People v. Caster

• Decision Date: 02 August 2011
• Citation: 33 Misc.3d 198,2011 N.Y. Slip Op. 21264,927 N.Y.S.2d 897
• Parties: The PEOPLE of the State of New York, Plaintiffv.Lauren Ann CASTER, Defendant.
• Court: New York Supreme Court

33 Misc.3d 198
927 N.Y.S.2d 897
2011 N.Y. Slip Op. 21264

The PEOPLE of the State of New York, Plaintiff
v.
Lauren Ann CASTER, Defendant.

Supreme Court, Monroe County, New York.

Aug. 2, 2011.

[927 N.Y.S.2d 899]

Michael C. Green, Monroe County District Attorney, Jennifer Hyatt, A.D.A., Rochester, NY.Timothy Donaher, Monroe County Public Defender, Sonya A. Zoghlin, A.P.D., Rochester, NY.JOSEPH D. VALENTINO, J.

This is a decision on defendant's request for an order pursuant to CPL 216.05(4) granting her the opportunity to participate in the Judicial Diversion Program or, in the alternative, dismissing the indictment in the furtherance of justice pursuant to CPL 210.40; 210.20(1)(I). Defense counsel asserted that the People intentionally manipulated the Grand Jury process to circumvent defendant's participation in JDP and thereby denied defendant the right to be treated as other similarly situated

[927 N.Y.S.2d 900]

defendants without a legitimate basis. The People asserted that defendant has no constitutional right to drug treatment or to participation in JDP, that the prosecutor has broad discretion in charging crimes and that dismissal in the interests of justice is not warranted. The Court considered defendant's motion, the People's answering affirmation in opposition, and defense counsel's reply affirmation. The Court heard oral argument on June 21, 2011 and, thereafter, the Court reviewed the Grand Jury minutes in camera over the People's objection.

BACKGROUND

Initially in a felony complaint, defendant was accused of grand larceny in the fourth degree and robbery in the third degree. Thereafter, the prosecutor presented the case to the Grand Jury, but only presented the charge of robbery in the third degree. The prosecutor did not instruct the Grand Jurors on the charge of grand larceny in the fourth degree and the jurors did not inquire about the charge that was not presented. Defendant did not testify before the Grand Jury.

The Grand Jury indicted defendant for robbery in the third degree (Penal Law § 160.05), which is a non-eligible offense for participation in the Judicial Diversion Program (JDP) (see CPL 216.00[1] and 410.91[5] for eligible offenses). However, grand larceny in the fourth degree is an eligible offense (CPL 410.91[5] ). Where a defendant is charged with an eligible offense and a non-eligible offense, courts have permitted such a defendant to participate in JDP ( see, People v. Jordan, 29 Misc.3d 619, 908 N.Y.S.2d 844 [Westchester County Ct. 2010]; People v. Kithcart, County Ct., Onondaga County, Jan. 19, 2010, Merrill, J.).

In court on May 3, 2011, the prosecutor stated that she did not present grand larceny in the fourth degree” partially because it is a lesser-included and need not be presented, and partially, it's our office's position that a bank robbery involving the threatening [of] a gun and its use in the middle of an afternoon with many people in that location should not be accepted into the JDP program where [defendant] would potentially be afforded a misdemeanor conviction at the end.” On June 21, 2011, the Court inquired of the prosecutor if one of the reasons she did not present the grand larceny fourth degree was to avoid any possibility of the defendant's participation in JDP. The prosecutor indicated that “it is part of the calculation.” When asked if there was an office policy of avoiding presentation of JDP-eligible crimes to prevent certain defendants from being eligible to participate in JDP, the prosecutor denied that there was a written policy and denied “an overreaching edict that certain people shall be kept out” of JDP.

DISCUSSION I.Prosecutor's Duty of Fairness

A public prosecutor carries an “additional and more sensitive burden” than other participants in the traditional common-law adversarial process whose “more singular function is to protect and advance the rights of one side” ( see, People v. Zimmer, 51 N.Y.2d 390, 393, 434 N.Y.S.2d 206, 414 N.E.2d 705 [1980] ). A prosecutor's “paramount obligation is to the public” and the prosecutor must never lose sight of the fact “that a defendant, as an integral member of the body politic, is entitled to a full measure of fairness” ( id.). The prosecutor is

in a peculiar and very definite sense[,] the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He [or she] may prosecute with earnestness and vigor—indeed, [the prosecutor] should do so.

[927 N.Y.S.2d 901]

But, while [the prosecutor] may strike hard blows, [the prosecutor] is not at liberty to strike foul ones. It is as much [the prosecutor's] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

( Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 [1935] ).II.Prosecutorial Discretion

“Where the elements of two crimes overlap, the prosecutor has ‘broad discretion’ to decide which crime to charge [and][t]he fact that ‘under certain circumstances the crimes ... may be identical ... does not ... amount to a denial of equal protection’ or due process” ( People v. Lawrence, 81 A.D.3d 1326, 1326, 916 N.Y.S.2d 393 [4th Dept.2011] ). To be sure, “[a] defendant has no constitutional right to elect which of two applicable statutes shall be the basis of his [or her] indictment and prosecution” ( Hutcherson v. United States, 345 F.2d 964, 967 [DC Cir.1965] ). “[O]verlapping in criminal statutes, and the opportunity for prosecutorial choice they represent, is no bar to prosecution” ( People v. Eboli, 34 N.Y.2d 281, 357 N.Y.S.2d 435, 313 N.E.2d 746 [1974]; People v. Vicaretti, 54 A.D.2d 236, 239–240, 388 N.Y.S.2d 410 [4th Dept.1976], lv. denied 41 N.Y.2d 869, 393 N.Y.S.2d 1037, 362 N.E.2d 635 [1977] ).

Undoubtedly, the People have broad discretion to determine which offenses to submit for a Grand Jury's consideration ( People v. Di Falco, 44 N.Y.2d 482, 406 N.Y.S.2d 279, 377 N.E.2d 732 [1978]; People v. Eboli, supra; see also, ...