DECISION & ORDER Defendant moves for an order (i) dismissing all charges in the interest of justice pursuant to CPL §§170.40(1); 170.30(1)(g) and People v. Clayton, 342 N.Y.S.2d 106, 109 (2d Dept. 1973); and (ii) granting such additional relief as this Court deems just and proper. For the reasons set forth below, defendant’s motion to dismiss the accusatory instrument in the interest of justice is denied. Factual and Procedural History On February 4, 2023, defendant was arrested for driving with a suspended license. According to the accusatory instrument, at the time of defendant’s arrest his license had at least 37 suspensions on 8 separate dates due to defendant’s failure to pay the driver responsibility assessment. Consequently, on February 5, 2023 defendant was arraigned and charged with Vehicle and Traffic Law (“VTL”) §§511(2)(a)(iv)(aggravated unlicensed operation of a motor vehicle in the second degree — Misdemeanor); 511(1)(a)(aggravated unlicensed operation of a motor vehicle in the third degree — Misdemeanor); and 509(1)(unlicensed operation of a motor vehicle — Violation). The matter was adjourned to March 8, 2023 for the People to convert the case to an information and file a Certificate of Compliance (“CoC”). Prior to the next court appearance, on February 9, 2023, the People filed and served a Certified Department of Motor Vehicles (“DMV”) Abstract with notice of mailings which resulted in converting the complaint to an information. Despite having an open criminal case for operating a motor vehicle without a valid license, on February 22, 2023, defendant was arrested again and issued a Desk Appearance Ticket (“DAT”) to appear in court on March 14, 2023. Even though defendant had two open criminal matters for operating a motor vehicle without a license, on March 1, 2023 defendant was arrested a third time for operating a motor vehicle without being duly licensed and charged with VTL §§511(3)(a)(ii)(aggravated unlicensed operation of a motor vehicle in the first degree — Felony); 511(2)(a)(iv)(aggravated unlicensed operation of a motor vehicle in the second degree — Misdemeanor); 511(1)(a)(aggravated unlicensed operation of a motor vehicle in the third degree — Misdemeanor) and 509(1)(unlicensed operation of a motor vehicle — Violation). The court released defendant under his own recognizance and adjourned the matter to March 8, 2023 for Grand Jury action and to track the first criminal court matter. Concerning the first open criminal court matter, on March 7, 2023, the People filed and served a CoC and Statement of Readiness (“SoR”). On March 8, 2023, at the next court appearance, defendant was arraigned on the information. As to the People’s CoC, defendant requested time to review the served discovery. As to the third open matter where defendant was charged with a felony, the People failed to present the matter to a grand jury. Consequently, both matters were adjourned to April 7, 2023. With respect with the second criminal matter, on March 14, 2023, defendant appeared in court and was arraigned on a DAT. Defendant was charged with the same charges as his third criminal matter. The defendant’s license was suspended because of a failure to answer a traffic summons and for defendant having at least ten suspensions or revocations on at least ten different days. The matter was adjourned to April 7, 2023 for Grand Jury action and join the other two open matters. On April 7, 2023, the People orally dismissed the felony count in the second and third matter. Consequently, the matters were reduced to a misdemeanor which required the People to convert the complaint to an information. Therefore, the second and third matters were adjourned to May 31, 2023 for conversion and the People’s CoC. As to defendant’s first matter, defendant raised no objections to the validity of the CoC and that matter was adjourned for possible disposition. Prior to the next court appearance of April 12, 2023, the People filed and served a Certified DMV Abstract with notice of mailings, CoC, SoR, and Automatic Disclosure Form (“ADF”) for defendant’s third matter. On April 17, 2023, the People filed and served a Certified DMV Abstract with notice of mailings for defendant’s second matter. On May 17, 2023, the People filed and served an ADF, CoC, and SoR for defendant’s second matter. On May 31, 2023, at the next court appearance, all CoCs were deemed valid. In response, defendant requested an omnibus motion schedule for the court to decide on hearings. Thus, the matter was adjourned to August 16, 2023 for decision. On August 16, 2023, the court issued a Decision and Order granting Huntley/ Dunaway/Mapp hearings and adjourned the matters to October 6, 2023 for hearings and trial. On October 5, 2023, prior to the next court appearance, the People filed and served a motion to consolidate all matters which the court granted on November 15, 2023. Thus, the second and third matters were consolidated into the first matter. Subsequently the matter was adjourned to January 12, 2024 for possible disposition. On January 12, 2024, defendant failed to appear in court and a bench warrant was stayed until February 21, 2024 for defendant to appear. On February 21, 2024, defendant appeared in court and accepted the People’s pre-pleader offer. The pre-pleader required defendant to complete three days of STOP-DWI, the Driver’s Accountability Program (“DAP”), five days of Bronx Community Solution’s Court to Workforce Program, and to get on a DMV payment plan. Upon completion of the requirements, the People would offer defendant a plea to the violation VTL §509(1)(unlicensed operation of a motor vehicle) with time served. Consequently, the matter was adjourned to March 26, 2024 for possible disposition. On March 19, 2024, defendant and the People agreed to an administrative adjournment to provide defendant additional time to complete three days of STOP-DWI. On April 9, 2024, defendant requested a motion schedule to file a motion to dismiss in the interest of justice. Now before this court is defendant’s motion to dismiss the accusatory instrument in the interest of justice. Specifically, defendant reduced the number of suspensions on his license from 90 to 4 and completed the DAP, Court to Workforce Program, and substance abuse treatment (inpatient and outpatient). Defendant also secured employment to support his wife and three children. Consequently, any further sentence or prosecution would negatively affect defendant’s employment status and result in a financial hardship for defendant. In opposition, the People argued that defendant’s motion must be denied as untimely since it was filed more than forty-five days after defendant was arraigned. The People also argued that defendant failed to demonstrate a compelling factor to warrant dismissal because defendant did not complete the conditions of the pre-pleader agreement. Additionally, defendant was arrested three times for driving with a suspended license and previously pled guilty to VTL §509(1)(unlicensed operation of a motor vehicle) twelve times. Significantly, on May 17, 2024 after the filing of defendant’s motion, defendant was arrested in Manhattan and charged with VTL §511(1)(a)(aggravated unlicensed operation of a motor vehicle). On June 4, 2024, defendant pled guilty in his Manhattan matter to VTL §509(1)(unlicensed operation of a motor vehicle) and was sentence to time served. Hence, defendant knowingly continued to drive with a suspended license with total disregard of the law and potential criminal law consequences. In reply, defendant argued that his past suspensions resulted from a failure to pay tickets stemming from his low income and substance abuse. Additionally, defendant has been unable to complete the community service requirement in the pre-pleader offer due to conflicts with his work schedule. Consequently, the Court should exercise their discretion and dismiss the matter due to the treatment and investment made by defendant to clear his license. Legal Analysis General Application The Criminal Procedure Law grants the court discretion to dismiss an indictment or accusatory instrument in furtherance of justice. CPL §§210.40 and 170.40. Dismissal in the interest of justice does not depend on the legal or factual merits of the case but rather whether justice will be dispensed by dismissing the matter. People v. Clayton, 41 A.D.2d 204 (2d Dept. 1973)(court should not dismiss an indictment in the furtherance of justice until providing the parties a fair opportunity to present evidence and arguments); People v. Watson, 182 Misc. 2d 644 (Crim. Ct. Bronx Cnty. 1999)(denying motion to dismiss in interest of justice when defendant was accused of leaving child alone in a locked apartment for approximately two and a half hours). The statute enumerates the following factors that the court must consider including: (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 sentence authorized for the offense; (g) the impact of dismissal upon the confidence of the public in the criminal justice system; (h) the impact of dismissal on the safety or welfare of the community; (i) where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion; [and] (j) any other relevant fact indicating that a judgment of conviction would serve no useful purpose. However, the Court’s discretion “is neither absolute nor uncontrolled, and is to be sparingly exercised.” People v. Kelly, 141 A.D.2d 764, 765 (2d Dept. 1988). Hence, a Clayton motion to dismiss in furtherance of justice should only be granted when a defendant has demonstrated “the existence of 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.” People v. Keith R., 95 A.D.3d 65, 67-68 (1st Dept. 2012)(denying defendant’s Clayton motion when the defendant assaulted and seriously injured two correction officers without any justification); People v. Sanchez, 44 Misc. 3d 764 (Crim. Ct. Bronx Cnty. 2014)(declining to dismiss the matter in the interest of justice when defendant was deaf, and the defense attorney had trouble communicating with defendant). Even a lack of criminal record alone is an insufficient basis to dismiss the accusatory instrument. People v. Reyes, 174 A.D.2d 87, 90 (1st Dept. 1992)(dismissal was not justified solely because defendant was “thirty-one years old at the time of her arrest [and] had no prior criminal history.”); People v. Andrew, 78 A.D.2d 683 (2d Dept. 1980)(defendant’s lack of prior criminal record alone did not justify dismissal). Prior to granting dismissal in furtherance of justice, the court must schedule a hearing on notice to the People and defendant. People v. Clayton, 41 A.D.2d 204 (2d Dept. 1973). During the hearing, the parties may “present such evidence and arguments as may be pertinent to the interests of justice.” Id. at 207-208. Alternatively, the court may decide based on the submission of the parties and documentary evidence that “the motion is determinable without a hearing to resolve questions of fact.” CPL §§210.45(3) and 170.45. Application of Clayton Factors The court finds that the seriousness and circumstances of the offenses weight heavily against dismissal in furtherance of justice. Although defendant argued that he behaved respectfully when being arrested and was charged with “offenses [that are] among the least serious”, the court notes that defendant was initially charged with felony counts on two of the three dockets. Even after the dockets consolidated and the felony counts dismissed, defendant still faced a serious misdemeanor offense under the VTL punishable by “(i) a fine of not less than two hundred dollars nor more than five hundred dollars; or (ii) a term of imprisonment of not more than thirty days; or (iii) both such fine and imprisonment.” VTL §511(1)(c). Therefore, the seriousness of the offense negatively impacts defendant’s motion to dismiss in the interest of justice. Here the court considered defendant’s criminal history which disclosed that defendant has pled guilty twelve times to VTL §509, a violation, from 2011 to 2023 in Westchester County, Greene County, Bronx County, and New York County. Additionally, while the instant motion was pending, defendant was arrested in New York County and pled guilty to VTL §509(1)(unlicensed operation of a motor vehicle). Defendant’s repeated VTL §509 convictions and open VTL matter evidence defendant’s indifference to the law by persistently operating a motor vehicle without being duly licensed, which intercepts the court from entertaining dismissing the matter in the interest of justice. Under these facts a dismissal would run contrary to the interests in safeguarding the public against people who fail to be duly licensed to operate a motor vehicle. Recently, the New York legislature passed Angelica’s Law which amended VTL §511 making it a felony to commit the offense of VTL §511 (aggravated unlicensed operation of a motor vehicle) while a defendant has five or more license suspensions or revocations. S.4671/A.3983. The amendment to VTL §511 becomes effective November 1, 2024 and makes it a Class E Felony for a person to operate a motor vehicle on a public highway while their license or driving privileges have been suspended, revoked, or withdrawn, and the person has “in effect five or more suspensions or revocations imposed on at least five separate dates.” VTL §§511(3)(a)(v). Significantly, the law was named after Angelica Nappi who at the age of 14 was killed in 2008 when she was struck by a driver operating a motor vehicle without being duly licensed because the driver had more than five license suspensions.1 Hence, Angelica’s Law aims to reduce and prevent deaths and injuries caused by unlicensed drivers who have five or more license suspensions. In contrast, defendant here had accumulated 90 license suspensions by the time he was arrested and appeared before this court. Although the court recognizes defendant’s accomplishments and efforts in reducing the 90 license suspensions to four, the court cannot overlook defendant’s recent arrest for driving with a suspended license in New York County while given an opportunity to plea to a violation once he fulfilled the pre-pleader conditions. Defendant’s continuous driving with a suspended license runs contrary to the spirit of Angelica’s Law and the public sentiment of keeping driver’s operating a motor vehicle while unlicensed after committing five or more moving violations that resulted in prior suspensions and revocations. Accordingly, dismissal of the accusatory instrument in the interest of justice could shake the public’s trust and confidence in the criminal justice system given defendant’s recidivist unlicensed driving. Conclusion Consequently, defendant has failed to provide a compelling reason warranting dismissal of the accusatory instrument in the interest of justice. The defendant’s multiple violations of unlicensed operation of a motor vehicle, the seriousness of defendant’s offenses, and the potential impact a dismissal could have on public trust and confidence in the criminal justice system weigh heavily against dismissal. People v. Boissard, 208 A.D.3d 794 (2d Dept. 2022)(defendant failed to complete mandates of plea agreement, had a lengthy criminal history, the complainant was still experiencing fear and anxiety, the charge of sexual abuse was very serious, and “dismissal would have a deleterious effect on public safety.”). Accordingly, defendant’s motion to dismiss the accusatory instrument in the furtherance of justice is denied. This constitutes the decision of the court. Dated: September 16, 2024
