DECISION AND ORDER The defendant is charged with assault in the third degree (PL §120.00[1]), criminal possession of a weapon in the fourth degree (PL §265.01[2]), aggravated harassment in the second degree (PL §240.30[4]), endangering the welfare of a child (PL §260.10[1]) and harassment in the second degree (PL §240.26[1]). She moves this court by notice of motion and affirmation dated June 6, 2019 to dismiss the charges in the interest of justice pursuant to CPL §§130.30 and 170.40(1). In support of this application, the defendant has also provided the court with progress notes from the investigation undertaken by the Administration for Children’s Services (“ACS Progress Notes”), as well as a copy of an order from the Bronx County Family Court resolving the defendant’s concomitant Article 10 case. The defendant has also moved separately for dismissal for failure to properly convert the criminal court complaint or in the alternative, for omnibus relief. The People oppose dismissal in the interest of justice by affirmation dated July 3, 2019 and have responded separately to the defendant’s other motions. The court has reviewed the parties’ submissions, the case file, and relevant law. For the reasons that follow, the defendant’s motion to dismiss is granted. As such, the court need not address the defendant’s remaining applications. Background On April 9, 2019, staff at the complainant’s school noticed marks on the complainant’s face. Upon inquiry, the complainant disclosed that he had been struck in the face with a clothes hanger by the defendant, his mother. School staff reported the incident to the State Central Registry, whereupon the complainant was taken to the Child Advocacy Center for interview by the facility’s social workers. The defendant was arrested the same day and is alleged to have stated to the arresting officers, “He start playing stubborn. I started to discipline him and I hit him with whatever I hit him with.” After her arraignment on the criminal court complaint, the defendant was released on her own recognizance but subject to a full stay-away temporary order of protection in favor of the complainant, subject to Family Court modification. An Article 10 case with identical allegations as those contained in the criminal court complaint was subsequently filed against the defendant in Bronx County Family Court. According to the documentation submitted by the defendant, the Child Protective Specialist (“CPS”) recommended that the complainant and other children be released to the defendant, with court-ordered supervision and participation by the defendant in Family Functioning Therapy (“FFT”). In early July, the Family Court issued an order adjourning the defendant’s Article 10 case in contemplation of dismissal with the following conditions: (1) that the defendant comply with the Family Court’s limited temporary order of protection, which directed her to refrain from use of corporal punishment; (2) that the defendant comply with FFT “until no long deemed necessary;” (3) that the defendant comply with ACS supervision, including announced and unannounced visits; and (4) that the defendant comply with reasonable referrals (“Family Court ACD Order”). The Family Court also ordered that the child reside in the defendant’s custody. The Defendant’s Motion to Dismiss Pursuant to CPL §170.40, a court has the discretion to dismiss an accusatory instrument in the interest of justice where it finds “some 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.” The statute lists ten factors a court should consider when determining whether such dismissal is warranted: (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 and prosecution of the defendant; (f) The purpose and effect of imposing upon the defendant a sentenced authorized for the offense; (g) The impact of a dismissal upon 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 (id.). Consideration of these factors requires “a ‘sensitive’ balancing of the interests of the individual and the State” (People v. Belkota, 50 AD2d 118, 120 [4th Dept 1975], citing People v. Clayton, 41 AD2d 204, 208 [2d Dept 1973]). While the decision to dismiss lies within the discretion of the court, such discretion “is neither absolute nor uncontrolled” (People v. Kelley, 11 AD2d 764, 765 [2d Dept 1988]) and “should be exercised sparingly” (People v. Keith, 95 AD3d 65, 67 [1st Dept 2012], quoting People v. Insignares, 109 AD2d 221 [1st Dept 1985]). Dismissal should only be reserved for “the unusual case that cries out for fundamental justice beyond the confines of conventional consideration of legal or factual merits of the charge or even on the guilt or innocence of the defendant” (People v. Belge, 41 NY2d 60, 62-3 [1976]). After applying the factors enumerated in the CPL, the court finds that while the offense alleged here is undoubtedly a serious one, the defendant has demonstrated that sufficiently compelling circumstances are present to support dismissal of this case in the interest of justice. The Seriousness and Circumstances of the Offense It is clear that the state has a compelling interest in protecting children from abuse and neglect, both from inside or outside the home. An allegation of physical abuse of a child is thus inherently a serious offense. The Extent of the Harm Caused by the Offense Here, it is alleged that the defendant struck her son with a clothes hanger hard enough to leave marks, though there is no indication that medical attention was required or received. The People correctly point out that medical treatment (or even any physical injury at all) is not determinative in evaluating a motion to dismiss; however, in the instant matter this court has the opportunity to examine more closely the effects of the defendant’s conduct within the home through the report of the CPS investigating the case. Based on interviews with the defendant, the child complainant, and other family members, the CPS noted that while the family has had no previous involvement with any child protective services, it seems that the incident at issue is not the first time the defendant has utilized corporal punishment for perceived misbehavior. However, the CPS observed no additional marks on the complainant’s body or face, nor were there any marks on the defendant’s other child. With respect to the children’s living conditions, the CPS also observed that the home, while cluttered due to the small size and number of individuals residing there, had a “good supply” of food, gated windows, and a working smoke alarm (ACS Progress Notes at 6). The children were confirmed to attend school regularly with satisfactory performance. Other than the child complainant’s medical diagnosis of anemia, the children’s pediatrician reported that the children were both in good health and her records showed no concerns of abuse or maltreatment. Finally, per the Family Court ACD Order, the family is participating in services coordinated by a case planner from Rising Grounds. These services include family counseling, anger management, and “skill building” for the family (ACS Progress Notes at 19). According to an interview with the case planner a few weeks after the incident, the family was complying with services, there were no indications of subsequent corporal punishment, and the family seemed “nice and committed” (ACS Progress Notes at 32). Crucially, the CPS noted at various points throughout the reports that the children did not express a fear of their mother. In fact, the complainant himself expressed a fear of being removed from his mother during his interview with the investigating detective (ACS Progress Notes at 8). On balance, the CPS report reveals a home environment that is clean and well cared-for, where the defendant’s children feel safe and are supported in their studies and other activities. Both the complainant and the defendant are participating in services to ensure that incidents such as the one at issue do not recur. The Family Court ACD Order directs that the complainant remain in the defendant’s custody, further supporting the conclusion that the complainant is not at risk in the defendant’s care. The Evidence of Guilt The defendant contends that the inconsistencies in the complainant’s narrative and lack of outside eyewitnesses mean that the People may struggle to prove their case beyond a reasonable doubt at trial. The People, on the other hand, note that notwithstanding the inconsistencies in the complainant’s narratives, the defendant herself made an incriminating statement orally and in writing and the child’s injuries were observed by a number of other individuals. Further, with respect to the defense proffered by the defendant (that the defendant was entitled to use reasonable physical force to discipline her child), the People contend that in this case the defendant’s conduct was disproportionate to the complainant’s alleged misconduct. The court acknowledges that the evidence in the instant matter points to what was likely an incident of excessive corporal punishment. Whether the defendant possessed the specific intent to meet the elements of the offenses charged, however, would be the province of the factfinder at a trial. Ultimately, while a court may take into account the weight of the evidence when evaluating a motion to dismiss in the interest of justice, the remedy of dismissal is available even in cases where evidence of guilt is abundant (People v. Hirsch, 85 AD2d 902 [4th Dept 1982]). The History, Character, and Condition of the Defendant The instant case represents the defendant’s first contact with the criminal justice system. According to the defendant’s papers, she is employed full time as a home health aide and is able to fully financially support her children. The ACS Progress Notes reveal no history of substance abuse or domestic violence, and the children appear well cared-for and healthy. However, as the People point out, the fact that the defendant has no criminal record “does not immunize [her] from the normal processes of the criminal law” (People v. Varela, 106 AD2d 339, 340 [1st Dept 1984]; see also People v. Andrew, 78 AD2d 683 [2d Dept 1980]). What this court finds more persuasive, however, is what the CPS reports about the defendant’s child care apart from this incident and about the defendant’s subsequent conduct. As noted above, the CPS reported that the defendant generally maintained a healthy and stable home environment for her two children. After her arrest, the defendant’s active participation in the therapy and other services show that she is motivated to change her behavior and ensure that incidents like the one at issue do not occur again. The Purpose and Effect of Imposing Upon the Defendant an Authorized Sentence The top charges in the criminal court complaint are class A misdemeanors, which each carry a sentence of up to 364 days incarceration. Here, the defendant has had no prior contacts with the criminal justice system and is the sole source of income for her household. Imposing upon the defendant the sentence authorized by statute would cause her to have a permanent conviction on her record, possibly jeopardizing her job and thus the family’s financial stability. Further, the defendant has already engaged with counseling and other services designed to help her build parenting and anger management skills. Imposing a sentence of incarceration would only serve to stall her progress in that regard and traumatize her children further by separating them from their sole caretaker. This court is satisfied that the conditions and supervision imposed by the Family Court ACD Order are adequate to rehabilitate the defendant and prevent further acts of excessive corporal punishment. The Impact of a Dismissal on the Safety or Welfare of the Community Again, the CPS report has not revealed any allegations of prior physical harm nor does it contain any evidence that any physical harm has befallen the defendants’ children since the instant offense. The defendant has no history of previous violence. Here, where the defendant is being supervised on an ongoing basis and will be continuing family therapy services for the foreseeable future, dismissal of this case would not carry an appreciable risk to the safety or welfare of the community. The Impact of a Dismissal Upon the Confidence of the Public in the Criminal Justice System The People argue that dismissal of this case would erode public confidence in the criminal justice system by signaling to the community that the physical abuse of children is acceptable. However, the goals of the criminal justice system encompass rehabilitation as well as punishment as deterrence. Here, the submitted documentation shows every indication that the defendant is being provided with tools to prevent reoffending: she is being supervised by an agency whose specific goal is the safeguarding of children, she is receiving services in the form of therapy, anger management counseling, and skills building, and both the supervision and services are intended to be utilized by her for the foreseeable future. Dismissal of the instant case does not mean that the defendant has “gotten away” with bad behavior; rather, it is a signal that the criminal justice system is flexible enough to recognize the needs of a family and an individual’s capacity for learning and change. The Attitude of the Complainant or Victim This court notes that the Family Court ACD Order was a disposition agreed upon by the defendant, the Administration for Children’s Services, and attorneys representing the defendant’s children. Unlike the Criminal Court, subject children in Family Court proceedings are able to convey their interests to the court through counsel, allowing the Family Court to take them into account when accepting a resolution. It can thus readily be assumed that the Family Court disposition was supported by the complainant, whose interests were represented there by counsel. The court has examined the relevant criteria and has closely reviewed the documentation provided by the defendant in support of her motion to dismiss. While the charged offenses are undoubtedly serious in nature, the defendant has shown the existence of compelling circumstances that support dismissal of these criminal proceedings in the interest of justice. This court is satisfied that the defendant and her children are receiving the services they need to build and maintain a healthy home environment. Accordingly, the defendant’s motion to dismiss in the interest of justice is granted. The court therefore need not address the parties’ remaining applications. This constitutes the decision and order of this court. Dated: September 4, 2019 Bronx, New York
