| People v Snowden |
| 2018 NY Slip Op 02369 [160 AD3d 1054] |
| April 5, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Appellant, v James Snowden, Respondent. |
James R. Farrell, District Attorney, Monticello, for appellant.
Jonathan R. Goldman, Goshen, for respondent.
Aarons, J. Appeal from an order of the Supreme Court (Schick, J.), entered January 26, 2017in Sullivan County, which granted defendant's motion to dismiss the indictment.
In 2014, defendant and the codefendant were charged by indictment with the crimes of bribereceiving in the third degree, criminal mischief in the second degree, two counts of conspiracy inthe fifth degree, three counts of official misconduct, endangering public health, safety orenvironment and nine counts of criminal nuisance in the second degree. The indictment allegedthat defendant, who was the Code Enforcement Officer for the Village of Monticello, SullivanCounty at the relevant time, and the codefendant, who was the Mayor and Acting VillageManager of the Village, executed a plan to demolish a building that had contained asbestoswithout proper abatement and without the approval of the Village Board of Trustees. Theindictment further alleged that defendant and the codefendant agreed with contractors todemolish the building and that, in exchange for a discounted demolition fee by the contractors,defendant and the codefendant would funnel more demolition work to them in the future.
Defendant moved to dismiss the indictment on the basis of legally insufficient evidence.County Court (LaBuda, J.) denied the motion. After the codefendant pleaded guilty to three [*2]misdemeanors in full satisfaction of the charges in theindictment,[FN*] defendantonce again moved to dismiss the indictment. County Court denied defendant's second motion. Onthe eve of trial, in January 2017, defendant moved under CPL 210.40 to dismiss the indictment inthe furtherance of justice. Supreme Court granted the motion and the People now appeal.
When pressed with a motion to dismiss in the furtherance of justice, a court must examineand consider the various factors delineated in CPL 210.40 in an individual and collective fashion(see People v Jenkins, 11 NY3d282, 287 [2008]). "An indictment should only be dismissed in the interest of justice wherethere is some compelling factor, consideration or circumstance clearly demonstrating thatconviction or prosecution of the defendant would constitute or result in injustice" (People v Banks, 100 AD3d 1190,1191 [2012] [internal quotation marks, ellipsis and citations omitted], lv denied 20 NY3d1059 [2013]; see People v Natarelli, 154 AD2d 769, 770 [1989]). A court's discretionarypower to dismiss an indictment pursuant to CPL 210.40 should be "exercised sparingly"(People v Wright, 278 AD2d 820, 820 [2000] [internal quotation marks and citationomitted], lv denied 96 NY2d 789 [2001]; see People v Harmon, 181 AD2d 34, 36[1992]; People v Litman, 99 AD2d 573, 574 [1984]).
As an initial matter, we reject the People's assertion that Supreme Court's failure to conduct ahearing on defendant's motion requires reversal. The People were provided with notice ofdefendant's written motion and they submitted an opposition addressing the arguments therein(compare People v Dolan, 184 AD2d 892, 893 [1992]; People v Trottie, 47 AD2d751, 751 [1975]). Supreme Court had the benefit of the grand jury minutes in reaching itsultimate determination and its written decision reflects a weighing and thorough discussion of therequisite factors as set forth in CPL 210.40. Under these particular circumstances and given thatthe record was sufficiently developed, we cannot say that the People were prejudiced by the factthat Supreme Court summarily decided defendant's motion without a hearing.
Turning to the merits, our review of the record discloses that some factors certainly militatein favor of defendant—his lack of a criminal record or history of misconduct and the factthat he was removed from his position as the Code Enforcement Officer for the Village. Theyare, however, not wholly dispositive in this case (see People v Marshall, 106 AD3d 1, 11-12 [2013], lvdenied 21 NY3d 1006 [2013]; People v Belkota, 50 AD2d 118, 121-122 [1975]).Furthermore, although we do not share Supreme Court's conclusion that the proof againstdefendant was "extremely tenuous" and note that defendant unsuccessfully moved twice todismiss the indictment on legal insufficiency grounds, even accepting such proposition, we findthat the court improvidently exercised its discretion in granting defendant's motion inasmuch asthis case does not present "extraordinary and compelling circumstance[s] . . . whichcry out for fundamental justice" (Peoplev Serkiz, 17 AD3d 28, 31 [2005]; see People v Kennard, 266 AD2d 718, 719[1999], lv denied 94 NY2d 864 [1999]; People v Pittman, 228 AD2d 225, 226[1996], lv denied 88 NY2d 992 [1996]; People v Natarelli, 154 AD2d at770).
Supreme Court found that the allegations raised against defendant were serious (seeCPL 210.40 [1] [a]). We do not, however, share the court's view that it was unclear from therecord that there was no harm to the environment or to individuals in the vicinity of thedemolished building (see CPL 210.40 [1] [b]). The record evidence demonstrates that dueto the demolition, the asbestos—a legislatively-recognized carcinogenic agent (see12 NYCRR 56-1.2[*3][a])—became friable, meaning thatit could crumble and create a dust. More to the point, the record evidence reveals that not onlydid the dust that was created as a consequence of the demolition lead to the stopping of nearbytraffic, workers associated with the demolition were exposed to it. Indeed, one worker stated that,based on his experience as a contractor, he believed that asbestos was present.
We also find that Supreme Court incorrectly assessed that dismissing the indictment wouldhave a minimal impact upon the confidence of the public in the criminal justice system(see CPL 210.40 [1] [g]) inasmuch as permitting a public servant to elude prosecution foran alleged abuse of his or her position's power cannot be said to foster public confidence (cf.People v Surprenant, 91 AD2d 1111, 1112 [1983]). Moreover, the mere fact that thecodefendant pleaded guilty does not affect or trivialize the allegations against defendant. WhileSupreme Court also noted the minimal press coverage regarding this incident and the lack of apublic outcry demanding a trial of defendant, the record does not contain evidence to supportthese findings nor did defendant argue in his motion that the community was indifferent to thePeople's case against him. In any event, such facts are not necessarily reflective of the public'ssentiment as to whether the indictment should be dismissed (see CPL 210.40 [1] [i]).
We do not agree with Supreme Court that imposing an authorized sentence upon defendant"would serve absolutely no purpose" had he been tried and convicted of the charged crimes(see CPL 210.40 [1] [f]). To the contrary, deterring individuals from committing a similarcrime in the future is a goal served by sentencing a defendant who has been convicted of a crime(see People v Broadie, 37 NY2d 100, 115 [1975], cert denied 423 US 950[1975]). In sum, viewing the requisite factors "individually and collectively" (CPL 210.40 [1])and taking into account the absence of any compelling circumstances, defendant's motion shouldhave been denied (see People v Serkiz, 17 AD3d at 31; People v Litman, 99AD2d at 574; People v Andrew, 78 AD2d 683, 683 [1980]; compare People vMitchell, 99 AD2d 609, 610 [1984]).
McCarthy, J.P., Lynch, Clark and Pritzker, JJ., concur. Ordered that the order is reversed, onthe law, and motion denied.
Footnote *:The codefendant was removedfrom public office by this Court (Matterof Greco v Jenkins, 127 AD3d 1269, 1274 [2015], appeal dismissed and lvdenied 25 NY3d 1037 [2015]).