People v Lennon

[*1] People v Lennon 2008 NY Slip Op 52271(U) [21 Misc 3d 1129(A)] Decided on November 13, 2008 Nassau Dist Ct Engel, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 13, 2008
Nassau Dist Ct

The People of the State of New York,

against

James J. Lennon, Defendant.



2007NA013876



Hon. Kathleen Rice, Nassau County District Attorney

Attorneys for Defendant: Roseman, Beerman & Beerman, LLP

Andrew M. Engel, J.

The Defendant is charged, by Information, with Forcible Touching, in violation of Penal Law § 130.52. He presently moves to dismiss the Information in the interests of justice. The People oppose the motion.

While the Defendant has moved pursuant to CPL §§ 210.20 and 210.40, which relate to the dismissal of Indictments in the superior courts, these sections are substantially similar to CPL §§ 170.30 and 170.40, which relate to the dismissal of an Information, a Simplified Information, a Prosecutor's Information or a Misdemeanor Complaint; and, the court shall deem this motion to have been made pursuant to the latter sections.

In support of the motion, counsel for the Defendant and the Defendant's daughter assert that the Defendant is Eighty-four (84) years old and has had no prior involvement with the criminal justice system. It is alleged that the Defendant has been the primary caregiver for his wife of sixty-one (61) years, who has been suffering from Alzheimer's disease since 1996. The Defendant receives help in this regard from a Personal Care Aide. It is further alleged, and supported by the affidavit of Joel H. Halio, M.D., that the Defendant has been diagnosed as suffering from Fronto-Temporal Dementia which "affects social and interpersonal conduct," (Halio Affidavit 10/29/08, ¶ 8) such as the alleged conduct which brings him before this court at this time.

It is alleged that the Personal Care Aide for the Defendant's wife shall now care for the Defendant as well and insure that he will no longer move about the community unescorted. In addition, Dr. Halio advises that the Defendant's condition can be treated "with certain pharmaceutical protocols[.]" (Halio Affidavit 10/29/08, ¶ 8) Finally, it is noted that, at a conference held before this court (Engel, J.) at the time this motion was submitted for determination, counsel for the Defendant advised the court and the People that the Defendant has been hospitalized and is in grave condition.

In opposing the motion, the People do not address any of the Defendant's allegations. The People, instead, argue the alleged strength of their case, the generosity of their offer to dispose of this matter, the potential danger the Defendant poses to the community and the need for an order [*2]of protection for the alleged victim.

CPL § 170.30(g) provides that, upon motion of a defendant, the court may dismiss an Information in the interests of justice, within the meaning of CPL § 170.40. This latter section provides, in pertinent part, that such dismissal may be had:

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.

The court's discretion in granting such an application "is neither absolute nor uncontrolled." People v. Wingard, 33 NY2d 192, 351 NYS2d 385 (1973). See also: People v. Kelley, 141 AD2d 764, 529 NYS2d 855 (2nd Dept.1988) "The Trial Court's discretion to dismiss in the interests of justice, 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. Belge, 41 NY2d 60, 62-63, 390 NYS2d 867, 359 NE2d 377; People v. Belkota, 50 AD2d 118, 120, 377 NYS2d 321; People v. Kwok Ming Chan, 45 AD2d 613, 615-616, 360 NYS2d 425 (1st Dept.)." People v. Insignares, 109 AD2d 221, 491 NYS2d 166 (1st Dept.1985) The court must weigh the competing interests of the Defendant, the complainant and the community at large. See: People v. Richert, 58 NY2d 122, 459 NYS2d 734 (1983); People v. Schlessel, 104 AD2d 501, 479 NYS2d 249 (2nd Dept.1984); People v. Toback, 170 Misc 2d 1011, 652 NYS2d 946 (City Ct. Long Beach1996)

In this regard, CPL § 170.40(1) further provides:

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;

(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]

"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 ten factors ... Instead, the court is required to consider the factors individually and collectively' ...." People v. Gragert, 1 Misc 3d 646, 765 NYS2d 471 (Crim.Ct. NY Co. 2003); See also: CPL § 170.40(1); People v. Henriquez, 68 NY2d 679, 505 NYS2d 596 (1986); People v. Federman, 19 Misc 3d 478, 852 NYS2d 748 (Crim.Ct.NY Co. 2008)

The court recognizes the serious nature of the allegations made against the Defendant. While recognizing that there is no claim that the Defendant's alleged conduct caused any physical injury to the alleged victim, the court does not, in any way, minimize or trivialize the impact to, or the insult visited upon, the victim's person by such conduct. It would also appear that, if the alleged victim and her co-worker were to testify at trial consistent with their supporting depositions, which are alleged to be corroborated by video surveillance, there is strong evidence of the Defendant's guilt.

Competing with these factors, as well as with the public's interest in being safeguarded from those who would perpetrate the acts for which the Defendant stands accused, are the unfortunate frailties from which some of our most senior citizens, including this Defendant, suffer. While the Fronto-Temporal Dementia from which the Defendant suffers does not excuse his alleged conduct, it does explain such conduct being committed by an eighty-four (84) year old man who is nearing the end of his life and who, by all accounts presented, has led an exemplary life, including military service in World War II, assisting concentration camp survivors to relocate, working for some forty-five (45) years to provide for and raise a family, and depleting his life savings to take care of his wife of sixty-one (61) years, who has been suffering from Alzheimer's disease for the past twelve (12) years.

The People do not contest the representation that the Defendant has recently been hospitalized, in grave condition. Similarly, it is uncontroverted that, should he recover, his Fronto-Temporal Dementia and the improper interpersonal conduct which results therefrom, will be controlled with medication, and that he will no longer be permitted to go out into the community unescorted. Under such circumstances, both the alleged victim and the public can feel secure that the Defendant poses no danger. Concomitantly, it is the opinion of this court that no legitimate purpose would be served by putting this Defendant through the rigors of a criminal prosecution, with the possibility of a criminal conviction at the end of an otherwise laudable life. While not condoning the alleged conduct, at this time, under these particular circumstances, Mr. Lennon should be allowed to pass with dignity.

The Defendant's motion to dismiss this matter in the interests of justice is granted; and, this matter is dismissed.

This constitutes the decision and order of the court.

Dated: Hempstead, New York

November 13, 2008 [*4]

___________________________

ANDREW M. ENGEL

J.D.C.