People v Anonymous (2012 NY Slip Op 50329(U))

People v Anonymous

2012 NY Slip Op 50329(U) [34 Misc 3d 1231(A)]

Decided on February 28, 2012

Troy City Ct

Maier, 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This opinion is uncorrected and will not be published in the printed Official Reports.

The defendant seeks to reopen a dismissed case by way of a CPL �440 motion. According to the defendant's affidavit, she is interested in enlisting in the military but the current disposition of the matter is preventing this opportunity.

On November 6, 2006, the defendant's case was adjourned in contemplation of dismissal (ACOD) pursuant to CPL �170.55. After the expiration of the adjournment period, the matter was dismissed and subsequently sealed pursuant to CPL � 160.50. While the Court has sympathy for the defendant, the Court finds no authority to "reopen" a case that "[u]pon the dismissal of [*2]the accusatory instrument pursuant this section, the arrest and prosecution [became] a nullity and the defendant [was] restored, in contemplation of law, to the status [s]he occupied before [her] arrest and prosecution" (CPL �170.55 [8]). It is clear, before the expiration of the six month period of an ACOD, the People may seek to have the matter reopened (CPL �170.55). However, the statute is silent as to a defendant's ability to reopen a matter (CPL � 170.55; People v. Meyerson, 165 Misd. 2d 476, 479 [Crim Ct Bronx County 1995]; People v. Schillingford, 2001 NY Slip Op 40030 [U] [2001]).

The Court finds persuasive the notion that if a defendant must consent to an ACOD, then he has the ability to seek to have the matter reopened within the period of the adjournment (People v. Meyerson, 165 Misc. 2d at 479-480). In Meyerson, the defendant sought to have his matter restored within the six month period of the adjournment and prior to the matter being dismissed and subsequently sealed (Id. at 477). The court held it had authority to restore the matter, but that the defendant failed to allege valid reasons to support his motion (Id. at 481).

Here, the defendant has articulated valid reasons for the relief sought, but the Court is without the authority to grant the motion since the matter was dismissed and sealed back in 2007. Unfortunately for the defendant, there is nothing to reopen. Therefore, the motion is denied.

This shall constitute the Decision and Order of the Court.

So ordered.

Dated: February 28, 2012