The defendant stands accused under Docket No. 07080207 of Resisting Arrest, Disorderly Conduct and the Village Code violation of riding a bicycle on the sidewalk.

It is alleged that on or about August 27, 2007, the defendant rode a bicycle on the sidewalk and when confronted by a police office, did yell and curse at the officer, causing a crowd to gather. It is further alleged that when the officer attempted to place the defendant under arrest for disorderly conduct, the defendant did flee from the officer.

By notice of motion dated March 21, 2008, with accompanying affirmation, memorandum of law and exhibits, the defendant moved, inter alia, to dismiss the charges in the interest of justice pursuant to Criminal Procedure Law § 170.40. This application was opposed by the People by an affirmation in opposition dated April 17, 2008 and accompanying memorandum of law.

By a decision and order dated June 2, 2008, this Court denied the motion.

Notwithstanding the decision, the prosecution and the defense continued to discuss the defendant's condition. The defense supplied the prosecution with copies of school records and psychological evaluations to support the contention that the defendant was incapable of formulating the requisite intent to commit the offenses charged. As a result, by a notice of motion dated August 4, 2008, the People moved to dismiss the charges in the interest of justice, citing the defendant's mental capabilities.

The defendant has cross moved for a determination and finding of fact by the court that the [*2]People cannot meet their burden of proof in connection with the charges filed in this case, for a judicial determination that the defendant would meet his evidentiary burden in establishing that he has diminished capacity and could not form the requisite intent to commit any of the crimes of violations with which he is charged, for dismissal of the charges for failure of the People to proceed with their case on the scheduled trial date, for a dismissal of the charges due to the failure of the Sleepy Hollow Police to produce records in response to so ordered subpoenas and for a judicial determination and finding of fact that the defendant is innocent of all charges against him.

The People have opposed the defendant's cross motion arguing that there is no statutory or case law basis to grant the relief he seeks. The defendant has responded stating that he knows that he is innocent and is anxious to proceed to trial. The defendant states that this request by the District Attorney is "[g]amesmanship ... designed to insulate the Police Department from subsequent liability."

One of the most basic tenets of criminal law is that in order to find someone guilty of a crime, guilt must be established beyond a reasonable doubt. This standard derives from the Due Process Clause of the Fourteenth Amendment of the United States Constitution. (In re Winship, 397 U.S. 358, 364, 90 S. Ct 1068, 1072 [1970], Carella v. California, 491 U.S. 263, 109 S. Ct. 2419 [1989]). In other words, the Due Process Clause establishes a standard which "requires the government to prove, within a fair procedural framework, that a person is unquestionably guilty of the crime for

which he is to be incarcerated. The standard also prohibits the use of any procedure which would shift to the accused the burden of proving their innocence as to any basic element of the criminal charge." Nowak, Rotunda & Young, Constitutional Law, 2nd Ed., Ch. 15, § II (C)(2) [1983].

It has been recognized that this standard allows for the acquittal of a guilty individual.

There is always in litigation a margin of error, representing

error in factfinding, which both parties must take into account.

Where one party has at stake an interest of transcending

value - as a criminal defendant his liberty - this margin of

error is reduced as to him by the process of placing on the

other party the burden of producing a sufficiency of proof

in the first instance, and persuading the factfinder at the

conclusion of the trial of his guilt beyond a reasonable doubt.

Due process commands that no man shall lose his liberty

unless the Government has borne the burden of producing

evidence and convincing the factfinder of his guilt.

(Speiser v. Randall, 357 U.S. 513, 525,526, 78 S. Ct. 1332, 1342 [1958]).

This is a consequence that society has readily accepted.

In a criminal case...we do not view the social disutility of [*3]

convicting an innocent man as equivalent to the disutility

of acquitting someone who is guilty...

In this context, I view the requirement of proof beyond a

reasonable doubt in a criminal case as bottomed on the

fundamental value determination of our society that it is

far worse to convict an innocent man than to let a guilty

man go free. It is only because of the nearly complete

and long-standing acceptance of the reasonable-doubt

standard by the States in criminal trials that the Court

has not before today had to hold explicitly that due

process, as an expression of fundamental procedural

fairness, requires a more stringent standard for criminal

trials than for ordinary civil litigation.

(In Re Winship, supra at 397. (Harlan, concurrence))

Logically, it follows that the criminal justice system makes no provision for a

finding of innocence. Criminal Procedure Law § 310.10 (4) provides that the only verdicts a jury is authorized to return are; "guilty" , "not guilty" or "not responsible by reason of mental disease or defect." The Criminal Jury Instructions direct, "If the People fail to satisfy their burden of proof, you (the jury) must find the defendant not guilty." (CJI2d[NY] Reasonable Doubt). Put in simple layman's terms, the only findings authorized by law are that the prosecution has proven guilt beyond a reasonable doubt or it has failed to prove guilt beyond a reasonable doubt. There is no provision of a finding of innocent.

The defendant is requesting the court, without a hearing, to make a specific factual finding which is beyond its authority.

Contrary to the contention of the defendant, the court cannot compel the People to proceed to trial. The prosecutor possesses the ultimate discretionary power to determine whether to prosecute or decline to prosecute. (People v. Eboli, 34 NY2d 281 [1974]) While this power is not absolute, the defendant has not shown that the People have abused their discretion in this matter.

Accordingly, the motion of the People to dismiss in the furtherance of justice is granted. The charges against the defendant are dismissed.

The foregoing constitutes the decision and order of this Court.

Dated: Sleepy Hollow, New York

September, 2008

Hon. Alphonse M. Naclerio [*4]

Acting Village Justice

HON. JANET DIFIORE

District Attorney of Westchester County

188 Tarrytown Road

White Plains, New York 10607

BY:ROBERT F. DOCHERTY, ESQ.

Assistant District Attorney

JONATHAN RICE, ESQ.

Attorney for the Defendant

247 West 35th Street, 12th floor

New York, New York 10001