On March 2, 2020 at 9:08 p.m., the police responded to a radio run of an assault with a knife at 646 Amsterdam Avenue, Apt. 2C in New York County. Once inside the apartment the police found a man lying face-up on the floor, bleeding heavily from his neck. The defendant, later learned to be the estranged wife of the bleeding man, was holding a towel near one of his wounds to stop the bleeding. He died soon after and the defendant was arrested and indicted for his murder. The defendant maintains she suffered domestic violence at the hands of the deceased throughout their relationship. Since shortly after her arrest, she has been the subject of a public campaign to have her indictment dismissed because of her domestic violence history. The People now move for leave to file a Superior Court Information (“SCI”) charging the defendant with manslaughter in the first degree and, thereafter, to dismiss her murder indictment in the interest of justice. For the reasons stated below, that motion is denied. At the outset, a motion to dismiss in the interest of justice is a pretrial motion that by law must be made within 45 days of arraignment (CPL §255.20[1]; People v. Pittman, 228 AD2d 225, 225-26 [1st Dept 1996]). The defendant was arraigned on this murder indictment on September 22, 2020. The People filed this motion on August 5, 2022, nearly two years later, without providing an explanation for their delay. The motion is, therefore, denied on procedural grounds. In the alternative, for the reasons stated below, the motion is denied on its merits. Background. The sole count of the instant indictment charges the defendant with murder in the second degree (Penal Law §125.25[1]). Over two years later, the People informed the Court they were negotiating a disposition with the defendant. The proposed disposition would involve the defendant entering a plea of guilty to manslaughter in the second degree and menacing in the second degree, without a factual allocution or admission of responsibility, commonly known as an Alford plea (see North Carolina v. Alford, 400 US 25 [1970]; People v. Miller, 91 NY2d 372, 377 [1998]).1 The plea would come with the promise that the defendant would be permitted, after a year of good behavior, to vacate her manslaughter plea and stand convicted only of menacing, a class B misdemeanor. This proposed plea is illegal. The defendant cannot plead guilty to menacing in the second degree, because it is neither on the indictment, nor is it a lesser included offense to the sole charge of murder in the second degree. Moreover, the New York State Legislature has mandated that a plea of guilty by a defendant indicted for murder in the second degree must include at least a plea to a class C violent felony offense (CPL §220.10[5][d][i]). The proposed re-pleader would violate this statutory requirement. The People’s Motion. The People now move for leave to file a superior court information (“SCI”) charging the defendant with manslaughter in the first degree (Penal Law §125.20[1]), and thereafter to dismiss the indictment in the interest of justice pursuant to CPL §210.20(1)(i).2 The defendant has joined in the People’s motion to dismiss the indictment, but is silent about whether she intends to consent to the filing of an SCI. Her legal papers seem to seek an outright dismissal of the charge against her. A grand jury has indicted the defendant. The Court of Appeals has held that the authority to dismiss an indictment, or any charge within one, is limited by statute (People v. Epakchi, 37 NY3d 39, 48 [2021] ["Allowing dismissals without a basis in the Criminal Procedure Law would…be an abdication of the judiciary's responsibility to safeguard the public and promote respect for the law."]). Neither the Court nor the People have inherent authority to dismiss a criminal proceeding (People v. Extale, 18 NY3d 690 [2012]; People v. Douglass, 60 NY2d 194, 204[1983]).3 Once the grand jury has voted to indict a defendant, dismissal is governed by CPL §210.20 (People v. Guzman, 168 AD2d 154, 156 [1st Dept 1991]; People v. Sullivan, 142 AD2d 695, 696 [2d Dept 1988]). Here, the People move to dismiss “in the interest of justice” (CPL §210.20[1][i]). The Court may dismiss an indictment or any count of it when “such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration[,] or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such indictment or count would constitute or result in injustice” (CPL §210.40[1]). Among the compelling factors, considerations, or circumstances proffered by the People are: that their current theory of the case is that the defendant intended to cause serious physical injury, rather than death; that the defendant has raised the issue of justification; and that the defendant is a survivor of domestic violence with no criminal or violent history who would benefit from mental health treatment. The People’s careful use of language, however, supports the inference that they are unable or unwilling to concede the facts and conclusions underlying these claims (see CPL §210.45[1] [requiring sworn allegations of any facts upon which motion is based]). The People affirm that upon review of their case they “have concluded that the most appropriate inference is that Defendant stabbed the decedent with intent to cause serious physical injury.” There is no explanation for the change in their theory, beyond vague references to “evidence,” “materials,” and “statements,” none of which are attached to their motion as exhibits. But intent to cause serious physical injury and intent to cause death are not mutually exclusive — under the law serious physical injury includes “physical injury which creates a substantial risk of death or which causes death” (Penal Law §10.00[10]). The People assert that, were they to indict this matter today, they would submit manslaughter in the first degree to the grand jury. They do not go so far as to affirm that they would submit only that charge, and not also murder. Most important, the People do not claim that the evidence does not support the inference that the defendant intended to cause the death of the deceased.4 The People affirm that the defendant’s character and history support a dismissal of the murder charge in the interest of justice. The defendant has no prior criminal history. They affirm, without reference to exhibit or documentation, that she is a survivor of domestic violence. The People present the defendant’s account of her relationship with the deceased, but are careful not to adopt it. They couch their affirmations in terms such as the “defendant contends” the deceased put her in a chokehold or pulled her hair on multiple occasions; or the “defendant identifies” communications that “she says” corroborate that history. And they agree this evidence “could be” relevant. Finally, the People obliquely reference the defendant’s claims of justification, again without adopting them. Obviously the People cannot concede justification, a complete defense, and also seek to file an SCI and continue the prosecution as a manslaughter. The People affirm that they presented the case to the grand jury believing there to be no evidence that the deceased attacked the defendant the night of the stabbing. They reaffirm there is “little evidence at all” about the circumstances leading up to the stabbing, and concede only that the jury will have to infer what happened from the evidence that does exist. The reasons proffered by the People in support of their tepid motion do not demonstrate the need for dismissal in the interest of justice. Courts reserve dismissal in the interest of justice for “that rare and unusual case [that] cries out for fundamental justice beyond the confines of conventional considerations” (People v. Insignares, 109 AD2d 221, 234 [1st Dept 1985] [internal quotation marks and citation omitted], lv denied 65 NY2d 928 [1985]). The People’s concerns fall within conventional considerations, all of which can be remedied without resorting to the “rare” remedy of dismissal. The People’s motion demonstrates only that there remain significant factual disputes about the events of March 2, 2020 that led to the victim’s death. The conventional way to resolve those disputes is a trial. Frankly, it is unclear what the People hope to accomplish by prosecuting the defendant via an SCI as opposed to proceeding on the existing indictment. The People’s concern that a murder charge is unwarranted here can be addressed and ameliorated at trial. Manslaughter in the first degree is a lesser included offense to murder in the second degree (People v. Butler, 57 NY2d 664 [1982]) and can be submitted to the trial jury without the need for an SCI (CPL §300.50). If convicted, the defendant’s status as survivor of domestic violence affords her reduced sentencing — as little as five years for murder, or probation for manslaughter (Penal Law §60.12). Whether the defendant was justified in her actions against her husband is a question of fact that should be litigated before the trier of fact, rather than decided by the Court in a pre-trial motion (People v. Litman, 99 AD2d 573, 574, [3d Dept 1984], citing People v. Prunty, 101 Misc 2d 163 [Crim Ct, Queens County 1979]). “A motion to dismiss in the interests of justice is, in no way, intended to be a substitute for a trial” (Prunty, 101 Misc 2d at 167). The Defendant’s Response. The defendant’s affirmation in support of the People’s motion, as noted above, ignores the prospect of further prosecution by SCI and instead asks for an outright dismissal of the indictment. The defendant does not concede that she would waive prosecution by indictment, as contemplated by the People, instead focusing on her claims of factual innocence. The defendant proffers as compelling factors, considerations, or circumstances that she acted in self-defense in taking up a knife; that the defendant stumbled and fell upon the knife accidentally; that the purpose of imposing a sentence authorized by statute is defeated by the harm to society in prosecuting survivors of domestic violence; and that dismissal would improve the confidence of the public in the criminal justice system by satisfying the advocates, politicians, journalists, and citizens who support the defendant. The defendant’s dual defenses of justification and accident are not bases upon which to dismiss the case in the interest of justice. The Court cannot say as a matter of law that the defendant was justified or the injury was accidental. There are factual disputes to be resolved by a trier of fact. For example: 1) the defendant affirms the deceased placed her in a chokehold, but the police reports and lengthy body-worn camera footage indicate the defendant made no mention at the time of being placed in a chokehold; 2) the defendant affirms the deceased physically attacked her, but evidence at the recent suppression hearing suggests she had no visible injuries when police entered the apartment and complained of no injuries to the police or hospital staff; 3) the defendant affirms she screamed for help while the deceased attacked her, but the People affirm that a neighbor heard the defendant yelling at the deceased and make no mention of her screaming for help before the stabbing; 4) the defendant affirms she grabbed a knife in self-defense and the deceased lunged toward her, tripped, and fell upon it, but the medical evidence affirmed by the People states the deceased had four other knife injuries, two suggesting the use of a second, serrated knife. As described above, the trier of fact should determine whether a defense applies after a thorough airing of the facts through the adversarial process. The Court rejects the defendant’s argument that the purpose and effect of a sentence for murder in the second degree would be frustrated if this prosecution were permitted to continue. The defendant’s argument relies entirely upon her assertion of innocence — a determination that must be made by a trier of fact — and her status as a survivor of domestic violence — a factor, as noted above, the legislature has already considered. In 1998, New York State passed “Jenna’s Law” (L 1998, ch 1), which, among other things, provided for reduced sentences for defendants whose crimes were driven by domestic abuse and directed against their abuser (former Penal Law §60.12). In 2019, the “Domestic Violence Survivor’s Justice Act” (L 2019, ch 31) reduced those sentences even further and removed the requirements that the crimes be caused by the abuse and directed against the abuser. Under the current statutory scheme, the legislature has determined that a survivor of domestic violence who commits murder in the second degree should be sentenced to a determinate sentence of between five and 15 years (Penal Law §60.12[3]). The Court should not substitute its “interest of justice” discretion in an area where the legislature has already spoken (People v. Galindo, 38 NY3d 199, 206 [2022] ["[T]he legislature is free to decide which issues to address, and we are not free to ignore legislation because some may believe the legislature has not gone far enough.”]). The defendant’s argument that dismissal would improve public confidence in the criminal justice system is questionable. In support of her position, she offers a long list of domestic violence advocates, celebrities, and faith leaders who would like the case to be dismissed. Those supporters, however, have access only to the facts provided by the defendant. The views of the court of public opinion are not binding on this Court. Public opinion, notoriously fickle, should not be mistaken for public confidence. Public confidence in the criminal justice system is best fostered by public scrutiny, and the airing and thorough examination of the facts in a public forum (see Westchester Rockland Newspapers, Inc. v. Leggett, 48 NY2d 430, 445 [1979] [J. Cooke, concurring]; Leggett, 48 NY2d 450 [J. Fuchsberg, concurring]). A trial would provide that level of scrutiny far better than a pre-trial motion. The Law. The Court has considered the statutory factors under CPL §210.40(1) and finds no compelling reasons to dismiss. Murder in the second degree is a class AI-felony, the most serious level of offense designated by the legislature, and the People have not suggested that the charge is no longer supported by the evidence (see §210.40[1][a] [seriousness of the offense]). A man is dead (see §210.40[1][b] [harm caused]). The defendant’s affirmation devotes 11 pages to the deceased’s bad character, his history of alcoholism, and allegations of abuse by his prior partner and by the defendant herself. For over a century, our law has held that “[t]he worst man has the right to live, the same as the best [and t]he law protects every one from unlawful violence, regardless of his character” (People v. Rodawald, 177 NY 408, 422-23 [1904]). It would be inappropriate for the Court to determine the harm caused based upon the comparative worth of the deceased’s character. The People affirm his family has suffered a great loss as a result of the defendant’s conduct. That being said, the People have provided no information regarding his family’s attitude with respect to this motion (see §210.40[1][i]; Executive Law §642[1] [requiring District Attorney to consult victim's family regarding securing order, alternative sentences, and disposition of case]). Although circumstantial, evidence of the defendant’s guilt abounds (see CPL §210.40[1] [c]). There is no dispute that the deceased died from a stab wound to his upper right chest, which angled right to left at a 45-degree downward angle, piercing his right lung before reaching his spine. There is no dispute that the deceased also had two small, incised wounds to the right side of his neck consistent with the tip of a knife, and two vertical, incised wounds to his right shoulder consistent with a serrated knife. There is no dispute that the fatal wound was caused by an eight-inch kitchen knife, held by the defendant. There is no dispute that there was no one else present in the apartment at the time. The People affirm that a witness heard the defendant yelling “Get the fuck out. Don’t ever come back here again,” and later, “Don’t take my purse, give me my purse, don’t leave with my bag.” “I have a knife,” and finally, “What did you do? Someone help me.” The People further affirm that the defendant informed this witness that she stabbed the deceased, and that he had attacked her. This Court is not in sympathy with domestic abusers and fully understands the long and sorry dynamic that plays out in intimate partner relationships where violence is present. The defendant may indeed be a survivor and her late husband may indeed have been a vicious, violent, and threatening man. If so, the trial will bear that out. Her personal history as a working woman without a criminal history evokes sympathy, and there are many testaments to her good character (see §210.40[1][d]). Certainly nothing in her background weighs against dismissal. But neither does it constitute a compelling factor that demonstrates the prosecution is unjust (see People v. Watson, 182 Misc 2d 644, 651 [Crim Ct, Bronx County 1999] ["Although the various personal background factors enumerated by the defendant may be considered in mitigation upon imposition of sentence, they do not rise to the level of requiring the Court to act favorably on the defendant's request to dismiss."]). Finally, the defendant has alleged that the Grand Jury presentation was based upon perjured testimony by a police witness (see CPL §210.40[1][e]), but the Court does not find that to be accurate. The testimony in question was a reasonable summary of the witness’s interaction with the defendant under the circumstances. There were no other allegations of law enforcement misconduct. Conclusion. After full consideration of the parties’ submissions and the relevant criteria, the Court does not find any compelling factor, consideration or circumstance that clearly demonstrates that prosecution of the defendant under the current indictment would result in an injustice. It would, therefore, be an inappropriate exercise of the Court’s discretion to dismiss the indictment in the furtherance of justice. The People’s stated goal of continued prosecution on the charge of manslaughter in the first degree can be achieved through the submission of the lesser included offense to the jury. If convicted and found to be a survivor of domestic violence, the defendant’s tragic history will fall under the ambit of the recent domestic violence sentencing legislation. The remaining issues raised present multiple factual questions requiring resolution at trial (Litman, 99 AD2d at 574; Prunty, 101 Misc 2d at 167). The People’s motion for leave to file an SCI and thereafter dismiss the indictment in the furtherance of justice is, therefore, denied. This constitutes the Decision and Order of the Court. Dated: August 30, 2022
