Defendant is charged with defendant is charged with the unclassified misdemeanors of Driving While Intoxicated (VTL §§ 1192[2] and [3]) and the traffic infraction of Driving While Ability Impaired by Alcohol (VTL § 1192[1]).

Defendant asserts that he is 38 years of age and prior to this incident, he has had no prior contact with the criminal justice system. Defendant asserts that he resides with and provides for his parents and his children (aged 15 and 8). Although he is not a citizen of the United States, he has been employed for the past three years as a school bus driver. Defendant hopes to gain citizenship and raise his children in this country. Defendant readily admits that the offense of driving while intoxicated is a serious offense; however, he denies all of the allegations contained in the complaint. Moreover, defendant avers that the IDTU videotape clearly shows that he was not intoxicated. Defendant also asserts that no harm was caused by the offense. Instead, he was the only one harmed because he had to spend a night in jail and miss several days of work in order to appear in Court. In fact, he has not been able to work since the date of his arrest, February 1, 2015.

If he was to enter a plea of guilty or was convicted after a trial, defendant maintains that he would lose his Commercial Driver's License ("CDL") and his driving privileges would be suspended for at least 90 days. As a school bus driver, defendant argues that he would be ineligible for a Restricted Use license pursuant to VTL art. 21-A. Defendant contends that a loss of his CDL license would deprive him of the means to support his family. Most importantly, defendant avers that a conviction would jeopardize his chances of becoming a citizen. Due to the unique circumstances of this case and in light of the harsh consequences he and his family would face, defendant argues that the instant case lacks prosecutorial merit. Defendant also contends that he does not pose a threat to the safety of the community. He maintains that he has always been an upstanding, tax paying, and productive member of society.

In support, defendant submits a copy of the "Results of Court Ordered Alcohol and Substance Abuse Screening and/or Assessment" form indicating that he does not meet the criteria for alcohol or substance abuse disorder, the first page of his 2014 tax return, a letter dated April 17, 2015 from Montauk Student Transport, LLC, indicating that defendant was employed as a school bus driver from February 15, 2013 to February 3, 2015, and three letters from former co-workers and a neighbor touting defendant's good character.

In opposition, the People argue that defendant has failed to demonstrate a compelling factor, consideration, or circumstance which would warrant dismissal in the interest of justice. The People note that although defendant concedes that a violation of VTL § 1192 is a serious offense, defendant fails to specifically address why this Court should overlook this fact in this case. The People also assert that defendant has ignored the serious societal ramifications of driving while intoxicated, to wit: the possibility of grave bodily injury or death to innocent pedestrians and motorists. Moreover, the absence of actual physical harm in the instant case does not diminish the potential harm that could have occurred as a result of defendant's actions.

In spite of defendant's lack of criminal history or the negative effects that a conviction would have on defendant's family life, the People assert that the First Department has repeatedly held that evidence of a defendant's good character and lack of criminal history, standing alone, does not justify dismissal in the furtherance of justice. In fact, the People contend that a dismissal of the instance case will only send a message to defendant that there are no consequences for violating the law.

Contrary to defendant's arguments, the People contend that there is ample evidence in the instant case. Further, a dismissal herein would adversely affect the public's confidence in the criminal justice system, which requires consistency in the application of the law. Given [*2]defendant's occupation as a school bus driver, entrusted with the responsibility of transporting individuals to and from a given destination, dismissal would have a serious and negative effect on the safety of the general public.

CPL § 170.40 provides that a Court may dismiss an accusatory instrument in the interest of justice where there exists "some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such accusatory instrument or count would constitute or result in injustice." CPL § 170.40 lists 10 factors which the Court must consider when determining whether to grant dismissal in the interest of justice ^[FN1] . 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." People v. Gragert, 1 Misc 3d 646, 648 (Crim Ct, NY County 2003); see also, People v. Rickert, 58 NY.2d 122 (1988).

This Court finds that none of the enumerated factors provides a basis for dismissal pursuant to CPL § 170.40.