People v. Dibono

• Decision Date: 19 May 1975
• Citation: 368 N.Y.S.2d 429,82 Misc.2d 177
• Parties: The PEOPLE of the State of New York v. Matthew DIBONO, Defendant.
• Court: New York City Court

Page 429

368 N.Y.S.2d 429

82 Misc.2d 177

The PEOPLE of the State of New York v. Matthew DIBONO, Defendant.

Criminal Court of the City of New York, New York County Youth Part 3.

May 19, 1975.

Robert M. Morgenthau, Dist. Atty., New York County by Gerard Loughran, Asst. Dist. Atty., for the People.

William Gallagher, Legal Aid Society by Michael Klein, New York City, for defendant.

E. LEO MILONAS, Judge:

On November 13, 1974, the defendant, Matthew Dibono, was arrested and charged with the crimes of grand larceny (P.L. § 155.30), possession of stolen property (P.L. § 165.40) and forgery (P.L. § 170.05). One week later, in Part 3 (Youth Part) of Criminal Court, the charges against the defendant were reduced to the misdemeanor of criminal possession of a forged instrument in the third degree (P.L. § 170.20) and that charge was adjourned in contemplation of dismissal (CPL § 170.55). It was stipulated that defendant would participate in the Youth Counseling Bureau program (YCB) and make full restitution to those financially harmed by his acts. On November 26, 1974, the District Attorney moved to restore the case to the calendar over the opposition of defense counsel.

Section 170.55, subdivision 2 of the Criminal Procedure Law states that upon application of the People made within six months of the court's ordering a case adjourned in contemplation of dismissal (ACD), the court Must (emphasis added) restore the case to the calendar and the action must thereupon proceed. It has been held that the word 'must' makes it mandatory for the court to restore the case to the calendar (People v. Hurt, 78 Misc.2d 43, 355 N.Y.S.2d 728 (Crim.Ct., Bronx County, 1974)). In that case, an ACD was granted on consent of all parties. However, on the same day, the District Attorney made an application to restore the case to the calendar. The court, in an extensive discussion on the history of the ACD statute, stated that it was without power to conduct an evidentiary hearing and was forced to restore the case to the calendar. Defendant's reliance on People v. Pomerantz, 76 Misc.2d 766, 351 N.Y.S.2d 613 (Crim.Ct., N.Y.County, 1974), for a contrary result is misplaced. In Pomerantz, defendant was arrested for assault and the case was ACD'd on consent of the People and defendant. Subsequently, counsel for the Complainant moved to restore the case to the calendar. In denying the complainant's application, the court stated that only the District Attorney and the court had the power to restore the case to the calendar. In the instant case, it is the District Attorney, not the complainant, who is moving to restore the case to the calendar.

Defense counsel here contends that the ACD was solely conditional on the defendant's successful participation in the YCB program and the making of restitution. (It is undisputed that defendant met these conditions.) Defense counsel cites various cases to support his contention that he is entitled to specific performance of the defendant's agreement with the District Attorney. All of the cases cited involve plea agreements (Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); People v. Selikoff, 35 N.Y.2d 227, 360 N.Y.S.2d 623, 318 N.E.2d 784 (1974); People v. McClinton, 43 A.D.2d 930, 352 N.Y.S.2d 631 (1st Dept., 1974); People v. Griffith, 43 A.D.2d 20, 349 N.Y.S.2d 94 (1st Dept., 1973)). An ACD is also a stipulation between the parties. Such a stipulation can alter or restrict the statutory language of CPL § 170.55, and the People can limit their right to restore a case after an ACD is granted. The People in this matter, for example, may have agreed that they would restore the case only if the defendant did not make restitution or successfully complete the YCB program. However, this was not the agreement here. The conditions imposed were not intended to restrict the People's right to restore, but were rather intended to cause the defendant to take certain affirmative actions in the future. Such a promise of the defendant induced the People to make their application to the court for an ACD. Accordingly, the People's motion to restore the instant case to the calendar is granted.

Although the court is powerless to deny the People's motion to restore this case, it now considers the dismissal of the restored action in the interests of justice. This court is troubled by the situation in which the defendant now finds himself. He has fulfilled all the conditions imposed, yet again finds himself back in court on the original charges. An indictment or information may be dismissed in the interest of justice, even though there may be no basis for dismissal as a matter of law, when such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstances clearly demonstrating that conviction or prosecution of the defendant upon such accusatory instrument or count would constitute or result in injustice (CPL §§ 210.40, subd. 1: 170.40, subd. 1). In People v. Clayton, 41 A.D.2d 204, 342 N.Y.S.2d 106 (2nd Dept., 1973), the Appellate Division listed the facts which a judge may consider in determining whether a case should be dismissed on this ground. Among the factors to be considered are the following:

a) the nature of the crime

b) the available evidence of...