People v. Rickert

• Decision Date: 15 February 1983
• Citation: 58 N.Y.2d 122,459 N.Y.S.2d 734,446 N.E.2d 419
• Parties: , 446 N.E.2d 419 The PEOPLE of the State of New York, Respondent, v. Richard J. RICKERT, Jr., Appellant. The PEOPLE of the State of New York, Respondent, v. Richard A. BOYER, Eugene W. Black, Fred O.T. Agyeman and Robert L. Brown, Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 734

459 N.Y.S.2d 734

58 N.Y.2d 122, 446 N.E.2d 419

The PEOPLE of the State of New York, Respondent, v. Richard J. RICKERT, Jr., Appellant.

The PEOPLE of the State of New York, Respondent, v. Richard A. BOYER, Eugene W. Black, Fred O.T. Agyeman and Robert L. Brown, Appellants.

Court of Appeals of New York.

Feb. 15, 1983.

Thomas D. Keleher, Syracuse, for appellant in the first above-entitled action.

Susan R. Horn, Robert H. Whorf and Gerald T. Barth, Syracuse, for Richard A. Boyer and others, appellants in the second above-entitled action.

Joseph J. Heath, Syracuse, for Robert L. Brown, appellant in the second above-entitled action.

Richard A. Hennessy, Jr., Dist. Atty. (John A. Cirando and Gail N. Uebelhoer, Asst. Dist. Attys., of counsel), for respondent in the first and second above-entitled actions

OPINION OF THE COURT

FUCHSBERG, Judge.

The questions posed in common by these five appeals call upon us to interpret CPL 170.40 for the first time since it was amended in 1979 (L.1979, ch. 216, § 1, eff. Jan. 1, 1980). Particularly, these probe a local criminal court's authority to dismiss an information in the interest of justice.

In each case, the Onondaga County Court, in the exercise of its appellate jurisdiction (CPL 450.60, subd. 3), reversed an order of the Syracuse City Court, 116 Misc.2d 931, 459 N.Y.S.2d 344, which, acting under CPL 170.40, dismissed an information charging a father with nonsupport of his child in violation of secti 260.05 of the Penal Law. ¹ Because, in each instance, ² we do not agree with the County Court's conclusion that the City Court abused its discretion as a matter of law, we now, in turn, reverse the County Court's orders, 105 Misc.2d 877, 430 N.Y.S.2d 936. Our reasons follow.

Although the current version of CPL 170.40 is, in substantial part, the product of its recent amendment, the inherent power it bespeaks has ancient roots. Its New York legislative antecedents alone go back more than a century to the adoption, in 1881, of sections 663, 664 and 671 of the former Code of Criminal Procedure. But long before then, it had a respected place in the common law (People v. Clayton, 41 A.D.2d 204, 206, 342 N.Y.S.2d 106 [Hopkins, J.]; see People v. Quill, 11 Misc.2d 512, 513, 177 N.Y.S.2d 380 [Sobel, J.] ). Throughout this history, and no less today, its thrust, even to the disregard of legal or factual merit, has been "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). Indeed, it may not be too much to say that, in a broad sense, the idea was to introduce into the criminal law a flexibility somewhat akin to that equity essayed on the civil side (see Matter of Lessig, 168 Misc. 889, 890, 6 N.Y.S.2d 720 ["equity" and "justice" substantially equivalent] ). ³

The generality and exquisiteness of the interest of justice ideal was not intended, however, to convey an untrammeled right to act on purely subjective considerations. Required, rather, was a sensitive balancing of the interests of the individual and of the People (People v. Belkota, 50 A.D.2d 118, 120, 377 N.Y.S.2d 321 [Simons, J.]; People v. Eubanks, 108 Misc.2d 108, 111, 436 N.Y.S.2d 953). Discomfited that, nevertheless, CPL 170.40 and 210.40 (as these existed prior to 1979) prescribed neither specification of "criteria for the responsible exercise" of interest of justice discretion nor articulation of "the manner and extent to which a particular case meets such criteria", this court, in People v. Belge, 41 N.Y.2d 60, 62, 390 N.Y.S.2d 867, 359 N.E.2d 377, expressed concern that, absent such guidelines, whether judicially or legislatively declared, effective appellate review was, to say the least, difficult. Indicating a decided preference for legislative correction, we expressly invited the attention of the Legislature "to this predicament".

That the 1979 amendment was a direct response to the Belge invitation is acknowledged (see Governor's Memorandum on Approval, 1979 McKinney's Session Laws of N.Y., p. 1775; Memorandum of Office of Court Administration, 1979 McKinney's Session Laws of N.Y., p. 1879; Memorandum of Office of Special Prosecutor in support of A 682, to become CPL 170.40, as amd.). Set out in subdivision 1 of the section, the new matter provided that, in determining whether "the existence of some compelling factor, consideration or circumstance clearly demonstrat[ed]" that "dismissal is required as a matter of judicial discretion", a court "must, to the extent applicable, examine and consider, individually and collectively, the following:

"(a) the seriousness and circumstances of the offense;

"(b) the extent of harm caused by the offense;

"(c) the evidence of guilt, whether admissible or inadmissible at trial;

"(d) the history, character and condition of the defendant;

"(e) any exceptionally serious misconduct of law enforcement personnel * * *;

"(f) the purpose and effect of imposing upon the defendant a sentence * * *;

"(g) the impact of a dismissal on the safety or welfare of the community;

"(h) the impact of a dismissal upon * * * confidence * * * in the criminal justice system;

"(i) * * * the attitude of the complainant or victim with respect to the motion;

"(j) any other relevant fact indicating that * * * conviction would serve no useful purpose".

In addition, under the statute's re-enacted subdivision 2, a court, upon issuing a CPL 170.40 order of dismissal, "must set forth its reasons therefor upon the record".

Scrutinizing these provisions, we see that, while a Judge who grants a 170.40 motion is mandated to state reasons for this action, whether recited in "written or orally-delivered-on-the-record" form (Bellacosa, Practice Commentary, McKinney's Cons.Laws of N.Y., Book 11A, CPL 210.40, p. 156), there is no comparable requirement that the Judge's equally mandatory "examination" and "consideration" of each of the decalogue of possible determinants which make up paragraphs (a) through (j) of subdivision 1 be spelled out in so many words. As a practical matter, though, vague or conclusory reasons, unsupported by a record which gives them enough substance to "clearly demonstrate" the actual existence of at least "some compelling factor, consideration or circumstance", will not make for the intended meaningful appellate review. Without more, then, the "manner and extent to which a particular case" accords with the criteria which the framers of the statute provided (People v. Belge, supra; Bellacosa, Practice Commentary, op. cit.) will not have been met.

Thus, while the statute does not compel catechistic on-the-record discussion of items (a) through (j), useful as that would be to indicate that in fact all applicable items have been considered, the need to show that the ultimate reasons given for the dismissal are both real and compelling almost inevitably will mean that one or more of the statutory criteria, even if only the catchall (j), will yield to ready identification.

So tested, it is apparent that in none of the cases before us can it be said as a matter of law that the Syracuse City Court abused its discretion.

In the Rickert case, for instance, the record reveals that, after a hearing, the City Court came to the conclusion that the defendant was not the " 'recalcitrant parent' the penal statute is designed to seek out". For, as the court expressly found from the evidence, the defendant, who candidly conceded his arrears, was also, during the period for which he was being criminally charged with nonsupport, financially burdened by responsibility to his wife and their child and the effects of a prior "lengthy period of unemployment during which the defendant reasonably incurred a large number of debts". Moreover, as borne out by testimony, he nonetheless "did make payments at various times when he was employed", on occasions even prevailed upon his wife, when she earned any money, to assist in meeting this obligation and had "resumed his regular payments upon stabilizing his financial situation, months prior to institution of these charges" (emphasis added). Finally and confirmatorily, the Social Services Department's support enforcement officer assigned to monitor defendant's payments advised the court that the defendant's co-operation had made it unnecessary for the agency to resort to Family Court collection facilities. On these facts, acting under CPL 170.40, the City Court reasoned that "no useful purpose to society will be served by continuance of this prosecution" (see CPL 170.40, subd. 1, par. [j] ).

For its part, the County Court, in a brief memorandum, premised its determination that the dismissal was an abuse of discretion on no more than the assertion that, though the City Court had articulated its "no useful purpose" rationale, it had not "indicate[d]" that it found a "compelling factor which would cause injustice". Nor, though the undisputed facts, in greater or lesser degree, could in fact be found supportive of all the statutory criteria but (f), did the County Court advantage itself in the slightest of the standards the amendment had made available to ease appellate review. So, whether this holding was meant to say that the lower court decision was deficient for failing to incant the "compelling factor" phraseology or that, however labeled, the record was insufficient to sustain the exercise of discretion, it cannot stand.

The City Court's joint opinion in the other four cases is even more replete with consideration of relevant factors. Employing a realism especially suitable in the context of an interest of justice determination, it informs us that three of the defendants, Boyer, Black and Agyeman, were in such indigent circumstances that whatever opportunity there may have been to treat constructively with their support obligations through the Family Court would have been destroyed by their incarceration. One of these three was a student...