The defendant, John Fitzgerald, has filed a motion with this Court, seeking dismissal of the above-captioned indictment in furtherance of justice pursuant to CPL 210.40. The People oppose the defendant's application in its entirety.

This indictment arose out of an incident that allegedly unfolded from on or about a date in September, 2006 through July 23, 2007. It is claimed that following his retirement from the New York City Sanitation Police Department in September of 2006, the complainant, Mr. Jack Elias, contacted the defendant to request his assistance in securing a carry permit for the complainant's weapon. The defendant held the rank of lieutenant in the New York City Sanitation Police. Allegedly, after multiple delays and numerous telephone calls, the defendant promised to provide the complainant with a carry permit. On July 23, 2007, the defendant met with the complainant and provided him with a purported New York City Police Department restricted carry permit; a document which is alleged to be an altered photocopy.

As a result of this alleged incident, the defendant was indicted for two counts of forgery in the second degree and for one count of criminal possession of a forged instrument in the second degree.

CPL 210.40 discusses the circumstances whereby a motion to dismiss an indictment in furtherance of justice may be considered. In pertinent part:

1. An indictment or any count thereof may be dismissed in furtherance of justice, as provided in paragraph (i) of subdivision one of section 210.20, when, even though there may be no basis for dismissal as a matter of law upon any ground specified in paragraphs (a) through (h) of said [*2]subdivision one of section 210.20, such dismissal is required as a matter of judicial discretion by the existence of such compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such indictment or count would constitute or result in injustice. In determining

whether such compelling factor, consideration, or circumstance exists, the court must, to the extent applicable, examine and consider, individually and collectively, the following:

(a)the seriousness and circumstances of the offense;

(b)the extent of harm caused by the offense;

(c)the evidence of guilt, whether admissible or inadmissible at trial;

(d)the history, character and condition of the defendant;

(e)any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant;

(f)the purpose and effect of imposing upon the defendant a sentence authorized for the offense;

(g)the impact of a dismissal upon the confidence of the public in the criminal justice system;

(h)the impact of a dismissal on the safety or welfare of the community;

(i)where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion;

(j)any other relevant fact indicating that a judgment of conviction would serve no useful purpose.

CPL 210.40 (3) states that: "An order dismissing an indictment in the interest of justice may be issued upon motion of the people or of the court itself as well as upon that of the defendant. Upon issuing such an order, the court must set forth its reasons therefor upon the record."

This Court agrees that a motion filed in furtherance of justice does not automatically mandate dismissal. " The discretion of the trial court to dismiss an indictment in furtherance of justice pursuant to CPL 210.40 is not absolute...'" People v Schlessel, 104 AD2d 501, 502 (2d Dept. 1984), citing People v Kwok Ming Chan, 45 AD2d 613, 615-616 (1st Dept. 1974). It "...requires a value judgment based upon a sensitive balancing of the interests of the individual and the State'" Schlessel supra at 502, citing People v Belkota, 50 AD2d 118, 120 (4th Dept. 1975); and see People v Clayton, 41 AD2d 204 (2nd Dept. 1973). "The power to dismiss on such ground is, as provided in the statutory text, committed to the trial court's discretion; it should be exercised sparingly' and only in that rare' and unusual' case where it cries out for fundamental justice beyond the confines of conventional considerations.'"People v Harmon, 181 AD2d 34, 36 (1st Dept. 1992), citing People v Insignares, 109 AD2d 221, 234 (1st Dept. 1985), quoting People v Belge, 41 NY2d 60, 61-62 (1976).

In reaching a decision on the motion, the Court will examine the factors listed in CPL 210.40, as previously specified.

First, this Court must consider the seriousness and circumstances of the offense. CPL 210.40(1)(a). As previously noted, the defendant is charged with two counts of forgery in the second [*3]degree and one count of criminal possession of a forged instrument in second degree. The allegations involve the altered photocopy of a pistol permit. The People concede that the defendant was acting out of courtesy for a retired member of the Sanitation Police Department. This Court agrees, and notes that while such charges are serious, the alleged forgery was promptly detected.

The second factor this Court must consider is the extent of harm caused by the offense. CPL 210.40(1)(b). Both sides agree that the complainant recognized that the purported pistol permit was invalid on its face. While the People assert that public confidence is undermined by the alleged acts of the defendant, the permit was not utilized. This Court finds that no harm resulted.

The third factor this Court must consider is the evidence of guilt, whether admissible or inadmissible at trial. CPL 210.40 (1)(c). The defendant asserts that in exchange for the promised permit, the complainant provided the defendant with a $340 money order, payable to the NYPD. The money order was never negotiated. The People submit that, in sum and substance, this constitutes the evidence they would seek to offer against the defendant at trial.

The fourth factor the Court must consider is the history and character of the defendant. CPL 210.40(1)(d). This is the defendant's first contact with the criminal justice system. He is 47 years old, with no prior arrests. He is employed as a supervisor, in the New York City Sanitation Department. The defendant has submitted medical records indicating that in December of 2009, he suffered a major stroke, and is undergoing rehabilitation at North Shore University Hospital, Manhasset, New York. The defendant submits that he is experiencing difficulty in speaking, walking and eating. This diagnosis is supported by the medical records supplied by the defendant.

The fifth factor this Court must consider is any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant. CPL 210.40 (1)(e). The defendant concedes that there was no serious misconduct by law enforcement personnel herein and, indeed, there is no allegation of any misconduct.

The sixth factor this Court must consider is the purpose and effect of imposing upon the defendant a sentence authorized for the offense. CPL 210.40(1)(f). The defendant claims that he is physically disabled at this time. He asserts he received no monetary compensation for his alleged commission of this offense. As previously noted, the medical records submitted by the defendant reflect that he is seriously physically impaired, thus substantially undermining the purpose and effect of imposing a sentence.

The seventh factor this Court must consider is the impact of dismissal upon the confidence of the public and the criminal justice system. CPL 210.40(1)(g). The People submit that the public's confidence in the criminal justice system would be impacted as the defendant, allegedly committed these offenses while employed in a law enforcement capacity. The People cite this Court to a criminal court case; People v Watson, 182 Misc 2d 644 (Crim. Ct, Bronx County 1999). In Watson, the defendant was charged with the crime of endangering the welfare of a child. The Watson court, in considering the defendant's application, to dismiss in the furtherance of justice analyzed this factor, as follows: "The public would view the system as unconcerned or cavalier about the welfare of children". Watson at 652. The People assert that, as in Watson, the public could lose confidence in the gun permit' system. The defendant submits that the defendant's actions comprise a unique situation (argued in an earlier point), the fraud was detected immediately, no monetary compensation was personally received and the defendant is now physically disabled. Under these circumstances, the defendant submits, there would be no impact on the confidence of the public in the criminal [*4]justice system. This Court agrees.

The eighth factor this Court must consider is the impact of a dismissal on the safety or welfare of the community. CPL 210.40 (1)(h) This Court discerns no impact of a dismissal on the safety or welfare of the community.

This Court can consider as a ninth factor, where the court deems it appropriate, the attitude of the complainant or victim with respect to this motion. CPL 210.40(1)(i). Neither party has presented any argument as to the position of the complainant on this issue.

Finally, as a tenth and final factor, this Court must consider any other relevant fact indicating that a judgment of conviction would serve no useful purpose. CPL 210.40(1)(j). While the People concede knowledge of the defendant's current medical condition to wit: a stoke of significant degree, they submit that there is insufficient evidence that the defendant's status has deteriorated and that his survival prognosis is unclear. See, People v Sherman, 35 AD3d 768 (2nd Dept. 2006). While the People argue that defendant's severe physical condition alone does not warrant dismissal, this Court is clearly not considering such condition as the sole basis for dismissal.

Under the totality of the circumstances, this Court concludes that assuming the allegations herein are, in fact, true, the defendant is guilty, for the most part, of bad judgment, making promises to the complainant he could not possibly follow through on, and just outright stupidity in conjuring up a lame and misguided effort to pretend to deliver on such promises to the complainant. Based upon all the facts and circumstances herein and upon considering case precedent and all relevant statutory factors individually and collectively, this Court concludes, in it's discretion, that dismissal of this indictment in furtherance of justice is warranted herein, insofar as conviction or prosecution of the defendant would result in injustice. Accordingly, the motion of the defendant to dismiss the indictment in furtherance of justice is granted.

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

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STEPHEN A. KNOPF, J.S.C.