The opinion of the court was delivered by: Tom, J.
Appellate Division, First Department
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 Official Reports.
Decided on March 27, 2012
Luis A. Gonzalez, P.J. Peter Tom James M. Catterson Rosalyn H. Richter Nelson S. Roman, JJ.
The People appeal from the order of the Supreme Court, Bronx County (Colleen D. Duffy, J.), entered October 28, 2010, which granted defendant's CPL 170.40(1) motion to dismiss the accusatory instrument in the interest of justice.
While incarcerated on Rikers Island under a sentence imposed for an unspecified offense, defendant assaulted and injured a female correction officer who was attempting to remove contraband from his jail cell. A male correction officer who came to her assistance was also punched and assaulted. Under a misdemeanor information, defendant was initially charged with two counts of third-degree assault, obstructing governmental administration, and two counts of second-degree harassment. The information was later amended to specify a single count of attempted assault in the third degree. At the close of a Wade/Dunaway hearing, defendant made an oral motion to dismiss the amended information in the interest of justice. Supreme Court granted the motion, stating, among other reasons, that as of the date of trial, "Defendant already had served more than two months beyond the maximum period he would have had to serve if convicted" (29 Misc 3d 1213[A], 2010 NY Slip Op 51808[U], *2). Under these circumstances and in consideration of the budgetary constraints and increasing caseloads confronting the judicial system, the court regarded the expenditure of judicial, prosecutorial and defense resources to try the misdemeanor offense as "unduly wasteful" (id. at *5).
We disagree with the motion court's assessment. The record does not support the court's conclusion that defendant was being detained on the charge arising out of his assault on the correction officers. Nor does the record reflect compelling circumstances demonstrating that prosecution of the attempted assault charge would result in injustice (see CPL 170.40; People v Rickert, 58 NY2d 122 ).*fn1
It is the District Attorney's prerogative to prosecute those who commit crimes, to bring charges or discontinue criminal proceedings, and to determine the nature of the charges preferred against a defendant (People v Zimmer, 51 NY2d 390, 394 ). That prerogative should not be lightly abrogated by a court's exercise of its interest of justice power, which we have cautioned "should be exercised sparingly" (People v Insignares, 109 AD2d 221, 234 , lv denied 65 NY2d 928  [internal quotation marks omitted]). Such discretion is appropriately reserved for "the unusual case that cries out for fundamental justice beyond the confines of conventional considerations of legal or factual merits of the charge or even on the guilt or innocence of the defendant'" (People v Belge, 41 NY2d 60, 62-63  [Fuchsberg, J., concurring], quoting People v Clayton, 41 AD2d 204, 206 ). The statute requires the court to determine 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" (170.40).
None of the criteria listed in CPL 170.40(1) affords support for dismissal of the criminal information in this matter. Defendant's acts on January 28, 2009 of assaulting two correction officers with resulting injuries was a serious incident without any justification. During a search of defendant's property in the housing area of Rikers Island, Correction Officer Kelly Gonzalez removed a Tupperware bowl, a listed contraband, in defendant's presence. As a result, defendant pushed Gonzalez in the chest and struck her mouth with his elbow. From the force of the blow, Gonzalez fell and struck a gate with her right hand before landing on the floor. Correction Officer Carlos Vasquez observed the incident and attempted to aid Gonzalez. As he approached, defendant punched him in the chest, and a physical alteration ensued. After Gonzalez got back up from the floor, she warned defendant that she was going to "spray" him. She then sprayed defendant with a chemical agent as defendant kept punching Vasquez. Defendant told Gonzalez, "Bitch, you sprayed me. I'm going to kill you. I'm going to get you." Defendant then charged at Gonzalez but was grabbed by Vasquez from behind and thrown to the ground, where he was restrained until back-up officers arrived. As a result of the incident, Gonzalez suffered a swollen mouth and injury to her arm, which required surgery to repair torn ligaments in her right wrist. She was out of work for six months as a result of her injuries and still feels the effects in her hand and trigger finger. Vasquez developed a severe carpal tunnel condition in his right hand and a slight tear in his right shoulder. He received 50% disability benefits for the injury to his right arm.
Defendant was charged with third degree assault and, as the motion court noted, those charges were reduced in order to permit trial without a jury, thereby reducing the severity of the potential penalty. Unlike the cases cited by way of example in Rickert (58 NY2d at 132) and relied on by the motion court, this was a serious crime resulting in substantial injury to two correction officers. No misconduct is alleged in connection with the prosecution of the offense, nor is any reflected in the record, and the court did not deem it appropriate to consider "the attitude of the . . . victim[s]" with respect to the dismissal motion (CPL 170.40[i]). Furthermore, defendant has an extensive criminal history, which includes 4 felony convictions and 10 misdemeanor convictions at the time the criminal information was dismissed. In addition, there were 13 open charges, 5 of which were felonies, 4 misdemeanors and 4 unspecified offenses. Four warrants were issued due to defendant's failure to appear in court, and parole was revoked on four occasions. Defendant has provided seven different aliases and five different dates of birth in the course of some 31 arrests.
As to the effect of dismissal on either public safety and welfare or public confidence in the criminal justice system, neither objective will be advanced by permitting defendant to elude prosecution. Defendant asserts that he was incarcerated on this matter in March 2009, released in June 2009, rearrested on May 17, 2010 and has been "continually incarcerated on this case since that time," but the record suggests otherwise. While the transcript reflects that the People did nothing to dispel the motion court's misconception that defendant had been continuously detained in connection with the subject assault, the court's notes for the calendar appearance of May 17, 2010 state that defendant "now has a Queens case," and the People have advised this Court that, according to ...