This criminal matter was commenced by the filing with this court of an accusatory instrument alleging that on January 30, 2017 the defendant committed a violation of NYS Vehicle and Traffic Law §511.01(A), Aggravated Unlicensed Operation of a Motor Vehicle in The Third Degree, an unclassified misdemeanor. The defendant was issued an appearance ticket for February 14, 2017; however, the defendant did not appear. The defendant subsequently failed to appear on February 28, 2017, and then again on April 19, 2017 at which time Hudson City Court issued an arrest warrant.

On June 15, 2017. the defendant was returned on the warrant, arraigned on the charge, entered a plea of not guilty, was released on her own recognizance and ordered to return to court on June 29, 2017.

At the June 29, 2017 appearance, the People announced that they were "declining to prosecute" this matter. In response to this declaration by the People, defense counsel orally made a motion the dismiss the matter in the interest of justice, which the People opposed citing CPL §255.20. As a result, the court scheduled a trial date and offered the parties an opportunity to make a written motion on notice to the opposing party regarding defense counsel's oral application to dismiss.

On July 27, 2017, the court received a notice of motion made by the defendant returnable on August 17, 2017 seeking the singular relief of "dismissing the charges (sic) as People decline to prosecute the same." Along with the notice of motion, the attorney for the defendant included a two-page affirmation in support of the motion.

Although having been provided ample opportunity to submit its own papers on this [*2]motion, the People have declined to make any submission.

Beckman is a Columbia County Court case where by indictment the defendant was charged with the felony of Penal Law § 130.45 [1] Criminal sexual act in the second degree ^[FN2] . The defendant entered a plea of not guilty. As set forth in the court's decision:

"[t]hereafter, an at subsequent appearance in court, the Columbia County District Attorney informed the court on the record that he declined to prosecute the instant matter. The defendant offered no objection to the District Attorney's declination to prosecute. Thereupon this court dismissed the indictment on the record and directed the defendant be released on the indicted offense, with this court's written determination regarding the rationale for dismissal to follow."

The court concludes in Beckman that:

"Absent a demonstrated evidentiary basis that in declining to prosecute a charge the prosecutor is derelict in his or her duty through misconduct, fraud, collusion, incapacity or the like, the court would clearly be abusing its discretion by forcing further prosecution and doing so in a manner injurious and prejudicial to both the defendant and the People."

"This court is cognizant of the Court of Appeals decision in People v Douglass (60 NY2d 194, 456 NE2d 1179, 469 NYS2d 56 [1983]). Nothing in Douglass is apposite to this court's decision herein. In Douglass (and related cases determined therewith) unlike here, the trial court dismissed local criminal court misdemeanor complaints on its own [*3]motion for "failure to prosecute" or "calendar control" over the objection of the People. In stark contrast, here the People have not "failed to prosecute" but rather, have overtly and unequivocally exercised their constitutional discretion to decline to prosecute. This distinction is not merely semantic. To the contrary, as set forth herein, the distinction is critically substantive. To the extent other courts have relied upon Douglass to hold that a court may not dismiss a criminal charge upon the People's declination to prosecute, this court respectfully disagrees as it finds their reliance on Douglass misplaced (cf. People v Donnaruma, 38 Misc 3d 506, 955 NYS2d 486 [Albany City Ct 2012]; People v Chai, 37 Misc 3d 1203[A], 964 NYS2d 61, 2012 Slip Op 518700[U] [Kinderhook Just Ct 2012]). Further, such determinations are not stare decisis authority relative to this court."

The Beckman court distinguished its case from the NYS Court of Appeals holding in People v Douglass, even though the Douglass holding was clearly on point that the court does not have the authority to dismiss charges without specific statutory authority. In Douglass, the NYS Court of Appeals wrote:

First, courts at common law did not have inherent power to dismiss criminal charges for any reason; and, secondly, the Legislature has specifically addressed this issue in CPL 170.30 by setting forth, in an all inclusive manner, the grounds upon which a misdemeanor complaint may be dismissed; neither "failure to prosecute" nor "calendar control" is listed as a permissible ground.

The NYS Court of Appeals in Douglass then went on to provide a very detailed account of the historical underpinnings of this conclusion. The court discussed the early common law and the dismissal of criminal proceedings before a verdict was reached by entry of a "nolle prosequi." The Douglass court recounted that:

[t]he Attorney-General, however, was the only official who possessed this power. (People v McLeod, 25 Wend 483, 572.) Even the courts had no power to compel the entry of a nolle prosequi. (People v McLeod, supra, at pp 572-573.) This power was eventually delegated to District Attorneys who represented the Attorney-General in nearly all criminal proceedings. However, fearing that the District Attorneys might abuse this power, the Legislature, in 1828, enacted a statute making it unlawful for a District Attorney to enter a nolle prosequi upon any indictment or in any way discontinue a criminal proceeding without leave of the court.

The Douglass court further stated:

It is interesting to note that it was the fear that too many criminal proceedings would be dismissed by District Attorneys without justification that prompted the Legislature, for the first time, to authorize the courts to intercede in this process. Accordingly, the courts were only granted a veto power against a prosecutor's decision to discontinue a criminal proceeding, not a positive power to compel a discontinuance ^[FN3] . . .

The Douglass decision does lay out how the manner in which a criminal may matter be dismissed by the court on application of a party:

". . . [i]ndeed, the Legislature has specifically addressed this problem by enacting provisions requiring dismissal of charges when the prosecution is untimely (CPL 170.30, subd 1, par [d]; 30.10) or when the defendant has been denied the right to a speedy trial (CPL 170.30, subd 1, par [e]; 30.30). Defendants may also avail themselves of constitutional protections. (See Moore v Arizona, 414 U.S. 25; People v Winfrey, 20 NY2d 138; see, also, People v Staley, 41 NY2d 789, 791.) Furthermore, if the court believes that dismissal is warranted in furtherance of justice, CPL 170.30 (subd 1, par [g]) and CPL 170.40 specifically authorize the court to so dismiss after considering the 10 factors set forth in the latter statute. In light of the comprehensive scheme established in the CPL for acting upon motions to dismiss and the extensive constitutional protections available, the dismissals ordered by the courts below were clearly unauthorized and unnecessary, notwithstanding the Trial Judges' sincere belief of unwarranted delay in prosecution."

In light of the clear reading of Douglass, it is apparent that the holding in Beckman is in fact apposite to the NYS Court of Appeals' decision in Douglass. As such, this court must reject the holding in Beckman and following the holding of the highest New York State court.

Subsequent to the Beckman decision, the Third Department also spoke on this issue in Matter of Soares v. Carter, 113 AD3d 993, 979 N.Y.S.2d 201, 2014 NY App. Div. LEXIS 404, 2014 NY Slip Op 409, 2014 WL 241505 (NY App. Div. 3d Dep't Jan. 23, 2014). In Soares, the Third Department affirmed that:

"The District Attorney has unfettered discretion to determine whether to prosecute a particular suspect. Once prosecution of the case is pursued and pending, the District Attorney remains presumptively the best judge of whether a pending prosecution should be terminated; nonetheless, at such point dismissal cannot properly be done unilaterally on the sole whim of the district attorney."

Here, it is being argued that the People possess the right to dismiss a criminal prosecution pending in court without explanation or legal basis provided to the court, essentially at the sole whim of the district attorney.

Soares further states:

"Significantly, a primary purpose for this limitation is to protect a defendant by [*4]preventing an abuse of power by a District Attorney (see People v. Douglass, 60 NY2d 194, 202, 456 NE2d 1179, 469 NYS2d 56 [1983]), such as could occur "through a prosecutor's charging, dismissing without having placed a defendant in jeopardy, and commencing another prosecution at a different time or place deemed more favorable to the prosecution" (United States v. Ammidown, 497 F2d 615, 620, 162 US App DC 28 [1973]; see Rinaldi v. United States, 434 US 22, 29 n 15, 98 S Ct 81, 54 L Ed 2d 207 [1977]).

In light of the established legal authority as set forth by the NYS Court of Appeals and the Appellate Division, Third Department, and after due consideration, it is the conclusion of this court that the court lacks legal authority to dismiss the accusatory instrument after having been filed with the court and upon which the defendant has been arraigned based solely upon the People declaring that they "decline to prosecute".

The court finds no legal authority which permits the prosecution to abandon a pending criminal case filed with the court and walk away from the prosecution of an accusatory instrument filed with the court, without first obtaining leave of the court under appropriate statutory authority.

One of the precepts of our criminal justice system is that a prosecutor has virtually unfettered discretion on whether to prosecute a criminal matter by filing an accusatory instrument with the court. That discretion rests exclusively with the District Attorney, but to a point. Once the District Attorney has exercised its discretion and decides to file an accusatory instrument with the court, it is now a court proceeding and such criminal prosecution is no longer exclusively within the District Attorney's exclusive control ^[FN4] . The manner in which the case proceeds in court is controlled by statute, not by the whims of a District Attorney flaunting prosecutorial discretion.

To be clear, it is not the decision of this court that the district attorney must prosecute this matter. As this court stated in People v. Jordan H., such is not within the province of this court. That is solely the prosecutor's decision and the court has no comment or say. However, that is not the issue at bar.

Here, as in People v. Jordan H., the sole issue is whether the court can dismiss a filed accusatory instrument without a party making a motion on a ground or grounds which are enumerated in the NYS Criminal Procedure Law. Since this instant motion does not set forth a ground for dismissal recognized by the law, it must be denied.

Once the prosecution decides to file an accusatory instrument with the court, it can only be dismissed as provided by law. NYS Criminal Procedure Law §170.30 sets forth the grounds upon which dismissal is permitted. As the NYS Court of Appeals stated in People v. Douglass, 60 NY2d 194, 456 N.E.2d 1179, 469 N.Y.S.2d 56, 1983 NY LEXIS 3420 (NY Nov. 1, 1983):

The Legislature has specifically addressed this issue in CPL 170.30 by setting forth, in an all-inclusive manner, the grounds upon which a misdemeanor complaint may be dismissed; neither "failure to prosecute" nor "calendar control" is listed as a permissible ground.

As stated in People v. Jordan H., it should be noted that this court cannot find the term, "decline to prosecute" anywhere in the NYS Criminal Procedure Law or the NYS Penal Code. Therefore, the court concludes that such term has no legal significance other than expressing the People's alleged unwillingness to participate further in a pending criminal prosecution. The fact that the District Attorney has decided (without providing the court a reason or legal basis) to abandon this pending criminal case does not in and of itself terminate the criminal action pending in City Court without leave of court pursuant to law.

Just as the court cannot dismiss a pending action without legal authority, neither can the District Attorney effectuate an automatic dismissal by the court by the prosecutor abandoning the action pending in court.

When an accusatory instrument against a defendant is filed with a court, it permits the government to intrude and potentially drastically impact a person's life. This serious act must be and is subject to the "checks and balances" inherent in any legal proceeding: the court authority to supervise the actions of the litigants in the proceeding, including that of the District Attorney.

The defendant has not moved pursuant to a relevant section of CPL §170.30 to obtain dismissal of the accusatory instrument. There may be reason for the court to dismiss this matter, however the affirmation in support of the instant motion fails to provide sufficient facts for the court to make an interest of justice motion sua sponte, as authorized by CPL §170.40(2). See, Donnaruma v. Carter, 969 N.Y.S.2d 755, 759, 41 Misc 3d 195, 200 (NY Sup.,2013).

Considering the above, the court will grant leave to the defense to renew this motion to dismiss on a ground or grounds enumerated in the NY Criminal Procedure Law. This will allow the defendant an opportunity to seek the relief requested in accordance with law. The defendant will be permitted thirty days from the date of this decision to renew its motion and the People shall have thirty days to reply.

The foregoing constitutes the opinion, order and decision of this Court.