| People v Banks |
| 2012 NY Slip Op 07906 [100 AD3d 1190] |
| November 21, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Appellant, v Icelee Banks,Respondent. |
—[*1] Barrett D. Mack, Valatie, for respondent.
Kavanagh, J. Appeal from an order of the County Court of Sullivan County (LaBuda, J.),entered January 5, 2012, which granted defendant's motion to dismiss the indictment.
In June 2011, defendant was charged by indictment with grand larceny in the third degree(one count) and falsifying business records in the first degree (16 counts), in connection with thereceipt of $6,551.25 in unemployment benefits during a time when she was actually employedand earning income. After a nonjury trial was commenced, defendant moved for, and CountyCourt subsequently granted, dismissal of the indictment in the interest of justice (see CPL210.40). The People now appeal.
CPL 210.40 provides that a court may dismiss an indictment in the interest of justice when itdetermines, after taking into account certain factors, that "such dismissal is required as a matterof judicial discretion by the existence of some compelling factor, consideration or circumstanceclearly demonstrating that conviction or prosecution of the defendant upon such indictment orcount would constitute or result in injustice" (CPL 210.40 [1]). Such a motion "shall be served orfiled within forty-five days after arraignment and before commencement of trial, or within suchadditional time as the court may fix upon application of the defendant made prior to entry ofjudgment" (CPL 255.20 [1]; see CPL 210.40 [1]). Further, CPL 255.20 (3) [*2]provides that a pretrial motion must be considered at any timebefore the end of a trial when "based upon grounds of which the defendant could not, with duediligence, have been previously aware, or which, for other good cause, could not reasonably havebeen raised within the period specified in subdivision one of this section or included within thesingle set of motion papers as required by subdivision two. Any other pre-trial motion made afterthe forty-five day period may be summarily denied, but the court, in the interest of justice, andfor good cause shown, may, in its discretion, at any time before sentence, entertain and dispose ofthe motion on the merits."
Here, the People objected to the timing of the motion when it was first made during the trial,thus preserving this issue for appellate review. In her motion, defendant failed to show, no lessallege, any justification for making this motion more than 45 days after her arraignment (seePeople v Rahmen, 302 AD2d 408, 409 [2003], lv dismissed 99 NY2d 657 [2003]).Therefore, the motion should have been denied.
Moreover, we cannot conclude that granting such a motion on the facts presented was anappropriate exercise of County Court's discretion. An indictment should only be dismissed in theinterest of justice where there is "some compelling factor, consideration or circumstance clearlydemonstrating that conviction or prosecution of the defendant . . . would constituteor result in injustice" (CPL 210.40 [1]; see People v Serkiz, 17 AD3d 28, 31 [2005]; People vAlgarin, 294 AD2d 589, 590 [2002]; People v Crespo, 244 AD2d 563, 564 [1997],lv denied 91 NY2d 925 [1998]). The Court of Appeals has stated that, when decidingsuch a motion, "a court must strike a sensitive balance between the individual and the Stateinterests to determine whether the ends of justice are served by dismissal of the indictment. Sucha value judgment hinge[s] on the production of facts in the possession of the prosecution and thedefendant. Based upon such proffered facts, the court must consider applicable factors underCPL 210.40 individually and collectively before concluding that dismissal of the indictment is inthe interest of justice" (People vJenkins, 11 NY3d 282, 287 [2008] [internal quotation marks and citations omitted];see People v Rahmen, 302 AD2d at 409). In that regard, we note that County Court, eventhough it made reference in its decision to defendant's background and character, did not hold ahearing and, thus, its decision on the motion "cannot be properly reviewed unless the recorddiscloses the facts upon which the court's judgment was based" (People v Clayton, 41AD2d 204, 208 [1973]). There is nothing in the record before us that marks the prosecution ofthis defendant as extraordinary or one "which cries out for justice beyond the confines ofconventional considerations" (People vSchellenbach, 67 AD3d 712, 713 [2009] [internal quotation marks and citation omitted],lv dismissed 14 NY3d 805 [2010]; see People v Candelaria, 50 AD3d 913, 914 [2008], lvdenied 11 NY3d 735 [2008]). Therefore, we find that County Court improvidently exercisedits discretion in granting the motion and dismissing the indictment (see People v Serkiz,17 AD3d at 31; compare People vMarrow, 20 AD3d 682, 683 [2005]). Accordingly, we reinstate the indictment and remitthe matter for further proceedings (see People v Rahmen, 302 AD2d at 409).
Rose, J.P., Lahtinen, Spain and McCarthy, JJ., concur. Ordered that the order is reversed, onthe law, motion denied, indictment reinstated, and matter remitted to the County Court ofSullivan County for further proceedings not inconsistent with this Court's decision.