People v. Bavosa
| Decision Date | 02 February 2017 |
| Docket Number | Docket No. 16-0802 |
| Citation | 2017 NY Slip Op 30246 (U) |
| Parties | PEOPLE OF THE STATE OF NEW YORK, v. MICHAEL BAVOSA, Defendant. |
| Court | New York County Court |
DECISION & ORDER
Appearances:
Anthony A. Scarpino, Westchester County District Attorney by
ADA Anthony J. Molea
Kevin Kennedy, Esq. for Defendant
The Defendant moves to dismiss the Assault in the Third Degree charge [Penal Law (PL) §120.00(01)] against him in the interest of justice [People v. Clayton, 41 A.D.2d 204, 342 N.Y.S.2d 106 (2d Dept. 1973)] [Clayton motion] pursuant to Criminal Procedure Law (CPL) §§170.30(1)(g) and 170.40. The People oppose the motion.
In deciding this motion, the Court considered the Notice of Motion, Affirmation of Kevin Kennedy, Esq., undated, and accompanying Memorandum of Law, Affirmation in Opposition of Anthony J. Molea, Assistant District Attorney, dated October 20, 2016, and accompanying Memorandum of Law.
The motion is decided in accordance herewith.
On June 23, 2016, the Defendant was arrested, charged with Assault in the Third Degree (PL 120.00(01)), class A Misdemeanor, and arraigned with assigned counsel. The case was adjourned to June 30, 2016.
On June 30, 2016, the Defendant appeared and the case was adjourned to July 7, 2016.
On July 7, 2016, the Defendant appeared and the case was adjourned to July 28, 2016.
On July 28, 2016, the Defendant requested and was granted permission to file a Clayton motion. The Court set the following motion schedule: Defendant's motion to be filed on or before September 1, 2016; People to file it opposition papers on or before September 22, 2016; the Court to render a decision on or before October 6, 2016.
On September 22, 2016, the People requested an extension of time to file its opposition papers to October 27, 2016. The Court set a decision date by December 15, 2016.
On October 27, 2016, the People filed its opposition papers. The Defendant did not appear. This matter was adjourned by the Court toDecember 15, 2016 for a reply, if any.
On December 15, 2016, the Defendant indicated that he would not submit a reply; the matter was marked fully submitted at that time.
The People allege that on June 23, 2016 at approximately 12:00 noon, the Defendant assaulted Francis X. Brunelle, Human Services Director for the City of Peekskill. Specifically, the People allege that Mr. Brunelle was addressing a group of senior during a senior luncheon at the Peekskill Senior Center located at 4 Nelson Ave, Peekskill in his capacity as Human Services Director. Mr. Brunelle asked the Defendant, who was sitting by himself at a table that had not been prepared for lunch service, to move to a table that had been set up for lunch. In response, the Defendant left the room only to return a few minutes later when he confronted Mr. Brunelle and said "I have a right to eat by myself" and "You're a fucking asshole." Mr. Brunelle asked the Defendant to leave the premises. The Defendant backed up and pulled his pants down. Mr. Brunelle again asked the Defendant to leave the premises to which the Defendant responded "call the cops on me." The Defendant then charged Mr. Brunelle and struck him in the face three timeswith a closed fist. Mr. Brunelle wrestled the Defendant to the ground and restrained him until the police arrived. During the brief physical confrontation, the Defendant attempted to bite Mr. Brunelle and told him "I can spit too."
The police arrived and arrested the Defendant for assault. The police documented the following injures to Mr. Brunelle: swelling under his left eye, a chipped tooth, and pain in his left knee, which was exacerbated by the confrontation with the Defendant. In the days following the confrontation, Mr. Brunelle's left eye blackened and he learned that he sustained torn cartilage in his left knee, which might have been preexisting to some extent but made worse after the confrontation (Molea Affirm In Opp. at pp. 1-2).
The Defendant oddly contends that although he "does not deny the occurrence of a physical altercation between himself and the complainant" he committed the assault "in his compromised physical state" and that he "struck the complaint only once and was immediately restrained by the complainant" (See, Affirm of Kennedy at ¶5). The Defendant also contends that the complainant did not suffer "substantial pain" because there is no evidence that his pain "lingered beyond twenty minutes" and because thecomplainant "did not receive or seek medical attention for his alleged injuries" (Kennedy Memo of Law at p. 2). Further, the Defendant argues that he suffers from the effects of Huntington's Disease1 and that even though he possesses a Master's in Public Administration2, the severity of the disease has rendered him unemployable and dependent on public assistance (Id. at p. 3).
Lastly, the Defendant argues that he has already been incarcerated for twenty days in this matter—a period greater than the maximum sentence for Harassment in the Second Degree (15 days maximum sentence for a conviction of this violation, PL 240.260)—and that the Behavioral Health Center of the Westchester County Medical Center determined that he does not present a threat to himself or others. In short, the Defendant concludes that a dismissal of the charges against him would not erode the public's confidence in the criminal justice system (Id.).
The People argue, in sum and substance, that the Defendant has failed to demonstrate that the continued prosecution and/or subsequent conviction on the pending charge would constitute an injustice, "as there exists no compelling factor, consideration, or circumstance clearly demonstrating that conviction or prosecution of the defendant upon the instant charges would constitute or result in injustice" (citation omitted) (Molea Memo of Law, Point A).
In particular, the People argue that the Defendant has failed to "allege any facts whatsoever addressing the factors set forth in CPL 210.403 that would amount to a rare and unusual situation that demands dismissal of the charges" and that his motion should be summarily denied (citation omitted) (emphasis in the original) (Id.).
Lastly, the People cite and argue each factor under CPL §240.20, together with a copy of a DVD of the police response and interview of theparties and photos of the complainant's injuries, and request that the Court deny the Defendant's motion to dismiss the charge against him in the interest of justice. (Id. at pp. 2-5 with Exhs. 1-4).
A motion to dismiss in the interest of justice is addressed to the sound discretion of the court. See, People v. Burke, 79 Misc.2d 46, 359 N.Y.S.2d 397 (Dist. Ct., Suffolk County 1974); People v. O'Grady, 175 Misc.2d 61, 667 N.Y.S.2d 895 (N.Y. City Crim. Ct. 1997). A defendant is not entitled to a dismissal in the interest of justice pursuant to CPL §170.40 where he fails to submit facts showing "some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of thedefendant...would constitute or result in injustice. See, People v. Zogone, 102 Misc.2d 265, 423 N.Y.S.2d 400 (Yonkers City Ct. 1979).
In deciding a Clayton motion to dismiss in the interest of justice, the court must examine and consider the merits of the defendant's motion in light of the factors enumerated in CPL §170.40, and balance the interests of the defendant, the complainant and the community. See, People v. Waston, 182 Misc.2d 644, 700 N.Y.S.2d 651 (N.Y....
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