People v. Dolan

• Decision Date: 11 June 1992
• Citation: 184 A.D.2d 892,585 N.Y.S.2d 549
• Parties: The PEOPLE of the State of New York, Appellant, v. David DOLAN, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 549

585 N.Y.S.2d 549

184 A.D.2d 892

The PEOPLE of the State of New York, Appellant, v.David DOLAN, Respondent.

Supreme Court, Appellate Division Third Department.

June 11, 1992.

Paul Czajka, Dist. Atty. (Seth H. Agata, of counsel), Hudson, for appellant.

O'Connoll & Aronowitz(Stephen R. Coffey, of counsel), Albany, for respondent.

Before WEISS, P.J., and MIKOLL, LEVINE and MERCURE, JJ.

MERCURE, Justice.

Appeal from an order of the County Court of Columbia County(Leaman, J.), entered July 24, 1991, which dismissed the indictment.

At the conclusion of the nonjury trial of an indictment charging defendant with a single count of obstructing governmental administration in the second degree, ¹ a class A misdemeanor, County Court dismissed the indictment in furtherance of justice.The People appeal, contending that County Court erred in depriving them of an opportunity to be heard on the issue and in failing to render a verdict.

There should be a reversal.Although County Court placed the People on notice of the fact that dismissal in furtherance of justice was one of the options being considered, it gave them no opportunity to present evidence or argument in opposition (see, CPL 210.40[1]; 210.45[1], [6], [7].Where, as here, a court considers sua sponte a dismissal in furtherance of justice, "it should not do so until fair notice of its intention has been given to the parties and a hearing has been held"(People v Clayton, 41 A.D.2d 204, 207, 342 N.Y.S.2d 106).In our view, a trial of the indictment is not an adequate substitute for a Clayton hearing, as evidence bearing directly on defendant's guilt or innocence is dispositive of only a few of the 10 factors to be considered by the court in connection with a motion to dismiss in furtherance of justice (see, CPL 210.40[1][a]-[j] and is irrelevant to the majority of them (see, People v. Zagarino, 74 A.D.2d 115, 119, 427 N.Y.S.2d 40).We also reject defendant's contention that the People's challenge was not preserved for appellate review by virtue of their failure to object to County Court's determination.Following its detailed examination of the evidence and conclusion that defendant's guilt had been established, County Court proceeded directly to its consideration of the issues surrounding dismissal of the indictment in furtherance of justice.The People could hardly be expected to interrupt County Court's discourse.

Although we realize that remittal may be viewed as a pointless act, for "[i...