The defendant is charged with one count of Assault in the Third Degree in violation of Penal Law § 120.00(2), and one count of Reckless Endangerment in the Second Degree in violation of P.L. § 120.20. Defendant moves to dismiss the information in the interest of justice, an application commonly known as a Clayton motion. See People v Clayton, 41 AD2d 204 (2nd Dept. 1973).

The accusatory instrument against the defendant alleges that on October 9, 2016, at approximately 9:00 a.m., Mercy Bassey was walking on East 4th Street, in the City of Mount Vernon, County of Westchester, State of New York. Ms. Bassey approached South 2nd Avenue and saw a female walking two big dogs on the same side of the street. One of the dogs broke free from the woman and came charging at Ms. Bassey. Ms. Bassey attempted to run away but the dog knocked her to the ground and began to attack her by biting down on the victim's face. As a result of the dog's actions, the bottom part of the victim's lip and her chin were bitten off. A Good Samaritan arrived and was able to separate the dog from Ms. Bassey and placed her inside a car.

When the police arrived at the scene, they encountered the defendant, Sylvia Peterson in possession of both dogs. The defendant told the police that when she was walking the two dogs she lost control of her pit bull named Cinnamon. The defendant observed Cinnamon attack the victim. The police requested the vaccinations and license on Cinnamon. All of the vaccinations were expired as of July 30, 2016 and the dog license expired on August 30, 2016.

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. "The power to dismiss on such ground is, as provided in the statutory text, committed to the trial court's discretion; it should be exercised 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).

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). Where the defendant fails to meet his burden of demonstrating by the preponderance of the evidence that a compelling factor exists to warrant dismissal in the interest of justice, the court may summarily deny the motion. People v Schlessel, 104 AD2d 501 (2d Dept. 1984).

"Defendant is reminded that "[i]t is the District Attorney's prerogative to prosecute those who commit crimes, to bring charges or discontinue criminal proceedings" (People v Keith R., 95 AD3d 65, 67 [1st Dept. 2012]) and absent a showing by defendant that a compelling factor exists to warrant dismissal in the interest of justice, this court will not exercise its discretion under CPL § 170.40(1).

Defendant is a fifty-seven-year-old who has worked as a teacher's aide with the Greenburgh Public School System for the past twenty-five years. In support of her motion to dismiss, the defendant discusses the factors set forth in CPL § 170.40. Her primary contention for dismissal is her lack of criminal history, and her lack of intent to commit the crime alleged. Defendant appears to have no criminal convictions, and her only contact with the criminal justice system appears to have been vehicle and traffic offenses that were disposed of with violation pleas. Defendant further argues that this incident for which she is charged under a recklessness theory of prosecution, was a mere accident with tragic results.

This Court finds that none of the enumerated factors provides a basis for dismissal pursuant to CPL § 170.40. The mere fact that the defendant has no prior record (see, People v Belkota, 50 AD2d 118 [4th Dept 1975]), or has an exemplary background (see, People v Andrew, 78 AD2d 683 [2nd Dept 1980]), is insufficient to justify the exercise of the court's discretion, and "does not immunize [her] from the normal processes of the criminal law" (People v Varela, 106 AD2d 339, 340 [1st Dept. 1984]). However, the defendant's lack of criminal history could be a mitigating factor in plea negotiations and/or sentencing. Moreover, a motion to dismiss in the interest of justice is not the appropriate mechanism for a defendant's assertion of [her] innocence. (See People v Figueroa, 164 Misc 2d 814 [Crim Ct, Kings County 1995]; People v Prunty, 101 Misc 2d 163 [Crim Ct, Queens County 1979].) The community's trust in the justice system would be undermined by the court preventing the "full airing of the proof available to both parties" at trial. (People v Figueroa, 164 Misc 2d 814, 821 [1995].)

The defendant was initially charged with felonies, and while the charges were reduced to [*2]misdemeanors thereby reducing the severity of the potential penalty, this was a serious crime resulting in substantial injury to the victim. The victim had multiple injuries as a result of the vicious attack committed by the defendant's pit bull dog, Cinnamon. The pit bull chewed an approximately 2-inch piece of the victim's lip off, bit off a piece of the victim's chin and ear and caused multiple additional lacerations to the victim's head and face areas. As a result of the unprovoked attack, the victim has undergone multiple reconstructive surgeries to try and repair the damage caused by the defendant's unlicensed and unvaccinated dog.

As to the effect of dismissal on either public safety and welfare or public confidence in the criminal justice system, neither objective will be advanced by permitting defendant to elude prosecution. In the event that a dismissal is granted, the defendant, or any other person, may think they will not be held criminally responsible if a dangerous dog they own escapes from their custody and viciously bites a fellow citizen. Citizens need to know of the responsibility to control, license, and vaccinate their dogs, or be held accountable if their dog bites an innocent citizen.

After full consideration of all of the arguments offered by the defendant in her moving papers, and the relevant legal criteria, the Court does not find any compelling factor, consideration or circumstance that clearly demonstrated that conviction or prosecution of the defendant would result in an injustice. It would, therefore, be an inappropriate exercise of the Court's discretion to dismiss the accusatory instrument in the furtherance of justice. Accordingly the defendant's motion for this relief is hereby denied.

This constitutes the Decision and Order of this Court.