Defendant is charged with one count of Attempted Criminal Possession of Stolen Property in the Fifth Degree (PL Sec. 110/165.40), a Class B misdemeanor.

By motion dated January 14, 2013, Defendant seeks dismissal of the charge, asserting that this prosecution violates his right to due process under Article 1, Section 6 of the New York State Constitution. In the alternative, Defendant also seeks dismissal of this matter in the interest of justice under CPL Sec. 210.40.

The Court has reviewed the Court file, Defendant's motion, and the People's Response dated February 13, 2013.

For the reasons stated below, the motion to dismiss based upon the violation of Defendant's due process rights is denied. However, for the reasons stated below, the motion to dismiss in the interest of justice is granted.

Pursuant to the Criminal Court complaint, on or about December 3, 2011 at approximately 1:50 PM, the Defendant was approached by an Undercover Officer while Defendant was within a grocery store located at 1431 Beach Avenue, Bronx, New York. The Officer stated to Defendant that he "had a fight with my girlfriend and I stole her phone. I am trying to sell it." See, Criminal Court complaint dated March 9, 2012, p 1.

The Defendant is then alleged to have handed the Undercover Officer "thirty dollars United States currency in exchange for an Iphone." See, Criminal Court complaint dated March 9, 2012, p 1.

Defendant was arrested, and given a Desk Appearance Ticket. He was arraigned in this matter on April 3, 2012, and has remained at liberty during the pendency of this case.

(A) Defendant's Motion to Dismiss under Article 1, Section 6 of the New York State Constitution must be denied.

Defendant asserts that the "conduct of the New York Police Department rose to an egregious level as to warrant dismissal of the criminal action pursuant to the Due Process Clause under Article 1 Section 6 of the New York State Constitution.'" See, Defendant's motion dated January 14, 2013, p 4 para 5. Citing to People v. Isaacson, 44 NY2d 511, 518-519, 406 NYS2d 714 (1978), Defendant states that " when tested by due process standards,' police conduct can be so egregious and deprivative as to impose upon us an obligation to dismiss.'" See, Defendant's Memorandum of Law, attached to his motion dated January 14, 2013, p 7 para 10.

Under the facts as stated in the instant matter, Defendant's reliance upon Isaacson is misplaced.

The facts of Isaacson were extremely serious. There, an informant, "during questioning, (was) struck ...with such force as to knock him out of a chair, then kick(ed)...resulting in a cutting of his mouth and forehead." 44 NY2d at 515. Further, though the officers "had a lab report showing that the capsules found on (the informant) which were the basis for his class A-2 felony charge and which had been purchased from defendant, were not controlled substance at all...(the informant) was not told of this until...after he had been used by the police as an informant in this case." 44 NY2d at 515.

Not content with this level of chicanery, the police in Isaacson then coerced the informant into making a series of phone calls to the defendant, which caused that defendant to enter New York state and participate in a drug sale here. 44 NY2d at 517 - 518. [*3]

Deciding Isaacson under the New York State Constitution, the Court of Appeals found that "certain types of police action manifest a disregard for cherished principles of law and order." 44 NY2d at 521. To aid in determining when the police have crossed that line, the Court referenced certain factors; "(1) whether the police manufactured a crime which otherwise would not likely have occurred...(2) whether the police themselves engaged in criminal or improper conduct repugnant to a sense of justice...(3) whether the defendant's reluctance to commit the crime is overcome by appeals to humanitarian instincts...and (4) whether the record reveals simply a desire to obtain a conviction with no reading that the police motive is to prevent further crime or protect the populace." 44 NY2d at 521 (citations omitted).

The Isaacson court specifically noted that "no one of these submitted factors is in itself determinative but each should be viewed in combination." 44 NY2d at 521. "In all but the rarest

of cases, such as the manufactured' crime and discriminatory prosecution, suppression or a curative charge, not dismissal...is the remedy." See, People v. Montgomery, 205 AD2d 259, 260, 618 NYS2d 328 (1st Dept, 1995) (citations omitted).

In the instant matter, "the allegations contained in the motion do not rise to the level of egregious or reprehensible prosecutorial or police misconduct or deprivation of fundamental fairness." See, People v. Lyons, 1999 WL 34866086 (Cty Ct, Albany, 1999), citing People v. Bah, 180 Misc 2d 39, 688 NYS2d 397 (Crim Ct, NY Cty, 1999). See, also, People v. Fuller, 29 Misc 3d 1207(A), 2010 WL 3959618 ( S Ct, NY Cty, 2010). Though an argument may be made that the police "manufactured" the crime by approaching the Defendant and asking if he wanted to buy a stolen cell phone, the other Isaacson factors do not compel dismissal of the instant matter.

Though Defendant asserts that he acted for humanitarian reasons (See, Defendant's motion dated January 14, 2013, p 6, para 8), the police conduct was neither " criminal or improper conduct repugnant to a sense of justice." Further, the actions of the police were taken in an effort "to prevent further crime." As the People have argued, "burglaries, robberies and larcenies are a serious problem in the Bronx, with perpetrators selling stolen iPhones, iPads, jewelry, and other items at pawn shops and other commercial establishments...in an effort to dry up the marketplace for these stolen goods, the NYPD has sent undercover officers into pawn shops and other commercial establishments...to deter...people from buying and/or selling stolen goods." See, People's Response dated February 13, 2013, p 2, para 2, 4. This is a legitimate law enforcement objective.

Under these circumstances, Defendant has failed to show a violation of his due process rights under the New York State Constitution. His motion to dismiss on this ground is hereby denied.

(B) Defendant's motion to dismiss in the interest of justice pursuant to CPL Sec. 210.40 will be granted.

CPL Sec. 170.40(1) provides for a variety of factors which require dismissal of "an [*4]information, a simplified traffic information, a prosecutor's information or a misdemeanor complaint, or any count thereof" "as a matter of judicial discretion" if "some compelling factor, consideration or circumstance clearly demonstrate that conviction or prosecution of the defendant upon such accusatory instrument or count would constitute or result in injustice." See, also, CPL Sec. 170.30(g).

The discretion of the Court to dismiss an information in the furtherance of justice is not absolute, nor is it uncontrolled. See, People v. O'Grady, 175 Misc 2d 61, 65, 667 NYS2d 895 (Crim. Ct., Bx Cty, 1997) citing People v. Wingard, 33 NY2d 192, 351 NYS2d 385 (1973). In fact, this power is to be "employed cautiously and sparingly." See, People v. Eubanks, 114 Misc 2d 1097, 1098, 454 NYS2d 768 (App. Term, 2d Dept.,1982).

On a motion to dismiss in the interests of justice, the burden is on the Defendant to establish "some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant would constitute or result in injustice." See, People v. Boulet, 88 Misc 2d 353, 355, 388 NYS2d 250 (City Ct., Rochester, 1976); People v. Verardi, 158 Misc 2d 1039, 1042, 602 NYS2d 318 (Crim. Ct., Kings Cty, 1993).

When considering the motion, the court need not "engage in a point-by-point catechistic discussion of all ten statutory factors; instead, the court is required to consider the factors individually and collectively in making a value judgment that is based upon striking a sensitive balance between the interests of the individual and those of the state." See, People v. Gragert, 1 Misc 3d 646, 648, 765 NYS2d 471 (Crim. Ct., NY Cty, 2003).

This Court finds that under CPL Sec. 210.40(b), there is no harm caused by the offense with which Defendant has been charged. Further, under CPL Sec. 210.40(g), the dismissal of this matter can only result in increased confidence in the criminal justice system. These findings compel this Court to grant Defendant's motion to dismiss this prosecution.

The situation presented here is most analogous to "bait and switch;" that is, when the police leave a valuable item on a park bench or subway platform, and arrest the individual who picks up said item and walks away from the location without immediately notifying anyone in authority of their find. In several "bait and switch" cases, motions to dismiss in the interest of justice have been granted since "the continued prosecution or conviction of the defendant violates the principles of fairness and justice." See, People v. Arroyo, 12 Misc 3d 1003, 1005, 815 NYS2d 922 (Crim Ct, Kings Cty, 2006); People v. Gonzalez, 33 Misc 3d 1238(A), 941 NYS2d 540 (Crim Ct, NY Cty, 2011).

Another case with facts similar to the instant matter is People v. Myers, 2010BX04905, NYLJ 1202586272168 (Crim Ct, Bx Cty, 2013). There, the defendant was subject to an "elaborate scenario where an undercover officer pretended to be the driver of a car, and then other officers pretended to arrest him. When the officers had the suspect' in custody and left with him, they left his car behind, unlocked, with some property exposed in plain [*5]view...Defendant and her juvenile daughter are accused of then entering the car and taking the property. "

The Myers court found that "the harm caused by this offense is non-existent; this was a fabricated crime, and no one was harmed by it." NYLJ 1202586272168 at 2. That Court then harshly criticized the police officers involved in that defendant's arrest for contriving "this scenario to lure, bait and trap a law-abiding person into taking property." NYLJ 1202586272168 at 3.

The police conduct presented here does not rise to the same level of trickery that was presented in Myers. In this case, it is sufficient for this Court to adopt the assessment presented in Gonzalez and Arroyo; "In order to foster fairness and justice, the circumstances at hand compel the court to dismiss all charges against the defendant. The police should concentrate their noble efforts on behalf of the city on countering real crimes committed every day. They do not need to manipulate a situation where temptation may overcome even people who would normally never think of committing a crime." Gonzalez, 33 Misc 3d at 1238(A), p 5, citing Arroyo, 12 Misc 3d at 1005.

Therefore, this case is dismissed, in the interests of justice.

All other arguments and requests for any additional relief that have been advanced by the parties has been reviewed and rejected by this Court as being without merit.

This shall constitute the opinion, decision, and order of the Court.

Dated: Bronx, New YorkMay 7, 2013

_______________________________Hon. John H. Wilson, JCC