People v. Belkota

• Decision Date: 17 December 1975
• Citation: 377 N.Y.S.2d 321,50 A.D.2d 118
• Parties: PEOPLE of the State of New York, Appellant, v. John E. BELKOTA, Respondent. PEOPLE of the State of New York, Appellant, v. Charles J. PAWLOSKI, Respondent. PEOPLE of the State of New York, Appellant, v. Terrence J. LEMIEUX, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 321

377 N.Y.S.2d 321

50 A.D.2d 118

PEOPLE of the State of New York, Appellant, v. John E. BELKOTA, Respondent.

PEOPLE of the State of New York, Appellant, v. Charles J. PAWLOSKI, Respondent.

PEOPLE of the State of New York, Appellant, v. Terrence J. LEMIEUX, Respondent.

Supreme Court, Appellate Division, Fourth Department.

Dec. 17, 1975.

Aldo L. Di Florio, Dist. Atty., Lockport (Peter L. Broderick, First Asst. Dist. Atty., Lockport, of counsel), for appellant.

Stanley Grossman, Niagara Falls, for respondents.

Before MARSH, P.J., and SIMONS, MAHONEY, GOLDMAN and DEL VECCHIO, JJ.

SIMONS, Justice.

The District Attorney appeals from three orders which dismissed the indictments against these defendants in the 'interest of justice' (Criminal Procedure Law, §§ 210.20, subd. 1(i), 210.40). At the time of the crimes charged, defendants were police officers of the Niagara Falls Police Department and assigned to a confidential unit engaged in undercover work.

Defendant Belkota was indicted for three counts of unlawful selling of a dangerous drug, third degree (former Penal Law, § 220.35) and two counts of eavesdropping (Penal Law, § 250.05). The indictment alleges that he distributed heroin to three different informers, all drug addicts, in exchange for information about the drug traffic in Niagara Falls and that two illegal wiretaps were made at his direction to learn similar information. Defendant Lemieux was indicted for four counts of perjury, second degree (Penal Law, § 210.10) and three counts of perjury, first degree (Penal Law, § 210.15). Defendant Pawloski was indicted for eight counts of perjury, second degree (Penal Law, § 210.10) and one count of perjury, first degree (Penal Law, § 210.15). The second degree perjury charges relate to affidavits allegedly containing false statements of probable cause and made by each defendant for the purpose of obtaining search warrants. The first degree perjury charges relate to testimony given by Lemieux and Pawloski during criminal trials of defendants charged with drug crimes.

Section 210.20, subd. 1(i) of the Criminal Procedure Law provides that there may be a dismissal of an indictment not only for defects in procedure or substance but, further than that, the court may, in its discretion, dismiss an indictment in the interests of justice, irrespective of guilt or innocence, in those rare and compelling instances in which the public interests and the individual interest of the accused coincide and permit the court to exercise forbearance. The statute (§ 210.40) permits dismissal 'when, even though there may be no basis for dismissal as a matter of Law . . ., such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such indictment or count would constitute or result in injustice.' The exercise of this discretion requires a value judgment by the court based upon a 'sensitive' balancing of the interests of the individual and the state (People v. Clayton, 41 A.D.2d 204, 208, 342 N.Y.S.2d 106, 110). The court's discretion is not absolute and is to be exercised sparingly (People v Wingard, 33 N.Y.2d 192, 196, 351 N.Y.S.2d 385, 387, 306 N.E.2d 402, 404; People v. Kwok Ming Chan, 45 A.D.2d 613, 615, 360 N.Y.S.2d 425, 426; People v. Clayton, supra).

Addressing itself to the respective interests of the state and the individual defendants, the trial court found, after a hearing, that dismissal of these indictments was warranted becau defendants (1) had extraordinary records as police officers, their efforts had benefitted the community and 'significantly dented' the narcotics and accompanying criminal activity in Niagara Falls and they had substantial family roots in the community, (2) the crimes charged were victimless, (3) there was no pecuniary profit to any of defendants and the acts occurred during the course of defendants' duties as police officers, (4) that defendants had suffered enough by reason of the indictments and the attendant publicity and their further punishment would not be a deterrent to crime, (5) that there were serious questions about available evidence to prove guilt because the prosecution's case necessarily rested upon the testimony of known narcotic addicts with long criminal records, (6) defendants had not been suspended from duty when indicted, and (7) the 'public interest would not be outraged' by dismissal of the indictment.

There is little dispute...