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People v. Disimone

New York Supreme Court, Westchester County


January 7, 2009

THE PEOPLE OF THE STATE OF NEW YORK
v.
ANTHONY DISIMONE, DEFENDANT.

The opinion of the court was delivered by: Lester B. Adler, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

By notice of motion dated September 15, 2008, defendant moves for an order dismissing the indictment and/or barring a retrial of the instant indictment. In response, the People have filed an affirmation in opposition with accompanying memorandum of law dated November 21, 2008. Defendant filed a reply memorandum of law with the Court on December 18, 2008.*fn1

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged by Indictment No. 97-1782 with two counts of murder in the second degree (both intentional and depraved indifference murder), and two counts of tampering with physical evidence in connection with the1994 stabbing death of Louis Balancio outside of the Strike Zone club in the City of Yonkers, New York.*fn2 Following a jury trial in the Supreme Court, Westchester County (Cowhey, J.), on October 25, 2000, defendant was acquitted of the intentional murder count but was convicted of the one count of depraved indifference murder and two counts of tampering with physical evidence. On January 26, 2001, defendant was sentenced to a period of incarceration with a minimum of 25 years and a maximum of life for the murder conviction, and two indeterminate periods of incarceration of one and one-third to four years for each count of tampering with evidence. The Appellate Division, Second Department affirmed the conviction on October 7, 2002 (People v. DiSimone, 298 AD2d 399, 751 NYS2d 403),*fn3 and defendant's application for leave to appeal to the Court of Appeals was denied on February 3, 2003 (People v. DiSimone, 99 NY2d 613, 757 NYS2d 824, 787 NE2d 1170).

On April 23, 2004, defendant filed a petition pursuant to 28 U.S.C. §2254 seeking a federal writ of habeas corpus on the ground, inter alia, that New York's depraved indifference murder statute is unconstitutionally vague. While the federal matter was pending, on October 19, 2004, the New York State Court of Appeals rendered its decision in People v. Payne, (3 NY3d 266, 786 NYS2d 116, 819 NE2d 634, rearg. denied 3 NY3d 767, 788 NYS2d 670, 821 NE2d 975). In the majority opinion authored by Justice Rosenblatt, the court stated that "depraved indifference murder may not be properly charged in the overwhelming majority of homicides that are prosecuted in New York," and that the use of a weapon may never qualify as depraved indifference murder where there is a "manifest intent to kill" (Id. at 270-271). By interlocutory order dated January 12, 2005, the United States District Court for the Southern District of New York (Brieant, J.), stayed the proceeding for 30 days in order to permit the defendant the opportunity to raise a claim that Payne should apply retroactively to his case in the state court.

Pursuant to the district court's order, on February 10, 2005, defendant filed a motion to vacate the judgment of conviction pursuant CPL §440.10 in the Westchester County Court. This motion was denied by the state court in a Decision and Order dated June 6, 2005 on the ground, inter alia, that a legal sufficiency claim can be reviewed only by direct appeal and, therefore, defendant's insufficiency claim was procedurally barred.

The district court, having concluded that defendant had now exhausted his state remedies, granted the writ insofar as it pertained to the conviction for depraved indifference murder (DiSimone v. Phillips, U.S. Dist. Ct., S.D.N.Y, 04 Civ. 3128, Brieant, J., 2005).*fn4 In its Memorandum and Order dated November 30, 2005, the district court concluded that "the rule of Payne will be treated by the New York Court of Appeals as retroactive in application to a case on collateral review of a conviction which was final when Payne was decided." Accordingly, the court vacated the conviction on the ground that under Payne the trial evidence could not "support the element of the crime of Depraved Indifference Murder."

In a decision dated August 22, 2006, the United States Second Circuit Court of Appeals reversed the district court's holding on the ground that a "void-for-vagueness" challenge in the state court, standing alone, does not preserve an insufficiency claim for purposes of federal habeas corpus (DiSimone v. Phillips, 461 F.3d 181, 189 [2006]). However, the Second Circuit agreed with defendant that the information contained in the affidavit of Luvic Gjonaj regarding a statement made by Nick Djonovic that he stabbed the victim two times before defendant allegedly stabbed the victim constituted Brady material. The Second Circuit further found that there was a "reasonable probability" that had such exculpatory information been disclosed to the defense, "the case would have been different," and that if neither the defendant nor his attorney knew of, or had constructive knowledge of, the information then it had not been disclosed "in sufficient time to afford the defense an opportunity for use" (Id. at 196). Since the Second Circuit was unable, based on the record before it, to determine the extent to which defendant or his attorney knew or should have known about the information, the court remanded the matter to the district court for further fact finding on this question (Id. at 198).

On remand, the People conceded that a Brady violation had occurred, withdrew any previously filed opposition to the issuance of a conditional writ of habeas corpus, and agreed that defendant should be granted a new trial in the state court. In its Memorandum and Order dated February 5, 2007, the district court, while concluding that the Brady violations were "egregious," denied defendant's application for a conditional writ of habeas corpus based upon the violation (DiSimone v. Phillips, U.S. Dist. Ct., S.D.NY, 04 Civ. 3128, Brieant, J., 2007). In denying defendant's application on this ground, the district court stated that "[i]t is not a function of this Court to punish the prosecutors for their misconduct at petitioner's first trial by preventing a retrial which would otherwise be allowed, but rather to see that Justice is done in the case. To the extent that Petitioner's counsel argue that it is necessary to send a message' to prosecutors in New York that they cannot fail to disclose Brady material * * * this is not a proper purpose for the court." The district court did, however, vacate the conviction, dismiss the indictment and bar the People from retrying the defendant on the ground that defendant could not be convicted of depraved indifference murder on the evidence since any retrial "would have to be conducted consistently with New York case law now in effect."

The People appealed, and the Second Circuit vacated the district court's order insofar as it barred a retrial (DiSimone v. Phillips, 518 F.3d 124 [2008]). In its decision dated March 4, 2008, the Second Circuit found that while the district court properly ordered that the conviction be vacated, the court exceeded its authority by barring retrial since "[t]he question whether retrial is in fact improper under the constitutional principles of insufficiency of the evidence or double jeopardy must be determined in the first instance by the state courts" (Id. at 127). In vacating this portion of the district court's order, the Second Circuit expressed no opinion as to whether defendant could be retried in the state court.

On May 8, 2008, the Second Circuit issued its mandate affirming that portion of the district court's decision which vacated defendant's conviction for depraved indifference murder. The People now seek to retry the defendant on that count of the indictment. In response, the defendant moves for an order dismissing the indictment: 1) on the ground that the evidence before the Grand Jury was not legally sufficient to establish the offense of depraved indifference murder under the Court of Appeals' holding in Payne; 2) on the ground that a retrial would violate the prohibition against double jeopardy; and 3) in the interest of justice. Defendant also moves for an order barring a retrial: 1) on the ground of collateral estoppel; 2) on the ground that the Brady violations which occurred at his prior trial deprived him of due process; and 3) on the ground of prosecutorial misconduct.

LEGAL ANALYSIS

I. MOTION TO DISMISS INDICTMENT ON LEGAL INSUFFICIENCY GROUNDS

Defendant moves pursuant to CPL §210.30 and §210.20(1)(b) to inspect the Grand Jury minutes and, upon a review thereof, to dismiss the indictment on the ground that the evidence adduced before the Grand Jury was legally insufficient to establish the offense of depraved indifference murder under current New York case law. In support of his motion, defendant relies upon evidence presented at trial which established that the victim was stabbed 13 times, and that ten of these "thrusts" struck vital organs. He argues that this evidence is insufficient to establish the crime of depraved indifference murder.

Prior to the commencement of his trial in 2000, defendant filed certain pre-trial omnibus motions which included, inter alia, a motion to inspect the Grand Jury minutes and to dismiss the indictment. In a Decision and Order dated March 31, 2000, the Supreme Court, Westchester County granted defendant's motion to inspect the Grand Jury minutes, but denied his motion to dismiss the indictment on the ground that "the competent evidence presented [to the Grand Jury] was legally sufficient to establish a prima facie case, which if unexplained, would warrant a conviction."

In his notice of motion dated September 15, 2008, defendant again moves to inspect the Grand Jury minutes and to dismiss the indictment on the grounds of legal insufficiency of the evidence. There is no statutory authority for reinspection of Grand Jury minutes (People v. Guin, 243 AD2d 649, 650, 663 NYS2d 621, appeal denied 91 NY2d 834, 667 NYS2d 688, 690 NE2d 497) and, as a general rule, a court should not "reconsider, disturb or overrule an order in the same action of another court of co-ordinate jurisdiction" (Matter of Dondi v. Jones, 40 NY2d 8,15, 386 NYS2d 4, 351 NE2d 650; People v. Bradley, 247 AD2d 929, 668 NYS2d 788, appeal denied 91 NY2d 940, 671 NYS2d 719, 694 NE2d 888). This doctrine, known as the law of the case, while not an absolute mandate, may only be vitiated in "extraordinary circumstances" (Guin, 243 AD2d at 650; Matter of Spota v. Bress, 136 AD2d 584, 524 NYS2d 44; People v. Finley, 104 AD2d 450, 479 NYS2d 63, adhered to on rearg. 107 AD2d 709, 484 NYS2d 63), such as a change in the law (People v. Williams, 188 AD2d 573, 574, 591 NYS2d 467, lv. denied 81 NY2d 894, 597 NYS2d 957, 613 NE2d 989; Weiss v. Flushing Natl. Bank, 176 AD2d 797, 575 NYS2d 126).

Here, the prior holding of a court of coordinate jurisdiction should not be disturbed unless defendant has made a showing that extraordinary circumstances exist which warrant a departure from the doctrine of the law of the case. Defendant does not specifically address the issue of the law of the case doctrine, however, he does argue that there has been a change in the law which merits dismissal of the count of depraved indifference murder. Consequently, a determination with respect to this motion warrants a brief discussion regarding the history and progression of depraved indifference jurisprudence in the State of New York.

Until recently, the law of depraved indifference murder was controlled by the Court of Appeals' 1983 holding in People v. Register, (60 NY2d 270, 469 NYS2d 599, 457 NE2d 704, cert. denied 466 U.S. 953, 104 S.Ct. 2159, 80 L.Ed.2d 544). Under Register, the crux of depraved indifference murder was "recklessness exaggerated by indifference to the circumstances objectively demonstrating the enormity of the risk of death from the defendant's conduct" (People v. Sanchez, 98 NY2d 373, 379-380, 748 NYS2d 312, 777 NE2d 204). For approximately 20 years, the Court of Appeals steadfastly adhered to this objective standard, specifically declining to add a further mens rea element "or substantive requirements of subjectively defined characteristics" which the court felt would "only confuse rather than qualify" (Id. at 384).

The first indication that adherence to the rule of Register was being questioned came in 2004 with the Court of Appeals' decision in People v. Gonzalez, (1 NY3d 464, 468, 775 NYS2d 224, 807 NE2d 273). In Gonzalez, the court concluded that a person cannot act both intentionally and recklessly with respect to the same result, and that "[w]hen a defendant's conscious objective is to cause death, the depravity of the circumstances under which the intentional homicide is committed is simply irrelevant" (Id). Later that year, the Court of Appeals issued its decision in Payne wherein it stated that depraved indifference murder "may not be properly charged in the overwhelming majority of homicides that are prosecuted in New York" (Payne, 3 NY3d at 270), for when there is a "manifest intent to kill," the use of a weapon may never qualify as depraved indifference murder (Id. at 271).

Approximately one year later in December of 2005, the Court of Appeals further limited the application of depraved indifference murder "only to a small, and finite, category of cases" (People v. Suarez, 6 NY3d 202, 207, 811 NYS2d 267, 844 NE2d 721). While severely limiting the circumstances under which a defendant could be convicted of depraved indifference murder, the court stopped short of explicitly overruling the holding in Register. It was not until almost seven months later in a majority opinion dated July 5, 2005, that the Court of Appeals overruled Register by holding that "depraved indifference to human life" is a culpable mental state (People v. Feingold, 7 NY3d 288, 294, 819 NYS2d 691, 852 NE2d 1163).

The decision in Feingold left open the question as to whether this new precedent operated retroactively and, if so, to what extent. The issue of its application in collateral proceedings was considered by the Court of Appeals in its 2006 decision in Policano v. Herbert, (7 NY3d 588, 825 NYS2d 678, 859 NE2d 484). After weighing the three factors set forth in People v. Pepper, (53 NY2d 213, 440 NYS2d 889, 423 NE2d 366), the court determined that the purpose to be served by the new standard, the extent of the reliance by law enforcement authorities on the old standard and the effect on the administration of justice of a retroactive application of the new standard all militated in favor of non-retroactivity (Policano, 7 NY3d at 603-604).

In November of 2008, the Court of Appeals was presented directly with the issue of the application of its holding in Feingold to cases pending on direct appeal (People v. Jean-Baptiste, 2008 NY Slip Op. 09253). It should be noted that the People argue in the affirmation in opposition that some disagreement exists among the judicial departments even as to the applicability of Feingold to cases pending on direct appeal (see People v. George, 43 AD3d 560, 840 NYS2d 662 [3rd Dept.2007], lv. granted 9 NY3d 961, 848 NYS2d 30, 878 NE2d 614; People v. Castellano, 41 AD3d 184, 837 NYS2d 643 [1st Dept. 2007], lv. granted 9 NY3d 960, 848 NYS2d 28, 878 NE2d 612).*fn5

The People also argue that there is "ample reason for the difficulty experienced in applying the new Feingold rule." To buttress this argument, the People claim that the Court of Appeals has "graft[ed] * * * an additional culpable mental state, by case law, to the Penal Law statutes" and, in so doing, has encroached upon the Legislature's domain.

This latter argument carries no weight with this Court. Although not specifically addressed in Jean-Baptiste, the Court concludes that implicit in this recent decision is the fact that the Court of Appeals disagrees with the People's position that it has failed in its "duty to implement the will of the Legislature" (see People v. Smith, 79 NY2d 309, 311, 582 NYS2d 946, 591 NE2d 1132). Moreover, it does not appear at the present juncture that the Legislature itself would agree with the People's argument. Historically, the Legislature has not failed to act (or "enact" as the case may be) when it feels that its legislative intent has been misinterpreted by the court (i.e., People v. Ryan, 82 NY2d 497, 605 NYS2d 235, 626 NE2d 51).

As to the retroactivity of Feingold to cases on direct appeal, the decision in Jean-Baptiste has, for all intents and purposes, laid this issue to rest. The court has spoken loud and clear that Feingold should apply to all cases pending on direct appeal where the defendant "has adequately challenged the sufficiency of the proof as to his depraved indifference murder conviction" (Jean-Baptiste, 2008 NY Slip Op. 09253). In distinguishing its decision from the holding in Policano, the court noted that "[t]here are important distinctions between defendants continuing to press specific sufficiency challenges during the appellate process, and those raising such challenges long after the convictions are final" (Id.).

While it is clear that Feingold is applicable to cases pending on direct appeal, defendant's conviction became final on May 3, 2003. At the time the determination was made with respect to defendant's motion to inspect the Grand Jury minutes Register was the controlling law in the State of New York (see Policano, 7 NY3d at 600). In the absence of any extraordinary circumstances which would warrant a departure from the doctrine of the law of the case, his renewed motion to reinspect the Grand Jury minutes and to dismiss the indictment on insufficiency grounds is denied.

II. MOTION TO DISMISS INDICTMENT ON GROUND RETRIAL BARRED BY THE CONSTITUTIONAL PROHIBITION AGAINST DOUBLE JEOPARDY

Defendant further argues that since the evidence is legally insufficient to support a charge and/or conviction of depraved indifference murder under the current law, any trial in this matter would, in essence, be for intentional murder. Based upon his acquittal of the count of intentional murder, he claims that any retrial of the depraved indifference murder count at this point in time would be barred by the principles of double jeopardy.

The Double Jeopardy Clause protects against the prosecution for the same offense after an acquittal or a conviction, or from the imposition of multiple punishments for the same offense (North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656; see also People v. Biggs, 1 NY3d 225, 228-229, 771 NYS2d 49, 803 NE2d 370; Matter of Suarez v. Byrne, 10 NY3d 523, 532, 860 NYS2d 439, 890 NE2d 201). As a general rule, this Constitutional protection does not preclude the retrial of a defendant who succeeds in having a conviction reversed on appeal (Id. at 532-533, citing United States v. Ball, 163 U.S. 662, 671-672, 16 S.Ct. 1192, 41 L.Ed.2d 300). There are, however, two exceptions to this rule. First, a reversal of a conviction based upon the ground that the evidence was legally insufficient protects a defendant against additional prosecution (Biggs, 1 NY3d at 229). A second exception exists in instances where "a prosecutor has engaged in prejudicial misconduct deliberately intended to provoke a mistrial" (Matter of Gorghan v. DeAngelis, 7 NY3d 470, 473, 824 NYS2d 202, 857 NE2d 523, citing Oregon v. Kennedy, 456 U.S. 667, 671, 102 S.Ct. 2083, 72 L.Ed.2d 416).

In the present case, neither exception is applicable. Defendant's federal writ of habeas corpus was granted to the extent that his conviction for depraved indifference murder was vacated on the ground of a Brady violation, not on the ground that the evidence presented at trial was legally insufficient. As to the second exception, there was no mistrial declared in this case. Therefore, any further discussion by the Court with respect to this exception is not required

Accordingly, defendant's motion for an order barring retrial of the depraved indifference count on the ground of double jeopardy is denied.

III. MOTION TO DISMISS INDICTMENT ON GROUND RETRIAL IS BARRED BY THE DOCTRINE OF COLLATERAL ESTOPPEL

Defendant further argues that a retrial of the depraved indifference charge is barred by the doctrine of collateral estoppel. Specifically, he claims that the ultimate issue of fact determined by the jury was that he did not intentionally cause the death of Louis Balancio and, since the evidence is insufficient to support a conviction for depraved indifference murder, a retrial is barred by the doctrine of collateral estoppel.

"Collateral estoppel * * * is but a component of the broader doctrine of Res judicata which holds that * * * a judgment on the merits by a court of competent jurisdiction is conclusive of the issues of fact and questions of law necessarily decided therein in any subsequent action" (Gramatan Home Investors Corp. v. Lopez, 46 NY2d 481, 485, 414 NYS2d 308, 386 NE2d 1328 [citations omitted]). While collateral estoppel has its origin in civil law, it is settled that the doctrine applies to criminal proceedings as well (People v. Goodman, 69 NY2d 32, 37, 511 NYS2d 565, 503 NE2d 996 [citations omitted]), and operates to "bar relitigation of issues necessarily resolved in defendant's favor at an earlier trial" (People v. Acevedo, 69 NY2d 478, 485, 515 NYS2d 753, 508 NE2d 665; see also People v. Evans, 94 NY2d 499, 502, 706 NYS2d 678, 727 NE2d 1232).

This doctrine is part of the constitutional guarantee against double jeopardy (Goodman, 69 NY2d at 37, citing Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469; People v. Moore, 220 AD2d 621, 622, 632 NYS2d 596, appeal denied 87 NY2d 923, 641 NYS2d 605, 664 NE2d 516). However, it differs from double jeopardy "because jeopardy may attach long before the jury has rendered a verdict, whereas collateral estoppel applies only when there has been a final judgment" (Goodman, 69 NY2d at 37.). Customarily, collateral estoppel is asserted in situations where an acquittal is followed by subsequent charges arising from the same incident (Id. at 38), whereas double jeopardy "normally relates only to subsequent prosecutions involving the same offense" (Id.).

However, collateral estoppel may also apply to a mixed verdict in a single prosecution (Id.). Where a defendant has been acquitted by a jury of some of the charges in a multi-count indictment and the conviction has been reversed on appeal due to a trial error, the People "are not foreclosed by * * * collateral estoppel concerns from reprosecuting the defendant on the charge which resulted in conviction," for "[a]cquittal on the joined charges does not give rise to a determination of an ultimate fact' which would bar reprosecution because manifestly, unless the verdict is repugnant or inconsistent, the jury could not have found favorably to defendant on an element of the crime of which it convicted him" (Id. at 39).

Defendant was acquitted of the intentional murder charge but was convicted of the depraved indifference murder charge, which conviction was vacated by a federal court on the ground of a Brady violation. Defendant's acquittal on the intentional murder count indicates that the jury did not conclude that defendant intended to cause the death of Louis Balancio. Since a determination as to the defendant's intent is not the sine qua non of a conviction of depraved indifference murder, the People are not foreclosed by collateral estoppel from retrying the depraved indifference murder charge (Goodman, 60 NY2d at 38).

Accordingly, defendant's motion for an order barring retrial of the depraved indifference murder charge on the ground of collateral estoppel is denied.

IV. MOTION TO DISMISS INDICTMENT BASED UPON BRADY VIOLATIONS

Defendant further claims that the Brady violations which occurred in this case were so egregious as to warrant dismissal of the indictment.

Firmly rooted in the concept of the constitutional guarantee of due process is the principle that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution" (Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.E.2d 215; see also United States v. Agurs, 427 U.S. 96, 97, 110 S.Ct. 2392, 49 L.Ed.2d 342). This principle, which is embodied in the rule of Brady, "exists to prevent miscarriages of justice," and "imposes on the People the duty to disclose to the defense evidence in its possession that is favorable to the accused" (People v. Steadman, 82 NY2d 1, 7 603 NYS2d 382, 623 NE2d 509).

The issue of whether or not a Brady violation occurred during the defendant's trial has already been resolved by the federal court. Indeed, the People agreed that there was such a violation. Defendant contends, as he did in his application for a federal writ of habeas corpus, that a retrial of the depraved indifference murder charge should be barred in order to punish the People for the failure to disclose and to deter any future violations. This argument ignores the underlying principle of Brady which, as so eloquently stated by Justice Douglas, "is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused" (Brady, 373 U.S. at 87).

It is the responsibility of this court to ensure that the defendant is treated fairly. However, in carrying out this duty, the court is not required to "sacrifice justice" to the possibility of deterring future violations of the Brady rule (People v. Williams, 7 NY3d 15, 20, 816 NYS2d 739, 849 NE2d 962).

The Second Circuit rejected defendant's argument,*fn6 and upon a review of the applicable federal and state law, this Court finds no reason to reach a different conclusion (see Brady, 373 U.S. 83; Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.E.2d 104; People v. Bond, 95 NY2d 840, 713 NYS2d 514, 735 NE2d 1279; People v. Hunter, 11 NY3d 1, 7, 862 NYS2d 301, 892 NE2d 365). Accordingly, defendant's motion for an order barring a retrial on the ground that a Brady violation occurred at his trial is denied.

V. MOTION TO BAR RETRIAL ON PROSECUTORIAL MISCONDUCT GROUNDS

Defendant further claims that the intentional concealment of Brady material violated the People's "fundamental prosecutorial duty" pursuant to New York's Disciplinary Code Rule 7-103, and mandates a bar to retrial.

As observed by Supreme Court Justice John Paul Stevens, the American prosecutor plays a special role in the search for truth in criminal trials (Strickler v. Greene, 527 U.S. 263, 281, 119 S.Ct. 1936, 144 L.Ed.2d 286). In New York, the authority to prosecute a criminal offense rests with the local District Attorney (see County Law §700[1]), whose "mission is not so much to convict as it is to achieve a just result" (People v. Bailey, 58 NY2d 272, 277, 460 NYS2d 912, 447 NE2d 1273, quoting People v. Zimmer, 51 NY2d 390, 393, 434 NYS2d 206, 414 NE2d 705 [internal quotations omitted]). It is this special role which explains "the basis for the prosecutor's broad duty of disclosure" (Strickler v. Greene, 527 U.S. at 281).

The sole basis for the vacatur of defendant's conviction for depraved indifference murder was the People's breach of the obligation to disclose exculpatory material. The Second Circuit has ruled that the appropriate remedial relief is a retrial, and this Court finds no reason to deviate from that conclusion (see People v. Adames, 83 NY2d 89, 90-91, 607 NYS2d 919, 629 NE2d 391).

Accordingly, defendant's motion to bar a retrial of the depraved indifference murder charge on the ground of prosecutorial misconduct is denied.

VI. MOTION TO DISMISS IN THE INTEREST OF JUSTICE

In addition to the grounds discussed above, defendant further moves to dismiss the indictment in the interest of justice (CPL §§210.20[1][i] & 210.40).

An indictment, or count thereof, may be dismissed in the interest of justice where "such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstances clearly demonstrating that conviction or prosecution of the defendant upon such indictment or count would constitute or result in injustice" (CPL §210.40[1]). While the power to dismiss an indictment on such ground is committed to the court's discretion, it should be "exercised sparingly" and only "in that rare' and unusual case' [which] cries out for fundamental justice beyond the confines of conventional considerations" (People v. Insignares, 109 AD2d 221, 234, 491 NYS2d 166, quoting People v. Belge, 41 NY2d 60, 62-63, 390 NYS2d 867, 359 NE2d 377; People v. Hudson, 217 AD2d 53, 55, 634 NYS2d 752, appeal denied 87 NY2d 1020, 644 NYS2d 154, 666 NE2d 1068; People v. M.R., 43 AD3d 1188, 841 NYS2d 799, lv. denied 9 NY3d 1008, 850 NYS2d 396, 880 NYS2d 882). In determining whether dismissal is warranted, a court must consider, individually and collectively, the statutory criteria set forth in CPL §210.40(1) (People v. Rickert, 58 NY2d 122, 126-127, 459 NYS2d 734, 446 NE2d 419; People v. Jenkins, 11 NY3d 282, 2008 NY Slip Op. 07992),*fn7 and in so doing, must conduct " a sensitive balancing of the interests of the individual and of the People" (Rickert, 58 NY2d at 127 [citations omitted]).

After considering defendant's arguments and evaluating them against each of the statutory factors, the Court finds that defendant has failed to sustain his initial burden of making a prima facie showing of "some compelling factor, consideration or circumstance which would render his conviction or prosecution on the underlying charges unjust" (People v. Schlessel, 104 AD2d 501, 502, 479 NYS2d 249; see also People v. Thomas, 108 AD2d 884, 485 NYS2d 579). Here, defendant is charged with the class A-I felony of murder in connection with the death of Louis Balancio. In view of the seriousness of the crime charged, the impact of the crime on the public interest weighs heavily against dismissal. The Court rejects defendant's contention that the Brady violation itself warrants a dismissal pursuant to CPL §210.40(1)(e). Defendant has not cited any legal precedent in support of his claim. The Court has conducted an exhaustive search and has not found any case law which supports a finding that it would be a provident exercise of its discretion to conclude that the interests of justice warrant dismissing the indictment on this ground. As stated above, and now stated again, the appropriate remedy for such a violation is a new fair trial.

Accordingly, defendant's motion for the dismissal of the indictment in the interest of justice is summarily denied.

CONCLUSION

For the reasons set forth above, defendant's motion to dismiss the indictment and/or to bar a retrial is in all respects denied.

The foregoing constitutes the Decision and Order of this Court.


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