People v Miller
Annotate this CaseDecided on October 21, 2013
Just Ct of Vil of Hastings-on-Hudson, Westchester County
People of the State of New York, Plaintiff,
against
Barbara Miller, Defendant.
13030005
Joseph A. DiSalvo, J.
Defendant Barbara Miller was charged on February 28, 2013 with violating Vehicle & Traffic Law §1151(a), failing to yield to a pedestrian in a crosswalk on the southbound side of Farragut Avenue at its intersection with Mt. Hope Boulevard in Hastings-on-Hudson.
For the reasons set forth below, the Court denies Defendant's motion to dismiss the Simplified Traffic Information in the interests of justice.
Background
The required preliminary conference was held on this matter at which Defendant appeared. The matter was not resolved and the case was set down for trial on July 10, 2013. On July 10, 2013, Defendant's attorney appeared, but Defendant did not; Defendant, in writing, had authorized her attorney to appear of her behalf. Defendant's attorney conferred with the Prosecutor about the case but did not agree on any disposition. The Prosecutor informed defense counsel that the police officer who issued the ticket, Police Officer Pavone, was out on medical leave and would not be able to testify at the trial. The Prosecutor asked for an adjournment. Defense counsel asked the Court to dismiss the matter on the grounds that he was prepared to proceed, even though his client, Defendant, was not present, and that the People were not prepared to proceed. The Court set a schedule for written motions. Defendant subsequently [*2]brought the within motion and the Prosecutor opposed it.
The Issue before the Court
The issue before this Court is whether the absence of Police Officer Pavone on the first trial date is sufficient reason to dismiss the Simplified Traffic Information in the interests of justice.
Discussion
The Court lacks inherent power to dismiss for failure to prosecute, People v. Douglass, 60 NY2d 194, 469 N.Y.S.2d 56 (1983). New York's Criminal Procedure Law sets forth specific grounds for dismissal, including "in the interests of justice," provided that basic criteria first are established, CPL 170.30.
Defendant, in her papers, did not set forth the specific statute under which she seeks dismissal. The essence of Defendant's argument is clear, however, in its assertion that Defendant was prepared to proceed, that if she was not so prepared the Court would have found against her, that the Court should do the same regarding the Prosecution, and not to do so is unfair.
CPL 170.30 sets forth seven grounds on which a proceeding may be dismissed, the first six of which do not pertain to the facts of this case. The seventh ground for dismissal is "interests of justice," CPL §170.30(g). Although Defendant did not so state, it appears that Defendant is moving for a dismissal in the interests of justice under CPL §170.30(g). Defendant's approach is based on the concept that Defendant had arranged for representation on the trial date and the People should have notified her attorney in advance that the People were not prepared to proceed.
A Court may dismiss in the interests of justice, under CPL §170.30(g) if sufficient grounds exist as described in CPL §170.40. CPL §170.40 provides that a court may dismiss in the interests of justice even though the court concludes it cannot dismiss under the first six sections of CPL§170.30, if there is some "compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution ... would constitute or result in injustice." The statute further requires that the court consider 10 particular factors when deciding whether to dismiss in the interests of justice; Defendant, however, did not discuss any of the 10 factors in her motion. Among the factors that might pertain to this case are CPL§170.40(e), "exceptionally serious misconduct" or §170.40(j) "that conviction would serve no useful purpose."
Findings
The Court finds that the failure to inform Defendant in advance of the absence of Police [*3]Officer Pavone and the Court's granting an adjournment will inconvenience Defendant and may result in her having to pay her representative an additional fee, perhaps. However, the failure to inform and the resultant inconvenience do not rise to the level of "exceptionally serious misconduct" and are not "compelling" and do not result in "injustice." Moreover, if Defendant were convicted, the Court finds that such a conviction would serve a useful purpose of enforcing traffic control regulations in the Village and would not fall into the category of serving no useful purpose.
A defendant in a case alleging failure to stay in his lane and driving while intoxicated moved to dismiss in the interests of justice because that defendant suffered from epilepsy, suffered seizures, and had a blood alcohol content of 0.03, from a test taken over two hours after his arrest, People v. Marschall, 15 Misc 3d 1144(A), 841 N.Y.S.2d 822 (Justice Court, Town of Webster, 2007). The Court examined the factors and standards set forth in CPL §170.40, concluded that the weight to be given defendant's epilepsy and the blood alcohol content at the actual time of operation of the vehicle were issues for the trier of fact at trial and that the facts and circumstances, considered in light of the criteria set forth in CPL§170.40, "would not make the denial of a motion to dismiss in the furtherance of justice a shock to the conscience," and denied the motion, People v. Marschall at 1144(A) [emphasis in original].
The Court of Appeals, in People v. Douglass, supra, examined "failure to prosecute" as a basis for dismissal in the interests of justice, and concluded "...courts at common law did not have inherent power to dismiss criminal charges for any reason; and, secondly, the Legislature has specifically addressed this issue in CPL 170.30 by setting forth, in an all inclusive manner, the grounds upon which a misdemeanor complaint may be dismissed; neither "failure to prosecute" nor "calendar control" is listed as a permissible ground." People v. Douglass, 60 NY2d at 201.
The People's failure to give advance notice of their witness's medical leave does not shock the conscience; and failure to prosecute is not a statutory grounds for dismissal in the interests of justice. For the foregoing reasons, the Court denies Defendant's motion to dismiss.
This constitutes the decision and order of this Court.
___________________________________
JOSEPH A. DiSALVO, Village Justice
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
