By motion submitted April 24, 2013, defendant moved to dismiss the charge of prostitution (Penal Law § 230.00), filed under docket 2011BX024434, in the furtherance of justice pursuant to Criminal Procedure Law § 210.40. By decision dated June 6, 2013, this court denied the motion. This expands that decision.

On April 29, 2011, defendant was arrested and charged with one count of prostitution (PL 230.00). Specifically, it is alleged that an undercover police officer approached the defendant and asked him to engage in sexual intercourse in exchange for $20.00 in United States currency. Defendant is further alleged to have stated, "$20.00 dollars is good to f***. But we need a condom. If you want to go to a hotel, a $100.00 dollars will do. But I'd rather do it in the car."

On November 3, 2012, a motion schedule was set in Part M2 (Livote, J.). Defense was to file all motions no later than November 17, 2012; the People were ordered to respond no later than December 1, 2012. The case was adjourned until January 4, 2013, for the purpose of the court rendering a decision on defendant's motions.

On January 4, 2013, defense counsel first filed an omnibus motion seeking, among other things, the right to file additional motions pursuant to CPL 255.20 (2) "if made necessary or appropriate by future disclosure by the District Attorney."^[FN1] The case was adjourned until January 30, 2013.

On January 30, 2013, this case was administratively transferred from TAP (Seewald, JHO) to this court for the purpose of conducting a Hinton hearing.^[FN2] That hearing continued on [*2]January 31, 2013, and February 15, 2013. This court then adjourned the case for further proceedings until April 4, 2013.

On April 1, 2013, defendant moved this court to dismiss the docket in the furtherance of justice pursuant to CPL 210.40. Upon the People's response opposing the relief sought, filed on April 24, 2013, defendant's motion was deemed submitted. As noted above, this court denied defendant's defendant's motion by decision dated June 6, 2013.

On October 30, 2013, the defendant entered a plea of guilty to the reduced charge of disorderly conduct (PL 240.20), a violation, and sentenced to a conditional discharge.

Criminal Procedure Law §§ 210.20 (2) and 255.20 provide that all motions be made within 45 days of arraignment on the accusatory instrument and before trial. CPL § 255.20, however, also provides certain exceptions, such as when the court sets its own motion schedule, or when there are issues the defendant "could not, with due diligence, have been previously aware, or which, for other good cause, could not reasonably have been raised within the period specified . . . " (see CPL 255.20). While a court may, in its discretion and for good cause shown, entertain a motion at any time before the sentence, it may also summarily deny a motion made after the 45-day period (see CPL 255.20 [3] People v Thompson, 45 AD3d 876 [2nd Dept 2007]). Yet, courts have nevertheless entertained such motions where new constitutional issues were raised, and where failure to consider it would interfere with defendant's constitutional rights, and where doing so would present no prejudice to the prosecution (see People v Fox, 17 Misc 3d 281 [Sup Ct, Kings County 2007, Konviser J] People v Amadeo, 188 Misc 2d 187 [Sup Ct, Queens County 2001, Rotker J] People v Gonzales, 148 Misc 2d 973 [County Ct, Westchester County 1990, LaCava J]).

Here, defense counsel not only failed to move for dismissal in furtherance of justice within 45 days of arraignment, she also failed to file it in compliance with the motion schedule set by Justice Livote. Nor did counsel seek leave to do so. Most significantly, though, counsel provides no explanation for such failures. In fact, "[t]he Legislature's purpose in enacting CPL 255.20 was to regulate pretrial proceedings by requiring a single omnibus motion to be made promptly after arraignment and thus to avoid the proliferation experienced under prior procedure in which a defendant could bombard the courts and Judges with dilatory tactics continuing right up to the eve of trial" (People v Lawrence, 64 NY2d 200, 204-205 [1984]). Thus, what CPL 255.20 purports to avoid is precisely what entertaining defendant's motion would accomplish. This the court cannot allow. Failing to adhere to the statutorily imposed 45-day deadline as well as the specific schedule set by the court, both without explanation or permission, simply cannot be sanctioned. Counsel's delay aside, however, defendant's motion is entirely without merit.

A motion to dismiss in furtherance of justice originated from the ancient right of an Attorney General to discontinue prosecution at his choosing. Under early common law, such power, known as nolle prosequi, was limited to the Attorney General, and eventually to his District Attorneys (People v McLeod, 25 Wend 483, 572 [1841]). In 1828, in order to limit potential abuses of discretion by the district attorneys, the legislature enacted a statute that [*3]required nolle prosequi receive court approval.

Nolle prosequi was abolished in 1881 by § 672 of the Code of Criminal Procedure, subsequently superceded by § 671, which authorized the court to order an indictment be dismissed "either of its own motion, or upon the application of the district attorney, and in furtherance of justice, order an action, after indictment, to be dismissed" [emphasis supplied]. The 1881 Code of Criminal Procedure was enacted pursuant to recommendations made by the Commissioners on Practice and Pleading in 1850. The Commissioners "intended to remedy, what the Commissioners deem defects in existing practice, productive not only of great inconvenience, but of flagrant injustice. When a defendant is held to answer, . . . there is now no mode of his compelling the prosecution to proceed to trial, or his being relieved from the indictment, in the event of their failure to do so . . . " (People v Douglass, 60 NY2d 194, 202 [1983] quoting Commissioners' Report on Code of Criminal Procedure [1850], ch VII, p 341 [emphasis supplied].).

Historically, then, the motion to dismiss in furtherance of justice was originally enforced to compel just prosecution for the benefit of the defendant (Douglass, 60 NY2d at 203). But in 1970, when the Criminal Procedure Law replaced the Code of Criminal Procedure, CPL § 210.40 provided a defendant with the ability to move to dismiss an indictment in furtherance of justice (see CPL 210.40). For the first time, then, under CPL § 210.40 (3), a motion to dismiss in furtherance of justice this motion could be made by the prosecuting official, the court sua sponte, or the defendant. Though originally promulgated to compel expeditious trials, CPL § 210.40 was "usually invoked to dismiss an indictment for the insufficiency of evidence before a grand jury after a defendant's motion to inspect the minutes had been granted (People v Clayton, 41 AD2d 204, 206 [2nd Dept 1973] cf People v Phillips, 14 Misc 2d 565, 571 [Sup Ct, Suffolk County 1958, Tilzer J] People v Briggs, 50 Misc 2d 1062, 1065 [County Ct, Rensselaer County 1966, Casey J]).

While intended to be invoked scarcely, CPL § 210.40 quickly became a vehicle to seek dismissal of an indictment where, for a variety of reasons, the merits are not at issue and the interest of justice would be served by terminating the prosecution (Clayton, 41 AD2d at 206; see also People v Quill, 11 Misc 2d 512, 513 [County Ct Kings County 1958, Sobel J]). Such dismissal, however, cannot be granted without explicating the reasons for doing on the record (see CPL § 210.40; People v Berrus, 1 NY3d 535, 536 [2003]). Further, CPL § 210.45 (6), which delineates the procedure for moving to dismiss an indictment, requires the court to conduct a hearing if it must make additional findings of fact essential to its decision on a CPL § 210.40 motion regardless of whether it is made by the defendant, the People, or sua sponte. The "Clayton hearing" as it has become known, should evince the existence of "some 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" (Clayton at 207). In short, a CPL § 210.40 motion permits dismissal of an indictment for reasons other than defects in evidence or procedure but also provides a safeguard against dismissal "unless the public interests are as fully protected as the individual interest of the defendant for justice and mercy" (Clayton at 208).

Finally, this court notes, however, that while defendant moves pursuant to CPL § 210.40, that section applies specifically to indictments and not misdemeanor informations. CPL § [*4]170.40, however, parallels § 210.40. Accordingly, this court will convert defendant's motion as having been made pursuant to CPL § 170.40, and will entertain it as such.

When reviewing the circumstances in a case such as this, it is the public interests that must be largely considered (see People v Andrew, 78 AD2d 683 [2nd Dept 1980]). An exemplary background, employment status, or lack of prior contact with the criminal justice system are insufficient to justify dismissal of the criminal charges against a defendant (see People v Kelley, 141 AD2d 764, 765 [2nd Dept 1988]). Nor are an individual's business success or respectable standing in the community sufficient to warrant a finding of dismissal in the interests of justice (see People v Madsen, 11 Misc 3d 1067[A] [Crim Ct, Kings County 2006, Sciarrino J]).

Regarding the factors to be weighed in evaluating whether there exists a compelling basis for dismissal, such an analysis provides a means of limiting the discretion of the trial courts while guaranteeing a standard for appellate review (People v Belge, 41 NY2d 60, 62 [1976]). It is significant to note, however, that while a court need not engage in a discussion of or explicitly address every factor, it must consider the "real and compelling" reasons to warrant dismissal (People v Rickert, 58 NY2d 122, 128 [1983]). Indeed, whether assessed individually or collectively, a court must be convinced they present a compelling circumstance so as to constitute the " rare' and unusual'" case that warrants dismissal in the interest of justice (People v Harmon, 181 AD2d 34, 36 [1st Dept 1992] People v Reyes, 174 AD2d 87, 89 [1st Dept 1992] People v Insignares, 109 AD2d 221, 234 [1st Dept], lv denied 65 NY2d 928 [1985] Clayton, 41 AD2d at 208. Here, a review of the factors indicated below, in light of the facts presented, fails to disclose any circumstance that would constitute or result in injustice so as to warrant dismissal of this matter.

1. The Seriousness and Circumstances of the Offense

The defendant is alleged to have been standing alone on the corner of Tiffany Street and Lafayette Avenue, in Bronx County, at 1:40 AM on April 29, 2011, for the purpose of engaging in prostitution. He is further alleged to have said to an undercover officer, "$20.00 dollars is good to f***. But we need a condom. If you want to go to a hotel, a $100.00 dollars will do. But I would rather do it in the car."

The manner in which the Legislature has addressed criminalizing prostitution speaks to its seriousness. First classified as a violation, the Legislature, in 1969, reclassified prostitution to its current class B misdemeanor status (Penal Law § 230.00 [McKinney]). Defendant's alleged stint in prostitution merits no more a relaxed label than the class B misdemeanor crime classification it currently dons.

2. The Extent of the Harm Caused by the Offense

Notwithstanding defendant's protestation that there is no victim, as with all crimes the community at large has been endangered. Commission of a crime in the public arena allegedly soliciting others to engage in criminal activity can hardly be described as a victimless crime. Indeed, the community has been victimized.

[*5]3. Evidence of Guilt

Evidence of defendant's guilt is overwhelming, best evidenced by his own statement to the undercover officer as indicated above.

4. History, Character and Condition of Defendant

Defendant presents himself as an educated individual with a relatively clean criminal record (although notably does have two prior criminal convictions), he notes his abusive childhood and gay sexual orientation, which he claims has severely hindered his self-confidence that ultimately caused this incident.

This court is certainly not empathetic towards defendant's circumstances and commends his education and career aspiration. But in the context of a motion seeking dismissal in the interest of justice, the law is clear that an individual who has no prior record or has an exemplary work record with a reputable job title are not factors that rise to the level of a "'rare' and unusual' case that cries out for fundamental justice beyond the confines of conventional considerations'" (Kelley at 765, citing Belge at 62-3).

To be clear, these circumstances do not constitute a "compelling factor" warranting dismissal of his case in furtherance of justice (CPL § 240.10 [1] Clayton at 207). Should this court find otherwise, a plethora of worms would bust out of the proverbial can. Every sob story masquerading as a basis to warrant dismissal in furtherance of justice would result in the criminal courts being their dirt.

5. Purpose and Effect of Imposing Sentence on Defendant

Defendant further claims that a prostitution conviction would serve as a "scarlet letter" and bar the defendant from utilizing his education and training in the education field. This is insufficient, however, to constitute the "compelling factor" necessary to dismiss his case in furtherance of justice (CPL § 240.10; Clayton at 207). The realm of this defendant's education makes him neither a "rare" nor "unusual" case. Moreover, defendant's assertion holds less credibility given his existing criminal record. If anything, a prosecution here is in accordance with the promotion of justice as it purportedly rectifies the resultant societal harm.

6. Impact of Dismissal on Public's Confidence in Criminal Justice System

Outright dismissal in furtherance of justice undermines public's confidence in the criminal justice system. Absent a compelling factor, the People must be afforded the opportunity to present evidence against the defendant at a trial and prove his guilt and beyond a reasonable doubt.

7. Impact on Safety of Community

Ostensibly, prostitution has a damaging effect on the general welfare of the community. The impact on its overall safety positively correlates with the extent of the harm caused by the offense. Unless and until the Legislature determines otherwise, this court believes such damage on the community's safety is affected by prostitution.

8. Any Other Relevant Fact Indicating that Judgment Would Serve No Useful Purpose [*6]

While no there are no other relevant facts for this court to consider, it should be noted that a prosecution here may indeed serve the ultimate objective of deterring the defendant from engaging in such conduct again. Moreover, nothing presented here falls within this catchall net.

This court finds nothing in either defendant's background or any other circumstance that constitutes the requisite rare or unusual compelling basis

warranting dismissal of the information in furtherance of justice. Defendant's motion is therefore summarily denied.

This constitutes the decision and order of the court.

Dated: March 19, 2014

E N T E R

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Richard Lee Price, J.S.C.