People v. Donnaruma

• Decision Date: 26 November 2012
• Citation: 38 Misc.3d 506,955 N.Y.S.2d 486,2012 N.Y. Slip Op. 22341
• Parties: PEOPLE of the State of New York v. Colin DONNARUMA, Defendant.
• Court: New York City Court

38 Misc.3d 506

955 N.Y.S.2d 486

2012 N.Y. Slip Op. 22341

PEOPLE of the State of New York

v.Colin DONNARUMA, Defendant.

City Court, City of Albany.

Nov. 26, 2012.

P. David Soares, Esq., Albany County District Attorney, Albany, Shannon K. Corbitt, Esq., Assistant District Attorney, for the People.

Law Offices of Mark S. Mishler, PC, Albany, Mark S. Mishler, Esq., for the Defendant.

WILLIAM A. CARTER, J.

On June 14, 2012, Colin Donnaruma was arraigned on two counts of disorderly conduct ( seePenal Law § 240.20[5], [6] ) and one count of resisting arrest ( seePenal Law § 205.30). Now, by notice of motion filed on September 21, 2012, the defendant, through his attorney, Mark S. Mishler, Esq., moves for omnibus relief.¹ The People have responded by letter filed on October 4, 2012, stating that the Albany County District Attorney's Office declines to prosecute the above charges and “will not be participating in motion practice or future proceedings related to the instant charge” [sic]. The matter now comes before the Court for a decision.

Motion to Dismiss—“Failure to Prosecute”

The defendant moves, pursuant to People v. DiFalco, 44 N.Y.2d 482, 406 N.Y.S.2d 279, 377 N.E.2d 732 [1978] and Matter of Cantwell v. Ryan, 309 A.D.2d 1042, 766 N.Y.S.2d 135 [3 Dep't 2003], to dismiss the accusatory instruments on the ground that the Albany County District Attorney's Office has declined to prosecute this case. Specifically, the defendant states that, because the Albany County District Attorney informed defense counsel that he was not going forward with the prosecution, this Court “has no authority to do anything except to dismiss the case” ( see Def's Aff. at ¶ 4). This Court disagrees and, to the extent that People v. 88

Occupy Albany Individuals

(Alb. City Ct., March 5, 2012 [Amended], Keefe, J.) holds otherwise, this Court respectfully declines to follow that decision ( see People v. Blair, 23 Misc.3d 902, 903, 873 N.Y.S.2d 890 [Albany City Ct., 2009];People v. Hill, 16 Misc.3d 176, 182, 834 N.Y.S.2d 840 [N.Y.City Crim.Ct.2007];People v. Shieh, 174 Misc.2d 971, 972, 666 N.Y.S.2d 904 [N.Y.City Crim.Ct.,1997];In re Cruikshank's Estate, 169 Misc. 514, 515, 8 N.Y.S.2d 279 [N.Y.Sur.1938];In re Herle's Estate, 165 Misc. 46, 49 –50, 300 N.Y.S. 103 [N.Y.Sur.1937];In re Kathan's Will, 141 N.Y.S. 705, 712 [N.Y.Sur.1913] ).

This Court recognizes the wide latitude and discretion afforded a district attorney in exercising his or her prosecutorial discretion in determining when and how to prosecute a suspected offender ( see Schumer v. Holtzman, 60 N.Y.2d 46, 50, 467 N.Y.S.2d 182, 454 N.E.2d 522 [1983];People v. DiFalco, supra;Matter of Czajka v. Koweek, 100 A.D.3d 1136, 953 N.Y.S.2d 394 [3 Dep't 2012];Matter of Cantwell v. Ryan, supra ). In fact, the Albany County District Attorney specifically exercised this discretion by initially deciding to prosecute this case. The criminal prosecution was commenced—and the jurisdiction of this Court was thereby invoked—upon the filing of the information on June 14, 2012 ( seeCPL 1.20 [17]; 100.05). Moreover, the Assistant District Attorney who appeared at arraignment took a very active role in the prosecution by filing a superseding information, making a bail recommendation, serving CPL 710.30 notice upon the defendant and declaring trial readiness. When a district attorney exercises his or her discretion in invoking the jurisdiction of the court by pursuing a prosecution, as was done in this case, he or she may not simply walk away from the case and abandon it. As has been noted by the Third Department, “a District Attorney does not possess unfettered discretion over the disposition of [an accusatory instrument]” (Matter of Cloke v. Pulver, 243 A.D.2d 185, 189, 675 N.Y.S.2d 650 [3 Dep't 1998] ). Rather, the disposition of a pending criminal matter is controlled exclusively by the Criminal Procedure Law and any termination of said prosecution, no matter the rationale or whether the motion is made by the defendant or the People, requires utilization of the procedures set forth therein ( seeCPL 170.30; 170.40[2]; cf. Matter of Czajka v. Koweek, supra [acknowledging that a district attorney's status as a constitutional officer does not render him or her immune from the Judiciary Law or the Rules of Professional Conduct] ).

Since the Albany County District Attorney exercised his discretion to prosecute this case through its initial stages, both the People and the defendant are now required to follow the procedures set forth in CPL 170.30 and/or CPL 170.40(2). The Court of Appeals has noted that, in enacting CPL 170.30, the Legislature created an “all inclusive” comprehensive legislative scheme for dealing with motions to dismiss local criminal court accusatory instruments ( People v. Douglass, 60 N.Y.2d 194, 201, 469 N.Y.S.2d 56, 456 N.E.2d 1179 [1983] ). Notably, the defendant has not invoked CPL 170.30 in his motion. Nonetheless, even if CPL 170.30 had been relied upon here, the ground for dismissal advanced by the defendant—that the Albany County District Attorney “declined” to further prosecute this case—is not a legally cognizable ground for dismissal. The Court of Appeals in People v. Douglass, supra, specifically instructs that trial courts have “no authority—inherent, statutory, or otherwise—to dismiss [ ] charges for failure to prosecute” ( id. at 200, 469 N.Y.S.2d 56, 456 N.E.2d 1179).² Moreover, in Douglass, the Court found that “failure to prosecute” is not listed in CPL 170.30 as a permissible ground to dismiss ( id.).³ This statutory framework was recently noted in People v. Chai, 37 Misc.3d 1203(A), 2012 N.Y. Slip Op. 51870(U), 2012 WL 4492264 (2012) [Dellehunt, J., Just. Ct. Town of Kinderhook, Sept. 26, 2012] which held that “[a] local Criminal Court only has the authority to dismiss a case under certain proscribed provisions of the Criminal Procedure Law or where the prosecution fails to produce evidence at trial that is sufficient to meet the prosecution's burden of proof” ( id. at *2;see also People v. Roman, 35 Misc.3d 133(A), 2012 WL 1367578 [App. Term 2 Dep't 2012] [“A trial court has no statutory or inherent authority to dismiss a criminal proceeding for failure to prosecute”]; People v. Pueblas, 18 Misc.3d 131(A), 2008 WL 140769 [App. Term, 9th 10th Jud. Dists., 2008] [“The trial court has no statutory or inherent authority to dismiss a criminal proceeding for failure to prosecute”]; People v. Tartaglione, 5 Misc.3d 126(A), 2004 WL 2334350 [App. Term, 9th 10th Jud. Dists., 2004] [a trial court can dismiss a pending criminal prosecution only upon the limited grounds codified in the Criminal Procedure Law and cannot dismiss charges for the People's failure to prosecute] ). Accordingly, the defendant's motion is denied.

Lastly, given the District Attorney's October 4, 2012 letter stating that his office declines to prosecute these charges and “will not be participating in motion practice or future proceedings,” the Court is constrained to note that, should the Office of the District Attorney fail to appear at the next scheduled court date, this Court may be forced to utilize one of the few available options left to it under these circumstances, including, but not limited to, its contempt powers ( see Cloke v. Pulver, 243 A.D.2d 185, 187–190, 675 N.Y.S.2d 650 [3 Dep't 1983] [noting three options for a trial judge where a District Attorney refuses to prosecute a pending matter] ).

Motion to Dismiss—Facial Insufficiency

The defendant moves, pursuant to CPL 170.30(1)(a); 170.35(1)(a); and 100.40, to dismiss the accusatory instruments charging him with two counts of disorderly conduct (Penal Law §§ 240.20[5]; [6] ) and one count of resisting arrest (Penal Law § 205.30) on the ground that the informations are facially insufficient. The defendant argues that the informations charging him with disorderly conduct both fail to contain evidentiary facts that the defendant acted with intent to alarm, annoy or inconvenience the public, or that the public at large was impacted or that there was a risk of a public disturbance. In addition, the defendant argues that there are insufficient evidentiary facts of a lawful order in the information charging him with violating Penal Law § 240.20(6). Lastly, the defendant argues that the information charging him with resisting arrest fails to contain evidentiary facts of a lawful underlying arrest. The Court disagrees.

An information is sufficient on its face if it contains non-hearsay factual allegations made under the penalty of perjury, which, if true, establish every element of the offense and provide reasonable cause to believe the defendant committed the offense charged ( seeCPL 100.15 [3]; 100.40[1][b], [c] ). Conclusory allegations are insufficient and render the accusatory instrument defective ( see People v. Dumas, 68 N.Y.2d 729, 731, 506 N.Y.S.2d 319, 497 N.E.2d 686 [1986];People v. Rodriguez, 140 Misc.2d 1, 5, 529 N.Y.S.2d 688 [N.Y.City Crim.Ct.1988];People v. Penn Cent. Transp. Co., Inc., 95 Misc.2d 748, 753, 417 N.Y.S.2d 822 [N.Y.City Crim.Ct.1978] ). Moreover, the failure to establish a prima facie case in an information is a non-waivable jurisdictional defect requiring dismissal of the accusatory instrument ( see People v. Alejandro, 70 N.Y.2d 133, 139, 517 N.Y.S.2d 927, 511 N.E.2d 71 [1987] ). “The law does not require that the information contain the most precise words or phrases most clearly expressing the charge, only that the crime and the factual basis therefore be sufficiently alleged ...” ( People v. Sylla, 7 Misc.3d 8, 792 N.Y.S.2d 764 [App. Term 2 Dep't 2005],lv. denied4 N.Y.3d 857, 797 N.Y.S.2d 431, 830 N.E.2d 330 [2005], citing People v. Konieczny, 2 N.Y.3d 569, 575, 780 N.Y.S.2d 546, 813 N.E.2d 626 [2004] ). Although the factual allegations in an information should be given a fair and not overly restrictive or technical reading ( see People v. Kalin, 12 N.Y.3d 225, 878 N.Y.S.2d 653, 906 N.E.2d 381 [2009];...