| People v Lizardi (Victor) |
| 2014 NY Slip Op 51751(U) [45 Misc 3d 135(A)] |
| Decided on December 15, 2014 |
| Appellate Term, First Department |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 People, as limited by their briefs, appeal from that portion of an order of the Criminal Court of the City of New York, Bronx County (John H. Wilson, J.), dated May 7, 2013, which granted defendant's motion to dismiss the accusatory instrument in the interest of justice.
Per Curiam.
Order (John H. Wilson, J.), dated May 7, 2013, insofar as appealed from, reversed, on the law and the facts, motion denied, accusatory instrument reinstated, and matter remanded for further proceedings.
Defendant's motion to dismiss the accusatory instrument in furtherance of justice (see CPL 170.40) should have been denied as untimely, since defendant neither filed the motion within 45 days of arraignment (see CPL 170.30[2], 255.20[1]; People v Rahmen, 302 AD2d 408 [2003], lv dismissed 99 NY2d 657 [2003]), nor demonstrated a "good cause" basis for the delay (CPL 255.20[3]).
Nor, on the merits, was an interest of justice dismissal shown to be warranted. The underlying attempted fifth-degree criminal possession of stolen property charge (see Penal Law §§ 110.00/165.40) stems from police allegations that defendant purchased an iPhone from an undercover officer in a grocery store after the officer told defendant, in sum and substance, that he (the officer) had stolen his girlfriend's phone and was trying to sell it. The police were not shown to have engaged in any illegal or improper conduct in carrying out the storefront sting operation and, indeed, the motion court itself aptly recognized in (properly) rejecting defendant's "due process" claims that the police were pursuing "a legitimate law enforcement objective." That the charges arose from what may fairly be characterized as a "contrived crime" did not, by itself and on this record, justify the court's conclusion that the theft-related offense here involved caused no serious harm to the community (see CPL 170.40[1][a],[b]), particularly given the motion court's own determination that the police actions were undertaken in an effort "to prevent further crime." In all, there was no "compelling" factor or circumstance demonstrating that conviction or prosecution "would constitute or result in injustice" (CPL 170.40[1]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.