People v Jordan H.

[*1] People v Jordan H. 2017 NY Slip Op 50893(U) Decided on July 11, 2017 City Court Of Hudson, Columbia County Herman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 11, 2017
City Court of Hudson, Columbia County

People of the State of New York, Plaintiff,

against

Jordan H., Defendant.



CR-200-17



For the People:Paul Czajka, Columbia County District Attorney

For the Defendant:Michael C. Howard, Esq.
Brian J. Herman, J.

This criminal matter was commenced by the filing with this court of an accusatory instrument alleging that on January 17, 2017 the defendant committed a violation of NYS Penal Law §265.06, Unlawful Possession of a Weapon Upon School Grounds. On February 2, 2017, the defendant was arraigned on the charge, entered a plea of not guilty, and was released on his own recognizance.

On February 21, 2017, the court received a letter from the People regarding this matter stating that, "[t]he People hereby decline to prosecute the above-referenced matter."

The People reiterated this declaration in open court during an appearance in this matter. At that time, defense made an oral application to the court to dismiss this matter. The court provided the defendant with an opportunity to make such motion in writing and on notice to the People.

Thereafter the defendant filed the instant notice of motion seeking, "an order dismissing the charges (sic) as the People decline to prosecute the same." In support of the motion the defendant submitted an attorney's affirmation with the February 21, 2017 letter annexed as an exhibit.

Although having been provided ample opportunity to submit its own papers on this motion, the People have declined to make any submission.

After due consideration, it is the conclusion of this court that the court lacks the legal authority to dismiss the accusatory instrument based solely upon the People declaring that they no longer intend to pursue this criminal matter after filing an accusatory instrument with the [*2]court upon which the defendant has been arraigned. The court finds no legal authority which permits the prosecution to abandon a pending criminal matter and walk away from the prosecution of an accusatory instrument filed with the court, without obtaining leave of the court.

To be clear, it is not the decision of this court that the district attorney must prosecute this matter. Such is not within the province of this court. That is solely the prosecutor's decision and the court has no comment or say. However, that is not the issue at bar.

The sole issue is whether the court can dismiss a filed accusatory instrument without a party making a motion on a ground or grounds enumerated in the NYS Criminal Procedure Law. Since this instant motion does not set forth a ground for dismissal recognized by the law, it must be denied.

Once the prosecution decides to file an accusatory instrument with the court, it can only be dismissed as provided by law. NYS Criminal Procedure Law §170.30 sets forth the grounds upon which dismissal is permitted. As the NYS Court of Appeals stated in People v. Douglass, 60 NY2d 194, 456 N.E.2d 1179, 469 N.Y.S.2d 56, 1983 NY LEXIS 3420 (NY Nov. 1, 1983):

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.

Logic would dictate that this would apply equally to a violation complaint.

It should be noted that the court cannot find the term, "decline to prosecute" anywhere in the NYS Criminal Procedure Law or the NYS Penal Code. Therefore, the court concludes that such term has no legal significance other than expressing the People's alleged unwillingness to participate further in a pending criminal prosecution. The fact that the District Attorney has decided (without providing the court a reason or legal basis) to abandon this pending criminal case does not in and of itself terminate the criminal action pending in City Court.

One of the precepts of our criminal justice system is that a prosecutor has virtually unfettered discretion on whether to prosecute a criminal matter. That discretion rests exclusively with the District Attorney, but to a point. Once the District Attorney has exercised its discretion and decides to file an accusatory instrument with the court, it is now a court proceeding and such criminal prosecution is no longer exclusively within the District Attorney's exclusive control [FN1] . The manner in which the case proceeds in court is controlled by statute, not by the whims of a District Attorney flaunting prosecutorial discretion.

Just as the court cannot dismiss a pending action without legal authority, neither can the District Attorney.

When an accusatory instrument against a defendant is filed with a court, it permits the government to intrude and potentially drastically impact a person's life. This serious act must be and is subject to the "checks and balances" inherent in any legal proceeding: the court authority to supervise the actions of the litigants in the proceeding, including that of the District Attorney.

The prosecutor's declaration of declining to prosecute is akin to the archaic legal writ of nolle prosequi. As the NYS Court of Appeals stated in Douglass:

At early common law, the dismissal of criminal proceedings before a verdict was reached was accomplished by entry of a nolle prosequi. (See Commissioners' Report on Code of Criminal Procedure [1850], ch VII, p 341.) The Attorney-General, however, was the only official who possessed this power. ( People v. McLeod, 25 Wend 483, 572.) Even the courts had no power to compel the entry of a nolle prosequi. (People v. McLeod, supra, at pp 572-573.) This power was eventually delegated to District Attorneys who represented the Attorney-General in nearly all criminal proceedings. However, fearing that the District Attorneys might abuse this power, the Legislature, in 1828, enacted a statute making it unlawful for a District Attorney to enter a nolle prosequi upon any indictment or in any way discontinue a criminal proceeding without leave of the court. (People v. McLeod, supra, at pp 572-573.)

In support of the motion, the defendant cites People v. Beckman, 2012 NY Slip Op 22370. 18 NY3d 690 (12/7/2012); Soares v. Carter, 25 NY3d 1011 (2015); Matter of Maron v. Silver, 14 NY3d 230, 258 (2010); Matter of Cantwell v. Ryan, 3 NY3d 626 (2004); and People v. Cajigas, 19 NY3d 697 (2012).

The defendant's reliance upon Beckman is unfounded. Beckman, a Columbia County Court case is a decision that predates the Soares decisions (infra.) and is inconsistent with NYS Court of Appeals in Douglass.[FN2]

The defendant cites Soares, (which cites Maron, Cantwell and Cajigas) in support of three propositions: (1) there are three coordinate and coequal branches of government and each is charged with performing particular functions; (2) that under the doctrine of separation of powers, courts lack the authority to compel the prosecution of criminal actions; and (3) such a right is solely within the broad authority and discretion of the District Attorney. This court is in full agreement with these three propositions. However, such holdings are not on point as to the issue at bar, to wit: can the court dismiss the accusatory instrument without a motion on notice pursuant to CPL 170.30. To this question, the court must say no.

On point is the predecessor case to the Soares case cited by the defendant. This Third Department case, Matter of Soares v. Carter, 113 AD3d 993, 979 N.Y.S.2d 201, 2014 NY App. [*3]Div. LEXIS 404, 2014 NY Slip Op 409, 2014 WL 241505 (NY App. Div. 3d Dep't Jan. 23, 2014) is on point as to the issue at bar. Here the Third Department affirmed that:

The District Attorney has unfettered discretion to determine whether to prosecute a particular suspect. Once prosecution of the case is pursued and pending, the District Attorney remains presumptively the best judge of whether a pending prosecution should be terminated; nonetheless, at such point dismissal cannot properly be done unilaterally on the sole whim of the district attorney" (emphasis added).

Soares further states:

Significantly, a primary purpose for this limitation is to protect a defendant by preventing an abuse of power by a District Attorney (see People v. Douglass, 60 NY2d 194, 202, 456 NE2d 1179, 469 NYS2d 56 [1983]), such as could occur "through a prosecutor's charging, dismissing without having placed a defendant in jeopardy, and commencing another prosecution at a different time or place deemed more favorable to the prosecution" (United States v. Ammidown, 497 F2d 615, 620, 162 US App DC 28 [1973]; see Rinaldi v. United States, 434 US 22, 29 n 15, 98 S Ct 81, 54 L Ed 2d 207 [1977]).

The defendant has not moved pursuant to a relevant section of CPL §170.30 to obtain dismissal of the accusatory instrument. There may be reason for the court to dismiss this matter, however the affirmation in support of the instant motion fails to provide sufficient facts for the court to make an interest of justice motion sua sponte, as authorized by CPL §170.40(2). See, Donnaruma v. Carter, 969 N.Y.S.2d 755, 759, 41 Misc 3d 195, 200 (NY Sup., 2013).

Considering the above, the court will grant leave to the defense to renew this motion to dismiss on a ground or grounds enumerated in the NY Criminal Procedure Law. This will allow the defendant an opportunity to obtain the relief requested in accordance with law. The defendant will be permitted thirty days from the date of this decision to renew its motion and the People shall have thirty days to reply.

The foregoing constitutes the opinion, order and decision of this Court.

Dated: July 11, 2017

Hudson, New York

/s/

___________________________

Honorable Brian J. Herman

Hudson City Court Judge Footnotes

Footnote 1:See People v Extale, 18 NY3d 690, 967 N.E.2d 179, 943 N.Y.S.2d 801, 2012 NY LEXIS 544, 2012 NY Slip Op 2247, 2012 WL 995213 (NY Mar. 27, 2012).

Footnote 2:See People v. Rossi, 39 Misc 3d 496, 960 N.Y.S.2d 616, 2013 NY Misc. LEXIS 799, 2013 NY Slip Op 23056, 2013 WL 781791 (NY Town Ct. Mar. 1, 2013); People v Cottini, 39 Misc 3d 1237(A), 972 N.Y.S.2d 145, 2013 NY Misc. LEXIS 2357, 2013 NY Slip Op 50912(U), 2013 WL 2450520 (NY J. Ct. June 5, 2013).