Defendant, Brandi Carabateas-Shook, appeared with counsel for a non-jury trial on September 30, 2014. The People failed to appear at the time of trial; the People previously informed the Court that they would not be participating in the trial, since their file was closed and there was, therefore, no need for them to be present. Defendant duly waived her right to a jury trial in accordance with CPL §320.10. Defendant also expressly waived her presence at the time of the handing down of the non-jury Decision/Order and Verdict.

By way of background, the defendant was charged with Assault in the Third Degree/ Recklessly Causing Physical Injury to Another Person, in violation of Penal Law §120.00(2). The Information alleges that while at a Subway restaurant the Defendant did recklessly throw a container at the alleged victim, striking her in the mouth, chipping her front teeth, and causing [*2]her extreme pain. Three separate supporting depositions were filed with the Court pursuant to CPL §100.20. An Incident Report filed by the New York State Police recaps the investigation. The report indicates that the alleged victim was seeing two dentists for the damage to her front teeth. The report also states that the New York State Police reviewed store video footage showing the alleged act, and interviewed numerous witnesses.

At the time of the first appearance and arraignment, the Assistant District Attorney indicated that they were withdrawing prosecution. No mention was made regarding whether the District Attorney's Office spoke with the alleged victim, or whether the Defendant was paying restitution. The District Attorney did not disclose whether any plea offers were extended to the Defendant or her counsel. Nor was there any explanation given for the decision to withdraw prosecution.

The parties orally sought to have the Court dismiss the matter for failure to prosecute, but the Court denied the request in accordance with Matter of Donnaruma v. Carter, 41 Misc 3d 195 (2013), aff. Soares v. Carter, 113 AD3d 993 (3d Dept. 2014); see also, People v. Douglass, 60 NY2d 194 (1983). The Court gave both parties an opportunity to make written motions pursuant to the Criminal Procedure Law, but none were filed by defense counsel or the People. Thereafter, pursuant to CPL §320.10, after consultation with counsel and with a full understanding of her right and privilege to a jury trial, Defendant waived her right to a trial by jury and requested a non-jury trial.

In order to prove that the Defendant is guilty of Assault in the Third Degree/Recklessly Causing Physical Injury to Another Person (Penal Law 120.00[2]) the People must prove, from all of the evidence in the case, beyond a reasonable doubt, the following two elements:

The Court recognizes that each case must be judged on an individual basis according to the facts and circumstances presented. In a nonjury proceeding, the Court serves as the trier of [*3]facts and is also responsible for applying the law to the facts. It is fundamental that the Defendant is deemed innocent until proven guilty and the People have the burden to prove Defendant's guilt beyond a reasonable doubt. Not only have the People failed to meet their burden, but the People have, without explanation, refused to participate in the trial, to call witnesses, or present evidence.

The District Attorney asserts that he possesses broad authority and discretion over all phases of a criminal prosecution, and thereby can deprive the Court of jurisdiction by simply declaring that he declines to prosecute and, thereafter, closing his file. That view is contrary to the law in the Third Department which prohibits a Court from dismissing a case upon the grounds that the District Attorney declines to prosecute. See, Matter of Donnaruma v. Carter, 41 Misc 3d 195 (2013), aff. Soares v. Carter, 113 AD3d 993 (3d Dept. 2014); see also, People v. Douglass, supra. The District Attorney's deliberate inaction and refusal to proceed does not deprive the Court of jurisdiction once the case is commenced. See, Soares v. Carter, 113 AD3d at 996, citing People v. Extale, 18 NY3d 690, 695 (2012); see also, People v. Cottini, 39 Misc 3d 1237(A), 2013 NY Slip Op. 50912(U)(2013), aff. People v. Cottini, County Court, Columbia County, April 10, 2014, Koweek, J., Index No. 6228/13. The doctrine of Nolle Prosequi was eliminated by the State Legislature and no act or omission by the District Attorney can reverse that fact. Matter of Donnaruma, 41 Misc 3d at 761-762.

The People failed to meet their considerable burden of proof at trial; the Court is, therefore, compelled to dismiss the case on that ground for lack of evidence. The District Attorney's refusal to put on any proof at trial is a decision to be judged by a constituency, other then this Court; those charged with the responsibility of holding District Attorney's accountable for their deliberate acts or omissions may exercise their rights in an appropriate forum. See, People v. Shackleton, 40 Misc 3d 1237(A), 2013 NY Slip Op. 50911(U), 2013 WL 2450517 citing Matter of Donnaruma v. Carter, 41 Misc 3d at 214; see also, Soares v. Carter, 113 AD3d at 998.

Accordingly, based upon the fact that the District Attorney refused to appear at the time of trial, or to introduce any testimony or evidence therefor, and after due deliberation, the Court finds that the People have failed to meet their burden of proof and the Defendant is, therefore, hereby found not guilty of the charge of Assault in the Third Degree/Recklessly Causing Physical Injury to Another Person in violation of Penal Law §120.00(2).

The foregoing shall constitute the Findings of Fact, Conclusions of Law, Decision/Order and Verdict of the Court.