People v. James

• Decision Date: 05 March 1979
• Citation: 415 N.Y.S.2d 342,98 Misc.2d 755
• Parties: The PEOPLE of the State of New York v. Audrey JAMES, Defendant. The PEOPLE of the State of New York v. Laverne McCRAY, Defendant.
• Court: New York City Court

Page 342

415 N.Y.S.2d 342

98 Misc.2d 755

The PEOPLE of the State of New York v. Audrey JAMES, Defendant.

The PEOPLE of the State of New York v. Laverne McCRAY, Defendant.

Criminal Court of the City of New York, New York County.

March 5, 1979.

Robert M. Morgenthau, Dist. Atty. of New York County, by Laurence Michael Stern, New York City, for the People.

Leon Polsky, by Leslie B. Greer, New York City, for defendant Laverne McCray, and Kevin T. Smyley, New York City, for defendant Audrey James.

Decision and Order

STANLEY GARTENSTEIN, Judge.

The on-again off-again debate over prostitution and its impact on the criminal justice system returns for re-consideration in the light of a new statute and response thereto by the office of the District Attorney.

BACKGROUND: Prior to September 1, 1978, the moral sanction of Society with regard to sex offenders as expressed in the Penal Law was discriminatory. A woman engaged in prostitution was guilty of a Class-B misdemeanor (Penal Law § 230.00) while her male patron was guilty only of a violation ( § 230.03). Under the amended statute, the patron or so-called "John" is now also guilty of a Class B misdemeanor. Because prostitution has traditionally been a blight upon important commercial and tourist areas, a problem unique to New York County, the People have steadfastly refused to plea-bargain, insisting instead on a plea to the top charge. The one notable exception to this policy, the first-offender prostitute, was traditionally offered an adjournment in contemplation of dismissal in the hope that her experience would have the beneficial effect of deterring her from further similar acts.

With the advent of the new statute raising the level of culpability of the patron, the District Attorney matched his policy of insisting on a plea to the charge by the prostitute with similar insistence as to the "John". As a corollary, a determination was made not to offer adjournments in contemplation of dismissal to the first-offender patron. This in turn in the name of equality of enforcement against each sex, triggered a reversal of the traditional policy of adjournments in contemplation of dismissal for first-offender prostitutes. Thus, escalated enforcement against the "John" to avoid discriminatory enforcement against the prostitute has now resulted in escalated prosecution of the prostitute in a manner impacting more harshly upon her than upon the patron. This result is occasioned by the fact that a prostitute who is no longer offered a second-chance via an adjournment in contemplation of dismissal has infinitely more to lose by being sent out on the streets to earn her fine by selling her body again than the patron who is usually more affluent, often a substantial businessman away from home who can pay his fine and forget about the experience.

THE FACTS: In the separate dockets before us, each defendant is a young woman charged with prostitution who has been arrested for the first time. Audrey James is 21 years old presently attending the American Business Institute majoring in business administration. She was the recipient of a Basic Educational Opportunity grant and is an active member of the Institute's Student Liaison Group dealing with student problems. Laverne McCray is 23 years old, attending business school and resides with her parents in Queens County. She has returned to school in an effort to better herself after some years away from any academic pursuits. Each defendant has moved for dismissal in the interests of justice pursuant to CPL 170.30 and 170.40. These motions have been vigorously opposed by the District Attorney who argues that this relief is being sought in an effort to overrule the People's determination not to adjourn in contemplation of dismissal.

DISMISSAL IN THE INTERESTS OF JUSTICE:

Under Criminal Procedure Law §§ 170.40 and 210.40(1) a Court may dismiss an accusatory instrument where:

"Such dismissal is required as a matter of judicial discretion by the existence of some Compelling factor, consideration or circumstance Clearly demonstrating that conviction or prosecution of the defendant upon such accusatory instrument or count would constitute or result in injustice." 11 A McKinney, CPL § 170.40(1) (Emphasis added)

The recent flurry of cases on dismissal in the interests of justice has created the somewhat erroneous impression that we encounter here a relatively new field of law. This motion may be put to rest by reference to the comprehensive opinion of Hon. Nathan R. Sobel which discussed the predecessor statute to the one now under consideration in People v. Quill, 11 Misc.2d 512, p. 513, 177 N.Y.S.2d 380, p. 381 in which he states:

"It is settled that sole discretion to dismiss an indictment in the interest of justice is vested in the court. The District Attorney may join in such an application but his consent is not necessary. A study of the history of section 671 will make clear why it was decided to vest such discretion in the court and not in the District Attorney. (See Report of Comrs. on Pleading and Prac. Code Crim.Pro., dated Dec. 31, 1849, p. 343; People v. McLeod, 25 Wend. 483.)

"Section 671 is a statutory enactment of the former power of nolle prosequi. The power to discontinue prosecution of a crime vested by that section in the court has little or nothing to do with the legal or factual merits of the charge. Nor is it concerned with the guilt or innocence of the defendant. Such a dismissal is concerned, as the statute states, solely with principles of justice. (See State v. McDonald, 10 Okl.Cr. 413, 137 P. 362.)"

The District Attorney points out in opposition to the motion that Sections 170.40 and 210.40, the current counterparts of this remedy tracing its roots back as far as 1849, provide for an extraordinary remedy when compelling facts or circumstances are present and warrant the use thereof. These sections are ". . . not a catchall residuary clause authorizing dismissals as an exercise of absolute discretion" (citing People v. Edwin C., 82 Misc.2d 245, 369 N.Y.S.2d 311; People v. Clayton, 41 A.D.2d 204, 342 N.Y.S.2d 106).

He further argues that a dismissal in the interests of justice is predicated upon a "sensitive balancing of the interests of the individual and those of the State." (People v. Kwok Ming Chan, 45 A.D.2d 613, at 616, 360 N.Y.S.2d 425, at 426) and stresses that even in the early stages of this doctrine under the Code of Criminal Procedure (Section 671), case law emphasized its use only in extraordinary situations.

"The purpose of Section 671 (Code of Criminal Procedure) is to give a court power in appropriate But rare circumstances to allow the letter of the law gracefully and charitably to succumb to the spirit of justice." People v. Davis, 55 Misc.2d 656, at 659, 286 N.Y.S.2d 396, at 400 in People v. Shanis, 84 Misc.2d 690, 374 N.Y.S.2d 912. (Emphasis added)

Finally he quotes, People v. Stern, 83 Misc.2d 935 at 939-940, 372 N.Y.S.2d 932 at 936 (New York County 1975) in which the Honorable Howard Goldfluss remarked:

"It is the opinion of this Court that the legislature used the word 'compelling' as a means to put the judiciary on notice to use this section as sparingly as garlic."

The landmark adjudication in People v. Clayton, supra, decided in 1973 (Appellate Division 2nd Department) has been considered as seminal on the issues surrounding this remedy to an extent where the application itself has become known as a "Clayton " motion. It has been cited with approval by the Court of Appeals (People v. Belge, 41 N.Y.2d 60, 390 N.Y.S.2d 867, 359 N.E.2d 377) and by the First Department (People v. Kwok Ming Chan, 45 A.D.2d 613, 360 N.Y.S.2d 425). It is noteworthy that the Appellate Division in Clayton subscribes to Judge Sobel's description of the historical roots of this remedy and cites People v. Quill, supra, with approval (Page 206 of 41 A.D.2d, page 108 of 342 N.Y.S.2d). ¹

The greatest significance of Clayton may be found in the Appellate Division's listing of those factors which a court must consider in deciding a motion under this section (Page 208, 342 N.Y.S.2d page 110). These are:

a) The nature of the crime;

b) Available evidence of guilt;

c) Prior record of defendant;

d) Punishment already suffered;

e) Purpose and effect of further punishment;

f) Prejudice resulting to defendant by passage of time;

g) Impact on public interest of dismissal.

Before considering these factors, it is relevant to discuss the attitude of our highest court with regard to their application. In People v. Belge, supra, the Court of Appeals reviewed a dismissal in the interests of justice and concluded that review could not be had therein inasmuch as its jurisdiction was limited by Article VI § 3, Subdivision A of the New York State Constitution to questions of law. This area was effectively foreclosed when an exercise of discretion by the court of original jurisdiction was at stake unless the alleged abuse thereof was so pronounced as to constitute a reviewable question of law. Holding itself without power to review, the Court of Appeals expressed "discomfiture with CPL 210.40 (170.40) in its present form . . . (t)o the extent that the section now fails to prescribe specific criteria for the responsible exercise of the discretion granted by the section and fails to require the court to articulate the manner and extent to which the particular case meets such criteria . . . ." (Page 62 of 41 N.Y.2d, page 868 of 390 N.Y.S.2d, page 377 of 359 N.E.2d) While the Court of Appeals delineated Clayton's Approach as "commendable", it expressed the view that "the issue involves policy of a dimension more appropriate for legislative resolution" (Page 62, 390 N.Y.S.2d page 868, 359 N.E.2d page 378). In a concurring opinion, Judge Fuchsberg disagreed with the need for specific criteria, holding that same would ". . . undermine the flexibility called for to meet the needs of the very cases in which freedom to exercise...