Calendar Date: February 13, 2018
James
R. Farrell, District Attorney, Monticello, for appellant.
Jonathan R. Goldman, Goshen, for respondent.
Before: McCarthy, J.P., Lynch, Clark, Aarons and Pritzker,
JJ.
MEMORANDUM AND ORDER
Aarons, J.
Appeal
from an order of the Supreme Court (Schick, J.), entered
January 26, 2017 in Sullivan County, which granted
defendant's motion to dismiss the indictment.
In
2014, defendant and the codefendant were charged by
indictment with the crimes of bribe receiving in the third
degree, criminal mischief in the second degree, two counts of
conspiracy in the fifth degree, three counts of official
misconduct, endangering public health, safety or environment
and nine counts of criminal nuisance in the second degree.
The indictment alleged that defendant, who was the Code
Enforcement Officer for the Village of Monticello, Sullivan
County at the relevant time, and the codefendant, who was the
Mayor and Acting Village Manager of the Village, executed a
plan to demolish a building that had contained asbestos
without proper abatement and without the approval of the
Village Board of Trustees. The indictment further alleged
that defendant and the codefendant agreed with contractors to
demolish the building and that, in exchange for a discounted
demolition fee by the contractors, defendant and the
codefendant would funnel more demolition work to them in the
future.
Defendant
moved to dismiss the indictment on the basis of legally
insufficient evidence. County Court (LaBuda, J.) denied the
motion. After the codefendant pleaded guilty to three
misdemeanors in full satisfaction of the charges in the
indictment, [1] defendant once again moved to dismiss
the indictment. County Court denied defendant's second
motion. On the eve of trial, in January 2017, defendant moved
under CPL 210.40 to dismiss the indictment in the furtherance
of justice. Supreme Court granted the motion and the People
now appeal.
When
pressed with a motion to dismiss in the furtherance of
justice, a court must examine and consider the various
factors delineated in CPL 210.40 in an individual and
collective fashion (see People v Jenkins, 11 N.Y.3d
282, 287 [2008]). "An indictment should only be
dismissed in the interest of justice where there is some
compelling factor, consideration or circumstance clearly
demonstrating that conviction or prosecution of the defendant
would constitute or result in injustice" (People v
Banks, 100 A.D.3d 1190, 1191 [2012] [internal quotation
marks, ellipsis and citations omitted], lv denied 20
N.Y.3d 1059 [2013]; see People v Natarelli, 154
A.D.2d 769, 770 [1989]). A court's discretionary power to
dismiss an indictment pursuant to CPL 210.40 should be
"exercised sparingly" (People v Wright,
278 A.D.2d 820, 820 [2000] [internal quotation marks and
citation omitted], lv denied 96 N.Y.2d 789');">96 N.Y.2d 789 [2001];
see People v Harmon, 181 A.D.2d 34, 36 [1992];
People v Litman, 99 A.D.2d 573, 574 [1984]).
As an
initial matter, we reject the People's assertion that
Supreme Court's failure to conduct a hearing on
defendant's motion requires reversal. The People were
provided with notice of defendant's written motion and
they submitted an opposition addressing the arguments therein
(compare People v Dolan, 184 A.D.2d 892, 893 [1992];
People v Trottie, 47 A.D.2d 751, 751 [1975]).
Supreme Court had the benefit of the grand jury minutes in
reaching its ultimate determination and its written decision
reflects a weighing and thorough discussion of the requisite
factors as set forth in CPL 210.40. Under these particular
circumstances and given that the record was sufficiently
developed, we cannot say that the People were prejudiced by
the fact that Supreme Court summarily decided defendant's
motion without a hearing.
Turning
to the merits, our review of the record discloses that some
factors certainly militate in favor of defendant - his lack
of a criminal record or history of misconduct and the fact
that he was removed from his position as the Code Enforcement
Officer for the Village. They are, however, not wholly
dispositive in this case (see People v Marshall, 106
A.D.3d 1, 11-12 [2013], lv denied 21 N.Y.3d 1006');">21 N.Y.3d 1006
[2013]; People v Belkota, 50 A.D.2d 118, 121-122
[1975]). Furthermore, although we do not share Supreme
Court's conclusion that the proof against defendant was
"extremely tenuous" and note that defendant
unsuccessfully moved twice to dismiss the indictment on legal
insufficiency grounds, even accepting such proposition, we
find that the court improvidently exercised its discretion in
granting defendant's motion inasmuch as this case does
not present "extraordinary and compelling
circumstance[s]... which cry out for fundamental
justice" (People v Serkiz, 17 A.D.3d 28, 31
[2005]; see People v Kennard, 266 A.D.2d 718, 719
[1999], lv denied 94 N.Y.2d 864');">94 N.Y.2d 864 [1999]; People v
Pittman, 228 A.D.2d 225, 226 [1996], lv denied
88 N.Y.2d 992');">88 N.Y.2d 992 [1996]; People v Natarelli, 154 A.D.2d
at 770).
Supreme
Court found that the allegations raised against defendant
were serious (see CPL 210.40 [1] [a]). We do not,
however, share the court's view that it was unclear from
the record that there was no harm to the environment or to
individuals in the vicinity of the demolished building
(see CPL 210.40 [1] [b]). The record evidence
demonstrates that due to the demolition, the asbestos - a
legislatively-recognized carcinogenic agent (see 12
NYCRR 56-1.2 [a]) - became friable, meaning that it could
crumble and create a dust. More to the point, the record
evidence reveals that not only did the dust that was created
as a consequence of the demolition lead to the stopping of
nearby traffic, workers associated with the demolition were
exposed to it. Indeed, one worker stated that, based on his
experience as a contractor, he believed that asbestos was
present.
We also
find that Supreme Court incorrectly assessed that dismissing
the indictment would have a minimal impact upon the
confidence of the public in the criminal justice system
(see CPL 210.40 [1] [g]) inasmuch as permitting a
public servant to elude prosecution for an alleged abuse of
his or her position's power cannot be said to foster
public confidence (cf. People v Surprenant, 91
A.D.2d 1111, 1112 [1983]). Moreover, the mere fact that the
codefendant pleaded guilty does not affect or trivialize the
allegations against defendant. While Supreme Court also noted
the minimal press coverage regarding this incident and the
lack of a public outcry demanding a trial of defendant, the
record does not contain evidence to support these findings
nor did defendant argue in his motion that the community was
indifferent to the People's case against him. In any
event, such facts are not necessarily reflective of the
public's sentiment as to whether the indictment should be
dismissed (see CPL 210.40 [1] [i]).
We do
not agree with Supreme Court that imposing an authorized
sentence upon defendant "would serve absolutely no
purpose" had he been tried and convicted of the charged
crimes (see CPL 210.40 [1] [f]). To the contrary,
deterring individuals from committing a similar crime in the
future is a goal served by sentencing a defendant who has
been convicted of a crime (see People v Broadie, 37
N.Y.2d 100, 115 [1975], cert denied423 U.S. 950');">423 U.S. 950
[1975]). In sum, viewing the requisite factors
"individually and collectively" (CPL 210.40 [1])
and taking into account the absence of any compelling
circumstances, defendant's motion should have been denied
(see People ...