This criminal matter was commenced by the filing of an accusatory instrument alleging that on May 31, 2017 the defendant committed a violation of NYS Penal Law §240.26(1), Harassment in the Second Degree.

On June 26, 2017, the defendant was arraigned on the charge, entered a plea of not guilty, was released on his 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 to dismiss the accusatory instrument filed with the court. The court adjourned the matter to provide 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 3, 2017, the court received a notice of motion made by the defendant returnable on July 20, 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. The affirmation asserts the identical argument that was asserted by defense counsel (also the Columbia County Public Defender's Office) in People v. Jordan H., 2017 NY Misc. LEXIS 2633, 2017 NY Slip Op 50893(U), 56 Misc 3d 1207(A), 2017 WL 2974754 (NY City Ct. July 11, 2017).

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

As in People v. Jordan H., it is the conclusion of this court that the court lacks the legal authority to dismiss the accusatory instrument based solely upon the People declaring that they no longer intend to pursue this criminal matter after filing an accusatory instrument. The court finds no legal authority which permits the prosecution to abandon the prosecution of an accusatory instrument filed with the court, without obtaining leave of the court.

In addition to People v. Jordan H., counsel is also directed to this court's decision in [*2]People v. Lindsay, 2017 NY Misc. LEXIS 3150, 56 Misc 3d 1218(A), 2017 NY Slip Op 51059(U) (NY City Ct. Aug. 24, 2017).

Based upon the Columbia County District Attorney repeatedly asserting its desire to "decline to prosecute" in various criminal matters before this court despite the holdings in People v. Jordan H., People v. Lindsay, as well as the NYS Court of Appeals holding 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) and Soares v. Carter, 25 NY3d 1011 (2015), as well as the Third Department's holding in Donnaruma v. Carter, 969 N.Y.S.2d 755, 759, 41 Misc 3d 195, 200 (NY Sup.,2013)^[FN1] , necessitates the court to undertake an analysis of when and how a prosecutor may "decline to prosecute."

As set forth by Cyrus Vance, Jr., the New York County District Attorney in his publication, Criminal Justice in New York Learning About the Process ^[FN2] , the opportunity for a New York State prosecutor to assert prosecutorial discretion is prior to arraignment.^[FN3] Here, as in numerous other cases under the responsibility of the Columbia County District Attorney's Office, the Columbia County District Attorney is improperly attempting to employ his prosecutorial discretion by asserting a right to decline to prosecute after the accusatory instrument is filed with the court. It is well settled that a prosecutor's power to exercise its right not to proceed with a prosecution ends once the decision has been made to file the accusatory instrument with the court.

Other New York State district attorney's offices have acknowledged this limitation. In larger counties, some district attorney's offices have developed an Early Case Assessment Bureau (an "ECAB"). One purpose of an ECAB is to preserve the prosecution's pre-arraignment [*3]right to decline to prosecute.^[FN4] The ECAB reviews the information provided by police who made the arrest. If the ECAB deems the arrest, information, or lack thereof, so bad that the criminal charge should not be pursued, the ECAB can decide to decline to prosecute the case.^[FN5] As stated on the Nassau County District Attorney's Office website:

The Early Case Assessment Bureau's primary responsibility is to assess and analyze charges at the arrest-stage of a criminal prosecution. The Bureau coordinates with the County's many police agencies to ensure that in every arrest, the District Attorney files a legally sufficient charge and contacts witnesses and victims at the earliest possible time. Additionally, the Bureau is responsible for staffing a 24-hour desk that allows for around- the-clock communication between the District Attorney's staff and members of Nassau County's law enforcement community.

If Columbia County District Attorney's Office had the equivalent of an ECAB, then the district would be able to legally assert his office's ability to decline to prosecute prior to the filing of accusatory instruments with the court. It is the court's understanding that such prior review is not currently done in Columbia County.

It is also worth noting NY Crim. Proc. Law § 160.50, Order Upon Termination of Criminal Action in Favor of The Accused which discusses the instances when the record of a criminal action which has been terminated in favor of the defendant must be sealed. Subsections (3)(i) and 3(j) are the only subsections which provide for the unilateral termination of the prosecution by the district attorney. In both subsections, the statute only refers to the prosecutor terminating a criminal action prior to the filing of an accusatory instrument with the court. In these two incidences, the sealing procedure is the responsibility of either the district attorney (NYS CPL § 160.50(3)(i)) or the arresting police agency (NYS CPL § 160.50(3)(j)), as opposed to the court.

NYS CPL § 160.50(3)(i) states that:

prior to the filing of an accusatory instrument in a local criminal court against such person, the prosecutor elects not to prosecute such person. In such event, the prosecutor shall serve a certification of such disposition upon the division of criminal justice services and upon the appropriate police department or law enforcement agency which, upon receipt thereof, shall comply with the provisions of paragraphs (a), (b), (c) and (d) of subdivision one of this section in the same manner as is required thereunder with respect to an order of a court entered pursuant to said subdivision one. (emphasis added).

Similarly, NYS CPL § 160.50(3)(j) states that:

following the arrest of such person, the arresting police agency, prior to the filing of an accusatory instrument in a local criminal court but subsequent to the forwarding of a copy of the fingerprints of such person to the division of criminal justice services, elects not to proceed further. In such event, the head of the arresting police agency shall serve a certification of such disposition upon the division of criminal justice services which, upon receipt thereof, shall comply with the provisions of paragraphs (a), (b), (c) and (d) of subdivision one of this section in the same manner as is required thereunder with respect to an order of a court entered pursuant to said subdivision one. (emphasis added).

Considering the established legal authority as set forth by the NYS Court of Appeals and the Appellate Division, Third Department, as well as applicable statutes and other relevant court decisions, and after due consideration, it is the conclusion of this court that the court lacks legal authority to dismiss the accusatory instrument after it has been filed with the court based solely upon the People declaring that they "decline to prosecute."

As this court stated in this court's prior decisions, 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. 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 continuation of such criminal prosecution is no longer exclusively within the District Attorney's exclusive control.^[FN6] The way the case proceeds in court is controlled by the NYS Criminal Procedure Law, not by a District Attorney acting unilaterally and without leave of court.

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., this court cannot find the term, "decline to prosecute" anywhere in the NYS Criminal Procedure Law or the NYS Penal Code. As a result, the court must conclude that such term has no legal significance. 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 unilaterally effectuate a dismissal by merely abandoning the criminal action which is pending in court.

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.