Defendant was tried in absentia by this Court and found guilty of Reckless Driving (VTL §1212). He has brought a post-trial motion to set aside the verdict pursuant to CPL §330.30 and a motion to dismiss in the furtherance of justice pursuant to CPL § 170.40.

Defendant was issued a summons on April 14, 2007 charging him with reckless driving. The summons was returnable June 20, 2007. Defendant failed to appear on June 20th and a bench warrant was ordered. Defendant voluntarily appeared in Court on June 22nd, the warrant was vacated and the case was adjourned to August 8th for trial. Defendant failed to appear for his trial on August 8th and another bench warrant was ordered. Defendant voluntarily appeared on August 9th, the warrant was vacated, defendant received Parker warnings, and the case was adjourned to October 31st for trial. Defendant failed to appear when his case was called on October 31st. The matter was put down for a second call in the afternoon and the People were directed to make Parker inquiries. The case was called after the lunch recess and defendant failed to appear. Following a Parker hearing, the matter proceeded to trial and defendant was found guilty. Defendant was represented at trial by Glenn R. Abolafia, Esq., who cross-examined the People's witness and made closing arguments. At the conclusion of the trial, a bench warrant was issued at 2:50 pm. Some time later that day, defendant appeared in Court, the warrant was vacated and the case was adjourned for motions. Defendant does not challenge the Court's Parker ruling in his CPL §330.30 motion.

A trial judge is statutorily authorized to set aside a verdict pursuant to CPL § 330.30 (1) only where a reversal or modification would be required as a matter of law by an appellate court. [*2]Defendant argues that the People failed to prove beyond a reasonable doubt that he acted recklessly or that he unreasonably interfered with the free and proper use of the public highways or unreasonably endangered users of the public highway. Such a post-verdict weight of the evidence argument is not a proper basis for setting aside a verdict pursuant to CPL §330.30(1). A trial judge does not have the power to change a guilty verdict to a not guilty verdict based on a reassessment of the facts where the evidence was otherwise legally sufficient. Whether the verdict has been rendered by a jury or by the court, the trial judge may not engage in a post-verdict weight of the evidence analysis. People v Carter, 63 NY2d 530 [1984]). The Court may only review whether the trial evidence was legally sufficient and whether the trial evidence was adequate as a matter of law to prove guilt beyond a reasonable doubt.

Legally sufficient evidence means competent evidence which, if accepted as true, would establish every element of an offense and the defendant's commission of that offense. (CPL § 70.10[1]). Legally sufficient evidence means a prima facie case, not proof beyond a reasonable doubt. (People v Swamp, 84 NY2d 725 [1995]). The trial evidence clearly established a prima facie case of reckless driving.

Additionally, the trial evidence was adequate as a matter of law to prove guilt beyond a reasonable doubt. This legal standard requires the court to determine "whether the evidence, viewed in the light most favorable to the People, could lead a rational trier of fact to conclude that the elements of the crime have been proven beyond a reasonable doubt". (People v Cabey, 85 NY2d 417 [1995]; People v Wong, 81 NY2d 600 [1993]). In this regard, the Court of Appeals has noted that "the scope of a reasonable mind is broad. It's conclusion is not always a point certain, but, upon given evidence, may be one of a number of conclusions. Both innocence and guilt beyond a reasonable doubt may fairly lie within the limits of reasonable conclusion from given facts." (People v Jackson, 65 NY2d 265, 271 [1985]). Because the trial evidence does "permit the conclusion of guilt beyond a reasonable doubt within the fair operation of a reasonable mind" (Jackson, supra), the trial evidence is not inadequate as a matter of law.

Since the evidence in this case is legally sufficient and is legally adequate to establish the guilt of the defendant, there is no error of law which would require a reversal upon appeal under CPL § 330.30 (1).

The defendant's motion to set aside the verdict pursuant to CPL §330.30 is denied.

Defendant has also moved to dismiss the charge of Reckless Driving in the interest of justice pursuant to CPL § 170.40. This discretionary provision permits a dismissal where there exists some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution would constitute an injustice.

Defendant argues that his case should be dismissed because he has no criminal record. The fact that defendant has no criminal history is not, by itself, a compelling ground for dismissal. People v Reyes, 174 AD2d 87 (1st Dept 1980). He further argues that the evidence is [*3]insufficient to support the charge. The same argument was raised and rejected in defendant's CPL § 330.30 motion. The fact that no persons or property were actually injured as a result of defendant's actions is hardly a compelling circumstance for dismissing a charge of reckless driving. And given the potential for harm, a dismissal could impact negatively on public safety.

Defendant also argues that this conviction would result in economic hardship since defendant is a taxi driver and he stands to lose his license. Defendant, in his papers, offers to enter a good driving program if the reckless driving charge is dismissed. The Court notes that defendant had been offered an adjournment in contemplation of dismissal with the condition that defendant complete Midtown Community Court's three day Safe Driving Program. This unique program, created by and offered only at Midtown Community Court, was a response by the Court to the scourge of reckless driving which plagues the heavily congested theater district/midtown area. The program has both defensive driving and community service components. It underscores the consequences of reckless driving and promotes cautious and courteous behavior behind the wheel. Defendant rejected the Court's offer of an ACD with the Safe Driving Program, insisted on going to trial and then repeatedly failed to appear for his trial. That defendant may now suffer adverse economic consequences is not a basis for dismissal.

After both individual and collective consideration of the statutory criteria and defendant's arguments, the Court finds no basis upon which to dismiss in the interest of justice. Defendant's motion is denied.

This constitutes the decision and order of the Court.

Dated:___________________________

New York, New YorkRichard M. Weinberg

Judge of the Criminal Court