People v. Asare

• Decision Date: 10 November 2021
• Docket Number: Index No. 799/21
• Citation: 73 Misc.3d 983,157 N.Y.S.3d 857
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Steven ASARE, Defendant.
• Court: New York Supreme Court

73 Misc.3d 983
157 N.Y.S.3d 857

The PEOPLE of the State of New York, Plaintiff,
v.
Steven ASARE, Defendant.

Index No. 799/21

Supreme Court, New York County, New York.

Decided on November 10, 2021

157 N.Y.S.3d 858

Cyrus R. Vance, Jr., District Attorney (Stephanie Ritter of counsel), for plaintiff.

Legal Aid Society (Naila Siddiqui of counsel) for defendant.

April A. Newbauer, J.

73 Misc.3d 984

The case at hand is another in a series of cases that illustrate the need for legislative reform to the Sex Offender Registration Act ( Correction Law § 168 et seq. ). The defendant Steven Asare is charged with failure to verify address information every 90 days in violation of

157 N.Y.S.3d 859

Correction Law §§ 168-f(3) and 168(t). Not crimes under the Penal Law, rather, these are D level felonies under the Correction Law for defendants with a previous conviction for the same offense. On February 13, 2020, Asare—a registered level three sex offender subject to residency verification requirements—is alleged to have not reported to 100 Centre Street for his statutorily mandated 90-day check-in to verify his current address. Thirteen days later, on February 26, 2020, law enforcement arrested Asare at his previously listed address on Ward's Island. After Asare's arraignment in supreme court, defense counsel filed the instant motion to dismiss the charges in the complaint in the interests of justice pursuant to CPL § 210.40.

A court is authorized to dismiss an indictment "in furtherance of justice ... as a matter of judicial discretion" where there exists "some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant ... would constitute or result in injustice." CPL § 210.40(1). The trial court's discretion to dismiss an indictment in the interest of justice, should be exercised sparingly and only in "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 N.Y.2d 60, 62-63, 390 N.Y.S.2d 867, 359 N.E.2d 377 (1976) (Fuchsberg, J., concurring) (citing People v. Clayton , 41 A.D.2d 204, 206, 342 N.Y.S.2d 106 (2d Dept. 1973) ). In determining whether dismissal

73 Misc.3d 985

is appropriate, a court must, "to the extent applicable, examine and consider, individually and collectively": (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 inadmissible at trial; (d) the history, character and condition of the defendant; (e) any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant; (f) the purpose and effect of imposing upon the defendant a sentence authorized for the offense; (g) the impact of a dismissal upon the confidence of the public in the criminal justice system; (h) the impact of a dismissal on the safety and welfare of the community; (i) the attitude of the complainant or victim with respect to the motion; and (j) and any other relevant fact indicating that a judgment of conviction would serve no useful purpose. CPL § 210.40(1)(a-j).

Seriousness and Circumstances of the Offense

The People claim that Asare's failure to appear to verify his address is a significant offense that shows his conscious disregard of Sex Offender Monitoring Unit (SOMU) reporting requirements and suggests that he is a future flight risk. However, the uncontroverted facts of this case suggest otherwise. As mentioned above, law enforcement arrested Asare on February 26, 2020, thirteen days after he is alleged to have not reported for his 90-day check-in. Law enforcement arrested Asare at a Department of Social Services homeless shelter at Ward's Island, which is Asare's designated place of residence. He listed his address as Ward's Island in previous check-ins with SOMU, and he has continued to reside there. Asare did not struggle or attempt to flee when he was arrested.

Additionally, Asare's reporting violation in the case at hand stands in contrast to his substantial compliance with SOMU requirements for almost 15 years. Since Asare has been on the sex offender registry since 2006, he has been subject to various reporting requirements, including...