's eyes were glassy and bloodshot. Defendant was then asked to exit his vehicle to perform Standardized Field Sobriety Tests, to which he failed all three tests. Defendant was then placed under arrest and transported to the MVPD Headquarters.

At the MVPD Headquarters, defendant was read his Miranda warnings and his DWI Refusal Warnings. Defendant agreed to submit to a chemical test. A chemical test was administered, which revealed the defendant's Blood Alcohol Content to be 0.21%.

In contrast to the allegations set forth in the accusatory instrument, defendant claims that he was just waiting in the double-parked vehicle for his girlfriend to return from her apartment, and positioned himself behind the wheel for the sole purpose of preventing a double-parking summons.

In seeking a dismissal of the accusatory instrument in the interest of justice, the defendant requests that the Court focus on the fact that he has no criminal record, the fact that he is a product of an urban community, and despite the challenges he faced therein, he successfully graduated from Morehouse College, and is currently employed with goals of obtaining an advanced degree. Defendant also maintains that a dismissal under the circumstances set forth therein would not undermine the confidence of the public in the criminal justice system.

CPL § 170.40 provides that a Court may dismiss an accusatory instrument in the interest of justice where there exists "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." CPL § 170.40 lists 10 factors which the court must consider when determining whether to grant dismissal in the interest of justice. "The power to dismiss on such ground is, as provided in the statutory text, committed to the trial court's discretion; it 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.

Harmon, 181 AD2d 34, 36 (1st Dept. 1992) (internal quotation marks omitted).

The court need not "engage in a point-by-point catechistic discussion of all ten statutory factors; 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. Gragert, 1 Misc 3d 646, 648 (Crim Ct, NY County 2003); see also, People v. Rickert, 58 NY.2d 122 (1988). Where the defendant fails to meet his burden of demonstrating by the preponderance of the evidence that a compelling factor exists to warrant dismissal in the interest of justice, the court may summarily deny the motion. People v. Schlessel, 104 AD2d 501 (2d Dept. 1984).

The first relevant and applicable factor for consideration herein is the seriousness and circumstances of the offense. Driving While Intoxicated is one of the major causes of accidents or deaths on our highways. The second factor for consideration is the extent of harm caused by the offense. Fortunately no harm was caused by defendant, but the possibilities certainly existed [*3]if he drove off in the condition that he was alleged to be in. The third factor for consideration is the evidence of guilty, whether admissible or inadmissible. While the evidence of guilt is not overwhelming, the Court is aware that operation of a vehicle is established on proof that the defendant was merely behind the wheel with the engine running without need for proof that defendant was observed driving the car.

The fourth factor for the Court to consider is the history, character and condition of defendant. Defendant's lack of criminal history, educational accomplishments and work history are commendable. The fifth factor for consideration is whether there are any exceptionally serious misconduct of law enforcement personnel in the prosecution of the defendant and the Court notes that there are no allegations of serious misconduct on the part of the MVPD. The sixth statutory factor is the purpose and effect of imposing a sentence authorized by law. While the potential sentence herein isn't minimal, the Court notes that the Mount Vernon City Court handles hundreds of DWI cases every year and rarely is anyone who is convicted for a first offense of either DWI charged herein, given a sentence other than probation or a conditional discharge.

The seventh factor to be considered is the impact of a dismissal on the safety or welfare of the community. There has been no showing that there would be any impact. The eighth statutory factor is the impact of a dismissal upon the confidence of the public in the criminal justice system. The impact on the community would show a special exception to this defendant and impact society's confidence in our Court system. The ninth factor for consideration is the attitude of the complainant or victim. Here there is no victim.

The final factor for the Court to consider is any other relevant fact indicating that a judgment of conviction would serve no useful purpose. "Defendant is reminded that "[i]t is the District Attorney's prerogative to prosecute those who commit crimes, to bring charges or discontinue criminal proceedings" (People v. Keith R., 95 AD3d 65, 67 [1st Dept. 2012]) and absent a showing by defendant that a compelling factor exists to warrant dismissal in the interest of justice, this court will not exercise its discretion under CPL § 170.40(1). A good indication as to just how sparingly the power is to be exercised is the very small number of reported cases where motions to dismiss in the interest of justice have been granted. And, it would seem, in those relatively rare instances where trial courts have exercised their discretion in favor of dismissal, appellate courts have more often than not seen fit to reverse.

The Court has considered the factors enumerated in CPL 170.40(1). The Court agrees with defendant that he has an excellent civic and personal history, and that his career interests may be damaged by a misdemeanor conviction. However, this Court knows that any defendant so situated could use the same arguments for dismissal. While defendant's desire to continue his formal education and to continue to have gainful employment are laudable, these aspirations are insufficient to justify a dismissal in the furtherance of justice. People v Kelley, 141 AD2d 764 (2d Dept. 1988); People v Andrew, 78 AD2d 683 (2d Dept. 1980). The mere fact that the defendant has no prior record (see, People v Belkota, 50 AD2d 118 [4th Dept 1975]), or has an exemplary background (see, People v Andrew, 78 AD2d 683 [2nd Dept 1980]), is insufficient to justify the exercise of the court's discretion, and "does not immunize him from the normal processes of the criminal law" (People v Varela, 106 AD2d 339, 340 [1st Dept. 1984]). However, the defendant's background could be a mitigating factor in plea negotiations and/or [*4]sentencing.

In view of the overwhelming public policy "to protect those who make use of the roads from the needless deaths, injuries, and property damage resulting from drunk driving" (VTL § 1192) the record in this case does not disclose a "compelling factor" which would warrant dismissal of the charges under CPL § 170.40. This Court is not unsympathetic to defendant's concerns regarding the possible consequences he will face should the charges not be dismissed. However, after considering the enumerated factors set forth in CPL § 170.40, it cannot be said that this case "cries out for fundamental justice beyond the confines of conventional consideration." Harmon,supra. Accordingly, this Court finds no "compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant ... would constitute or result in injustice." CPL § 170.40

The motion for discovery is granted to the extent that the People are directed to provide pre-trial disclosure of all materials subject to CPL § 240.20, as well as all exculpatory materials to the defense, and the People are reminded of their continuing obligations under People v Rosario, 9 NY2d 286 (1961) and Brady v Maryland, 373 US 83 (1963).

The motions for a Dunaway/Huntley pre-trial hearing is granted on consent, to the extent of ordering a hearing to determine if there was probable cause for defendant's arrest, and whether or not defendant's statements were taken in violation of his rights under the United States and New York Constitutions.

The Sandoval motion is granted on consent, and shall be renewed before the trial judge. Since the People have not indicated that they plan to introduce any evidence of defendant's prior bad acts on their direct case, the motion for a Ventimiglia hearing is denied as premature at this time. In the event the People later indicate they plan to introduce such evidence, the defendant may renew the motion before trial.

The defendant's request for an expanded bill of particulars is denied on the basis that the simplified information, supporting deposition and bill of particulars provides sufficient information delineating defendant's alleged conduct at the time of the incident. The function of a bill of particulars is to clarify the pleading, not to serve as a discovery device (CPL § 200.95; People v Davis, 41 NY2d 678 [1977]; People v Kyoung Ja Choi, 259 Ad2d 423 [1st Dept 1999]).

The defendant's motion to require that any pre-trial hearings in this case be held at least twenty days in advance of the trial is denied. In the event the defendant seeks production of the minutes of any pre-trial hearing prior to trial, that request will be considered by the court at the time it is made.

Accordingly, defendant's motion to dismiss the accusatory instrument in the interest of justice is denied. Defendant's motion for a Sandoval hearing is respectfully referred to the trial judge. That branch of defendant's motion for a Ventimiglia hearing is denied as premature. Defendant's motion for a Dunaway/Huntley motion is granted on consent. The defendant's motion to require that any pre-trial hearings in this case be held at least twenty days in advance of the trial is denied. The defendant's motion for discovery is granted subject to CPL § 240.20, and the People are reminded of their Rosario and Brady obligations. The defendant's request for an expanded bill of particulars is denied.

This constitutes the Decision and Order of this Court.

Dated: July 28, 2017

Mount Vernon, New York

HON. ADRIAN N. ARMSTRONG

City Judge of Mount Vernon