This matter arises out of three arrests which occurred in the former marital home in response to "911" calls made by Complainant Virginia Caruana. Defendant Arthur Delgaudio and Complainant ("Wife") are married. On September 27, 2010, Defendant allegedly struck Wife numerous times about the face with a closed fist, placed his hands around her neck and squeezed her neck, pointed a knife in her direction and stated, "I will kill you". These actions are alleged to have been in violation of a Family Court Order of Protection dated September 21, 2010 ("the Family Court Order").^[FN1]

Defendant was arraigned on the charge of Criminal Possession of a Weapon in the 4th Degree (Penal Law §265.01[2]); Assault in the 3rd Degree (Penal Law §120.00[1]); Menacing in the 2nd Degree (Penal Law §120.14[1]); and Criminal Contempt in the 2nd Degree (Penal Law §215.50[3]) on September 28, 2010 (see IDV Docket No. 40090M-2010). At arraignment, the Criminal Court issued another Order of Protection against Defendant in favor of Wife that ordered Defendant to stay away from Wife, Wife's home, and her place of employment among other provisions, in force until September 27, 2011 (the "Criminal Court Order"). Defendant was excluded from the former marital premises as a result of this Order.

Two days later, on September 30, 2010, Defendant was discovered inside the former marital home in violation of the Family and Criminal Court Orders of Protection. Defendant was arraigned on the charge of Criminal Contempt in the 2nd Degree (Penal Law §215.50[3]) on October 8, 2010 (see Docket # 40096M-2010). At arraignment, the Criminal Court issued a third Order of Protection against Defendant in favor of Wife containing full stay away provisions in force until October 7, 2011.

Pursuant to Court Orders dated October 12, 2010 and November 1, 2010, these matters were transferred to the Richmond County Supreme Court, Integrated Domestic Violence ("IDV") Part. On December 20, 2010, an Order of Protection was issued by the IDV Part ordering, inter alia, Defendant to stay away from Wife, Wife's home and her place of employment and to refrain from any communication and any other contact. This Order was in force until June 30, 2011 and extended to December 31, 2011. On December 20, 2010, the Criminal Court Orders were vacated.

On May 1, 2011, in violation of the IDV Order of Protection, Defendant was discovered again in the former marital home, with self-inflicted stab wounds to his arm. Defendant was subsequently arraigned on the charge of Criminal Contempt in the 2nd Degree (Penal Law §215.50[3]) on May 5, 2011 (see Docket # 40048M-2011). At arraignment, the Criminal Court issued another Order of Protection against Defendant in favor of Wife containing full stay away provisions, in force until May 4, 2012. Pursuant to Court Order dated May 11, 2011, this matter was [*2]also transferred to the IDV Part.

Defendant moves to dismiss all the criminal cases against him pursuant to New York Criminal Procedure Law ("CPL") §170.40 (see People v Clayton, 41 AD2d 204 [2nd Dept 1973]).^[FN2] Defendant argues that continued prosecution would be unjust given the unique and compelling circumstances he argues exist here. The People urge this Court to deny this motion and allow the cases to proceed to trial. For the reasons set forth below, Defendant's motion is denied.

The Applicable Law

CPL §170.40 permits the dismissal of information, prosecutor's information or misdemeanor complaints in the furtherance of justice. Dismissal is permitted only where necessary to correct what would amount to a miscarriage of justice were the prosecution allowed to proceed (see People v. Hudson, 217 AD2d 53 [2nd Dept. 1995][dismissal appropriate where case "cries out for fundamental justice beyond the confines of conventional considerations"). Dismissal in the furtherance of justice should be "exercised sparingly and only in those rare cases where there is a compelling factor which clearly demonstrates that prosecution" of the case would be unjust (see People v. Sherman, 35 AD3d 768 [2nd Dept. 2006][internal quotation marks omitted]; see also People v. Ward, 300 AD2d 418 [2nd Dept. 2002]). In making its determination, the Court must consider the factors listed in CPL § 170.40(1) and weigh them against the respective interests of the prosecution, the defendant and the community (see People v. Rickert, 58 NY2d 122, 127-128 [1983]).^[FN3]

In this case, Defendant asks this Court to dismiss all three cases against him on the grounds that (1) Wife is unwilling to cooperate any further in the prosecution of these cases; (2) Defendant's health is poor; and (3) Defendant is participating in a residential drug and substance abuse rehabilitation program. In support of his motion, Defendant has submitted a letter handwritten by [*3]Wife, dated May 7, 2012, indicating that she wishes to drop the charges against Defendant (see Defendant's Exhibit "A") and medical records indicating prior hospitalizations for psychiatric and medical reasons.

While Wife's failure to cooperate any further in the prosecution of these cases is a factor to be considered by this Court, her position does not warrant dismissal of these charges over the objection of the People (see People v. Allen, 6 Misc 3d 258, 266 [Sup Ct, Bronx County 2004]; see also People v Feggins, 17 Misc 3d 1114A [Crim Ct, Kings County 2007]); see also People v. Alexander, 97 NY2d 482, 487 [2002] (denying defendant's application to withdraw a guilty plea based on a witnesses' subsequent unwillingness to cooperate with the prosecution). The myriad complex and deeply personal reasons why a domestic violence victim may subsequently refuse to cooperate with the criminal prosecution of the perpetrator are well documented (id. at487 n4 [2002], "Although the abusers' guilt may be clear and provable, many victims of domestic violence decide not to pursue charges for a host of reasons, including fear of retaliation, financial dependence and threats of violence"). As pointed out by the People, Wife sought assistance from the police on numerous occasions in an effort to address Defendant's alleged abusive behavior. The fact that her position has now changed does not deprive the People of an opportunity to try these cases which are significant not only for the individuals involved, but also for this community as a whole, as it strives to hold batterers accountable for their proven actions.

Defendant's medical condition is not a basis to dismiss these cases either. In support of his motion, Defendant submits letters and reports from hospitals and rehabilitative centers (see Defendant's Exhibit "A"). It is undisputed that Defendant has undergone counseling for alcohol and substance abuse at a residential treatment center since June of 2011. Defendant has also been admitted to the hospital, an alcohol rehabilitation unit, and a chemical dependency program (id.). However, neither Defendant's medical condition (see People v. Sherman, 35 AD3d 768 [2nd Dept. 2006]), nor his participation or completion of a rehabilitation program justify dismissal here (see People v. Ward, 300 AD2d 418 [2nd Dept. 2002]; People v. McIlwain, 300 AD2d 320 [2nd Dept. 2002]; People v. Smith, 217 AD2d 671 [2nd Dept. 1995]). Defendant is concerned that if sentenced, his rehabilitation efforts would be impeded. However, even if Defendant were convicted of these charges, the People intend to ask for a sentence of probation (or equivalent) which would require Defendant to continue these services with court monitored compliance.

After considering each of Defendant's arguments, individually and collectively, and the remaining factors set forth in CPL 170.40, this Court finds that Defendant has failed to establish a compelling factor, consideration or circumstance clearly demonstrating that continued prosecution of these serious criminal cases against him would constitute injustice (CPL § 170.40[1]). For these reasons, this motion is denied (see People v. Moye, 302 AD2d 610 [2nd Dept. 2003]). Defendant's challenge to the sufficiency of the People's evidence is an issue for trial and beyond the scope of this motion (see People v. Prunty, 101 Misc 2d 163 [Crim Ct, Queens Co.1979]).

Dated: August 10, 2012

__________________________

Honorable. Catherine DiDomenico