Under docket number 2016QN001198, the defendant, Charanjit Behl, is charged with the unclassified misdemeanor of aggravated unlicensed operation of a motor vehicle in the third degree (VTL § 511 [1] [a]) based on Police Officer John Peace's allegation that on December 11, 2015, at approximately 6:07pm, at the intersection of Seagirt Boulevard and Beach 28th Street, in Queens County, that he responded to a motor vehicle accident where he observed the defendant, Charanjit Behl, standing next to a 2005 Buick. And, that upon request, the defendant was unable to produce a valid driver's license. Further, Officer Peace obtained a New York State Department of Motor Vehicle record that indicated that the defendant's license to operate a motor vehicle was suspended on one date, November 11, 2015, and was presently suspended on the date of incident.

The defendant moves pursuant to Criminal Procedure Law ("CPL") 170.30 (1) (g), 170.40 (1), and People v Clayton (41 AD2d 204 [2d Dept 1973]), for an order dismissing this prosecution in the furtherance of justice. At the time of this decision, the People have not served and filed their opposition. For the reasons that follow, the motion is granted.

The defendant argues that the interests of justice would be served if the court dismissed the case. In support of his motion, the defendant asserts that he has suffered a stroke, and is currently living at a rehabilitation facility for the foreseeable future. More importantly, his health is not stable enough to travel back and forth to court on appearance dates.

Pursuant to CPL 170.30 (1) (g), a court has the power to dismiss an accusatory instrument "in furtherance of justice" after considering the factors set out in CPL 170.40 (1) (see also People v Clayton, 41 AD2d 204, 206-08 [2d Dept 1973]). The power to dismiss an accusatory instrument in furtherance of justice should be used "sparingly and only in that rare and unusual case where it cries out for fundamental justice beyond the confines of conventional considerations" (People v Harmon, 181 AD2d 34, 36 [1st Dept 1992] [citations and internal quotation marks omitted]). A Clayton motion should be granted only where a defendant has demonstrated by a preponderance of the credible evidence that a compelling reason exists to [*2]warrant dismissal in the interest of justice; if the defendant fails to meet this burden, the court may summarily deny the motion (People v Schlessel, 104 AD2d 501, 502 [2d Dept 1984]). The court must consider individually and collectively each of the factors listed in CPL 170.40 (1) (People v Berrus, 1 NY3d 535, 536 [2003]).

First, the court will address the seriousness and circumstances of the offense. It is alleged that the defendant involved himself in a motor vehicle accident to which there was neither property damage or physical injury to others. And, when Police Officer Peace arrived at the accident, the defendant was the only person standing next to a vehicle — 2005 Buick — involved in the accident. Upon further investigation, the defendant was unable to produce a valid driver's license and a computer check indicated that the defendant's license had been suspended.

Second, as to the extent of harm caused, the defendant argues that aggravated unlicensed operation of a motor vehicle in the third degree is not a serious criminal conduct, especially in light of the fact that there were no allegations of physical injury or property damage to others. Thus, defendant argues that there is no appreciable harm to the public.

Third, the defendant argues that absent his ability to stand trial, there is no physical evidence linking him to the alleged criminal act. Here, the defendant's argument is not a ground for dismissal. The absence of certain physical evidence, a lone, does not compel the court to dismiss the cases in the interest of justice because a motion to dismiss in the interest of justice is not intended to be a substitute for trial (People v Rahmen, 302 AD2d 705 [2d Dept 2003] [court erred in dismissing criminal action in the interest of justice as credibility of complainant and culpability of defendant are issues for the trier of fact]; People v Field, 161 AD2d 660, 661 [2d Dept 1990] [defendant's culpability not compelling factor warranting dismissal in the interest of justice]; People v Johnson-Noble, 21Misc 3d 1140[A] [Crim Ct, Queens County 2008] [motion to dismiss in the interest of justice should not be used as a substitute for a trial or when the motion merely raises a trial defense]). As Clayton instructs, the availability of this extraordinary relief is based on "only principles of justice, not on the legal or factual merits of the charge or even on the guilt or innocence of the defendant" (People v Clayton, 41 AD2d 204, 206 [2d Dept 1973]).

Fourth, the defendant argues that his medical condition impedes his ability to participate in court proceedings to assert his innocence. The court notes that the defendant does not have a criminal record. Unfortunately, courts have held that the lack of a prior criminal record is not a sufficient reason to warrant dismissal in the interest of justice (People v Kelly, 144 AD2d 764 [2d Dept 1988]; People v Andrew, 78 D2d 683 [2d Dept 1980]). The same applies to an exemplary background (People v Ortiz, 152 AD2d 755 [2d Dept 1989]).

Fifth, there is no evidence of official or prosecutorial misconduct in this case.

Sixth, the purpose and effect of imposing a sentence authorized for the offenses, would deter the defendant as well as others from driving with a suspended driver's license. But, here, the People are offering the defendant an adjournment in contemplation of dismissal.

Seventh, the defendant argues that dismissal of this case will not impact the safety or welfare of the community because the defendant is not a violent threat to the public. And, the defendant argues that leniency will provide the public with greater confidence in the judiciary. The defendant also argues that he has since paid the necessary fines to have his license to drive reinstated. But, most compelling, is the fact that the defendant admits that he might not, due to his medical condition, be able to drive again.

Accordingly, after considering individually and collectively each of the factors listed in [*3]CPL 170.40 (1), the defendant's motion to dismiss in the interest of justice is granted.

The foregoing constitutes the decision and order of the Court.