23 Misc.3d 1136(A)
Adam Kirk, Esq., Attorney for the defendant
Nicholas A. Gildard, Esq., Senior Assistant District Attorney, Dutchess County District Attorney
John B. Garrity, J.
The Defendant has moved by way of Notice of Motion, supported by the affirmation of Adam Kirk, Esq., dated December 24, 2008, seeking to dismiss the information in the interests of justice. The People have responded to defendant's motion by filing an Answer in response to Defendant's Motion, which is supported by the affirmation of Nicholas J. Gildard, Assistant District Attorney, dated January 12, 2008 [sic].
Defendant is charged with patronizing a prostitute in the third degree in violation of Penal Law § 230.04, a class A misdemeanor. Now, upon reading the notice of motion, the supporting affirmation, and the People's answer, and due deliberation having been held thereon, this Court determines the motion as follows:
The charges herein stem from the defendant's unlawful conduct wherein it is alleged that he offered an undercover police officer twenty dollars ($20.00) in exchange for sex. Defendant moves to dismiss the within information in the interests of justice pursuant to C.P.L. § 210.40; 170.40 and People v. Clayton, 41 A.D.2d 204 (1973), on the bases that the offense and its attending circumstances lack a degree of seriousness, there is negligible harm upon which this crime impacted society, and that the history, character, and condition of the defendant support its motion to dismiss the matter in the interests of justice.
This incident represents the defendant's first recordable arrest. At the time of the defendant's arrest, he was 17 years old and thus eligible for adjudication as a youthful offender. The defendant came to this country from Mexico approximately two years ago. Kirk Affirmation. December 24, 2008, ¶7. The defendant lives with his sister in Poughkeepsie and works two jobs - one as a dishwasher at the Poughkeepsie Grand Hotel and another as a landscaper. Kirk Affirmation. December 24, 2008, ¶8. He is taking a course at Arlington Middle School to learn how to write and speak English. Kirk Affirmation. December 24, 2008, ¶9. The defendant argues that since this crime is one of "moral turpitude," under the current immigration law, a conviction of this crime would result in his deportation. Kirk Affirmation. December 24, 2008, ¶11. The defendant also argues that since the People are only seeking to secure a misdemeanor conviction without a particular sentence, and the defendant is eligible for a youthful offender adjudication, a dismissal is relatively consonant with what the People are seeking. Kirk Affirmation. December 24, 2008, ¶13. The defendant argues that dismissal would not negatively impact the safety or welfare of the community nor would it shake the public's confidence in the criminal justice system, in part because since the prostitute was an undercover police officer, there was no actual harm imposed upon a victim with the commission of this crime. Kirk Affirmation. December 24, 2008, ¶15.
In turn, the People oppose defendant's motion arguing that when the defendant came to this country and settled in New York, he did so illegally and then proceeded to violate the laws of the very State that he illegally entered. Gildard Affirmation, January 12, 2008 [sic] ¶8. The People further argue that a dismissal would legitimize the harm imposed upon the Poughkeepsie City community where prostitution plagues areas of this community and disturbs its residents. Gildard Affirmation, January 12, 2008 [sic] ¶9. By enforcing the prostitution laws of this State, the police allegedly increase safety in the community and allegedly reduce the prostitution trade by reducing the available clientele for prostitutes, which reduces other crimes. Gildard Affirmation, January 12, 2008 [sic] ¶9 (Gildard provides no statistical or factual basis for these statements). The People further argue that deportation should not serve as a basis to dismiss the action in the interests of justice, especially considering the fact that a similarly situated defendant, who is a legal resident of the United States, would not be afforded the same consideration (of dismissal in the interests of justice) that this defendant seeks, who is illegally in this country. Gildard Affirmation, January 12, 2008 [sic] ¶10. Finally, the People argue that while they are not seeking a jail sentence necessarily, a dismissal is not consonant with the penalty they are seeking in this matter. Gildard Affirmation, January 12, 2008 [sic] ¶11.
Criminal Procedure Law § 170.40 (1) gives a Court the authority to dismiss an information in the interest of justice even though there may be no basis for dismissal as a matter of law, but where it should be dismissed as a matter of judicial discretion by the existence of some other compelling factor, consideration or circumstance which clearly demonstrates that the conviction or prosecution of the defendant would constitute or result in injustice . C.P.L.§ 170.40 (1). Although The decision to dismiss an information lies within the discretion of the trial judge, that discretion is not absolute or uncontrolled. People v. Wingard, 33 N.Y.2d 192 (1973). The statute states that a court must find some compelling factor, and where a lower court fails to state such compelling factors, dismissal in not warranted. Among the factors to consider both individually and collectively are the following:
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 ...