People v. Miller
| Decision Date | 21 July 1970 |
| Citation | 63 Misc.2d 879,313 N.Y.S.2d 543 |
| Parties | PEOPLE of the State of New York, Plaintiff, v. Gary MILLER, Defendant. |
| Court | New York District Court |
This is an application by the defendant for an order dismissing the complaint on the grounds that the matter had previously been dismissed by this Court for failure to prosecute thus barring any further charge.
Defendant was arrested for an alleged offense, which occurred on the 6th day of September, 1969, for a violation of § 120.00, subd. 1 of the Penal Law, assault in the 3rd degree. On February 8, 1970, when a prosecutor's witness failed to appear the defendant moved to dismiss for failure to prosecute. This motion was granted and the matter dismissed by the Honorable Bernard Tomson. Apparently, aware that § 673 of the Code of Criminal Procedure bars another prosecution for the same offense if it be a misdemeanor, the District Attorney filed a new information charging a violation of § 240.25, subds. 1 and 5 of the Penal Law, Harassment, which is a violation. The new information charged the same acts and reiterated the same facts in every detail except that it changed the section number of the Penal Law alleged to have been violated.
This Court on this application does not consider the merits of the dismissal for failure to prosecute. Deciding a motion to dismiss for failure to prosecute is an exercise of the Court's discretion. Granting such a motion is considered a proper exercise of the Court's discretion. See People v. Wagner, 15 N.Y.2d 799, 257 N.Y.S.2d 598, 205 N.E.2d 693; People v. Wooster, 17 N.Y.2d 893, 271 N.Y.S.2d 993, 218 N.E.2d 701. Denial of such a motion is also a proper exercise of discretion, see People v. Stromberg, 17 N.Y.2d 892, 271 N.Y.S.2d 992, 218 N.E.2d 700.
Section 673 of the Code of Criminal Procedure reads as follows:
' § 673. Dismissal, a bar, in misdemeanor; but not in felony
An order for the dismissal of the action, as provided in this chapter, is a bar to another prosecution for the same offense, if it be a misdemeanor; but, except as provided in section six hundred sixty-nine-a hereof, it is not a bar, if the offense charged be a folony.'
The issue to be decided on this application is whether or not the new charge being a violation instead of a misdemeanor effectively...
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People v. Bell
...which is not of a serious criminal nature if the same charge has been previously dismissed for lack of prosecution (People v. Miller, 63 Misc.2d 879, 313 N.Y.S.2d 543). People v. Hicks, 62 Misc.2d 79, 308 N.Y.S.2d 485, takes a different and what this court believes is the correct interpreta......
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People v. Botazzi
...prosecution' barred by section 673. In the case at bar no additional prosecution or proceeding is involved. Again, in People v. Miller, 63 Misc.2d 879, 313 N.Y.S.2d 543, cited by the defendant, a Second complaint was filed against the defendant charging harassment, after the first complaint......