Defendant moves to dismiss the information pursuant to CPL 170.40 ("in furtherance of justice"). The People oppose the motion.

Defendant was arraigned October 24, 2015, on an information charging him with the misdemeanor of operating a motor vehicle while intoxicated (VTL 1192[3]) and the traffic infraction of operating a motor vehicle while impaired by alcohol (VTL 1192[1]). Defendant waited almost eight full months before filing the instant motion to dismiss "in furtherance of justice" on June 21, 2016.^[FN1]

The motion is summarily denied. Not only was it not filed within 45 days of arraignment, as mandated by law, Defendant tarried for nearly eight months before filing the motion, furnishing no cause, let alone good cause, for the drastically late filing (CPL §§ 170.30[2], 255.20[1], [3]). Distinct of the untimeliness of the motion, the court denies it on substantive grounds, as well, as follows.

Pursuant to CPL § 170.30(1)(g), the court may dismiss an accusatory instrument when such is required in furtherance of justice within the meaning of CPL § 170.40. While "the decision to dismiss an information lies within the discretion of the trial judge . . . that discretion is neither absolute nor uncontrolled" (People v Wingard, 33 NY2d 192, 196 [1973]) and is "to be sparingly exercised" (People v Litman, 99 AD2d 573, 574 [3d Dept 1984]). In deciding a motion to dismiss in the furtherance of justice, the court must maintain a sensitive balance between the individual and of the State (see People v Pittman, 228 AD2d 225, 226 [1st Dept], lv denied 88 NY2d 992 [1996]; People v Clayton, 41 AD2d 204 [2d Dept 1973]).

CPL § 170.40 permits the dismissal of an information or any count thereof:

when, even though there may be no basis for dismissal as a matter of law . . . such dismissal is required as a matter of judicial discretion by the existence of 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. . . .

Defendant submits his affidavit, his attorney's affirmation, and exhibit materials informing the court of his work in support of "a non-profit organization dedicated to teaching middle school and high school students how to manage and handle difficult and distressful feelings and emotions" (Affirmation of Daniel Ferreira, Esq., ¶ 5) as well as other, related, endeavors designed to highlight what is described as defendant's "exceptional history and character" (id., ¶ 22; see, id., passim). Defense counsel discloses that his negotiations with counsel for the People have led him to believe that "the People . . . will in all likelihood dismiss the misdemeanor charge of VTL § 1192.3, and proceed with the traffic infraction of VTL § 1192.1" (id., ¶ 21). Defense counsel advises that he is "not sure" whether any adverse impact on defendant's non-profit organizational work might ensue as a result of any conviction on the traffic infraction (id., ¶ 40). No denial of Defendant's guilt is proffered in his attorney's affirmation, consistent with Defendant's admission that he "made a mistake in judgment" the night of his arrest for drunk driving, offering his mourning of the recent death of his father as a predicate for that mistake (Affidavit of Defendant ¶ 17).

As for the assertions regarding Defendant's character and career, and his lack of any prior criminal record, they do not suffice to justify dismissal in furtherance of justice (see, People v Varela, 106 AD2d 339, 340 [1st Dept 1984]). Defendant is charged with serious offenses:

[D]riving while intoxicated is not a victimless crime . . . . Rather, it is an offense against society as a whole. This court has long recognized that "[a]n intoxicated person who operates an automobile on a highway is a menace to the public. He exhibits no regard for the safety of his fellow man" (People v Ritsky, 224 App Div 425, 426). Vehicle and Traffic Law § 1192 and similar laws "have been enacted because intoxicated drivers are far more likely to become involved in accidents than those who have not been drinking. In fact, alcohol is a factor in more than half of all vehicular fatalities" (L 1981, ch 910, § 1).

People v Kelley (141 AD2d 764, 765 [2d Dept 1988].) The same holds true for driving while [*2]impaired, punishable by fine or imprisonment or both and by a mandatory 90-day driver's license suspension and subject to additional sentencing to completion of a driver awareness safety program (see, CPL § 1193).

It is beyond dispute, as Defendant himself admits (Defendant's Affidavit ¶ 17), that alcohol-related driving creates a substantial risk of harm to the public. Defense counsel offers up the assertion that Defendant, "with his wife, colleagues and friends made sure he was in condition to operate his vehicle" the night of his arrest for drunk driving (Ferreira Affirmation ¶ 44). Not only is that position controverted by the arresting police officer in the information; but, in light of Defendant's own admission of having "made a mistake in judgment" that night by getting behind the wheel, the court must consider the gravity of that mistake in light of counsel's disclosure that others were presumably readily available to drive the defendant without him getting behind any wheel that night; to wit, his "wife, colleagues and friends" (id.).

Moreover, to the extent that Defendant is hailed by himself and his attorney as an educator, drug counselor, ordained minister, and psychotherapist "dedicated to teaching middle school and high school students how to manage and handle difficult and distressful feelings and emotions" (Ferreira Affirmation ¶¶ 5, 22), this court is disappointed by Defendant's urging of a disposition that would allow him to jettison any and all responsibility for his conceded mistake. Such maneuvering, in patent avoidance of personal responsibility, could not possibly be of any meaningful service, or serve as any good example, to the students Defendant professes to teach regarding "how to manage and handle difficult and distressful feelings and emotions" (id., ¶ 5).

Summary dismissal of this case would definitely have a public safety ramification were defendant to drive under the influence of alcohol, or not be subjected to the prescribed penalties, as deterrents, if the allegations of the accusatory instrument are provable at trial. The court is cognizant of — and sympathetic to — the fact that, at the time of his arrest, he mourning his father's passing. However, this is no excuse for putting others at risk of death or serious injury by driving while intoxicated or impaired by alcohol.

Furthermore, the defendant's contention that a conviction, even for the traffic infraction of VTL 1192(1), could keep him from passing a background check necessary for him to conduct workshops and seminars in New York City schools, is unconvincing. This contention is based on the purely speculative supposition that investigators would be unable to distinguish between the crime of driving while intoxicated and the traffic infraction of driving while impaired.

Additionally, there is substantial evidence of the defendant's guilt, presented, at least, at this pre-trial phase of the case (subject, of course, to rebuttal at trial). A chemical test of the defendant's breath indicated that he had a blood alcohol content (BAC) of 0.079%, which is given prima facie effect in determining whether the defendant's ability to drive was impaired (VTL 1195[2][c]). While this same BAC constitutes prima facie evidence that the defendant was not intoxicated (VTL 1195[2][c]), the People are entitled to rebut that presumption at trial when the factual allegations provide reasonable cause to believe the defendant violated VTL 1192(3) (see, People v Blair, 98 NY2d 722 [2002]). The defendant is alleged to have shown significant indicia of intoxication, namely watery and bloodshot eyes, a strong odor of alcohol on his breath, and a flushed face. Defense counsel adds, on information and belief, that the police stop that night was prompted by Defendant's "swerv[ing]" of his vehicle (Ferreira Affirmation ¶ 7). Indeed, the People's opposition submission reports that "[t]hree police officers with extensive training in DWI arrests observed the defendant swerving his car in and out of his lane of traffic" (People's Affirmation ¶ 7).

Contrary to the defendant's contention, dismissal of the accusatory instrument in this case would likely have a deleterious effect on public confidence in the criminal justice system in that, lacking any compelling reason to do so, dismissing the case against the defendant would show disparate and arbitrary treatment vis-a-vis other defendants who stand charged of the same or similar offenses.

Upon consideration of the circumstances of this case, and the factors set forth in CPL [*3]170.40(1), the defendant has failed to establish the existence of any compelling factors which, either individually or collectively, warrant the extraordinary remedy of dismissal of the accusatory instrument in furtherance of justice.

Accordingly, for the reasons set forth hereinabove, it is hereby

ORDERED that the defendant's motion to dismiss is DENIED.

This constitutes the decision and order of the court.