DECISION & ORDER
REGINALD J. JOHNSON, Judge.
The Defendant moves to dismiss the Assault in the Third Degree charge [Penal Law (PL) § 120.00(01)] against him in the interest of justice [
In deciding this motion, the Court considered the Notice of Motion, Affirmation of Kevin Kennedy, Esq., undated, and accompanying Memorandum of Law, Affirmation in Opposition of Anthony J. Molea, Assistant District Attorney, dated October 20, 2016, and accompanying Memorandum of Law.
The motion is decided in accordance herewith.
On June 23, 2016, the Defendant was arrested, charged with Assault in the Third Degree (PL 120.00(01)), class A Misdemeanor, and arraigned with assigned counsel. The case was adjourned to June 30, 2016.
On June 30, 2016, the Defendant appeared and the case was adjourned to July 7, 2016.
On July 7, 2016, the Defendant appeared and the case was adjourned to July 28, 2016.
On July 28, 2016, the Defendant requested and was granted permission to file a Clayton motion. The Court set the following motion schedule: Defendant's motion to be filed on or before September 1, 2016; People to file it opposition papers on or before September 22, 2016; the Court to render a decision on or before October 6, 2016.
On September 22, 2016, the People requested an extension of time to file its opposition papers to October 27, 2016. The Court set a decision date by December 15, 2016.
On October 27, 2016, the People filed its opposition papers. The Defendant did not appear. This matter was adjourned by the Court to December 15, 2016 for a reply, if any.
On December 15, 2016, the Defendant indicated that he would not submit a reply; the matter was marked fully submitted at that time.
The People allege that on June 23, 2016 at approximately 12:00 noon, the Defendant assaulted Francis X. Brunelle, Human Services Director for the City of Peekskill. Specifically, the People allege that Mr. Brunelle was addressing a group of senior during a senior luncheon at the Peekskill Senior Center located at 4 Nelson Ave, Peekskill in his capacity as Human Services Director. Mr. Brunelle asked the Defendant, who was sitting by himself at a table that had not been prepared for lunch service, to move to a table that had been set up for lunch. In response, the Defendant left the room only to return a few minutes later when he confronted Mr. Brunelle and said "I have a right to eat by myself" and "You're a fucking asshole." Mr. Brunelle asked the Defendant to leave the premises. The Defendant backed up and pulled his pants down. Mr. Brunelle again asked the Defendant to leave the premises to which the Defendant responded "call the cops on me." The Defendant then charged Mr. Brunelle and struck him in the face three times with a closed fist. Mr. Brunelle wrestled the Defendant to the ground and restrained him until the police arrived. During the brief physical confrontation, the Defendant attempted to bite Mr. Brunelle and told him "I can spit too."
The police arrived and arrested the Defendant for assault. The police documented the following injures to Mr. Brunelle: swelling under his left eye, a chipped tooth, and pain in his left knee, which was exacerbated by the confrontation with the Defendant. In the days following the confrontation, Mr. Brunelle's left eye blackened and he learned that he sustained torn cartilage in his left knee, which might have been preexisting to some extent but made worse after the confrontation (Molea Affirm In Opp. at pp. 1-2).
Contentions of the Parties
The Defendant oddly contends that although he "does not deny the occurrence of a physical altercation between himself and the complainant" he committed the assault "in his compromised physical state" and that he "struck the complaint only once and was immediately restrained by the complainant" (See, Affirm of Kennedy at ¶ 5). The Defendant also contends that the complainant did not suffer "substantial pain" because there is no evidence that his pain "lingered beyond twenty minutes" and because the complainant "did not receive or seek medical attention for his alleged injuries" (Kennedy Memo of Law at p. 2). Further, the Defendant argues that he suffers from the effects of Huntington's Disease
Lastly, the Defendant argues that he has already been incarcerated for twenty days in this matter—a period greater than the maximum sentence for Harassment in the Second Degree (15 days maximum sentence for a conviction of this violation, PL 240.260)—and that the Behavioral Health Center of the Westchester County Medical Center determined that he does not present a threat to himself or others. In short, the Defendant concludes that a dismissal of the charges against him would not erode the public's confidence in the criminal justice system (Id.).
The People argue, in sum and substance, that the Defendant has failed to demonstrate that the continued prosecution and/or subsequent conviction on the pending charge would constitute an injustice, "as there exists no compelling factor, consideration, or circumstance clearly demonstrating that conviction or prosecution of the defendant upon the instant charges would constitute or result in injustice" (citation omitted) (Molea Memo of Law, Point A).
In particular, the People argue that the Defendant has failed to "allege any facts whatsoever addressing the factors set forth in CPL 210.40
Lastly, the People cite and argue each factor under CPL § 240.20, together with a copy of a DVD of the police response and interview of the parties and photos of the complainant's injuries, and request that the Court deny the Defendant's motion to dismiss the charge against him in the interest of justice. (Id. at pp. 2-5 with Exhs. 1-4).
Legal Analysis and Discussion
Criminal Procedure Law (CPL) § 170.30(1)(g) ("Motion to dismiss information, simplified information, prosecutor's information or misdemeanor complaint") states, in pertinent part,
CPL § 170.40(1)(a) through (j) ("Motion to dismiss information, simplified traffic information, prosecutor's information or misdemeanor complaint; in furtherance of justice") states,
A motion to dismiss in the interest of justice is addressed to the sound discretion of the court. See,
In deciding a Clayton motion to dismiss in the interest of justice, the court must examine and consider the merits of the defendant's motion in light of the factors enumerated in CPL § 170.40, and balance the interests of the defendant, the complainant and the community. See,
It has been held that before charges may be properly dismissed in the interest of justice, the attendant facts and circumstances must be of a nature that the denial of relief would be such an abuse of discretion as to shock the conscience of the court. See,
A dismissal in the interest of justice is "neither an acquittal of the charges nor any determination of the merits. Rather, it leaves the question of guilt or innocence unanswered." See,
In the case at bar, the Defendant conceded that he assaulted the complainant (See, Affirm of Kennedy at ¶ 5). From all accounts, the assault was unprovoked and flagrant. The Court should evaluate the People's available evidence of the defendant's guilt. See,
To what extent, if any, the Defendant's alleged medical condition has impaired his ability to control his actions or his ability to appreciate the nature of his conduct, should be determined by a jury. It is for the trier of fact at trial to determine whether the Defendant "lacked substantial capacity to know or appreciate either . . . [t]he nature and consequences of [his] conduct; or . . . [t]hat [his] conduct was wrong," (PL § 40.15), and generally, whether his mental condition "negate[s] a specific intent necessary to establish guilt."
Defendant further argues that since there is no evidence that complainant was in "substantial pain" for more than twenty minutes and since he did not seek medical attention for his alleged injuries, the proper charge against him is Harassment in the Second Degree, a violation (Kennedy Memo of Law at p. 2). According to the People, the complainant did seek medical attention at Putnam Valley Hospital (Molea Memo of Law at p. 3).
The Defendant's arguments should be resolved at a trial since they tend to rebut and, if believed, may weaken the People's case. See,
The Court is not required to address each statutory factor under CPL § 170.40(1)(a) through (j) seriatim [See,
The adverse impact of a dismissal upon the confidence of the public in the criminal justice system could be substantial given the fact that the assault took place on a public employee who was performing his official duties in a public venue during business hours while in the presence of senior citizens [CPL § 170.40(1)(h)]. Further the adverse impact of a dismissal on the safety or welfare of the community could be substantial [CPL § 170.40(1)(g)]. Given the fact that the assault was unprovoked and committed in a public venue in the presence of senior citizens-a vulnerable population, dismissing the assault charge would send the wrong message to the public regarding public safety.
Based on a review of the factors set forth in CPL § 170.40(1)(a) through (j) and a review of the facts in this matter, the Court finds that the Defendant has failed to demonstrate the "existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such accusatory instrument . . . would constitute or result in injustice." See, CPL § 170.40(1).
Based on the foregoing, it is
ORDERED, that the Defendant's Clayton motion to dismiss in the interest of justice pursuant to CPL §§ 170.30(1)(g) and 170.40 is denied;
ORDERED, that the parties are directed to appear in Court on February 23, 2017 at 9:30 a.m. for further proceedings in this matter.
This constitutes the Decision and Order of the Court.