The following named papers numbered 1 to 2 were considered by the Court on this motion by the prosecution seeking relief pursuant to Criminal Procedure Law Section 170.40: 1 Notice of Motion / OSC and Affidavit / Affirmation in Support 2 Affidavit / Affirmation in Opposition X Affidavit / Affirmation in Reply DECISION AND ORDER The People move this Court by Notice of Motion and Affirmation in Support,1 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 (“C.P.L.”) Section 170.40. Such relief is sought based upon the allegation that the identified counts are presently insufficient. By Affirmation in Opposition, 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 counts of the Vehicle and Traffic Law (“V.T.L.”), 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 ninety (90) days following the commencement of the action pursuant to C.P.L. Section 30.30(1)(b) based upon the classification of the most serious charges and the potential sentences of imprisonment associated therewith. Prior to any announcement of readiness for trial, the People must meet all obligations imposed by both C.P.L. Article 245 and C.P.L. Section 30.30 as amended. Procedural History 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 percent 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 N.Y.2d 765, 767 (1987); see also General Construction Law Section 20), and thus the People were required to state their readiness for trial within ninety (90) days thereof, to wit: November 20, 2022.2 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 C.P.L. Section 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 C.P.L. Section 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 forego a written reply and the motion was submitted. The People seek to have the following counts dismissed pursuant to C.P.L. Section 170.40 in the interest of justice: Count “3″ (V.T.L. 319-1); Count “4″ (V.T.L. 1126-(a)); Count “5″ (V.T.L. 1128-(d)); and Count “6″ (V.T.L. 1227-1),3 as it is alleged that such counts “…are insufficient and cannot be cured[]” (see Affirmation in Support, Paragraph “ 5″), and therefore the within matter cannot be certified as ready for trial in accordance with C.P.L. Section 30.30(5-a). Discussion and Analysis Recent discovery reform has resulted in an intrinsic tension between the obligation of the 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. C.P.L. Section 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 C.P.L. Section 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 C.P.L. Section 170.40, which provision was last modified some forty (40) years prior to the advent of C.P.L. Section 30.30(5-a). Traditionally, C.P.L. Section 170.40 establishes a path for dismissal of an Information or Misdemeanor Complaint4 in the interest of justice and calls upon the Court to examine ten (10) enumerated factors in relation thereto. Such motion may be made by the People, by the Defendant or sua sponte by the Court. See C.P.L. Section 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 C.P.L. Section 170.40(1). Moreover, such discretion may still be exercised even if one or more of the enumerated bases for dismissal under C.P.L. Section 170.40(1) are not otherwise present and despite any “legal or factual merit” to the charged offenses. See People v. Rickert, 58 N.Y.2d 122, 126 (1983). 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 (C.P.L. Sections 170.40(1)(a), (1)(b)), the character of the accused (C.P.L. Sections 170.40(1)(d), (1)(i)), and the effect of dismissal on the public at large (C.P.L. Sections 170.40(1)(g), (1)(h)), while concurrently granting broad license to examine “any other relevant fact indicating that a judgment of conviction would serve no useful purpose[]” (C.P.L. Section 170.40(1)(j)). Following the amendment and enactment of the present iteration of C.P.L. Section 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 (citation omitted).” See Rickert, supra. at 126. 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 (citations omitted).” Id. at 127. 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, 627 N.Y.S.2d 508 (2nd Dept. 1995); People v. Richman, 989 N.Y.S.2d 783 (Sup. Ct. App. Term, 9th & 10th Judicial Dists. 2014); People v. Cross, 41 N.Y.S.3d 720 (Sup. Ct. App. Term, 9th & 10th Judicial Dists. 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, supra. at 126. Nonetheless, as the majority of reported case law regarding C.P.L. Section 170.40 precedes the enactment of C.P.L. Section 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 C.P.L. Section 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 C.P.L. Section 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 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 C.P.L. Section 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 C.P.L. Section 100.15 and C.P.L. Section 100.40. Given the aspirational objectives of C.P.L. Section 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, C.P.L. Section 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 C.P.L. Section 170.30. The legislative introduction of C.P.L. Section 30.30(5-a) into this legal equation some four (4) 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 of improper prosecution or conviction based upon a potentially deficient accusatory instrument, and the dissipation of judicial and non-judicial 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 Opposition, Paragraph “ 17″) is inherently flawed, as the timely dismissal of insufficient counts aligns with both the dictates of C.P.L. Section 30.30(5-a) and the rights of procedural due process. Accordingly, the utilization of C.P.L. Section 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 C.P.L. Section 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, Paragraph “ 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, 180 N.Y.S.3d 885 at 887-888 (Crim. Ct. Kings Co. 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 C.P.L. Section 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; and it is further ORDERED, that counsel are directed to appear in Part 10 on March 10, 2023 at 9:30 a.m. for the continuation of the within proceedings and to address any pre-trial applications as may be appropriate. The appearance of the Defendant is waived for such purposes; and it is further ORDERED, that the parties may seek to advance this matter to address any time-sensitive issues, if necessary and appropriate. The foregoing constitutes the Decision and Order of the Court. Dated: February 17, 2023
