People v. Shanis

• Decision Date: 11 September 1975
• Citation: 374 N.Y.S.2d 912,84 Misc.2d 690
• Court: New York Supreme Court
• Parties: The PEOPLE of the State of New York v. Irwin SHANIS, Defendant.

Page 912

374 N.Y.S.2d 912

84 Misc.2d 690

The PEOPLE of the State of New York v. Irwin SHANIS, Defendant.

Supreme Court, Criminal Term, Queens County, Part 6.

Sept. 11, 1975.

Nicholas Ferraro, Dist. Atty., Queens County, Kew Gardens, Albert A. Gaudelli, Asst. Dist. Atty., for People.

Sidney G. Sparrow, Kew Gardens, for defendant.

MEMORANDUM

LEONARD L. FINZ, Justice.

The central motion herein, despite its being bracketed with two other motions of a rather perfunctory nature, is one of considerable legal importance seldom approached and rarely considered seriously except under the most extraordinary circumstances. The two other motions shall be dealt with later in this opinion.

We now proceed to the third and most perplexing branch of this motion which seeks a dismissal of the indictment under section 210.40 of the Criminal Procedure Law. The lack of any specific authority addressed to the unique situation involved herein invites a detailed study, analysis and history of CPL section 210.40. That section provides as follows:

'Section 210.40: Motion to dismiss indictment; in furtherance of justice.

1. An indictment or any count thereof may be dismissed in furtherance of justice, as provided in paragraph (i) of subdivision one of section 210.20, when, even though there may be no basis for dismissal as a matter of law upon any ground specified in paragraphs (a) through (h) of said subdivision one of section 210.20, 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 indictment or count would Constitute or result in injustice. (Emphasis supplied.)

2. An order dismissing an indictment in the interest of justice may be issued upon motion of the people or of the court itself as well as upon that of the defendant. Upon issuing such an order, the court must set forth its reasons therefor upon the record.'

The circumstances leading up to this motion consist of a five year history of legal entanglement commencing on September 17, 1970 when the defendant, Irwin Shanis, was indicted and charged with the crime of manslaughter in the first degree, as well as two and one-half years of a corrosive relationship between the defendant and the decedent prior thereto. The first trial resulted in a mistrial when the jury was unable to agree on a verdict. In November, 1971 the case again proceeded to trial, at the conclusion of which the defendant was found guilty. The conviction was affirmed in the Appellate Division, Second Department, without opinion. Presiding Justice Gulotta, however, raised a vigorous dissent in which he urged a reversal and a new trial (People v. Shanis, 42 A.D.2d 870, 346 N.Y.S.2d 882 (2d Dept., 1973)). Focusing on the dissent of Justice Gulotta and on several enumerated errors contained in the trial record, the Court of Appeals unanimously reversed, noting that 'the cumulative effect was to deprive the defendant of a fair trial' (People v. Shanis, 36 N.Y.2d 697, 699, 366 N.Y.S.2d 413, 414, 325 N.E.2d 873, 874 (1975)). Now, more than five years after its commencement, the case is again before this court awaiting yet a third trial.

The facts of this case, narrated in Justice Gulotta's dissenting opinion in graphic and meticulous detail, present a tragic tale of a social illness that has plagued society since the beginning of its eon, namely the inability of man to dwell in peace with his neighbor. While there is no need to repeat the background at length, a proper comprehension of the events, both factual and legal, which preceded this motion, demand that the dissenting opinion mentioned above be read in conjunction with what follows. In order, however, to provide a more understandable frame of reference for this motion, the following is a summary.

The defendant and decedent were neighbors in a two-story garden apartment dwelling in Queens County. Because of defendant's religious faith, decedent was outspokenly contemptuous of him and constantly took occasion to defame defendant's origin, casting aspersions on the defendant's manhood, and on occasion referring to his wife as a whore and to his adopted son as a bastard. Despite this constant vilification of the defendant and his family as well as numerous taunts and challenges over a period of some two and a half years, the defendant was able to avoid any direct confrontation with decedent, though on many occasions it necessitated the utmost restraint. On the day in question, however, the harassment by the decedent (who was in an intoxicated state) proved to be too unendurable even for a man of defendant's patience. It appears in the record that immediately prior to the underlying homicide herein, defendant had declined at least two invitations to fight and for several hours had ignored a continual stream of vituperation aimed by the decedent at defendant's wife, his child and himself. It was only after decedent had assaulted the defendant's wife and thrust a lighted cigarette into defendant's bare chest that, stung beyond endurance, the defendant was galvanized into striking a blow at the decedent. In the ensuing struggle in which both were vigorous participants, the decedent received certain injuries and subsequently died. It is the prosecution's contention that the degree of force used to defend against decedent's aggression was in excess of that which was necessary under the circumstances. That, it is urged, is the element which makes the defendant answerable to the People for his violation of the criminal laws of this State.

In order, therefore, to arrive at a decision which will accord with the section under which this motion is made, it has been necessary for the court to burrow into the roots of section 210.40 of the Criminal Procedure Law to determine its appropriate application. This was necessitated by the fact that in the midst of the many provisions indicating the methodology for the prosecution of the crimes defined in the Penal Law, the Criminal Procedure Law contains this surprising provision which seems to open the door of the courtroom and, despite the evidence existing against an accused, allows such a defendan in the discretion of the court and 'in furtherance of justice', to walk out a free person. This presents an enigma, the solution of which requires a close examination into the history and application of this concept.

Section 210.40 of the Criminal Procedure Law evolved from the common law power of Nolle prosequi under which the prosecuting attorney, at his sole discretion, could choose not to prosecute a case even after indictment. (5 Wharton's Criminal Law and Procedure, pp. 225--28 (1957); People v. Willis, 23 Misc. 568, 52 N.Y.S. 808 (1898); People ex rel. De Vasto v. Dillon, 278 App.Div. 674, 102 N.Y.S.2d 818 (2d Dept., 1951).) The right of Nolle prosequi was codified under section 671 of the Code of Criminal Procedure (Code Crim.Pro., § 671, McKinney (1881)). Similarly, other jurisdictions have adopted almost identical statutes (see, e.g., Rules Crim.Pr., Ariz.Rev.Stat.Ann. 16.7 (1973); Cal.Penal Code, § 1385, West. (1970); Lowa Code, § 795.5 (1971); Or.Rev.Stat., § 134.150 (1973); Okl.Stat.Ann., tit, 22, § 815 (1969)) or some restricted form of it (see, e.g., Fed.Rules Crim.Pro., 18 U.S.C. 48 (1970); Mass.Gen.Laws, ch. 277, § 70A (1932); Pa.Stat., tit. 19, § 491 (1936); Tenn.Code Ann., § 11--717 (1934)). Judicial interpretations of these similar statutes have also been in accord with the New York interpretation.

In Arizona it was held that while the prosecuting attorney has discretion in deciding whether to bring criminal action, he has no authority to dismiss pending criminal prosecution and may only recommend dismissal to the court and actual dismissal is solely within the court's discretion. (Application of Parham, 6 Ariz.App. 191, 431 P.2d 86 (1967).)

California seems to have had wider experience with its related statute. In attempting to define 'furtherance of justice' as used in that section (Cal.Penal Code, § 1385), the court stated that it requires 'consideration of the 'constitutional rights of the defendant and the interests of society" (In re Pfeiffer, 264 C.A.2d 470, 70 Cal.Rptr. 831 (1968)). To the same effect was People v. Winters (171 C.A.2d Supp. 876, 342 P.2d 538, Superior Court of L.A. County (1959)): 'The legislature has not attempted to define the expression 'in furtherance of justice,' and therefore it is left for judicial discretion, exercised in view of the constitutional rights of the defendant and the interests of society, to determine what particular grounds warrant the dismissal' (342 P.2d 542).

The most explicit of this group of California cases defined the issue as follows:

'The legislature has given the trial court the power to dismiss under the broad standard of justice, and in view of the high caliber of our trial judges and their responsibility to the electorate, we believe that recognition of such power in cases of conflicting evidence will not result in abuse but to the contrary believe that the due exercise of the power to dismiss in proper cases of conflicting evidence will further justice. * * *

'A determination whether to dismiss in the interests of justice after a verdict involves a balancing of many factors, including the weighing of the evidence indicative of guilt or innocence, the nature of the crime involved, the fact that defendant has or has not been incarcerated in prison awaiting trial and the length of such incarceration, the possible harassment and burdens imposed upon the defendant by a retrial, and the likelihood, if any, that additional evidence will be presented upon a retrial' (People v. Superior Ct. of Marin County, 69 C.2d 491, 72 Cal.Rptr. 330, 446 P.2d 138 (1968)).

Reverting to the laws of the State of New York pertaining hereto, we find that section 671 of the Code of Criminal Procedure...