District Court of Nassau County, First District, February 17, 2023

Anne T. Donnelly, District Attorney (Clayvon Preudhomme of counsel), for the People.

Legal Aid Society of Nassau County, Inc. (Molly Harwood of counsel) for defendant.

The People move this court by notice of motion and affirmation in support^[FN1] of Clayvon Preudhomme, Esq., each dated November 9, 2022, for an order dismissing multiple counts of the existing docket filed against the defendant in the interest of justice pursuant to Criminal Procedure Law § 170.40. Such relief is sought based upon the allegation that the identified counts are presently insufficient. By affirmation in opposition of Molly Harwood, Esq., dated December 7, 2022, counsel for the defendant opposes such relief. The People elected not to submit an affirmation in reply. The defendant is currently charged with violating the following sections of the Vehicle and Traffic Law, to wit: 1192 (2) (unclassified misdemeanor); 1192 (3) (unclassified misdemeanor); 319 (1) (traffic infraction); 1126 (a) (traffic infraction); 1128 (d) (traffic infraction); 1227 (1) (traffic infraction); and 1192 (1) (traffic infraction).

The applicable time period within which the People must be ready for trial is 90 days following the commencement of the action pursuant to CPL 30.30 (1) (b) based upon the classification of the most serious charges and the potential sentences of{**78 Misc 3d at 865} imprisonment associated therewith. Prior to any announcement of readiness for trial, the People must meet all obligations imposed by both CPL article 245 and CPL 30.30 as amended.

On August 21, 2022, at or about 4:19 a.m., the defendant was purportedly observed by law enforcement, inter alia, failing to safely maintain his lane while operating a motor vehicle in the Village of Garden City, County of Nassau. During the traffic stop, it is further alleged that the police officer noted classic indicia of intoxication and conducted a preliminary breath test at the scene. Following arrest, the defendant submitted to an intoxilyzer analysis at the Nassau County Police Department Central Testing Services at or around 6:15 a.m., which test result indicated a 0.152% blood alcohol concentration.

The defendant was arraigned on the charges on August 22, 2022. The speedy trial time commenced the following day on August 23, 2022 (see People v Stiles, 70 NY2d 765, 767 [1987]; see also General Construction Law § 20), and thus the People were required to state their readiness for trial within 90 days thereof, to wit: November 20, 2022.^[FN2] Neither a certificate of compliance with initial discovery nor a certificate of readiness for trial (C.O.C./C.O.R.) has been filed by the People to date. (See CPL 245.50.)

On November 10, 2022, the People filed the within motion for relief without leave of court and in an effort to halt speedy trial time. (See CPL 30.30 [4] [a].) On December 7, 2022, the defendant filed written opposition to such relief, and the court granted the People until January 10, 2023, to file a reply at which time the court would also entertain oral argument prior to submission and deliberation. On January 10, 2023, the prosecution elected to forgo a written reply and the motion was submitted.

The People seek to have the following counts dismissed pursuant to CPL 170.40 in the interest of justice: count "3" (Vehicle and Traffic Law § 319 [1]); count "4" (Vehicle and Traffic Law § 1126 [a]); count "5" (Vehicle and Traffic Law § 1128 [d]); {**78 Misc 3d at 866}and count "6" (Vehicle and Traffic Law § 1227 [1]),^[FN3] as it is alleged that such counts "are insufficient and cannot be cured[ ]" (see affirmation in support para 5), and therefore the within matter cannot be certified as ready for trial in accordance with CPL 30.30 (5-a).

Recent discovery reform has resulted in an intrinsic tension between the obligation of the [*2]prosecution to certify the sufficiency of all counts prior to a statement of readiness for trial, and the manner in which to dismiss deficient charges prior thereto. CPL 30.30 (5-a) clearly contemplates that insufficient counts shall be dismissed prior to certifying ready for trial but fails to either specify or restrict the procedure(s) available to accomplish same. In the absence of explicit instruction, legislative silence may be presumed to countenance any method available to the parties including application to the court. The Criminal Procedure Law currently affords defendants a route to seek dismissal upon various grounds detailed in CPL 170.30; however, no comparable options exist for the prosecution to secure equivalent relief. The solitary method of statutory dismissal presently available to the People lies within CPL 170.40, which provision was last modified some 40 years prior to the advent of CPL 30.30 (5-a).

Traditionally, CPL 170.40 establishes a path for dismissal of an information or misdemeanor complaint^[FN4] in the interest of justice and calls upon the court to examine 10 enumerated factors in relation thereto. Such motion may be made by the People, by the defendant or sua sponte by the court. (See CPL 170.40 [2].) The statute emphasizes the discretion of the court when evaluating any "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." (See CPL 170.40 [1].) Moreover, such discretion may still be exercised even if one or more of the enumerated bases for dismissal under CPL 170.40 (1) are not otherwise present and despite any "legal or factual merit" to the charged offenses. (See People v Rickert, 58 NY2d 122, 126 [1983].){**78 Misc 3d at 867}

The statute expressly states that the court must consider the prongs listed both "individually and collectively" which include but are not limited to the severity of the alleged offense and resulting harm (CPL 170.40 [1] [a], [b]), the character of the accused (CPL 170.40 [1] [d], [i]), and the effect of dismissal on the public at large (CPL 170.40 [1] [g], [h]), while concurrently granting broad license to examine "any other relevant fact indicating that a judgment of conviction would serve no useful purpose" (CPL 170.40 [1] [j]). Following the amendment and enactment of the present iteration of CPL 170.40, the New York State Court of Appeals interpreted the statute to have imbued the criminal courts with "a flexibility somewhat akin to that equity essayed on the civil side." (See Rickert at 126 [citation omitted].) However, the codification of the long-standing common-law principle to serve justice still demands a "sensitive balancing of the interests of the individual and of the People." (Id. at 127 [citations omitted].) While the statutory authority of the court to grant such relief is irrefutable, the exercise of such judicial discretion must be both provident and circumspect (see e.g. People v Frett, 164 Misc 2d 331 [App Term, 2d Dept 1995]; People v Richman, 44 Misc 3d 34 [App Term, 2d Dept, 9th & 10th Jud Dists 2014]; People v Crosse, 52 Misc 3d 1224[A], 2016 NY Slip Op 51266[U] [Crim Ct, Bronx County 2016]), as "[t]he generality and exquisiteness of the interest of justice ideal was not intended . . . to convey an untrammeled right to act on purely subjective considerations." (See Rickert at [*3]126.) Nonetheless, as the majority of reported case law regarding CPL 170.40 precedes the enactment of CPL 30.30 (5-a), any analysis of these potentially incongruous statutes cannot rely solely upon prior judicial considerations.

In the instant matter, counsel for the defendant contends that CPL 170.40 is an inappropriate vehicle to seek the dismissal of charges based upon defect or insufficiency, as relief pursuant to such statute is limited exclusively to an articulated "interest of justice" standard. Conversely, the People rely upon the unfettered prosecutorial discretion of the Nassau County Office of the District Attorney to assess, file, reduce, supersede and/or amend criminal charges. This court takes judicial notice that dockets are frequently adjusted prior to certification to reflect material or information ascertained during reciprocal discovery (see CPL 245.60), and to ensure that the accused remains properly charged throughout the pendency of a criminal proceeding. As a result, both oral and written applications{**78 Misc 3d at 868} are routinely granted on consent to dismiss specific charges and/or complete dockets. An issue arises, however, when the People seek leave of the court over objection to dismiss insufficient charges prior to certification. By strategically withholding consent to such relief, defense counsel constructs a procedural blockade to the announcement of readiness for trial. The resulting delay in filing a statement of readiness risks the expiration of speedy trial time and imperils the total docket. Thus, the statute upon which defense counsel often relies to have prosecutorial certifications declared illusory and invalid is alternatively employed to preclude certification and subvert an entire prosecution.

Absent resolute appellate authority or further legislative guidance on this issue, competing case law has developed at the trial court level. Some courts have determined that facially insufficient counts may be dismissed following certification thereby preserving the remaining sufficient charges for trial. Other courts have concluded that all charges on a docket are at risk when facially insufficient counts survive certification. Within this divergent framework of persuasive authority, this court is tasked with balancing the spirit and intent of the law while avoiding usurpation of powers firmly lodged within the executive branch of government.

The enactment of CPL 30.30 (5-a) on January 1, 2020, was a legislative attempt to, inter alia, restructure and streamline speedy trial times that formerly attached to separate charges on the same docket and to discourage prosecutorial inertia between arraignment and disposition. Such statutory section anticipates the pre-certification dismissal of any counts that fail to meet the statutory requirements enumerated in CPL 100.15 and 100.40. Given the aspirational objectives of CPL 30.30 (5-a), it is highly improbable that the intended consequence was to hamper and/or thwart appropriate prosecution. To conclude otherwise would exact punishment on the People for exercising mandatory due diligence and good faith when reviewing all charges for sufficiency prior to announcing readiness for trial.

As stated hereinabove, CPL 170.40 (1) was most recently amended on January 1, 1980, and permits the exercise of judicial discretion when compelling factors are identified despite the absence of any "basis for dismissal as a matter of law" as otherwise enumerated in CPL 170.30. The legislative introduction of CPL 30.30 (5-a) into this legal equation some{**78 Misc 3d at 869} four decades later demands a conceptual expansion of the interest of justice standard. In the opinion of this court, compelling factors that constitute or result in injustice to the defendant must now include the insufficiency of pending charges, the possibility [*4]of improper prosecution or conviction based upon a potentially deficient accusatory instrument, and the dissipation of judicial and nonjudicial resources to pursue same at trial. The perception of counsel for the defendant that granting this relief will "circumvent" the right of the accused "to be properly charged by a sufficient charging document[ ]" (see affirmation in opp para 17) is inherently flawed, as the timely dismissal of insufficient counts aligns with both the dictates of CPL 30.30 (5-a) and the rights of procedural due process. Accordingly, the utilization of CPL 170.40 by the People is permissible for such purpose.

Notwithstanding the foregoing analysis, this court will not systematically approve applications for dismissal over objection without persuasive justification by the movant. If the People seek relief pursuant to CPL 170.40 in lieu of an alternate mechanism to remedy a defective docket, they must provide the court with a satisfactory basis for same. The conclusory language of the prosecution that "the counts are insufficient and cannot be cured[ ]" (see affirmation in support para 5) does not suffice, as "the People do not have the final word on whether or not each count of their accusatory instrument meets the requirements for facial sufficiency. . . . Whether an information or complaint is facially sufficient is a legal determination that is ultimately decided by the court." (People v Councel, 77 Misc 3d 1132, 1135 [Crim Ct, Kings County 2022].) Therefore, the within application is denied without prejudice to renew upon the submission of additional relevant information concerning the purported insufficiency of the designated counts and the inability to cure same.

Based upon the foregoing, and upon all of the proceedings conducted herein, and after due deliberation, it is ordered that the motion of the People to dismiss counts "3," "4," "5," and "6" pursuant to CPL 170.40 is hereby denied without prejudice to renew for the reasons set forth above; and it is further ordered that any other matters not specifically addressed herein are hereby denied.