People v. Joseph P.

• Decision Date: 22 October 1980
• Citation: 433 N.Y.S.2d 335,106 Misc.2d 1075
• Parties: The PEOPLE of the State of New York v. JOSEPH P. * and Donald B.*, Defendants. Justice's Court, Town of Greenburgh, Westchester County
• Court: New York Justice Court

Page 335

433 N.Y.S.2d 335

106 Misc.2d 1075

The PEOPLE of the State of New York v. JOSEPH P. ^* and Donald B.*, Defendants Justice's Court, Town of Greenburgh, Westchester County.

Oct. 22, 1980.

Carl A. Vergari, Dist. Atty. of Westchester County, for people.

Harris L. Kimbal, White Plains, for defendant Joseph P.

Joseph J. Longo, New York City, for defendant Donald B.

ASCHER KATZ, Justice.

By two separate motions, each defendant moves to dismiss the informations in the interest of justice pursuant to CPL 170.40. The motions were preliminarily granted to the extent of directing a Clayton Hearing (People v. Clayton, 41 A.D.2d 204, 342 N.Y.S.2d 106).

On February 24, 1978 at about 4:30 p. m., defendants were apprehended by members of the New York State Police while committing an act of fellatio in the public men's room at the Ardsley Service Area on the New York State Thruway in Greenburgh, New York.

The information complaint charged the defendants with committing the misdemeanors of consensual sodomy (Penal Law 130.38), public lewdness (Penal Law 245.00), and loitering for the purpose of deviate sex (Penal Law 240.35(3)). Defendant Joseph P. was also charged with unlawful possession of marijuana (Penal Law 221.05), a violation. Prior motions attacking the constitutionality of the alleged illegal search and seizure have been denied by the undersigned.

The motion to dismiss in the interest of justice is mandated only by the existence of some compelling factor, consideration, or circumstance clearly demonstrating that conviction or prosecution of the defendant would constitute or would result in an injustice. CPL 170.40. The purpose of the statute is to give the 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, 659, 286 N.Y.S.2d 396. An order for dismissal in the interests of justice has little or nothing to do with the legal or factual merits of the charge or with the guilt or innocence of the defendant; the Court is solely concerned with the principles of justice. People v. Quill, 11 Misc.2d 512, 177 N.Y.S.2d 380.

The criminal procedure process has over thirty-five (35) provisions for determinations to be made in the interests of justice. See People v. Williams, 97 Misc.2d 24, 31, 32, 410 N.Y.S.2d 978. The dismissal in the interest of justice has a special status different from the other determinations in the interest of justice. That special status was recognized in People v. Clayton, 41 A.D.2d 204, 342 N.Y.S.2d 106 which required a full hearing on the issue to insure procedural safeguards and fact finding on the record necessary for the integrity of the criminal justice system. The First Department followed on the requirements of a hearing in People v. Kwok Ming Chan, 45 A.D.2d 613, 360 N.Y.S.2d 425.

People v. Clayton, 41 A.D.2d 204, 342 N.Y.S.2d 106 was approved in People v. Belge, 41 N.Y.2d 60, 390 N.Y.S.2d 867, 359 N.E.2d 377, where the Court of Appeals pointed to the necessity for legislation to safeguard against misuse or abuse of authority in criminal courts of first instance:

"Most important, the history of criminal procedure in this State has been to add safeguards against misuse or abuse of authority in criminal courts of first instance. Those safeguards, experience has demonstrated, are most effective if there be appellate review, possible only if there are standards. Justice for victim and defendant merits no less. We invite the attention of the legislature to this predicament." (People v. Belge, 41 N.Y.2d 60, 62, 390 N.Y.S.2d 867, 359 N.E.2d 377).

In 1979, the Legislature amended CPL 170.40, CPL 210.40 and related provisions to require the Court to specifically inquire into ten enumerated factors. The Supplementary Practice Commentary for CPL 210.40 states:

"This amendment is the product of a thorough and innovative search for the broadest and most useful and most appropriate determinants for a judge to apply in terminating a criminal prosecution, often and perhaps against a prosecutor's opposition, for other than a technically legally sufficient reason. These determinations evoke the true and unfortunately perceived of as old-fashioned, sometimes courageous "judging ". It is the spirit of the law that is alive in this section, rather than the mere letter. On the other hand, what must be guarded against, and this amendment helps, is arbitrary or even perhaps corrupt terminations of prosecution; the amendment helps by compelling judges to consider and articulate real reasons and by making that adjudication and the articulated reasons reviewable, presumably against a record supporting the reasons. Thus in the appellate process not only the exercise of the discretionary particulars but even possible abuse of discretion in so acting, usually a law question can be examined and corrected." (emphasis supplied)

The amendment's effective date was January 1, 1980. There is no express provision as to retroactivity. Since the criteria under the legislation are more detailed than those of People v. Clayton, 41 A.D.2d 204, 342 N.Y.S.2d 106, supra, this Court will examine the ten criteria ("a" through "j") under the 1979 amendment.

(a) The seriousness and circumstances of the offense. The evidence shows that an act of fellatio was committed in a public restroom. This Court takes judicial notice that prior to the instant arrests, numerous complaints of homosexual activity at the Ardsley Service Area were made. The police must be commended in removing what a significant portion of the community deems to be offensive activity and which the legislature has declared to be illegal.

(b) The extent of harm caused by the offense. The offense was a victimless crime, both participants being consenting adults. However, it is obvious that there are people who are offended by overt sexual display in a public place, be it homosexual or heterosexual.

(c) The evidence of guilt whether admissible or inadmissible at trial. The evidence of guilt of a misdemeanor appears clear. Both officers testified to the events. Neither defendant denied their presence at the time and place of the alleged occurrence. There was no proof of the marijuana charge.

(d) The history, character and condition of the defendant. Defendant Joseph P. is a public school teacher without any prior criminal history who appeared to be an intelligent and extremely sensitive individual on the witness stand. Donald B. is a bonded employee of a large company also without any prior criminal history. There is no showing that their vocational activities were involved or affected.

(e) Any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant. Joseph P. stated that he was forcibly seized and handcuffed with his hands behind his back. His foot was kicked to the side when he was told to spread his legs. During the checking of his car, he stated that a police officer ripped up the rug and this allegation is not denied. He was stripped and searched by one trooper in a large open room in the State Police Barracks and held naked in that room for some period of time. Another trooper walked in stating "Too bad an Italian had to be a faggot." Joseph P. was handcuffed to his chair. Upon inquiry, the trooper could cite no rule or regulation requiring the strip search. While there does not appear to be that type of misconduct which would give rise to a violation of due process (see People v. Isaacson, 44 N.Y.2d 511, 406 N.Y.S.2d 714, 378 N.E.2d 78), such police misconduct is a significant factor in the Court's determination herein. The defendants' wrongs give no license to the police to become gratuitously foul. Police are professionals, should be treated as such, and should act accordingly.

(f) The purpose and effect of imposing upon the defendant a sentence authorized by the offense. The defendants claim that the totality of the proceeding to date has involved sufficient punishment. Defendants have been fingerprinted and photographed. They have been deprived of their freedom of movement in custody for some hours. In Judicature, it was stated:

"Political scientist Malcom Feeley has suggested that lawyers may be inappropriate for misdemeanors where prison is not a realistic possibility. In these cases, the process itself is the punishment. The defendant wants to get in and out of court as soon as possible. But he must suffer bail, attorneys' fees, adjournments to get an attorney, time for an attorney to make motions, and so forth. After all that, paying a fifty dollar fine is certainly anticlimatic." (emphasis supplied)-Paul Nejelski, Do Minor Disputes Deserve Second-Class Justice?, Vol. 61, No. 3, Judicature, Sept., 1977, p. 102

The People have offered the defendants ACD's (albeit upon condition that they waive return of their fingerprints and photographs under CPL 160.50 which will be discussed below). Even if the defendants were found guilty, the Court would be hard put to impose any penalty other than an unconditional discharge.

While the offer of the ACD would be inadmissible in any trial, the Court may consider the fact of said offer at a Clayton Hearing. (People v. Vernon, 89 Misc.2d 472, 391 N.Y.S.2d 959, polygraph test results relevant at Clayton Hearing). Compare People v. James, 98 Misc.2d 755, 415 N.Y.S.2d 342, where the Court notes the refusal of the People to offer an ACD (dismissal in the interest of justice granted).

(g) The impact of a dismissal upon the confidence of the public in the criminal justice system. Were the public to know all the facts and circumstances involved herein, the Court feels assured that the public's confidence in the criminal justice system would be enhanced.

(h) The impact of a dismissal on the safety and welfare of the community. There will be little, if any, impact on the safety and welfare of the community....