People v. Colon

• Decision Date: 15 November 1994
• Citation: 620 N.Y.S.2d 935,209 A.D.2d 254
• Parties: , 5 NDLR P 482 The PEOPLE of the State of New York, Appellant, v. Gladys COLON, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 935

620 N.Y.S.2d 935

209 A.D.2d 254, 5 NDLR P 482

The PEOPLE of the State of New York, Appellant, v. Gladys COLON, Defendant-Respondent.

Supreme Court of New York, Appellate Division First Department.

Nov. 15, 1994.

Before SULLIVAN, J.P., and CARRO, KUPFERMAN, NARDELLI and TOM, JJ.

MEMORANDUM DECISION.

Orders, Supreme Court, New York County (Brenda Soloff, J.), entered May 21, 1993, and September 23, 1993, which dismissed, in the interest of justice, pursuant to CPL 210.40, the indictment charging defendant with criminal sale of a controlled substance in the fourth degree and criminal possession of a controlled substance in the fifth degree, affirmed.

NARDELLI, J. concurs in a memorandum in which CARRO, J. concurs; KUPFERMAN, J. concurs in a separate memorandum; and SULLIVAN, J.P. and TOM, J. dissent in a memorandum by SULLIVAN, J.P., all as follows:

NARDELLI, Justice, concurring.

Defendant, 39 years of age, has an I.Q. of 64, which puts her in the range of the "mildly retarded." In earlier times she would be called a moron. She is the product of a neglectful and abused childhood. As a child she was thrown from a fifth-floor fire escape and as a result has a metal plate in her head. She has been diagnosed as having gross organic brain damage. Her mother kept her from attending school, and she is illiterate, can count only to 39, cannot add ten and fifteen, does not know how many days there are in a week, and does not know of any Presidents of the United States after Reagan. She already has one conviction for sale of a controlled substance and when arrested was on probation; she was sentenced to one to three years for violation of probation, served one year, and was released.

The trial court granted defendant's motion to dismiss the indictment in the interests of justice pursuant to CPL 210.40. In appealing, the People argue that her mild mental retardation does not warrant a dismissal of the indictment, citing People v. Harmon, 181 A.D.2d 34, 586 N.Y.S.2d 922, People v. Saunders, 161 A.D.2d 611, 554 N.Y.S.2d 952, People v. Brooks, 142 Misc.2d 678, 538 N.Y.S.2d 387, and People v. Lasdon, 89 Misc.2d 934, 393 N.Y.S.2d 151. Lasdon is not at all applicable. Lasdon was the son of an "extremely wealthy" father, was a college man, and suffered "from deeply rooted psychological disorders." He was indicted on nine counts of criminal sale of a controlled substance in the second degree. The Supreme Court held that his "mental illness" did not constitute such a "compelling factor, consideration, or circumstance" as to warrant dismissal under CPL 210.40. The People, however, have confused mental illness with mental retardation. That confusion was repeated in the decision in Brooks, where a borderline mentally retarded man, suffering from a brain disorder resulting from being hit by a car while a young child, had broken the window of a beer distributor and stolen a case of beer and a television set while apparently intoxicated. The court examined the "decalogue" of criteria set forth in CPL 210.40(1) and cited Lasdon in finding that "mental illness alone does not constitute a compelling factor" and that it was "but one of Steven Brooks' problems" (p 685). It then, however, dismissed the indictment pursuant to CPL 210.40(1) largely on the grounds that the effect of imposing a sentence on Brooks would not be positive, noting: "Surely, Steven Brooks, with his multitude of problems has a chance to break his 'cycle' by his placement in a residential treatment facility."

That the People should rely on these four cases indicates a lack of compelling authority mandating a reversal here. The analyses of the criteria in Brooks, for instance, with the exception of the court's erroneous concern with Lasdon and "mental illness," are all applicable here, only more strongly. Brooks was a borderline retardate and his breaking the window to steal the beer and television set was a violent act and a crime of which the victim would readily perceive himself as a victim. Moreover, these classifications of retardation are technical classifications: "borderline" retarded is one bracket above "mildly" retarded; whereas defendant here has an I.Q. of 64, Brooks' I.Q. would be from 70 to 84 (see, 9 Encyclopedia Britannica [1974] [p 673]. Harmon's handicap was dyslexia. Saunders had been charged with assault in the second degree and his subsequent threats and harassment of complainant's family showed that the interest of public safety was involved.

The People also point out that defendant's "mild mental retardation" did not impede her ability to form the requisite criminal intent. But dismissal in furtherance of justice is a remedy to be used "even though there may be no basis for dismissal as a matter of law" (CPL 210.40[1]. The People's repeated reference to defendant's "mild" retardation perhaps illustrates a baneful effect--in this case a potentially cruel effect--of the neutralization and "gentling" of language in this ungentle second half of the century. We no longer call things what they are. An illiterate with a 64 I.Q. who cannot count beyond her own age, who endured a crippling childhood, may be "mildly" retarded in the technical language of today, but she is horrendously handicapped. Defendant has recently married. Her husband is standing by her in her difficulty. She has had a taste of prison as a result of her violation of probation and it had had an impact on her. If she sells methadone again, she will have inflicted a wound upon society, but not a great wound. Society is strong enough to take that risk.

In considering whether there exists some compelling factor, consideration, or circumstance demonstrating that prosecution would result in injustice, the court notes with respect to the criteria of...