People v. Panibianci

• Decision Date: 15 December 1986
• Citation: 134 Misc.2d 274,510 N.Y.S.2d 801
• Parties: The PEOPLE of the State of New York v. Mary A. PANIBIANCI, Defendant.
• Court: New York Supreme Court

Page 801

510 N.Y.S.2d 801

134 Misc.2d 274

The PEOPLE of the State of New York v. Mary A. PANIBIANCI, Defendant.

Supreme Court, Monroe County.

Dec. 15, 1986.

Howard R. Relin, Dist. Atty. (Gary Levine, of counsel), Rochester, for the people.

Robert Epstein, New York City, for defendant.

DONALD J. MARK, Justice.

The defendant, who is charged with Criminal Possession of a Controlled Substance 2nd Degree and Criminal Possession of a Weapon 4th Degree (two counts), has submitted two applications. The first motion pursuant to CPL 710.20(2) is to suppress the results of an eavesdropping warrant because of the lack of probable cause for its issuance, and the second motion pursuant to CPL 210.40 is to reduce the first count of the indictment to Criminal Possession of a Controlled Substance 4th Degree in the interests of justice. (First portion of opinion omitted.)

The second application will now be considered.

Disregarding for the moment the prosecutor's argument that the defendant has not made a sufficient showing to warrant relief under CPL Section 210.40, a determination must first be made as to the power of a trial court to reduce a criminal charge in the interest of justice. This request by the defendant is certainly a novel one.

CPL Section 210.40 evolved from the common law power of nolle prosequi under which the prosecuting attorney, at his sole discretion, could choose not to prosecute a charge (People v. Douglass, 60 N.Y.2d 194, 201, 469 N.Y.S.2d 1179, 456 N.E.2d 1179; People v. Rickert, 58 N.Y.2d 122, 126, 459 N.Y.S.2d 734, 446 N.E.2d 419; People v. Clayton, 41 A.D.2d 204, 206, 342 N.Y.S.2d 106; Matter of McDonald v. Sobel, 272 App.Div. 455, 461, 72 N.Y.S.2d 4, aff. 297 N.Y. 679, 77 N.E.2d 3; People v. Shanis, 84 Misc.2d 690, 693, 374 N.Y.S.2d 912, affd. 53 A.D.2d 810, 385 N.Y.S.2d 694; People v. Graydon, 69 Misc.2d 574, 577, 330 N.Y.S.2d 259; People v. Davis, 55 Misc.2d 656, 658, 286 N.Y.S.2d 396; People v. Quill, 11 Misc.2d 512, 513, 177 N.Y.S.2d 380).

The initial history of CPL Section 210.40 from its common law origin was described in People v. Douglass, supra, as follows: The Legislature in 1828 enacted a statute making it unlawful for a district attorney to enter a nolle prosequi upon any indictment without leave of the court. With the passage of Sections 671 and 672 of the Code of Criminal Procedure in 1881, the perogative of nolle prosequi was abolished, and the power to dismiss criminal proceedings was shifted from the prosecuting attorney to the courts. Section 671 provided that the court on its own motion or upon the application of the district attorney and in furtherance of justice could dismiss an indictment. This was the first time that the courts of this State were given the power to dismiss a criminal proceeding on their own motions without the approval of the district attorney.

The later history of CPL Section 210.40 can be traced through other cases to its present form: CPL Section 210.40 was legislated in 1927 at which time Section 671 was broadened by granting to the defendant the power to apply for relief, as well as to the prosecutor and the court, and was refined by further describing the terms under which relief could be granted (People v. Clayton, supra ). In 1973 the Appellate Division, 2nd Department, enunciated seven criteria the trial courts should consider in entertaining applications to dismiss in the interest of justice (People v. Clayton, supra ). While commending the judiciary for filling the void in the statute, the Court of Appeals expressed discomfiture with the lack of specific standards in CPL Section 210.40 and indicated that legislative resolution was needed (People v. Belge, 41 N.Y.2d 60, 390 N.Y.S.2d 867, 359 N.E.2d 377). The Legislature responded to that invitation in 1979 and enacted the present section by incorporating the seven guidelines promulgated in Clayton and adding three more (People v. Rickert, supra ).

Since CPL Section 210.40 originated in the common law power of nolle prosequi, the authority of this court to reduce a charge in the interest of justice depends upon the ramifications of nolle prosequi.

The legal treatises are in agreement that nolle prosequi is a formal entry on the record by the prosecuting officer by which he declares that he will not prosecute the case further, either as to some of the counts of the indictment or as to part of a divisible count (22A Corpus Juris Secundum, Section 456; 21 American Jurisprudence 2d, Section 512). The authority of the prosecuting attorney to declare that he would not prosecute a divisible count of a charge meant that the district attorney possessed the power to reduce a charge (Matter of McDonald v. Sobel, 187 Misc. 728, 729, 66 N.Y.S.2d 95, citing 22 Corpus Juris Secundum, Section 460, rev. 272 App.Div. 455, 72 N.Y.S.2d 4, aff. 297 N.Y. 679, 77 N.E.2d 3). ^*

In Matter of McDonald v. Sobel, supra, County Court, over the objection of the district attorney, on its own motion reduced the charge of Burglary 3rd Degree against one Rhodes to Unlawful Entry and accepted a plea of guilty to the lesser charge; it followed the same procedure by permitting one Ross, who was charged with four counts of Forgery and Petit Larceny, to plead guilty to Petit Larceny. An Article 78 proceeding was thereafter initiated by the district attorney in Supreme Court, and the action of County Court was sustained. Supreme Court flatly held that "under the power of nolle prosequi the court may, in furtherance of justice, accept pleas of...