DECISION AND ORDERINTRODUCTIONDefendant moves This Honorable Court to dismiss all counts of Penal Law charges as facially insufficient pursuant to CPL 170.30, in the interest of justice pursuant to CPL 170.30 (1) (g) and 170.40 and other enumerated motions. For the reasons set forth below, defendant’s motions to dismiss are DENIED.PROCEDURAL HISTORYOn June 9, 2017 defendant was arrested and charged with Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree (Vehicle and Traffic Law §511 [1] [a]), and Unlicensed Driving (Vehicle and Traffic Law §509 [1]). Defendant was released and issued a Desk Appearance Ticket (DAT) to be arraigned on the charges on August 7, 2017. Bench warrant was issued due to defendant’s failure to appear for arraignment. People served and filed New York State Department of Motor Vehicle (DMV) abstract on August 7, 2017. On January 5, 2018 defendant returned on a cross county warrant and was ordered to appear in Part A on the same day. Later that day, defendant voluntarily returned on his warrant in combined Part A and B, was arraigned and the accusatory instrument was deemed an information. The court ordered defense motion schedule due by February 6, 2018 off calendar and adjourned to March 21, 2018 for response and decision. Off calendar, on January 8, 2018 defendant timely served and filed the instant Omnibus Motion for: dismissal of the information pursuant to CPL 170.30; dismissal of the information pursuant to CPL 170.40; Suppression of Statements, or a Dunaway/Huntley Hearing pursuant to CPL 710.20 and 710.60; Suppression of Physical Evidence, or a Dunaway/Mapp Hearing; Suppression of Identity, or a Dunaway/Wade Hearing; a Sandoval/Molineux Hearing; Compliance with Discovery Demands; Request for Bill of Particulars pursuant to CPL 200.95; Compliance with Preservation of Evidence; Reservation of Rights and further relief deemed just and proper by This Honorable Court.Notwithstanding failure of defendant and her counselor to appear at calendar call, at 12:15 P.M. on March 21, 2018 People timely filed and served Voluntary Disclosure Form (VDF), Proof of Mailing, and Certified New York State Department of Motor Vehicle (DMV) abstract. Defendant’s counselor however did appear later at 12:45 P.M. and People’s response was to be filed by the end of that day. Court adjourned to April 18, 2018 for decision.ALLEGATIONSDefendant is a 21 year old male, with no prior criminal justice contact as per the records and prosecution sheets was arrested under the circumstances stated in the NYPD Court Verification/Arraignment Card:AT TPO DEFT WAS OPERATING A MV WITH A DEFECTIVE DRIVER’S FRONT HEADLIGHT. CARSTOP AND COMP CHECK REVEALED THE DEFT’S NYS DRIVING PRIVILEDGES TO BE SUSPENDED TOTAL 1 (SCOFFS 1 ON 1 DATES). DEFT WAS OPERATING A GREEN HONDAACCORD 4DR NY PLATE…The accusatory instrument converted to an information herein, sworn by the Deponent Police Officer (hereinafter DPO) sets forth the following:On or about June 9, 2017 at about 2:05 A.M at the north east corner of Amsterdam Avenue & West 125 Street in the County and State of New York, the defendant operated a motor vehicle upon a public highway while having reason to know that his license and privilege of operating such vehicle in this state and his privilege of obtaining such a license was suspended and revoked; the defendant operated a motor vehicle upon a public highway and upon a sidewalk and to and from a lot adjacent to a public garage, supermarket, shopping center and car washing establishment and to and from and into a public garage and car washing establishment without being duly licensed.The factual basis for the charges are as follows:I observed the defendant operating a motor vehicle (the engine was running and the defendant was behind the wheel) on a public highway, namely, the above location.I conducted a computer check of the records of the New York State Department of Motor Vehicles and determined that the defendant’s license was suspended and had not been reinstated at the time of the arrest.I know that the defendant knew his license was suspended because the computer check revealed that his license was suspended for failure to answer a New York summons and all such summonses have printed on them, “If you do not answer this ticket by mail within fifteen days your license will be suspended”. The suspension occurs automatically (by computer) within four weeks of the defendant’s failure to answer.MOTIONS TO DISMISSFACIAL SUFFICIENCYThis Honorable Court finds that this information is facially sufficient. Defendant’s motion to dismiss is DENIED.DiscussionAn information is facially sufficient when it comports with the requirements as set forth in CPL 100.40 (1):1. An information, or a count thereof, is sufficient on its face when:(a) It substantially conforms to the requirements prescribed in section 100.15; and(b) The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; and(c) Non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant’s commission thereof.See People v. Dumas, 68 NY2d 729 [1986]; see also People v. Alejandro, 70 NY2d 133 [1987]). “Reasonable cause to believe that a person has committed an offense exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that is reasonably likely that such offense was committed and that such person committed the offense [ ]” (CPL 70.10 [2]). The measure of “reasonable cause” is the same as that of the well-established constitutional standard of “probable cause”. (People v. Johnson, 66 NY2d 398, 402, n. 2, 488 [1985]). The factual allegations contained within the accusatory instrument must be strong enough to support a reasonable belief by an ordinary person that it is more likely or probable than not that the accused defendant did indeed commit the criminal offense being accused of (People v. Mercado, 68 NY2d 874, 877 [1986]; People v. Carrasquillo, 54 NY2d 248, 254 [1981] ["conduct equally compatible with guilt or innocence will not suffice"]). Mere conclusory allegations will render the instrument defective (People v. Dumas, 68 NY2d 729 [1986]).The court’s standard of review for facial sufficiency must accept as true all the factual allegations contained within the information and must consider all reasonable inferences that may be drawn from them (People v. Jackson, 18 NY3d 738, 741 [2012]; see CPL 100.40 [1] [c]). Further, “[s]o long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive and technical reading” (People v. Casey, 95 NY2d 354, 360 [2000]).Defendant’s argument consists of irrelevant factual allegations outside of the four corners of the information: to wit, that defendant “was in the vehicle sitting in the passenger side of the vehicle waiting for a friend, when the officer illegally stopped Mr. Tije, who was not driving merely sitting on the seat when the officer approached and picked him up as part of a sweep”. Defendant’s Motion at Paragraph 6. Factual inconsistencies outside of the information are matters for the trier of fact at trial, not, a relevant issue for facial sufficiency. Even if inconsistent facts are present will not be sufficient to defeat facial sufficiency. “That other, innocent inferences could possibly be drawn from the facts is irrelevant on this pleading stage inquiry” (People v. Deegan, 69 NY2d 976, 979 [1987]).In the instant information Vehicle and Traffic Law §§511 (1) (a) and 509 (1) charges are fully set forth in the information by the factual elements that allege defendant operated a motor vehicle upon a public highway where he knew or should have known that he had lost this privilege to do so and defendant did operate or drive such motor vehicle without being duly licensed. People v. Abelo, 14 Misc3d 818 (Sup Ct, Bronx County 2006); People v. Ham, 265 AD2d 674 (3rd Dept 1999). DPO’s nonhearsay statements of observation, the computer check and serving of DMV abstract, followed by the Certified DMV abstract corroborates the accusatory instrument. Whether or not facts are in dispute is not a relevant matter at this stage of pleading and are left to the trier of fact at trial.CLAYTON MOTIONThis Honorable Court finds that defendant fails to meet the burden to grant a dismissal of the information in the interest of justice. With leave to refile after discovery or trial, defendant’s Clayton Motion is DENIED.DiscussionAlthough the Clayton Motion precedentially derives from the dismissal of a felony indictment in the interest of justice pursuant to CPL 210.40, People v. Clayton, 41 AD2d 204, United States ex rel. Clayton v. Mancusi, 326 F Supp 1366, affd. sub nom. Mancusi v. United States ex rel. Clayton, 454 F2d 454, cert. den. sub nom. Montanye v. Clayton, 406 US 977, the nomenclature is now also used in non-felony criminal matters. The Clayton Motion for non-felony criminal charges derives its statutory authority pursuant to CPL 170.30 (1) (g):1. After arraignment upon an information, a simplified information, a prosecutor’s information or a misdemeanor complaint, the local criminal court may, upon motion of the defendant, dismiss such instrument or any count thereof upon the ground that:(g) Dismissal is required in furtherance of justice, within the meaning of section 170.40.Therefore, the court must consider the factors as enumerated in CPL 170.40 (1)1 individually and collectively.A Clayton Motion dismissal is wholly and solely within the sound discretion of the court, but neither is said discretion absolute nor uncontrolled. People v. Wingard, 33 NY2d 192 (1973); People v. Gragert, 1 Misc3d 646 (Crim Ct, New York County 2003). Even with the application of the specific statutory guidelines of CPL 170.40 (1), there is a heightened level of judicial subjectivity. “The public is best served by a judiciary which is diverse and independent. Each judge is the sum total of experiences, attitudes,…values, philosophy and wisdom. In the final analysis, it is the legitimate and wholesome differences among Judges based on intellectual and emotional foundations which is the lifeblood of the judiciary.” People v. Insignares, 121 Misc2d 921 (Sup Ct, NY County 1983). Therefore, what may appear a shocking miscarriage of justice to the conscience of one judge may not necessarily rise to that same level to another.2 Thus, it is of primary concern to ensure confidence of the public that this very subjective application to dismiss in the interest of justice be quite mindfully exercised by the court with a focus for even-handedness. Nevertheless, the court’s power is not without restraint nor a substitute for a trial. This disposition in the interest of justice is only to be used under extraordinarily rare and unusual circumstances that may so shock or move the court’s fundamental conscience that failure to dismiss would be an injustice. People v. Curcio, 22 Misc3d 907 (Crim Ct, Kings County 2008); People v. Federman, 19 Misc3d 478 (Crim Ct, NY County 2008); People v. Stern, 372 NYS2d 932 (Crim Ct, NY County 1975). This power is to be used “sparingly and only in the 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). As Clayton states, “a court must strike a ‘sensitive balance between the individual and the State’s interests to determine whether the ends of justice are served by dismissal” (People v. Clayton, 41 AD2d 204, 208 [2d Dept 1973]). Defendant may allege facts and factors outside of the accusatory instrument to make its case by a preponderance of evidence. However, defendant movant’s burden is indeed a heavy one and must demonstrate by a preponderance of credible evidence presented within the motion that court must grant dismissal. Failing to do so, Clayton Motion may be summarily denied. People v. Schlessel, 104 AD2d 501, 502 (2d Dept 1984).Defendant movant fails to meet this heavy burden. Rather, defendant’s Clayton Motion is much more tantamount to a plea bargain by motion as a substitute for a proffer session. The facts that defendant alleges to bolster dismissal in the interest of justice at this stage of the case are not persuasive nor compelling and fails to rise to the level of extraordinary required by a Clayton Motion. The additional facts presented by defendant in its motion are to be presented in evidentiary form to the trier of fact to determine guilt or innocence. If, however, through discovery there are more facts or factors that may bolster the defendant’s motion for interest of justice dismissal, then the defendant may avail himself to another opportunity to do so.However, this court is not so compelled to grant this defendant’s Clayton Motion. In addition, for such an extraordinary case-ending criminal disposition, notwithstanding the underlying alleged bad act or omission, defendant movant cannot make such a request with “unclean hands.”3 The defendant herein requesting this extraordinarily generous application to dismiss this case in its entirety, failed to appear to respond to his Desk Appearance Ticket and bench warrant issued. Defendant was involuntarily returned on cross-county warrant and ordered to appear in this court as a result thereof. Defendant provided no explanation nor justification for such failure to appear. This conduct is not conducive with a repentant defendant who shows respect to the court. As such, a criminal defendant movant with ‘unclean hands” in the instant matter before the court who seeks such a dismissal in the interest of justice will be denied.For all the foregoing reasons defendant’s Clayton Motion is DENIED.MOTION TO SUPPRESS STATEMENTSThis defendant’s motion for a Dunaway/Huntley hearing is DENIED.MOTION TO SUPPRESS PHYSICAL EVIDENCEThis defendant’s motion for a Dunaway/Mapp hearing is DENIED.MOTION TO SUPPRESS IDENTIFICATION EVIDENCEThis defendant’s motion for a Dunaway/Wade hearing is DENIED.MOTION FOR SANDOVAL/MOLINEUX HEARINGThis defendant’s motion for a Sandoval/Molineux hearing is reserved for the trial court for determination.MOTION TO COMPEL A BILL OF PARTICULARS AND DISCOVERYThis defendant’s motion is DENIED.People provided to defendant a New York State Department of Motor Vehicles Certified Abstract of Driving Record and Proof of Mailing. Additionally, everything CPL 200.95 (1) (a) requires a Bill of Particulars to include is within the served and filed People’s disclosures and VDF. People are reminded of their continuing obligations under Brady v. Maryland, 373 US 83 (1963).RESERVATION OF RIGHTSThis defendant’s motion is GRANTED to the extent further pre-trial motions are based on new facts or law that “defendant could not, without due diligence, have been previously aware, or which, for other good cause, could not reasonably have been raised” within 45 days after defendant’s arraignment and before trial (CPL 255.20 (3)).RECIPROCAL DISCOVERYThe People’s request for reciprocal discovery under CPL 250.20 and CPL 240.30 (1) is GRANTED as follows:(1) Eight days having passed from People’s demand for alibi notice, defendant is precluded from offering evidence that he was at some place other than in a vehicle at the north east corner of Amsterdam Avenue and West 125th Street in the County and State of New York at the time of the alleged incident, unless for good cause shown for the delay (CPL 250.20 [1]);(2) Defendant shall disclose and make available, subject to constitutional limitations, all CPL 240.30 (1) and CPL 240.30 (2) discovery materials;(3) As more than 30 days have passed since arraignment, defendant is precluded from offering psychiatric evidence, unless for good cause shown for the delay (CPL 250.10 [2]).This constitutes the opinion, decision and order of This Honorable Court.DATE: April 18, 2018New York, NYSO ORDERED:
