People v Hernandez

People v Hernandez 2013 NY Slip Op 07663 Decided on November 19, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 19, 2013
Mazzarelli, J.P., Saxe, Moskowitz, DeGrasse, Gische, JJ.
11087

[*1]The People of the State of New York, SCI 76529C/10 Appellant,

v

Zaida Hernandez, Defendant-Respondent.




Robert T. Johnson, District Attorney, Bronx (Lindsey Ramistella
of counsel), for appellant.
Richard M. Greenberg, Office of the Appellate Defender, New
York (Rosemary Herbert of counsel), and Fried, Frank, Harris,
Shriver & Jacobson LLP, New York (Jennifer L. Colyer of
counsel), for respondent.

Order, Supreme Court, Bronx County (William L. McGuire, J.), entered on or about April 27, 2012, which granted defendant's motion to dismiss the information in furtherance of justice pursuant to CPL 170.30 and 170.40, unanimously affirmed.

The court properly exercised its discretion in entertaining defendant's motion to dismiss in the interest of justice after the 45-day deadline had expired, and in granting the motion (see CPL 170.40[1], 255.20[1]). Regardless of the issue involving defendant's immigration status, all of the factors contained in CPL 170.40(1) which were considered by the court below, justified dismissal, including that the sole remaining charge was second-degree harassment, that defendant had been a law-abiding citizen since entering this country legally when she was eight years old, that the incident resulted from a long-standing dispute between two neighbors, which had led to the complainant's conviction of harassing defendant in a prior incident, and that defendant had since moved out of the neighborhood.

We have considered and rejected the People's remaining arguments.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 19, 2013

CLERK