The defendant, a 29 year old combat veteran of the U.S. Army, was deployed to Afghanistan in 2012. During his service, he engaged in military actions that resulted in mental health problems subsequently diagnosed as Post Traumatic Stress Disorder (PTSD). He has been an active participant in a counseling program operated by the Department of Veterans Affairs, and his treatment has been strictly monitored by the Brooklyn Veteran's Treatment Court for the past 19 months. Today, he continues to be a Reservist with the New York Army National Guard and works as an Information Technology Specialist with secret security clearance.

On August 30, 2013, the defendant had an altercation with his landlord, who is also a combat veteran, about parking a car in the driveway. The defendant claims he could not move the car because he did not have a car seat for his child, whom he was holding. After a summons had been placed on the car by the landlord's girlfriend, an off-duty police officer, and while she waited with the car for a tow truck, the defendant came out of his house with what appeared to be a firearm and threatened them. The weapon was later discovered to be an imitation firearm. The defendant was arrested and charged with Menacing in the Second Degree, a Class A misdemeanor.

Upon the defendant's request and with the consent of the District Attorney, the case was referred to the Brooklyn Veteran's Treatment Court, which combines rigorous treatment with personal responsibility to ensure public safety. Veteran's Courts recognize that combat veterans often face substance abuse and psychological health problems when they return home. Left untreated, these disorders can lead to criminal behavior. After a veteran accepts responsibility for illegal behavior, the criminal charges are resolved with a conditional plea and a deferred sentence while the veteran receives the services needed for rehabilitation.

On November 17, 2014, the defendant entered a plea of guilty to the top count and began mental health treatment services through the Brooklyn Veterans' Center. Since that time, he has [*2]attended more than 60 individual counseling sessions and over 50 group sessions. His progress has been supervised by the clinical staff of the Veteran's Court and he has made 20 appearances before this Court to monitor his compliance. As he reaches the end of his mandate, he moves for dismissal of the charges in the interest of justice pursuant to CPL §170.40, known as a "Clayton Motion". The People oppose the motion and submit that the case should be resolved in the manner agreed to when they consented to the defendant's referral to Veteran's Court: to wit, the conviction for the A misdemeanor stands and a sentence of a Conditional Discharge imposed along with Final Orders of Protection to the complainants.

CPL §170.40(1) provides that a misdemeanor complaint may be dismissed in the interest of justice, even though there is no basis for dismissal as a matter of law, if such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction would constitute or result in injustice. In making this determination, the court must examine and consider, individually and collectively, specified factors. Following is a list of the those factors along with a summary of each party's position as it pertains to each factor:

Based upon the arguments and submissions of the parties, this Court finds that the defendant's actions in bringing an imitation firearm to the scene of an altercation, while illegal, provocative, and dangerous, had neither the intention nor the capability to hurt anyone. Rather, his was a dysfunctional response to a perceived threat — a hallmark of PTSD. In his haste to protect himself from this perceived threat, the defendant created a real and grave danger to both himself and his child by menacing an armed off-duty police officer with what appeared to be a firearm. Although neither physical nor psychological harm was suffered by either complainant, the off-duty police officer was required to explain the incident to her superiors, and the landlord remains justifiably angry and upset.

The evidence of the defendant's guilt is undisputed, and he acknowledged his guilt during [*5]the plea allocution. In explaining his behavior to his treatment provider, he disclosed a history of childhood emotional and physical abuse suffered while in foster care. He became a father at 16 and a single parent at 17 years old. Despite these challenging circumstances, he completed high school, joined the Army Reserves, and has had no prior involvement with the criminal justice system. After being deployed to Afghanistan, he returned home feeling different from when he left. Suffering from PTSD and post-combat readjustment problems, he had difficulty sleeping, recurrent nightmares, intrusive thoughts of combat, and angry outbursts. These are the recognized invisible wounds suffered by many of our veterans. While in Veteran's Court, he has actively participated in over 100 counseling sessions. His therapist reports "enhanced conflict management skills, improved insight into interpersonal relationships and functioning, progress in understanding the consequences of reactivity, identifying stress and anger triggers, and taking steps to de-escalate or redirect anger, and increased acceptance of things beyond his control." His prognosis for functioning responsibly in all domains is good.

The defendant supports his family by working as an Information Technology Specialist for the Army National Guard — MOS 25B. This position requires him to maintain heightened security clearance and offers promotional opportunities. He plans to make the military his career. His goal is to earn a promotion to Warrant Officer, which requires him to have Top Secret Security Clearance. The security clearance he presently holds is up for renewal in two years. At that time, a criminal back ground check would reveal any conviction in this case and result in the revocation of his clearance as well as the loss of his job and his classification. Clearly, a criminal conviction for a misdemeanor would jeopardize both his present job and future advancement.

The People's consent to the defendant's participation in Veteran's Treatment Court required that he plead guilty to the top count with the agreement that he receive treatment rather than risk going to jail. At that time, the People made clear they were not consenting to the dismissal of the charges. Nevertheless, this Court indicated that, upon his completion of treatment, it would consider dismissal in a Clayton Motion. The defendant, having completed nearly two years in treatment, has filed this motion. The People continue to object to dismissal and request that the misdemeanor conviction stand.

This Court believes that victims' statements regarding the effect of a crime on their lives are important in determining the appropriate outcome of a criminal case. Whether the harm was physical or emotional, the impact of a defendant's conduct on a member of our community must be taken into account by the Court. In this case, the defendant's actions understandably caused emotional distress. The victims had no way of knowing the gun that the defendant held was not capable of causing them harm. Indeed, it was the officer's own restraint that prevented the incident from escalating.

The defendant's actions since his arrest, including his acceptance of responsibility, admission of guilt, and work to resolve his re-adjustment issues by attending a lengthy and comprehensive treatment program, also deserve consideration by the Court. It is undisputed that he has had no contact with either complainant since the date of the incident more than two and a half years ago. There is no allegation that he poses any current threat nor reason to believe that he poses any future threat to the safety or welfare of the victims or the community. In the end, it is his commitment to living responsibly, along with his knowledge of how to do so, which is the [*6]greater assurance of community safety than a criminal conviction.

The purpose of Veteran's Treatment Court is to resolve certain criminal matters by according veterans the treatment they need to restore them to their pre-military health status. This is especially crucial for a veteran like the defendant who is involved in the criminal justice system for the first time as a result of mental health injuries sustained during his military service. He should be commended for his service, his efforts to restore his health, and his commitment to continued service in the military. It is true, as the People contend, that the plea benefitted the defendant in that he received treatment and a promise that he would not be sentenced to jail. However, upon consenting to a treatment disposition, the People implicitly agreed that their goal was to rehabilitate him. In this case, his rehabilitation is defeated by a criminal conviction.

The American Bar Association has identified hundreds of collateral consequences of a misdemeanor conviction, including ineligibility for certain employment, inability to apply for certain educational loans, denial of certain licenses, and ineligibility for certain certifications. While many of these are warranted, others have been found to be unintended, unanticipated, and disproportionate to the nature of the criminal behavior. In this case, we know the collateral consequences of a criminal conviction for this defendant carry life long punitive outcomes that defeat the purpose of rehabilitation, including the loss of his job and future career in the military. Veterans who have given so much in their service and have invested substantial time and effort to be rehabilitated should be rewarded not penalized. The purpose of Veteran's Courts is to eliminate those outcomes and stigmas that prevent veterans from living a full and unrestricted life.

Recently, in Jane Doe v. United States, No. 15-MC-1174 (E.D.NY, March 7, 2016), District Judge John Gleeson issued a "certificate of rehabilitation" to a woman he had sentenced 13 years before, finding that Ms. Doe's character should be judged not by her criminal acts but by her efforts to rebuild herself. On that basis, the Court found she should "be welcomed to participate in society in the ways the rest of us do." I make the same finding with regard to this defendant, but believe he should not be required to wait 13 years before such welcome is extended. In this case, where the defendant's actions appear to have been the product of PTSD resulting from his recent military deployment to a war zone, where he has accepted responsibility for his actions, and where he has worked tirelessly and determinedly to address this disorder in counseling, a result that would likely derail the career path he has diligently pursued is patently unjust.

Based on the foregoing findings of fact, this Court concludes that dismissal is required in the interest of justice. Accordingly, the defendant's motion is granted and the misdemeanor complaint is dismissed.

This constitutes the decision and order of the Court.