Justice Court of the Village of Piermont, Rockland County, August 5, 2022

Thomas E. Walsh II, District Attorney (Renada N. Lewis of counsel), for plaintiff.

David D. Narain for defendant.

This matter was opened upon the court's motion for an adjournment in contemplation of dismissal. Further discussion of this action's procedural posture is set forth in a May 19, 2022 decision. (People v Henriquez-Ulintz, 75 Misc 3d 1207[A], 2022 NY Slip Op 50412[U] [Piermont Just Ct 2022].) Relevant to the instant decision, the defendant remains charged with criminal trespass in the second degree (Penal Law § 140.15), and aggravated harassment in the second degree (Penal Law § 240.30 [1] [a]).^[FN*]

On July 27, 2022, this court inquired whether the People and the defense would consent to a sua sponte motion for an adjournment in contemplation of dismissal, under Criminal Procedure Law § 170.55 (ACD), on all pending charges. The People promptly and expressly consented. Later that day, the defense responded with a request for leave to file a Clayton motion, under Criminal Procedure Law § 170.40 (in furtherance of justice [IFOJ]). After this court granted the request, the defense's motion followed.

Therein, the defense prayed for an order "pursuant to CPL § 170.40 to dismiss the [*2]Accusatory Instrument against [the defendant], or an alternative relief, in that prosecuting this defendant could result in injustice." The motion also "requests that an order be entered granting such other further and different relief as to this court may seem just and proper." {**76 Misc 3d at 822}

At the threshold, the court consolidates its own ACD motion, and the defense's IFOJ motion, for simultaneous decision. An ACD is a disposition requiring consent from the prosecutor, the defense, and the court. (Smith-Hunter v Harvey, 95 NY2d 191, 197 [2000].) The defense's consent is rarely withheld. (People v Joseph P., 106 Misc 2d 1075, 1082 [Greenburgh Just Ct 1980].) Indicia of consent to an ACD can be found where the defense presents facts supporting a contention that further prosecution might result in substantial injustice. (People v Wei Chen, 104 Misc 2d 1057, 1064-1065 [White Plains City Ct 1980].)

The corresponding dismissal is not a favorable termination to the defendant. (Smith-Hunter v Harvey, 95 NY2d at 197.) Similarly, a favorable termination does not result where a prosecution is dismissed IFOJ. (Jackson v County of Nassau, 123 AD2d 834, 834 [2d Dept 1986].) In this respect, ACD and IFOJ dispositions are alike. Yet, whereas the end results are similar, the manner in which these dispositions are reached, and the surrounding timing, vary significantly. To this end, courts are not required to give any reasons for granting ACDs. (Matter of Hennessy v Gorman, 87 AD2d 29, 30 [4th Dept 1982], revd on other grounds 58 NY2d 806 [1983].)

Meanwhile, the Second Department has noted that courts have historically only sparingly ordered IFOJ dismissals. (People v Clayton, 41 AD2d 204, 206 [2d Dept 1973].) This is because IFOJ dismissals are only appropriate in the rare circumstances where the letter of the law should be allowed to "gracefully and charitably . . . succumb to the spirit of justice." (People v Joseph P., 106 Misc 2d 1075, 1076 [Greenburgh Just Ct 1980], quoting People v Davis, 55 Misc 2d 656, 659 [Sup Ct, NY County 1967].) Indeed, before an IFOJ dismissal can be granted, the court must examine and consider a litany of enumerated factors:

"(a) the seriousness and circumstances of the offense;

"(b) the extent of harm caused by the offense;

"(c) the evidence of guilt, whether admissible or inadmissible at trial;

"(d) the history, character and condition of the defendant;

"(e) any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest{**76 Misc 3d at 823} and prosecution of the defendant;

"(f) the purpose and effect of imposing upon the defendant a sentence authorized for the offense;

"(g) the impact of a dismissal on the safety or welfare of the community;

"(h) the impact of a dismissal upon the confidence of the public in the criminal justice system;

"(i) where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion;

"(j) any other relevant fact indicating that a judgment of conviction would serve no useful purpose." (CPL 170.40 [1]; People v Joseph P.) [*3]

As evident by the foregoing, an ACD disposes of charges under a less structured, non-merits based adjudication, than the rarer, and loftier IFOJ dismissal. (Matter of Powell v Page, 8 Misc 3d 988 [Sup Ct, Dutchess County 2005].) Or, it might be said that furthering justice is more arduous, than simply safeguarding justice's interest.

A court's decision to order an ACD, instead of an IFOJ dismissal, is not an uncommon occurrence. Indeed, family courts also order ACDs over IFOJs. For instance, in Matter of Keyon C. (69 Misc 3d 1210[A], 2020 NY Slip Op 51249[U] [Fam Ct, Bronx County 2020]), the respondent's motion to dismiss IFOJ was denied, but an ACD application was granted. There, the Keyon C. court could not find "compelling circumstances supporting the drastic remedy of dismissal of the petition in furtherance of justice" under the Family Court Act. (69 Misc 3d 1210[A], 2020 NY Slip Op 51249[U], *6.) Nevertheless, the Keyon C. court believed an ACD would serve the interest of justice.

Here, although the defense's IFOJ application marshals facts in furtherance of several of section 170.40's enumerated factors, this court reads the motion as indicia of the defendant's consenting to an ACD, in satisfaction of Smith-Hunter v Harvey. This is because, as discussed below, "the defen[se] [has] present[ed] . . . facts supportive of a contention that a further prosecution might result in substantial injustice," in accordance with People v Wei Chen. (104 Misc 2d at 1064.) Accordingly, this court needn't examine or consider section 170.40's factors, and simply orders an ACD sans reasons, under Matter of Hennessy v Gorman.

Lest there be any doubt, the defense never opposed the court's ACD motion. In fact, the defense prayed for "an alternative {**76 Misc 3d at 824}relief, in that prosecuting this defendant could result in injustice" (emphasis added). In ordering an ACD the court necessarily finds that ultimate dismissal of the accusatory instruments will further justice. This is exactly what the defense asks for, and this is "such other further and different relief as to this court . . . seem[s] just and proper." (See defense mot.) To be sure, in ordering an ACD, the court is granting the precise ultimate relief and disposition the defendant seeks. Plus, defendants only "rarely" withhold consent to an ACD. (People v Joseph P. at 1082.)

Therefore, the court does not view the IFOJ application as a cross motion, in opposition. Rather, the court sees consent to an ACD. And as such, the court grants relief under the ACD statute, as proposed sua sponte. Furthermore, the defendant also benefits significantly, because it is by no means a given that the defendant would have prevailed upon the IFOJ application. An IFOJ is "drastic," and since the associated burden is far heavier than an ACD, it is only on the rarest of occasion, where an IFOJ dismissal is appropriate. (See Clayton; Joseph P.; Keyon C.; Davis.)

Finally, perhaps most importantly, the defendant is deriving a substantial benefit from the ACD, because significant punitive consequences may flow if the defendant is convicted of the offenses charged. Accordingly, an ACD most surely furthers the defendant's interests; while at the same time, it is this court's opinion that justice's interest is simultaneously served by an ACD.

The court's motion to adjourn all pending charges in contemplation of dismissal is granted. As such, the parts of the defense's motion for other, further and different relief as may seem just and proper to the court, and for alternative relief, are similarly granted. In [*4]light of this, the court need not reach decision on the remainder of the defendant's motion. Any further applications, filings, or motions made in this action shall be prefaced with briefing on whether the application, filing, or motion can be heard, unless the case is first restored to the calendar.