The People of
the State of New York, Plaintiff, -vs-
against
Jacob Outsen,
, Defendant.
|
12090084.01
FOR THE PEOPLE:
PAUL CZAJKA, ESQ.
Columbia County District Attorney
Assistant District Attorneys
CARL WHITBECK, ESQ.
SHANE ZONI, ESQ.
County Courthouse Annex
Hudson, New York 12534
FOR THE DEFENDANT:
MICHAEL HOWARD, ESQ.
118 Green Street
Hudson, New York 12534
Jeffrey S. Tallackson, J.
The defendant, Jacob Outsen, was originally charged on September 14, 2012 with
violations of Penal Law § 220.06, possession of a controlled substance (cocaine)
and two counts of violating PL § 221.05, possession of marihuana, subsequently
reduced pursuant to § 180.50 of the Criminal Procedure Law ("CPL") to a charge of
violating § 220.03 of the Penal Law, criminal possession of a controlled substance
in the 7th degree, a class A misdemeanor. The Court is once again in the position, with
respect to this particular matter, of having to address the People's and Defense's position
that the People's statement that they "decline to prosecute" permits or requires this Court
to dismiss the charges.
Following initial appearances, the People stated that they declined to
prosecute the matter and urged that the charges should therefore be dismissed, a
suggestion rejected by the Court. The Defense appealed that denial to County Court, an
appeal that was dismissed by the Hon. Jonathan D. Nichols in a decision dated February
21, 2013. The Defense had also initiated a mandamus proceeding to the same end which,
however, was not pursued. At the Court's June 20, 2013 session the charges were
reduced as described above and the matter was scheduled for bench trial on September
19, 2013. On that date, however, Defense counsel stated that the defendant had not
waived his right to a jury trial and the Defense stood by their right to a jury trial. The
matter was accordingly adjourned.
The matter was pursued by neither the People nor the Defense and the Court
heard nothing further regarding the matter until the Defense formally demanded a jury
trial by FAX dated July 24, 2014. The parties were notified that the Court expected them
to appear at the Court's session scheduled for August 21, 2014 for a pre-trial conference
prefatory to the Court's scheduling the matter for a jury trial. The conference was
adjourned twice due to Defense counsel's scheduling conflicts, most recently to the
Court's session scheduled for October 16, 2014. At that session, the Assistant District
Attorney ("ADA") who normally appears before the Court was on vacation and the
People were instead represented by another ADA. Rather than participating in the
scheduled pre-trial conference, that ADA stated emphatically that the People declined to
prosecute the case and, further, that if the matter were scheduled for trial the People
would not appear and would not present witnesses and that the People therefore expected
the Court to dismiss the charges. Defense counsel raised no objection to that position.
The ADA also stated both that the Court had the inherent authority to and should dismiss
the charges and that it also might do so in the furtherance of justice. The Court did not,
however, understand either the People or the Defense to have formally moved to dismiss
the charges in the furtherance of justice, and neither the People nor the Defense
suggested any possible grounds for so doing beyond the fact that the People declined to
prosecute. At no time in the pendency of this matter have either the People or the
Defense suggested any reason why the charges should be dismissed and the Court of its
own knowledge has no basis for so doing.
The Court recognizes that the District Attorney has broad authority and
discretion over all phases of a criminal prosecution. It is settled, however, that (i) the
Court cannot dismiss a case on the ground, without more, that the District Attorney has
stated that he declines to prosecute, (ii) the District Attorney cannot unilaterally without
legal cause withdraw a case once it has been commenced and, further, (iii) that a
statement by the People that they decline to prosecute does not deprive the Court of
jurisdiction of the case. See People v. Douglass, 60 NY2d 194, 469 N.Y.S.2d 56,
456 N.E.2d 1179 (1983); People
v. Extale, 18 NY3d 690, 943 N.Y.S.2d 801, 967 N.E.2d 179 (2012); Donnaruma v. Carter, 41 Misc
3d 195, 969 N.Y.S.2d 755 (Sup.Ct. Albany Co. 2013), aff. Soares v. Carter, 113
AD3d 993, 979 N.Y.S.2d 201 (3d Dept.2014); see also, People v.
Cottini, 3 Misc 3d 1237(A), 2013 NY Slip Op. 5012(U) (2013), aff. People v.
Cottini, County Court, Columbia County, April 10, 2014, Koweek, J., Index No.
6228/13.
Those decisions and conclusions follow from the fact that the Legislature
many years ago eliminated the doctrine of nolle prosequi in order to protect
defendants from double jeopardy and to insure that there is not an abuse of power by the
District Attorney contrary to the public interest. In prohibiting nolle prosequi, the
State Legislature sought to insure that any proposed disposition is above board,
appropriate, and on the merits to forestall the commencement of another [*2]prosecution at a different time or place deemed more
favorable to the prosecution. The People's persistence in repeatedly advancing a position
that has been authoritatively rejected is discouraging and disheartening, particularly so in
view of the fact that this Court has previously specifically addressed and rejected that
position with respect to this very matter. The Court has serious concerns regarding the
People's failure to provide a rationale when the CPL provides a vehicle for dismissing
charges on appropriate grounds.
To accept a statement by the People that they "decline to prosecute" as
adequate grounds, without more, to dismiss would be to turn the law on its head,
permitting the People in effect to bootstrap themselves into a nolle prosequi.
Failure to pursue the case by the parties would leave the defendant in a sorry state of
limbo where the charge is still outstanding and where at some future date the present or a
future District Attorney might determine to revive and pursue the charges. That would be
manifestly unfair. Both the People and Defense counsel have an obligation to bring this
matter to a resolution, whether by trial, an appropriate plea agreement acceptable to the
Court, or if suitable grounds exist by an appropriate motion to dismiss, whether in the
furtherance of justice or on some other ground.
The Court may pursuant to CPL § 170.40.2 dismiss a case in the
furtherance of justice on the motion of one of parties or on its own motion, but only on
the basis of the existence of one or more of the factors specified in CPL § 170.40.1
and even then only in that rare and unusual case where it cries out for fundamental
justice beyond the confines of conventional considerations, where prosecution or
conviction of the defendant would constitute an injustice. See, e.g., People v.
Clayton, 41 AD2d 204, 342 N.Y.S.2d 106 (2d Dept.1973); People v. Rickert,
58 NY2d 122, 459 N.Y.S.2d 734 (1983); People v. Litman, 99 AD2d 573, 470
N.Y.S.2d 940 (3d Dept.1984; People v. Berrios, 160 Misc 2d 612, 610 N.Y.S.2d
748 (Crim.Ct. New York Co. 1994); People v. Gragert, 1 Misc 3d 646, 765 N.Y.S.2d 471
(Crim.Ct. New York Co. 2003); Soares v. Carter, 113 AD3d 993, 979 N.Y.S.2d 201 (3d
Dept. 2014).
The parties have articulated none of the CPL § 170.40.1 factors that
may be considered as grounds for dismissal of the instant case in the furtherance of
justice, let alone considerations supporting the proposition that it is such a rare and
unusual case that prosecution or conviction of the defendant would constitute an
injustice. If the People or the Defense believe there are such grounds, the Court would of
course entertain an appropriate motion.
The People have an obligation to the public to pursue the resolution of
pending cases, and Defense Counsel has an obligation to represent his client
vigorously—the Court expects both parties to fulfill those responsibilities
consistently with the law.
As noted, the Court had scheduled a pre-trial conference with the ADA and
Defense Counsel that was not consummated. The Court cannot and will not schedule a
trial date in the absence of a commitment by the parties they are ready to proceed on that
date; to do so would be at great cost and inconvenience to the parties, prospective jurors
and other necessary personnel, a waste of judicial resources and an unnecessary public
expense. The Court will re-schedule a conference promptly following a statement by the
parties of their willingness and availability. Failing that, the matter will remain pending
unless and until otherwise properly resolved.* *
*
Accordingly, treating the People's and the Defense's
statements and arguments as a [*3]motion to dismiss, the
motion is denied in all respects, no factual basis therefor having been presented. The
foregoing shall constitute the Decision and Order of the Court. Defendant is entitled to
be present at every stage of the proceedings. Any motion not specifically addressed
herein shall be deemed denied. This Court will, of course, consider any appropriate
motion by either party.
ENTER.SO ORDERED.
December 19, 2014Jeffrey S. Tallackson
________________________
Taghkanic, New York
Taghkanic Town Justice