People v Molle

Annotate this Case
[*1] People v Molle 2013 NY Slip Op 52048(U) Decided on December 5, 2013 Just Ct Of The Town Of Bethlehem, Albany County Katzer, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 5, 2013
Just Ct of the Town of Bethlehem, Albany County

The People of the State of New York, Plaintiff,

against

Erika Molle, Defendant.



Dec2013



For the People: Albany County District Attorney's Office, Ryan E. Manley, Esq.;

For the defendant: *.*Frederick Rench, Esq. 646 Plank Road, Clifton Park, NY 12065.

Michael Katzer, J.



The defendant, Erika Molle, is charged with two counts of Driving

While Impaired/Drugs, Class A Misdemeanors, in violation of Vehicle and Traffic Law § 1194 (4), and one count of Criminal Possession of Stolen Property, in violation of Penal Law § 165.40, also a Class A Misdemeanor.

By Notice of Motion dated October 21, 2013, Ms. Molle moved for an Order dismissing the charges in furtherance of justice, pursuant to Criminal Procedure Law §§ 170.30 (1)(g) and 170.40. The People opposed the motion by Affirmation in Opposition dated November 18, 2013 .

The following constitutes the Court's findings of fact, conclusions of law and reasons for its determination, all made with consideration of the factors itemized in CPL § 170.40.

Defendant's attorney, Frederick Rench, Esq., has set forth detailed allegations of fact in his affirmation in support of the motion . The core allegations are not controverted by the District Attorney and, as such, the People concede their truth.

As will be seen however, neither party provided facts about two critical issues, requiring the court to obtain such facts, a process that is more fully described in this Decision.

Ms. Molle was first charged on April 9, 2011, with Criminal Possession of Stolen Property (a car) in violation of Penal Law § 165.45 (5), a Class E Felony, which charge was reduced by a July 3, 2011 Prosecutor's Information, to a misdemeanor.

She was also charged by two Uniform Traffic Tickets, both dated April 28, 2011, for allegedly violating Vehicle and Traffic Law § 1192 (4), Driving While Ability [*2]Impaired/Drugs, a Class A Misdemeanor, one incident allegedly occurring at 9:08 AM on that day, and the other allegedly occurring at 2:10 PM of that same day.

In November, 2011, while these charges were pending, police authorities "reached out" [FN1] to Ms. Molle, seeking her assistance in a criminal investigation in Albany County against one John Lawless. Mr. Rench spoke with Investigator John Dorn of the New York State Police. On December 14, 2011, Investigator Dorn, Ms. Molle and Mr. Rench met with State Police personnel at their headquarters in Loudonville, at which time Ms. Molle agreed to cooperate with the police in the investigation of Mr. Lawless.

Ms. Molle had been working for a so-called escort service operated by Mr. Lawless. The police requested that Ms. Molle participate in a "sting operation" directed at Mr. Lawless, where an undercover police officer would request a "date" with Ms. Molle. Ms. Molle agreed to participate in this sting operation and to provide information to the State Police, including wearing a recorder and transmitting device (a "wire") to record her conversations with Mr. Lawless.

In consideration for Ms. Molle's cooperation, Investigator Dorn "promised to advise the Albany County District Attorney's office of the extent of Ms. Molle's cooperation with the State Police and the investigation of Mr. Lawless". While Investigator Dorn made no specific promise as to what impact Ms. Molle's cooperation would have on her Bethlehem Town Court charges, he did "promise to advise the Albany County District Attorney's office of Ms. Molle's cooperation."

Following the meeting with Investigator Dorn on December 14, 2011, both Mr. Rench and Ms. Molle appeared in this court on numerous occasions. At such times, Mr. Rench met with the Assistant District Attorney assigned to this court (initially, Renee Merges, Esq.). Mr. Rench also met with Hon. Mark S. Jordan, former judge of this court, and now deceased. During these meetings, Mr. Rench informed both Judge Jordan and Ms. Merges of Ms. Molle's cooperation, that such cooperation was continuing and, as a result, that her case would have to be adjourned until such time as "her cooperation ran its course".

Each time, the People agreed to an adjournment. As Mr. Rench states in the defense motion, "all parties were aware" that Ms. Molle was cooperating with the State Police and was "expecting to receive some credit or consideration from the Albany County District Attorney's office with respect to the charges pending against her in the Bethlehem Town Court".

Clearly, then, Ms. Molle's case in this court was adjourned, for over a year, with the knowledge and consent (and, in effect, at the request) of the District Attorney's Office, because of Ms. Molle's cooperation in the investigation of Mr. Lawless, which cooperation was expected to render some meaningful benefit to her in the resolution of [*3]her Bethlehem charges.

Ms. Molle's cooperation included the following: for approximately six months, she was in contact with Investigator Dorn and another State Police investigator who operated in an undercover capacity; she made herself available to report on the activities of Mr. Lawless, to answer police questions, and to meet with Mr. Lawless on at least four occasions; she accompanied the undercover police officer on at least two "dates" set up by Mr. Lawless, which involved her driving to meet the undercover officer, the undercover officer and Ms. Molle remaining in each other's company for the duration of the "date"; she met with Mr. Lawless to turn over money to him, provided to her by the undercover officer, as supposed payment for the "date". During these meetings with Mr. Lawless, Ms. Molle would record/transmit her conversation using equipment provided to her by the State Police. The meetings, which were set up by the State Police, would be under surveillance by the State Police. She would hand the money to Mr. Lawless in such a fashion that the State Police would be able to photograph or videotape the transaction for use as future evidence.

Ms. Molle also provided information to the State Police about three "young women" who were employed by or served Mr. Lawless in his escort service. Ms. Molle went so far as to set up a meeting with Mr. Lawless and two of the young women, and it was at this meeting that the State Police arrested Mr. Lawless. Ms. Molle was arrested as well, for appearance purposes. This last fact alone reflects the danger facing Ms. Molle. Also, the fact that "young women" were involved suggests that Ms. Molle's cooperation was particularly beneficial to the community. Vulnerable, young women (including teenaged girls) are often preyed upon in matters of promoting prostitution, and any protection afforded to such young women that was accomplished by Ms. Molle's cooperation with law enforcement, is a further measure of the value of her cooperation.

On August 21, 2012, Mr. Rench appeared in this court and advised ADA Merges that Ms. Molle's active undercover role had ended and that the target of the investigation had been arrested .

As stated above, neither party provided facts about two critical issues, the first being the outcome of the case against Mr. Lawless, which would be a measure of the value of Ms. Molle's cooperation and thus highly relevant to the court in its consideration of the motion. This court, exercising its inherent power to take judicial notice, sua sponte, of information from reliable sources, People v. Langlois, 122 Misc 2d 1018, 1021-22 (Suffolk Co. Ct. 1984) [FN2], ascertained that, in August 2012, Mr. Lawless' case [*4]was resolved in Colonie Town Court by his plea of guilty to the crime of Promoting Prostitution in the Fourth Degree (Penal Law § 230.20, a Class A Misdemeanor), and he was sentenced to a conditional discharge, which included a forfeiture of $ 42,251.

The court advised both sides, and gave each side an opportunity to further address same, including at a hearing. Instead, both sides stipulated to such as fact.

Continuing, at the August, 2012 conference, ADA Merges informed Mr. Rench that he should contact the Assistant District Attorney who was directly prosecuting Mr. Lawless, that being ADA Chantel Schember, who was familiar with the quality and extent of Ms. Molle's cooperation. ADA Merges advised Mr. Rench that Ms. Schember could offer a recommendation as to the value of Ms. Molle's cooperation.

From that point forward, Mr. Rench awaited a report from the Albany County District Attorney's office as to what consideration Ms. Molle would receive for her cooperation. That report did not come for a full year. It was not until August 20, 2013 when Mr. Rench received an answer at a conference before me (I succeeded Judge Jordan) and Assistant District Attorney Christopher Torelli (who succeeded Ms. Merges as the ADA in Bethlehem).

Mr. Torelli informed Mr. Rench that the plea offer he was ordered to communicate was for Ms. Molle to enter a plea of guilty to each of the two DWAI/Drug counts.

The defendant asserts that the offer made by the People constitutes no offer at all, and that no consideration or benefit was given to her for her cooperation. The defense attorney characterizes this as "shocking", "unfair", "unreasonable" and "indefensible". The defense also argues that the conduct of the District Attorney's Office threatens to undermine future attempts of cooperation between law-enforcement and defendants, and that if the charges are not dismissed, this would embolden the District Attorney to renege on other bargains in other cases, thus undermining public safety.

The thrust of the defendant's motion is that the People have failed to abide by the implied terms of its stated intent to cooperate with her and provide her consideration for her cooperation with law enforcement, which refusal constitutes "exceptionally serious misconduct" (CPL § 170.40 (1)(e)). Mr. Rench also makes reference to the one year delay in the District Attorney's Office responding to the defense— and, in effect, in responding to the Bethlehem Town Court. This lack of diligence by the District Attorney's can be considered as an element of the defense claim of serious misconduct by the People.

The People's response is submitted by Assistant District Attorney Ryan Manley who is currently the ADA assigned to the Bethlehem Town Court, succeeding Mr. [*5]Torelli. As far as the court knows, neither Mr. Manley, nor Ms. Merges and Mr. Torelli, were in any way involved in the cooperation discussions with the defense, and/or with the formulation of the plea bargain proposal; (they only acted as messengers regarding the latter).

While the People's response states that no specific promises were made to the defendant regarding the resolution of her Bethlehem charges, they do not deny that Ms. Molle and Mr. Rench were told that some consideration would be given.

The People further state that "as it stands now, the defendant faces three open misdemeanor charges" including criminal possession of stolen property, for which the maximum sentences are one year sentences in jail on each, to run consecutively. The court disagrees with this assertion, as will be explained below.

The People further state that their offer was "reasonable", mainly because the proposed sentence (a conditional discharge) does not include jail and/or probation. The court also does disagrees with these assertions.

The first task before the court is to determine if, under the law, Ms. Molle was entitled to any consideration from the District Attorney's Office in return for her cooperation.

In Matter of Chaipis v State Liq. Auth., 44 NY2d 57, 65 (1978), a defendant (restaurant and bar owner) entered a plea of guilty in criminal court . He then faced a hearing with the State Liquor Authority regarding the revocation of his liquor license. The District Attorney represented to the defendant that if he cooperated in a criminal investigation, that "cooperation would be brought to the attention of the State Liquor Authority".

Initially, the importance of Chaipis is that the promise of consideration in that case is essentially the same as was made to Ms. Molle — that cooperation would be brought to the attention of the authorities.

The Court of Appeals held that a prosecutor's representation to a criminal defendant or potential criminal defendant should not be lightly disregarded. When services are performed by a person to whom such a promise has been made, and where those services

have been significant, or have involved considerable risk or sacrifice on the defendant's part, failure to enforce the promise might do substantial injustice, not only to the defendant but to the public which is entitled to have the benefit of future cooperation, and is to be avoided.

In People v. Fournier, 77 App. Div. 3d 1201 (3d Dept. 2010) , a defendant, facing a possible felony charge for possessing cocaine, entered into a cooperation agreement with law enforcement officials. As part of his cooperation, the defendant wore a wire during a drug transaction and provided the police with reliable information, which efforts resulted in the arrest of two individuals.

Law enforcement claimed that defendant had not fully complied with the agreement and he was indicted for criminal possession of a controlled substance. He moved to dismiss the indictment and, after a combined suppression and dismissal hearing, County Court dismissed the indictment, finding that defendant had substantially complied with the [*6]cooperation agreement. The People appealed, and the Third Department unanimously affirmed the dismissal, stating: A defendant seeking dismissal of an indictment pursuant to a cooperation agreement must demonstrate, by a preponderance of the evidence, `a clear and specific promise from the authorities [and] services performed by the defendant involving a significant degree of risk or sacrifice'" (People v Trombley, 72 App. Div. 3d 1402 , 1403, quoting People v Reed, 184 App. Div. 2d 536, 537 [1992]; see Matter of Chaipis v State Liq. Auth., 44 NY2d 57, 65 (1978) .

In People v. Delaney, 80 AD2d 835 (2nd Dept., 1981), the Supreme Court granted a defendant's motion to dismiss his indictment in the interest of justice. That decision was affirmed, the court stating: A promise of leniency was made to the defendant by law enforcement officials to gain his cooperation in a pending unrelated criminal investigation. Accordingly, defendant performed valuable services which exposed him to great danger. Under these circumstances, the dismissal of the indictment was an appropriate exercise of the trial court's discretion, supra at 835.

The Delaney court also stated, relying on Chaipis, that "the failure to enforce the District Attorney's promise would do substantial injustice, not only to the defendant but to the public which is entitled to have the benefit of future cooperation", supra at 835.To the same effect, see also People v. Argentine, 71 AD2d 869 (2nd Dept., 1979) and In People v. DeBono, 82 Misc 2d 177 (New York County Criminal Court , 1975).

Evaluation of the Plea Bargain Proposal

Based upon the above authority, this court concludes that the defendant was entitled to consideration for her cooperation. The next task for the court is to determine if she was given sufficient, fair, or even, any consideration and, if not, whether that constitutes "exceptionally serious misconduct" on the part of the District Attorney's office. This determination first requires a review of the specifics of the charges.

DWAI/DRUGS

Ms. Molle is charged with two counts of Driving While Impaired/Drugs, Misdemeanors, in violation of Vehicle and Traffic Law § 1194 (4) . As described in the People's Reply, at 9:08 AM on April 28, 2011, Ms. Molle was in her car, in the parking lot of Dunkin' Donuts on Delaware Avenue. The motor was running and she was slumped over the steering wheel. Police Officers responded to the call, and charged Ms. Molle with DWI/Drugs. As set forth in the defense affirmation, Ms. Molle was given a ticket for the first offense in the morning, was processed and released.

Her car was towed. Later in the day she attempted to retrieve her vehicle from the [*7]impound lot. After doing so, an officer saw her operating the car and stopped her. This resulted in her being charged for the second time on the same day.

As set forth in the People's Reply, she failed Field Sobriety Tests on both occasions, and told the police that she had used cocaine approximately a week prior, and had ingested Klonopin and Suboxone at approximately 2:30 to 3:00 AM that morning (of April 28). There is no indication that Ms. Molle ingested any substance between the morning and afternoon incidents. Ms. Molle also told the police that she was under treatment for substance use problems . (Suboxone is commonly prescribed for that, and Klonopin is also a prescribed medication; there is no information as to how these medications came into the possession of Ms. Molle). A blood sample was taken which indicated that cocaine, levamisole, methadone and morphine were present in her system.

Criminal Possession of Stolen Property

The defendant was charged with Criminal Possession of Stolen Property in the Fourth Degree a Class E Felony, in violation of § 165.45 (5) of the Penal Law. It is alleged that on April 9, 2011 at 4:00 AM she was in the possession of a car which had previously been reported stolen. By a Prosecutor's Information, dated July 3, 2011, the charge was reduced to a violation of Penal Law § 165.48, a Class A Misdemeanor.

The court file [FN3], containing police records, reveals that the car was spotted by the Bethlehem police on April 9, and upon running a "file 1", it was learned that it had been reported stolen to the Middletown City Police Department on January 7, 2011 (three months previously). The driver of the car was one Kimberly Gibson; Ms. Molle was a passenger. Both individuals were arrested and charged with felony criminal possession of stolen property .

Ms. Molle was arraigned in the Bethlehem Town Court and upon the recommendation of the District Attorney's Office she was remanded to the Albany County Jail in lieu of $10,000 bail. After being held in custody, including at the jail, she posted bail that same day.

Thereafter, the Bethlehem police obtained additional information from the Middletown Police Department. The car was owned by one Kevin Howe who told the Middletown Police that in early January 2011 he loaned the car to Ms. Gibson. Mr. Howe and Ms. Gibson made an agreement that Ms. Gibson would use the car for the afternoon and she would then return it to Mr. Howe. Ms. Gibson did not comply and, some nearly three months later, on March 29, 2011 Mr. Howe reported the matter to the police. On April 9, the car was seen, and stopped, by the Bethlehem police. The suspect on the Middletown Police records is identified only as Kimberly Gibson.

The court has further reviewed the file of co-defendant Gibson. On May 3, 2011 her case was resolved by her plea of guilty to disorderly conduct, with a sentence of "time [*8]served". Like Ms. Molle, Ms. Gibson posted bail on the same day she was arraigned. So, Ms. Gibson spent approximately the same amount of time in custody as did Ms. Molle—a few hours. (In advancing its position, the People argue that Ms. Molle faces up to one year in jail upon this charge of Criminal Possession of Stolen Property, despite such incongruity with Ms. Gibson's sentence — and she was the guilty party, not Ms. Molle).In addition there is a note on the Memorandum of Plea Bargain Agreement that the complainant (Mr. Howe) did not wish to prosecute.

While the Bethlehem Police were justified in making the initial stop of the car and arresting both occupants, based upon what was known to them at the time of the stop, subsequent facts learned support the conclusion that Ms. Molle is not guilty of this offense. Mr. Rench states in the motion that Ms. Molle is absolutely innocent of this crime, (an assertion not specifically refuted by the People). This court concludes that not only is there no proof of guilt against Ms. Molle relating to this car incident but, in fact, it appears that she is innocent of it.The "bottom line" of the above analysis is that Ms. Molle is a 28 year old individual,

with no prior criminal or impaired driving record, who is charged with two counts of DWI/Drugs and one count of misdemeanor criminal possession of stolen property, but who is innocent of that last charge. Yet the plea bargain proposed to her is to plead guilty to each count of DWI/Drugs - - to plead guilty to the only two (viable) charges that are pending against her.

The next question before the court, then, is whether such a plea bargain constitutes some, sufficient, or even any, consideration given to Ms. Molle for her cooperation with law enforcement against Mr. Lawless. The court concludes that it does not.

In its opposition to the motion, the People state that "as it stands now, the defendant faces three open misdemeanor charges" including criminal possession of stolen property, for which the maximum sentences are one year sentences on each, which are consecutive counts."

As stated, the court disagrees with this assertion. Given that there is no available proof against Ms. Molle of the criminal possession charge; and, given that she truly appears innocent of such charge; and, given that Ms. Gibson (who was the guilty party) was allowed to plead guilty to a violation, for which she was sentenced to "time served" of a few hours - - the People's position that defendant faces three open misdemeanor charges (including criminal possession of stolen property) and three consecutive one year sentences is not an accurate presentation of the real facts.

The People assert that leniency is being afforded to Ms. Molle because the plea bargain does not include incarceration. However, a sentence of incarceration is rarely, if ever, imposed on a first time offender who pleads guilty to DWI/Drugs (or DWI). The court has reviewed the disposition of cases that have been handled in the Bethlehem Town Court from January 1, 2011 to October 13, 2013, the approximate time span of the pendency of defendant's case. Of the seven defendants prosecuted for DWI/Drugs—the charge pending [*9]against Ms. Molle none received a sentence that included jail, and only one received a sentence that included probation; that defendant was also charged with Leaving the Scene of an Accident. So, the argument made by the People that leniency was granted to Ms. Molle because the plea bargain did not include either jail or probation is not accepted by the court. The plea proposal presented to Ms. Molle contained no "consideration" for her cooperation at all.

Guided by the appellate authority cited above, I conclude that the failure to give fair (any) consideration to Ms. Molle for her valuable cooperation (resulting in a plea of guilty by Mr. Lawless to the crime of promoting prostitution, the forfeiture of $42,251 and the protection of young women) constitutes exceptionally serious misconduct by the Albany County District Attorney's office. This exceptionally serious misconduct is compounded by their lack of diligence in their one year delay in responding to the defense (and to the Bethlehem Town Court). In this regard, and although not a basis of the current motion, speedy trial implications may very well exist here and may be a basis of subsequent consideration.

It bears repeating that the above misconduct of the District Attorneys's Office was not committed by the Assistant District Attorneys who were involved in this case at the local court level (Ms. Merges, Mr. Torelli and Mr. Manley).

To conclude that the District Attorney's Office committed serious misconduct does not end the inquiry, nor does such conclusion dispose of the motion. Rather, the court must assess the entire constellation of statutory factors. While the above discussion addressed the defense emphasis on exceptionally serious prosecutorial misconduct, it also included consideration of some of the other factors. That discussion which will be continued below.

As said earlier in this decision, neither party provided facts about two critical issues, necessitating the court obtaining such information. The first issue was the result of the prosecution against Mr. Lawless.

The second issue is "the history, character and condition of the defendant", which is not only a "stand alone" statutory factor, but also impacts several other factors.

Addressing this factor in her motion, the defendant states that the two 2011 DWI/Drugs charges were her first alcohol or drug related driving arrests, that she had a valid drivers' license, and she was operating a vehicle that was "inspected, insured and in reasonably good operating condition". No mention is made of what later occurred in 2012 and 2013 (to be discussed below), viz., her conviction for drug possession, in satisfaction of arrests for allegedly possessing crack cocaine, heroin and ecstasy. To this court, that last information is far more relevant than, for example, the condition of her muffler in 2011.

Addressing the factor of the "history, character and condition of the defendant" in its Reply, the People state that Ms. Molle had previously been arrested for Criminal Possession of a Controlled Substance , Seventh Degree on April 4, 2011. The court is not aware of any controlled substance charge against the defendant from 2011. This appears to be an inadvertent error by the prosecution, in that it seems that the charge to which the People are [*10]likely referring is Criminal Possession of Stolen Property, for which Ms. Molle was arrested on April 9, 2011 (and which is a part of this case).

More significantly, the People make no mention of the 2012 arrest and 2013 conviction, for which it can only be concluded that they were not aware of same, despite the resources available to them to have made themselves aware.

In the vacuum created by the parties' failure to address this issue, this court has unearthed such information. The process unfolded thusly:

While seeking to ascertain the length of time that Ms. Molle spent at the Albany County Jail on the 2011 charge of Criminal Possession of Stolen Property, it was necessary for the court, again, sua sponte, to pursue judicial notice of this fact (see People v. Langlois, and footnote 3, supra).

Accordingly, the court contacted the booking office at the Albany County and learned that she was received by the jail, and released, on that same day of April 9, 2011. The court was also informed that, in addition to her stay on April 9, 2011, she was a boarder there in October 2013, from Montgomery County.

The court then contacted the Montgomery County Sheriff/Corrections Department and was advised that the defendant was received at the Montgomery County Jail on August 29, 2013 and was discharged on November 15, 2013 (after being boarded out to Albany in October 2013) upon a conviction of Criminal Possession of a Controlled Substance, Seventh Degree, a class A Misdemeanor. It was initially thought that such conviction occurred in the Town of Minden. Both parties were notified of this information by way of the Interim Decision of November 26, and both agreed to stipulate to same, without the need for a hearing.

The court thereafter learned that defendant's conviction occurred in the Town of Glen, also in Montgomery County. Accordingly, the court contacted the Glen Town Court and was advised that the defendant was, in fact, convicted of the misdemeanor of Criminal Possession of a Controlled Substance, Seventh Degree — the court also obtained a "criminal history" report of Ms. Molle which conviction was in satisfaction of the following other charges for which she was arrested in October 2012: Criminal Possession of a Controlled Substance, Fourth Degree (Penal Law § 220.09), a Class C Felony, for allegedly possession approximately one gram of the stimulant MDMA ("ecstasy") concealed in her personal bag in the trunk; Criminal Possession of a Controlled Substance, Fifth Degree (Penal Law § 220.06), a Class D Felony, for allegedly possessing approximately 1500 milligrams of crack cocaine found in various locations in the car and on the defendant's person; and two counts of Criminal Possession of a Controlled Substance, Seventh Degree, Class A Misdemeanor, one count for allegedly possessing two glass pipes containing residual crack cocaine on her person; and, the other count for allegedly possessing approximately 10 packets of heroin concealed in her groin area (and located by a female Trooper upon a search of defendant).

As with the other information discovered by the court, this information was brought to the attention of the parties, who were given an opportunity to address same (including at [*11]a hearing) but, rather, chose to stipulate to its fact .

While the court could comment further about the conspicuous failure of each party to include this information in its papers, the court will refrain from doing so. Rather, now that the court, in the fulfillment of its responsibility, has learned this information, filling the void left by the parties, it will factor this into the decision making process.

As with the current DWI/Drug charges, the crime for which Ms. Molle was convicted in 2013 is serious, as are the alleged facts of the crimes for which she was charged in 2012 (culminating in the 2013 conviction). All of this reflects on her history, character and condition, and also touches upon other statutory criteria (e.g CPL § 170.40 (e-g)). The fact that this occurred while she had charges pending against her in this court (i.e. the charges at issue upon this motion) weighs most heavily against her position

So, while the court finds that the failure of the Albany County District Attorney's Office to offer the defendant fair consideration in return for her valuable cooperation in the Lawless matter constitutes exceptionally serious misconduct, (as do their dilatory tactics), which would otherwise have weighed heavily in defendant's favor, the court also finds that the defendant's 2012 conduct, resulting in her arrests and 2013 conviction, is a competing, counterbalancing factor which outweighs the former. Accordingly, I rule as follows:

The defense motion to dismiss the charge of Criminal Possession of Stolen Property, Fifth Degree, in furtherance of justice, is granted.

The defense motion to dismiss the two counts of Driving While Impaired/Drugs, in violation of Vehicle and Traffic Law § 1194 (4), in furtherance of justice, is denied.

This shall constitute the Decision and Order of the Court.

________________________________

Michael Katzer

Bethlehem Town Court Judge

Dated: December 5, 2013 [*12] Footnotes

Footnote 1: Unless otherwise noted or apparent from context, quoted language regarding the facts is taken from Mr. Rench's affirmation.

Footnote 2: "Judicial notice is the knowledge which a court will officially take of a fact, although no evidence to prove that fact has been introduced. (Richardson, Evidence [10th ed], § 8.) In determining such facts, a court may resort to such documents, references and other repositories of information as are worthy of belief and confidence and may be taken by the court on its own motion in the absence of a specific request by a party. (Richardson, Evidence, op. cit., §§ 10, 14.) People v. Langlois, supra at 1021-22 (Suffolk Co. Ct. 1984).

As further stated in Richardson, it would be an abuse of judicial discretion for a court not to take judicial notice of a "notorious and indisputable fact", that is, of "matter(s) of general knowledge or readily determinable by recourse to some reasonably unimpeachable source".

Footnote 3: A court may take judicial notice of its file, People v. Webb, NY Slip Opinion 51482(U) (Nassau District Ct. 2011) and of its prior proceedings, People v. Beauvois, 101 App. Div. 3d 1488 (3rd Dept. 1012).



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.