Criminal Court of the City of New York, Bronx County
November 6, 2013
The People of the State of New York,
Orlando Vega, Defendant.
For the People, Robert T. Johnson, District Attorney, Bronx County, by Suzanne Carmody, Esq., Assistant District Attorney.
For the Defendant, Zoe Root, Esq., Bronx Defenders.
John H. Wilson, J.
Defendant is charged with one count of Patronizing a Prostitute in the Third Degree (PL Sec. 230.04), a Class A misdemeanor.
By motion dated July 31, 2013, Defendant seeks dismissal of the docket in the interest of justice, and preclusion of the People from reducing the charge to Attempted Patronizing a Prostitute in the Third Degree (PL Sec. 110/230.04), a Class B Misdemeanor.
The Court has reviewed the Court file, Defendant's motion, and the People's Response dated September 19, 2013.
For the reasons stated below, the motion to dismiss in the interest of justice is denied.
The motion to preclude the People from reducing the charge is granted. However, on the Court's own motion, the Bronx Defenders are relieved as counsel to the Defendant. Defendant is eligible for defense through his union, said defense being an element of his union benefits.
The Bronx Defenders will remain counsel to the Defendant until his new attorney appears on his behalf.
Pursuant to the Criminal Court complaint, on or about September 29, 2012 at approximately 8:55 PM, at the intersection of East 172nd Street and Southern Boulevard, Bronx, New York, the Defendant is alleged to have approached a police officer and asked that officer "to engage in sexual conduct to wit Sexual Intercourse in exchange for giving (the officer) $40.00 U.S. currency." See, Criminal Court complaint dated January 15, 2012. The Defendant is alleged to have stated to the officer "I want to have sex. I got forty dollars." See, Criminal Court complaint dated September 30, 2012.
(A) Defendant's Motion to Dismiss in the Interest of Justice Must be Denied.
CPL Sec. 170.40(1) provides for a variety of factors which require dismissal of "an information, a simplified traffic information, a prosecutor's information or a misdemeanor complaint, or any count thereof "as a matter of judicial discretion" if "some compelling factor, consideration or circumstance clearly demonstrate that conviction or prosecution of the defendant upon such accusatory instrument or count would constitute or result in injustice." See, also, CPL Sec. 170.30(g).
The discretion of the Court to dismiss an information in the furtherance of justice is not absolute, nor is it uncontrolled. See, People v. O'Grady, 175 Misc.2d 61, 65, 667 N.Y.S.2d 895 (Crim. Ct., Bx Cty, 1997) citing People v. Wingard, 33 N.Y.2d 192, 351 N.Y.S.2d 385 (1973). In fact, this power is to be "employed cautiously and sparingly." See, People v. Eubanks, 114 Misc.2d 1097, 1098, 454 N.Y.S.2d 768 (App. Term, 2d Dept., 1982).
On a motion to dismiss in the interests of justice, the burden is on the Defendant to establish "some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant would constitute or result in injustice." See, People v. Boulet, 88 Misc.2d 353, 355, 388 N.Y.S.2d 250 (City Ct., Rochester, 1976); People v. Verardi, 158 Misc.2d 1039, 1042, 602 N.Y.S.2d 318 (Crim. Ct., Kings Cty, 1993).
When considering the motion, the court need not "engage in a point-by-point catechistic discussion of all ten statutory factors; instead, the court is required to consider the factors individually and collectively in making a value judgment that is based upon striking a sensitive balance between the interests of the individual and those of the state." See, People v. Gragert, 1 Misc.3d 646, 648, 765 N.Y.S.2d 471 (Crim. Ct., NY Cty, 2003).
This Court finds that none of the factors enumerated in CPL Sec. 170.40 provide a basis for dismissal of this prosecution.
A motion to dismiss in the interest of justice "should be granted only where a defendant has demonstrated by a preponderance of the credible evidence that a compelling reason exists to warrant dismissal... (w)here the defendant does not meet this burden, the court may summarily deny the motion." See, People v. Watson, 182 Misc.2d 644, 650, 700 N.Y.S.2d 651 (Crim Ct, Bronx Cty, 1999) (citations omitted). See, also, People v. Betances, 193 Misc.2d 445, 748 N.Y.S.2d 832 (App Term, 1st Dept, 2002), lv app den, 99 N.Y.2d 533, 752 N.Y.S.2d 593 (2002).
Here, Defendant has utterly failed to meet his burden. Although Defendant presents a sympathetic portrait of himself, including his efforts to better his station in life, "the fact that defendant has no prior criminal record is insufficient to justify a dismissal in the interest of justice." See, People v. Varela, 106 A.D.2d 339, 340, 483 N.Y.S.2d 13 (1st Dept, 1984), citing People v. Andrews, 78 A.D.2d 683, 432 N.Y.S.2d 252 (2d Dept, 1980).
Further, the Defendant is alleged to have approached a police officer and asked that officer "to engage in sexual conduct to wit Sexual Intercourse in exchange for giving (the officer) $40.00 U.S. currency." See, Criminal Court complaint dated January 15, 2012. The Defendant is alleged to have stated to the officer "I want to have sex. I got forty dollars." See, Criminal Court complaint dated September 30, 2012.
Under these circumstances, "(c)ontrary to the defendant's contentions, this is not one of those rare and unusual cases' which cries out for justice beyond the confines of conventional considerations.'" See, People v. Hudson, 217 A.D.2d 53, 55, 634 N.Y.S.2d 752 (2d Dept, 1995) (citations omitted). In fact, in People v. Smith, 44 N.Y.2d 613, 621, 407 N.Y.S.2d 462 (1978), the Court of Appeals emphasized the societal interest in the prosecution of prostitution related matters: "The legislature hereby finds and declares that loitering for the purpose of prostitution, patronizing and promoting prostitution is disruptive of the public place... (these actions have)...caused citizens who venture into such public places to be the unwilling victims of repeated harassment, interference and assault upon their individual privacy..." 44 N.Y.2d at 618.
Therefore, based upon Defendant's failure to provide any compelling factor, consideration or circumstance which would warrant dismissal in the interest of justice, Defendant's motion is denied. See, People v. Clayton, 41 A.D.2d 204, 342 N.Y.S.2d 106 (2d Dept, 1973).
(B) Defendant's Motion to Preclude Is Granted.
In People v. Saleh, 40 Misc.3d 1211(A), 2013 WL 3586689 (Crim Ct, Bx Cty, 2013), we stated that "the People reduced the charge of Patronizing a Prostitute in the Third Degree to the attempt, when the definition of the word solicitation' already includes the attempt. (See, CPL Sec. 230.02(1)(c).) In doing so...the People's reduction of the charge to the attempt to patronize a prostitute, is a reduction to an attempt to commit an attempt, a nonexistent crime." Since the People had reduced the charge to a nonexistent crime, this Court granted that defendant's motion to dismiss the reduced charge.
Recently, in that same case, the People sought reargument of the dismissal of the reduced charge, asserting that "by dismissing the reduced count the court imposed the incorrect remedy. A purported reduction to a nonexistent crime is invalid and does not negate the original charge, rather the reduction is void leaving the original charge intact; therefore the proper remedy is reinstatement of the original charge." See, People v. Saleh, 2013 WL 5575841 (Crim Ct, Bx Cty, 2013), p 1 citing from People's motion dated August 14, 2013, p 4.
In denying the People's motion to reargue, the Court noted that "unless the original charge was a felony, there is no authority provided to the Criminal Court by the CPL to reinstate an improperly reduced misdemeanor charge." 2013 WL 5575841, p 3.
The rationale for the Court's decision was based upon the following statement of the law:
"It rests within the discretion of a prosecuting attorney as to what criminal charge or charges to file...against whom to file, when to file, and in what court the charges should be brought... (a) prosecutor also has discretion as to whether to alter or dismiss charges, as well as whether to add or delete charges brought before trial." See, Corpus Juris Secundum, District and Prosecuting Attorneys, Sec. 49 (2013) (citations omitted, emphasis added).
2013 WL 5575841, p 3.
While there is no authority, in either case law, or the CPL, which would grant the criminal court the ability to reinstate a misdemeanor charge already reduced or dismissed by the People, there is precedent to support the motion brought by the Defense.
In People v. Williams, 120 Misc.2d 68, 71, 465 N.Y.S.2d 648 (Crim Ct, Bx Cty, 1983), the court ruled "that the prosecutor's right to reduce cases in derogation of the right to trial by jury is not absolute. The only time when hypothetical crimes may be accepted by the court is for the purpose of pleas" citing, People v. Schmidt, 76 Misc.2d 976, 352 N.Y.S.2d 399 (Crim Ct, Bx Cty, 1974). Thus, though the court is generally "without authority to deny the People's motion to reduce, " the court need not accept a reduction to a hypothetical crime. See, People v. Potter, 172 Misc.2d 409, 414, 658 N.Y.S.2d 790 (Crim Ct, Bx Cty, 1997).
In, People v. Pignatello, 15 Misc.3d 833, 838, 833 N.Y.S.2d 882 (Sup Ct, Bx Cty, 2007), the Court denied the People's application to reduce a charge of Receiving Unlawful Gratuities (PL Sec, 200.35) to the attempt since "there can be no attempt to receive an unlawful gratuity." Though the Court notes that the People "have almost unfettered discretion in determining how, when and whom to prosecute, " this does not include reductions to hypothetical charges. On this basis, the Pignatello court denied the motion to reduce. 15 Misc.3d at 834 (citations omitted), 838. See, also, People v. Torres, 35 Misc.3d 1220(A), 953 N.Y.S.2d 553 (Sup Ct, Bx Cty, 2012).
To prevent the People from reducing to a non-existent charge in this case is not inconsistent with our holding in Saleh, where we stated "(i)f the People choose to reduce to a nonexistent charge, they are bound by that decision." 2013 WL 5575841, p 4. In People v. Howlett, 76 Misc.2d 801, 351 N.Y.S.2d 289 (App Term, 1st Dept, 1973), the Appellate Term ruled that "It was error to reduce charge, on the People's motion, to a hypothetical charge of attempted resisting arrest." However, the conviction for attempted resisting arrest was reversed, and the charge dismissed by the Appellate Term - the original charge was not reinstated and remanded for further proceedings.
The law is clear; before reduction, upon proper objection from the Defendant, the Court is empowered to deny a motion to reduce where the reduced crime is "inherently illogical and...therefore impossible of completion." Williams, 120 Misc.2d at 71. Once the charge has been improperly reduced, the Court is without power to reverse a decision made in the People's discretion, a decision which is solely within their unfettered control.
Here, the reduction would be to a crime which does not exist. Therefore, the motion to preclude reduction of the charge of Patronizing a Prostitute in the Third Degree to the Attempt is granted.
(C) Defendant is not eligible for public defense; Hence, Bronx Defenders must be relieved as counsel for the Defendant.
According to the report prepared by the Criminal Justice Agency, Defendant is employed as a doorman, full time, earning a salary of $45, 000.00 per year. Further, in Defendant's motion to dismiss, Defendant is alleged to be "a member of 32BJ, the property service workers' union." See, Defendant's motion dated July 31, 2013, p 9., Sec. D.
As such, Defendant is entitled to legal representation from an attorney provided to him by his union, which provides "free legal services" to eligible members as one of the benefits included in his union membership. See, http://www.32bjfunds.org/legal/index.aspx These services include "Criminal - Violations, misdemeanors and/or felonies for which the maximum sentence is 7 years or less, either in a New York State Criminal Court, the criminal court of the state of your primary residence (if not New York), or federal court. " See, http://www.32bjfunds.org/legal/Cases.aspx  According to their mission statement, printed on their website, "The Bronx Defenders promotes justice in low-income communities". See, http://www.bronxdefenders.org/who-we-are/ (Emphasis added.) In the instant case, if Defendant receives a salary of $45, 000.00 and is a member of a union which provides legal services to their members as part of their union benefits, Defendant is not "low income, " and is thus not eligible for the services provided by the Bronx Defenders.
Therefore, on the Court's own motion, Defendant is instructed to arrange for his defense by an attorney appointed by that union. The Bronx Defenders will remain as counsel to the Defendant until his new counsel has appeared on his behalf.
This shall constitute the opinion, decision, and order of the Court.