On April 4, 2018, the defendant Tonya Wooten was indicted for Criminal Possession of a Firearm as a result of a shooting at her home the day before New Year’s Eve in 2017. She now moves to dismiss the indictment in furtherance of justice pursuant to CPL §210.40 (see People v. Clayton, 41 AD2d 204 [2d Dept 1973]).The motion is granted.Statement of FactsThe facts of this case are undisputed and unsettling.In 2003, the defendant moved from New York City to North Carolina to shield her young son from the negative influences of the city. While there, Ms. Wooten legally purchased a handgun. She worked as a licensed practical nurse and raised her son in North Carolina until he graduated from college. In 2012 they moved back to New York City and the defendant brought the gun with her. Her son found employment and moved to the Bronx. The defendant decided to continue her studies to become a registered nurse. In 2016 she met the complainant and began a romantic relationship. At some point the defendant terminated this relationship as a result of the complainant’s verbal and physical abuse.On December 29, 2017 the complainant loudly and unexpectedly knocked on the door of Ms. Wooten’s home, demanding entrance. When she refused and called the police, he broke her storm door. He left before the police arrived to avoid arrest, only to return the following night.He again demanded entrance, threatening her loudly and banging hard on the front door. Terrified, Ms. Wooten blocked the front door with her couch, took her gun from the closet and called 911. While on the phone the complainant broke in her door. She fired twice, hitting him once. This stopped the attack.The police arrived shortly thereafter, observing the complainant lying inside the defendant’s front doorway. The defendant admitted shooting him and was later arrested, arraigned and indicted for unlawful gun possession.Conclusions of LawIn deciding whether to dismiss an indictment in furtherance of justice, a court is constrained by statute only to exercise its authority if there is some “compelling factor, consideration or circumstance” demonstrating the prosecution is unjust. The statute requires the court to balance 10 factors in making such a finding: (1) the seriousness of the offense; (2) the harm caused; (3) the evidence; (4) the character of the defendant; (5) misconduct in the prosecution; (6) the effect of a sentence; (7) public confidence; (8) public safety; (9) the complainant’s view; and (10) anything else (see CPL §210.40 [1]).Although dismissal on this ground must be rare (People v. Smith, 217 AD2d 671 [2d Dept 1995], lv denied, 87 NY2d 851 [1995]; People v. Bebee, 175 AD2d 250 [2d Dept 1991], lv denied, 78 NY2d 1126 [1991]), in appropriate cases it allows the court to conform the rigidity of the law to the pliancy of justice (People v. Serkiz, 17 AD3d 28 [3d Dept 2005]). The statute is a recognition that law, ultimately, is an ordinance of reason, advancing the common good, and that in the complex arena of human interaction in some cases it is necessary to go beyond the precise norm of justice, which is often too narrow.In balancing the statutory factors, the court has no doubt this is just such a case.First, while gun use in our city is a serious matter with grave societal consequences, there is mitigation here. The gun was purchased legally, and although transported in violation of law, was never used, and in all likelihood never removed from its niche in Ms. Wooten’s closet. Its use was driven by terror in a desperate act of self-defense by a 5′ 1″ woman when her lawful call for help proved late as the 6′ 2″ ex-boyfriend broke down her threshold.One can only guess at the consequences to the defendant if she did not have that protection when viewed in light of the fact that intimate partner violence is the leading cause of injury to women in this country and that domestic violence homicides account for 17.5 percent of homicides in New York City.Second, although the complainant was paralyzed in the shooting, it is notable that the defendant was not indicted for assault.Third, although the evidence of guilt is strong, it consists in the main of an otherwise law-abiding citizen telling the truth to the police and giving herself up. In fact, she admits what she did to the 911 operator in her call for help which captured the entire event. Moreover, a dismissal in the furtherance of justice depends solely on the justice served and not on the factual or legal merits of the charge or the guilt of the accused.Fourth, the defendant, as mentioned earlier, has never been arrested, raised a son, obtained work as a licensed practical nurse and is trying to become a registered nurse. She is by all accounts law-abiding and well-disposed. In contrast, the complainant has a criminal record, is a registered sex offender and the subject of the earlier domestic incident report. He also lied to the police about his actions the day he was shot inside Ms. Wooten’s home.Fifth, there is no law enforcement misconduct alleged.Sixth, it is significant that the District Attorney’s office has requested that the court accept a plea to a misdemeanor with a sentence of probation. It is a rightful recognition that this defendant should not be incarcerated. However, even a misdemeanor plea could have negative collateral consequences to her employment as a nurse and future ability to support herself.Finally, in balancing the seventh and eighth statutory factors, clearly a dismissal under these facts will increase public confidence that the court system is not hostile to human beings and that justice looks higher than its reach. Dismissal here has no effect on public safety. The final factors are not relevant.ConclusionCase law is replete with warnings about the limits of judicial authority in dismissing indictments in the interest of justice. Yet while discretion must be sparingly exercised, the court has a parallel duty to use its authority when, after balancing the equities, justice demands it.This constitutes the decision and order of the court.Dated: January 11, 2019
